text:
    Frank E. Reda, Defendant in Error, v. G. H. Hammond Company, Plaintiff in Error.
    Gen. No. 19,622.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by Frank E. Beda against Gr. H. Hammond Company to recover damages to plaintiff’s touring ear caused by colliding with defendant’s auto truck at a street intersection. A jury awarded the plaintiff $325 damages, and to reverse a judgment entered on the verdict, defendant prosecutes a writ of error.
    Abstract of the Decision.
    Automobiles and gabages, § 3

      —when testimony as to costs of repairs made necessary by a collision admissible. In an action to recover damages to plaintiff’s touring car caused by a collision with defendant’s auto truck, where it appeared that plaintiff’s machine was out of repair when the collision occurred and he had the repairs made thereon which were made necessary by such condition as well as those made necessary by injuries resulting from the collision, held that the testimony of the manager of the concern that made the repairs as to the expense of such as were made necessary by the collision could not be regarded as an estimate of the cost of such repairs before they were made, so as to render such testimony inadmissible.
    The only ground urged for reversal is that as the machine of plaintiff was repaired, evidence of estimates of the cost of making such repair's was not admissible, but the recovery must be based on evidence of the cost of making such repairs.
    Adams, Crews, Bobb & Wescott, for plaintiff in error.
    Clarence W. Shaeffer and Michael L. Rosinia, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Baker

license: Public Domain

text:
    Etta Walsh et al., trading as James Walsh and Company, Defendants in Error, v. George J. Cooke Company, Plaintiff in Error.
    Gen. No. 19,655.
    (Not to be reported in full.)
    Abstract of the Decision.
    Contracts, § 384

      -—when recovery -for hauling materials sustained hy the evidence. In an action to recover for hauling brickbats and cinders where there was a dispute as to whether the contract was to pay so much a load or a lump sum and also as to the amount of material hauled, held that a verdict for plaintiff was sustained by the evidence.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by Etta Walsh, Joseph Walsh and James Walsh, copartners trading as James Walsh and Company, against George J. Cooke Company, a corporation, to recover for hauling brickbats and cinders for defendant. Plaintiffs claimed that under the contract defendant agreed to pay $1.75 a load for hauling brickbats and $1 a load for the cinders, while defendant claimed that plaintiffs agreed to haul the- same for a lump sum of $40. From a judgment in favor of plaintiffs for $163.75, defendant brings error.
    Harry A. Daugherty, for plaintiff in error.
    L. E. Chipman, for defendants in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Fred Gehm, Defendant in Error, v. George Stark, Plaintiff in Error.
    Gen. No. 19,690.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Brokers, § 36

      —when real estate broker not entitled to commissions from purchaser. In an action by a real estate broker against a purchaser for services and commissions in procuring a third person to sell real estate to defendant, held that a finding for. plaintiff was not sustained by the evidence, it appearing that the plaintiff procured from the owner an offer to sell for ten thousand dollars and he was authorized by defendant to offer nine thousand dollars and thereafter a sale was consummated for nine thousand five hundred dollars in a transaction with another broker in which plaintiff took no part.

      Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by Fled Gehm against George Stark on a claim for services and commission alleged to be due in negotiating a real estate transaction between defendant and Kilian Binder, wherein plaintiff secured the said Binder to sell to defendant certain real estate. Defendant in his statement of defense denied that plaintiff negotiated such transaction or that he secured Binder to sell to him the property in question The cause was submitted to the court and there was a finding and judgment in favor of plaintiff for one hundred dollars. To reverse the judgment, defendant prosecutes a writ of error.
    Campe, Koebel & Mechling, for plaintiff in error.
    Kaplan & Kaplan and Abram Z. Zietlein, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

2. Brokers, § 36*—when broker's commission earned. A broker’s commission is earned only when he procures a buyer, if he represents the seller, or a seller, if he represents the buyer, who will comply with the terms and conditions of sale fixed by the principal.

3. Brokers § 996*—when recovery cannot be sustained as on a quantum meruit. In an action by a real estate agent against a purchaser to recover for his services and commissions in procuring an owner to sell real estate, where the evidence showed the plaintiff was not entitled to a commission, held that a judgment in favor of plaintiff could not be sustained as a recovery on a quantum meruit for his services, where the only evidence for plaintiff as to- the value of his services was what he usually charged in negotiating such a sale, and such evidence was inadmissible for the reason that he did not negotiate the transaction and there was no testimony in the record as to the reasonable value of plaintiff’s services.


author: Mr. Justice Brown

text:
    Mary C. Stubbs, Defendant in Error, v. Modern Brotherhood of America, Plaintiff in Error.
    Gen. No. 18,779.
    1. Insurance, § 785

      —when failure to remit monthly assessment and dues in the month they are due does not operate as a suspension. In an action on a benefit certificate to recover insurance on the death of a member, a defense that the member had been suspended by the automatic operation of by-laws for failure to pay a benefit assessment, per capita tax and reserve fund dues at the end of a certain month for which they were payable, held not available to defendant, where it appeared that the notice of such assessment and dues as provided by the by-laws was incorrectly addressed to the member, and that a sufficient sum to cover such assessment and dues was mailed to the Secretary of the Supreme lodge in time, but owing to the omission of the name of the State in the address, the letter was sent to the Dead Letter Office and on its return to the member it was remailed so that the Secretary received it before the 15th of the month following the month for which the assessment and dues were to be paid.

      2. Insurance, § 808

      —when application of member for reinstatement not an admission of validity of suspension. The fact that a member of a benefit society applies for reinstatement by a waiver of the by-laws of the Order, held not to constitute an admission of the existence and validity of a suspension.
    3. Insurance, § 808*—when refusal of benefit society to accept dues for prior months excuses a subsequent tender. Definite refusal of a benefit society to accept a tender of monthly assessments and dues that are due, after having given the member notice of his suspension, excuses a tender of those due for subsequent months.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed May 25, 1914.
    Church, Shepard & Day, for plaintiff in error; William T. Church, of counsel.
    Arthur S. Welch, for defendant in error; E. F. Masterson, of counsel.

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

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

   Mr. Justice Brown

delivered the opinion of the court.

The defendant in error, Mary C. Stubbs, who was plaintiff below, obtained August 9,1912, in the Municipal Court of Chicago a judgment for one thousand dollars against the Modern Brotherhood of America, defendant below, on a benefit certificate issued to her husband by the said defendant, which is a fraternal insurance society of Iowa. To reverse this judgment the plaintiff in error has sued out this writ of error. There is no question made but that the plaintiff’s husband, John E. Stubbs, was, up to and on April 30,1910, a member of the Modern Brotherhood in good standing and that he had a benefit certificate therein for a thousand dollars, payable to the plaintiff on his death, nor that he died on August 9, 1910, and that proof of death was properly made. The defense is that he ceased to be a member in good standing of the Modern Brotherhood by the automatic operation of the laws of the Order on May 1, 1910, because during the month of April, 1910 he had not paid a benefit assessment of fifty-five cents which had been levied as of April 1st, and was payable during that month, nor an additional twenty cents for a “per capita tax” and “reserve fund dues,” which were also payable during said month. It is for the plaintiff conceded that the contract made by the application to, the benefit certificate of and the by-laws of the defendant society did provide for a suspension in the case of such nonpayment under certain conditions, and was self-executing and automatic in working a suspension under said conditions ; but it is maintained that in this case those conditions did not exist. Those conditions were, it is asserted, and that the society had fulfilled its duties and was without default in its part of the contract, and as to the benefit assessment had given notice to the member of its levy and amount, according to the provisions of the by-laws. The defendant, it is insisted, did not give the proper notice of the April benefit assessment. Concerning the “per capita tax” and “reserve fund dues,” as to which no notice was required by the by-laws, it is contended that there was money of the member in the hands of the society more than sufficient to meet them during all the month of April, 1910. Consequently, it is urged, nonpayment during April did not suspend Mr. Stubbs. The dues for April, May and June were tendered and refused and the tender of those due in July, if any, was excused by such definite refusal of these prior ones.

It is further maintained, however, that all the assessments and dues for April and five cents more, in all seventy-five cents, were paid in apt time by a method approved by the society, and that no default on the part of Mr. Stubbs, excusable or inexcusable, occurred.

It is not maintained by the society that recovery is barred by any default which occurred since May 1, 1910, nor by any preceding April 1, 1910, and the case turns, therefore, on the facts relating to the April assessment and dues and the provisions of the contract which affected them. It is, however argued by the defendant that because Mr. Stubbs, and his wife in his behalf, after the dues for April had been refused in May, sought “reinstatement” by ‘ ‘ a waiver of the laws of the order, ’ ’ the existence and validity of a “suspension” were admitted and the claimed want of notice of the April assessment, if it existed, was waived.

There is, in our opinion, no strength in this position. The evidence shows no waiver, but only a frank and honorable statement of conditions and a request that advantage should not be taken of an unlooked for delay in the delivery of a letter. That the word “reinstate” was used in a letter of Mrs. Stubbs to the secretary signifies nothing.

The facts concerning the April assessment seems to be these: Stubbs was a member originally of Subordinate Lodge No. 1585 of the defendant society, located in the county of Sanilac, Michigan. He later became a member of Subordinate Lodge 1000, which the Supreme Secretary testified is “a lodge located at Mason City, Iowa, and consists of members making their remittance direct to the Supreme Lodge for various reasons.” For many months at least Stubbs had paid his monthly dues and assessments by mailing them direct to the Supreme Secretary. By the Supreme Secretary, receipt was directly acknowledged to Stubbs.

Section 125 of the by-laws of the society provides that:

“Every benefit member shall * * * in each calendar month * * * following the levy of a benefit assessment * * * pay the secretary of said” (his or her) “subordinate lodge the amount of said benefit assessment so levied.”

Section 140 of the by-laws provides that:

“The secretary of each subordinate lodge shall on or before the 15th of the month following that for which such, assessment and payments are made forward" the same to the Supreme Secretary.”

No explanation appears in the record concerning the departure from the by-laws in the case of members of Lodge No. 1000.

Section 80 of the by-laws provides that:

“The Board of Directors shall have the power and it shall be its duty to provide for the publication of an official paper for the society which shall be known as ‘Modem Brotherhood’, a copy of which paper shall be mailed monthly to each member of the society to his or her last known post office address, as shown on the books or records of the Supreme Secretary. Said paper shall contain the official notice of assessments. * # # J?

Sections 136, 137 and 138 provide that:

“136. The Supreme Secretary immediately after the levy thereof shall prepare or cause to be prepared a notice of each benefit assessment levied by the Board of Directors, which assessment shall be payable in the next succeeding month and shall publish or cause to be published said notice in the issue of the ‘ Modern Brotherhood’, the official paper of the society next following the levy of such assessment, and a copy of said official paper containing said notice shall be mailed to each benefit member of the society on or before the 28th day of the month in which said assessment is levied.
137. The mailing of a copy of said official paper containing notice of any assessment to each benefit member on or before the 28th day of the month in which said assessment is levied, addressed to siich member at his or her last known post office, as shown on the books of the Supreme Secretary, shall be held to be sufficient service of such notice. * * *
138. It is hereby made the duty of each member of the society to furnish the Supreme Secretary with his post office address and of any change therein.”

Section 139 provides that:

“Each and every benefit member so notified through the official paper that an assessment has been ordered or levied by the Board of Directors, in manner and form hereinbefore provided, failing to pay the same together with his per capita tax and reserve fund payments mentioned in Section 124 hereof, including local lodge dues, if any are due, on or before the last day of the month in which said notice is dated and assessment is payable * * shall stand suspended, and during such suspension his benefit certificate shall be absolutely null and void.”

Mr. Stubbs lived at 2514 West Jackson boulevard, Chicago, before September 1, 1909; from September 1, 1909, to February 1, 1909, he lived at 2422 West Van Bnren street, Chicago, and from February 1, 1910, to August 8, 1910, he lived at 2533 Washington boulevard, Chicago.

September 30, 1909, he wrote the society a letter, inclosing a remittance, signed “ J. E. Stubbs, 2422 Van Burén St., Chicago.” 'This letter was received by the society, as were others written by Mrs. Stubbs, who was acting for her husband, and inclosing or referring to monthly remittances, dated respectively Oct. 30, 1909, Nov. 30. 1909, January 1, 1910, January 30, 1910, and February 27, 1910, all of which were signed by Mrs. Stubbs with the addition of the address “2422 Van Burén Street, Chicago.”

March 29, 1910, Mrs. Stubbs wrote as follows to the Supreme Secretary:

“Chicago, March 29.
E. L. Balz:
Inclosed find 75<j; in stamps for Mr. Stubbs assessment, and oblige,
Mrs. Stubbs.
Address to 2533
Washington Blvd.,
2nd fiat City.”

February 7, 1910, Balz, the Supreme Secretary, wrote Mr. Stubbs in answer to the letter of Mrs. Stubbs of January 30, 1910, and addressed him at “2422 Van Buren St., Chicago, Ill.” So also on March 4, 1910, he addressed him in another letter as at that place. April 4, 1910 he wrote Mrs. Stubbs acknowledging her remittance for Mr. Stubbs made on March 29th and addressed her at “2533 Washington Boulevard, Chicago,” and on May 28th, after the difference had arisen between the defendant society and the plaintiff, again addressed her at the same place.

But the notice of the benefit assessment payable in April and contained in the official paper known as “Modern Brotherhood” was sent on or before March 28, 1910, to the following address“Stubbs John E., 2514 Jackson, Chicago, Ill.,” and according to the positive testimony of Mrs. Stubbs never reached either Mr. Stubbs or her.

Nevertheless, without receiving the notice required by the by-laws, knowing of the usual monthly assessments and dues, she wrote the Supreme Secretary on April 28, 1910, as follows:

“Chicago, Apr. 28, ’10.
Mr. E. L. Balz:
Dear Sir: Inclosed you will find seventy-five cents in stamps (75$) to pay Mr. Stubbs assessment and oblige,
Mrs. Stubbs,
2533 Wash. Blvd.”

She inclosed the stamps mentioned, but in addressing the letter left off the name of the State (Iowa), so that it was addressed only to “Mason City.” The letter was mailed on the day of its date, but went to the Dead Letter Office in Washington, D. C. and was returned from there to Mrs. Stubbs on May 10th. As soon as it was received she remailed it and the inclosure with an explanation to the complete address of the Supreme Secretary, who received it on May 14, 1910, but declined to accept it and returned it to Mrs. Stubbs with notice that her husband had been suspended.

We think that the payment of the seventy-five cents, which it is conceded was sufficient to cover all the dues to the society, was made in due time and that no default justifying or effecting suspension can. be charged to Mr. Stubbs by reason of the delay which prevented the society from getting the remittance until May 14th. The Secretary testifies that the dues of members of Lodge 1000 were paid by “remittances direct to the Grand Lodge for various reasons,” and although the by-laws did not provide for it, it was apparent that this was the method accepted if not required by the. society. It was just as much a part of the by-laws that the dues and assessments should be paid to the secretary of the subordinate lodge as it was that they should be paid on or before the last day of the month under penalty of suspension. The payment to the subordinate secretary, required by the by-laws, was waived and direct remittance expected. It reasonably follows, it would seem, that a remittance made by the member by mail direct to the Supreme Secretary, which remittance reached him before the date (the 15th of the month succeeding the assessment) at which the by-laws provided he was to receive it from the subordinate lodge secretary had the by-laws been followed, was in time to prevent an automatic suspension of the member. But even if this were not so, we think that as it was established that the remittance by mail to the Supreme Secretary was accepted as the proper method of payment, the payment took place when the money was deposited in the mail. The defendant does not, as we understand its position, contend that the payment would not have been sufficient and would not have dated from its mailing on April 28, 1910, had the letter been so completely addressed that it would not have been delayed in the mails, or sent to the Dead Letter Office. But it is to be noted that the address was not incorrect nor mistaken, but simply not so complete as it should have been in that the name of the State was omitted. We do not know how many “Mason Citys” there are in the post office directory, but probably not nearly as many as there are “Bostons” or “Chicagos”; and yet the address without the name of the State of a letter to an extensive business corporation doing business in Boston, Massachusetts, or in Chicago, Illinois, would probably not prevent its speedy dispatch to its proper destination. We are unwilling to say that the regulations or the discretionary action of the United States postal service, which sent the letter in question to the Dead Letter Office and then returned it to the writer for a better direction, instead of sending it in the first instance to Mason City, Iowa, were absolutely necessary; or that it was not so addressed as to make it reasonable to have taken this other course. Under the circumstances, we think the letter may be properly considered to have been in transitu from April 28th and not merely from the time it was remailed from Chicago in May.

But again, if this position be not sound, we think it very plain that the notice required by the by-laws of the April benefit assessment was not given. 'The by-laws prescribed the method of notice and directed that it be mailed to each member of the society at his “last known post office address as shown on the books or records of the Supreme Secretary.”

This cannot be construed to mean that if an incorrect address is shown on the mailing list of the Secretary, known by the Secretary to be incorrect, a notice will be sufficient sent to that incorrect address. Such a construction is absurd and nullifies the object of the by-law. In the present case, the address to which the notice was sent was simply 2514 Jackson, Chicago, Ill., neither “boulevard”, “avenue”, “street”, “place”, “terrace”, “park” or “flats” being added, although localities with these names respectively prefixed by “Jackson” exist in Chicago. The address was at least as defective as “Mason City” without the name of the State. Moreover, the evidence abundantly shows that the Secretary knew that Stubbs no longer lived on Jackson Boulevard, but had months before moved from there. In the absence of a proper notice, as provided in the by-laws, no default in the payment of the benefit assessment can be held to have worked an automatic suspension of the member. It is argued by the defendant that the “per capita tax” and “reserve fund payment,” amounting to twenty cents together, were payable in April without notice, and that as they were not then paid, the suspension automatically took place, whatever may be held of the want of notice of the benefit assessment. But we think this twenty cents and five cents more must be held to have been in the Secretary’s hands and applicable to these dues to prevent a forfeiture during the month of April. It is maintained that this money had been applied to “local lodge dues for April, May and June,” but in the absence of any sufficient proof that any such payment was overdue, or that any acquiescence was signified on the part of Mr. Stubbs or of the beneficiary to the application of the twenty-five cents surplus by the Secretary, mentioned in the latter’s letter of April 4th, we must hold that that balance should have been applied to prevent a forfeiture.

For the reasons we have given which separately as well as together justify the judgment rendered by the" court to which the case was submitted without a jury, we shall affirm it. This renders unnecessary any discussion of the propositions of law refused or modified by the court.

Affirmed.


text:
    Great Western Live Stock Commission Company, Appellee, v. Great Western Commission Company and Ward Commission Company, Appellants.
    Gen. No. 18,870.
    1. Trade-marks and trade names, § 26

      —when domestic corporation not entitled to injunction restraining foreign corporation from using similar name. A corporation organized in this State is not entitled to an injunction to restrain a foreign corporation, having no license to do business in this State, from transacting business in this State under a similar name, where it appears that the foreign corporation is the older corporation and the complainant corporation organized in this State under a similar name for the purpose of obtaining an inequitable advantage of the foreign corporation.
    2. Trade-marks and trade names, § 26*—when relief granted by injunction erroneous. On bill by an Illinois corporation against a foreign corporation, which has no license to do business in this State, to enjoin it from using a similar name in a similar business, where the foreign corporation filed a cross-bill asking for similar relief, held that a decree dismissing the cross-bill and awarding the complainant an injunction restraining the foreign corporation from shipping any live stock in this State under its name or appellation and from receiving any stock shipped into this State under its name or appellation was proper in dismissing the cross-bill, but erroneous in granting complainant the injunction for the reason that the prohibition contained in the injunction order was not proper relief.
    3. Corporations, § 710*—when foreign corporation not doing business in this State contrary to statute. A foreign corporation engaged in a live stock commission business in another State by giving an “open order” to deliver to an Illinois commission company, for handling and sale, all stock received at the Chicago Yards consigned to it, held not to constitute the Illinois company its agent and not to constitute doing business in this State contrary to statute, where the company did not account to it for any compensation received for such handling or sale.
    4. Corporations, § 25*—when chargeable with knowledge of incorporators. Where incorporators of a new corporation were subscribers to a large percentage of the stock and had knowledge of certain things and acted in the incorporation under the influence of that knowledge to effect certain purposes for the unfair advantage of the corporation when formed, the corporation will be charged with such knowledge in equity.
    McSurely, J., dissenting.
    Appeal from the Circuit Court of Cook County; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with instructions.
    Opinion filed May 25, 1914.
    Rehearing denied June 8, 1914.
    Statement by the Court. This is an appeal from a decree of the Circuit Court perpetually enjoining, at the prayer of the Great Western Live Stock Commission Company, a corporation of Illinois, the Great Western Commission Company, a corporation of the State of Nebraska, and the Ward Commission Company, an Illinois corporation, their agents, etc., from transacting any business within the State of Illinois under the name, style or description of “Great Western Commission Company” or any other similar name, style or appellation; from shipping any live stock in the State of Illinois under said name or appellation, and from receiving any stock shipped into the State of Illinois under said name or appellation. 'The decree also dismissed for want of equity a cross-bill filed in the cause by the Great Western Commission Company and a cross-bill filed by the Ward Commission Company and adjudged the" costs of the proceeding against these two defendant Companies.
    The bill of complaint by the Great Western Live Stock Commission Company sets up that it is a corporation organized under the laws of Illinois and engaged in the live stock commission business in Chicago ; that the Great Western Commission Company is a corporation organized under'the laws of Nebraska and engaged in the live stock commission business at South Omaha, Nebraska, but is not an Illinois corporation, and has no license as a foreign corporation to do business in Illinois, but that it has transacted business in Chicago since the organization of the complainant Company; that customers of the complainant do not know that the complainant and defendant, the Great Western Commission Company, are distinct concerns, and because of the similarity of names have shipped goods to and transacted business with the Great Western Commission Company when intending to do so to and with the complainant; that some such consignments of stock have been delivered to the complainant by the Great Western Commission Company only after great delay, and thus the complainant has suffered great damage, and that other -consignments have been made to the Great Western Commission Company on account of the reputation of the complainant for honest and fair dealing and because the complainant was unable to show that the shipper was its customer, the consignments were received and sold by the Great Western Commission Company; that thus the complainant has been hampered and irreparably injured in its business; that the Ward Commission Company is engaged in the live stock commission business in the Union Stock Yards of Chicago and is the agent and representative of the Great Western Commission Company of South Omaha, Nebraska; that the Ward Commission Company and the Great Western Commission Company have placed signs upon their windows under the name of “Great Western Commission Company,” and publicly proclaim the said name and the said business in Chicago, Illinois, and have done so for a period of one year past, and threaten to continue to do so in the future; that the Great Western Commission Company and the Ward Commission Company refuse to desist from the use of said name; that the corporate name of the complainant has become a valuable asset and property right of complainant and that the defendant’s engaging in the same character of business in the same place under the name of the “Great Western Commission Co.” is an infringement on that right and an irreparable injury to the complainant. Wherefore, the complainant prays for an injunction against the Great Western Commission Company and the Ward Commission Company, “their agents, representatives, attorneys, solicitors and assigns,” restraining them from transacting any business within the State of Illinois under “the name or style or designation of Great Western Commission Company, or of any other similar name, style or appellation,” and for other relief.
    This bill is sworn to by James S. Horn, who states in his affidavit that he is president of the complainant corporation. A demurrer by both the defendants having been overruled, the Great Western Commission Company filed its separate answer and a cross-bill and the Ward Commission Company did the same.
    The answer of the Great Western Commission Company admits that it has not so complied with the law of Illinois as to entitle it to a certificate of authority to do business in this State, but denies that it has done or has undertaken to do business in, or is now engaged in the transaction of business in, the State of Illinois under its name of Great Western Commission Company. It admits that the complainant has. customers and patrons throughout the Western country who are without information and knowledge that the complainant and the Great Western Commission Company are separate and distinct concerns, but asserts that the said customers have been also for many years customers of the Great Western Commission Company, and that any confusion has been caused by the complainant unfairly and fraudulently going into the Western country seeking business and using a name similar to that of the Great Western Commission Company. It denies that any consignments of live stock intended for the complainant came into the hands of the Great Western Commission Company, but that instances of confusion came from the similarity of names and from shipments intended for the Great Western Commission Company going to complainant, and that all shipments of stock received by the Great Western Comrnission Company and sold by it were from its own patrons and customers. It also denies that the Ward Commission Company is the agent and representative of the Great Western Commission Company, and denies the allegations of the bill about “signs” and “proclamations” by which the Ward Commission Company advertises the business of the Great Western Commission Company in Chicago, and to quote:
    “Further answering denies that the name Great Western Live Stock Commission Company, under which complainant is organized, has become a valuable asset and property right of complainant through any efforts of complainant,” but alleges “that any benefit or value said name has, has inured to the said complainant by virtue of its assuming a name similar to the name Great Western Commission Company, and acquired thereby the benefit of the long use of the name Great Western Commission Company used by this defendant throughout the Western country, on account of the fact that the great bulk of the live stock business originates southwest and west of Illinois, and this defendant states that the said complainant created no business whatever except that which it obtained by taking advantage of the long use of the name of this defendant.”
    The cross-bill of the Great Western Commission Company alleges that it is a corporation organized under the laws of the State of Nebraska on September 30, 1903; that it was organized for the purpose of buying and selling live stock upon commission, and since September, 1903, has been doing business from South Omaha, Nebraska, and has built up a very large and profitable business among the live stock shippers of the West, and that since said time its name has become a valuable asset at all the live stock markets of the United States, and that in April, 1910, it made arrangements with the Ward Commission Company of Chicago to sell consignments of stock for it at the Union Stock Yards, Chicago, where stock had been consigned to it, and the customers requested the shipments should be transferred to the Chicago market; and that, to quote again:
    “Said complainant for the purpose of obtaining the business of your orator, the Great Western Commission Company, by fraud and deception did, with the intent of deceiving the public and the customers of the Great Western Commission Company, your orator, on the 16th day of January, 1911, at Chicago, Illinois, form a corporation and secure a charter under the laws of the State of Illinois, in the name of Great Western Live Stock Commission Company, this name being used by said incorporators and the complainant herein with the intent and purpose of deceiving the public and particularly the customers of the Great Western Commission Company, your orator, for the purpose of obtaining business under false pretenses by reason of similarity of the name, which business would be sent to them by the old customers of the Great Western Commission Company, your orator, under the impression and belief that they were sending their stock for sale on commission to the Great Western Commission Company, with whom they had been dealing for a number of years.”
    Further allegations of the cross-bill purport to set forth in detail evidentiary matters tending to show the truth of the paragraph of the bill above quoted, and assert that in December, 1910, the cross-complainant made application for an independent charter as an Illinois corporation. The application of the complainant which resulted in securing its “charter” had, however, already been made, and by reason only of the similarity of name the application of the cross-complainant was rejected. They also assert that in January, 1911, the cross-complainant made an application for a license to do business in Illinois as a foreign corporation, which was rejected for the same reason; also that while previous to said applications the cross-complainant had been turning over all consignments of live stock consigned to the Chicago market to the Ward Commission Company of Chicago, all said business was handled by the Ward Commission Company on a regular commission basis, and the cross-complainant received no part of said commissions or any pecuniary benefit from said sales. Further, that by means of the unfair actions and advertisements of the complainant, the Great Western Live Stock Commission Company, originating “in a conspiracy formed by the incorporators of the complainant in the first instance for tlie express purpose of obtaining business which rightfully belonged to your orator by deceitful and unfair means,” the cross-complainant has been much injured, and will continue to be, and that “years of valuable time and a large amount of money expended” by the cross-complainant “will be lost and will redound to the benefit of the complainant.
    The principal prayer of the cross-bill is that the Great Western Live Stock Commission Company and its agents may be enjoined from transacting live stock commission business within the State of Illinois, and throughout the cattle raising and shipping country of the West under the name of the Great Western Live Stock Commission Company, or of any other similar name.
    The Ward Commission Company in its answer admits that on January 16, 1911, the complainant completed its organization as a corporation under the laws of Illinois, under the name of the Great Western Live Stock Commission Company; that it, the Ward Commission Company, has been for many years engaged in the live stock commission business at the Union Stock Yards in Chicago, and that there is a similarity between the names of the complainant and the other defendant, and denies every other allegation of the bill. Its cross-bill alleges that it has built up during many years a large business among live stock shippers of the West, and also as “the representative and agent of live stock commission firms at other markets of the United States, for whose customers they sell stock, upon the market at the Union Stock Yards, Chicago, on a commission basis, receiving all the compensation therefor; that they do this selling for the customers of other commission firms doing business at other markets, who are not members of the Chicago Live Stock Exchange, and cannot under its rules handle the stock themselves; that the said firms do not receive any of the compensation for making the sales or for the business which is sent to'the Ward Commission Company through their influence, and receive no benefit therefrom except that of “placing their customers in good hands,” who will treat the customers fairly and be friendly with the diverting commission firm, and “not seek to secure the business of the said customers except through them.”
    The further allegations of this cross-bill are that by virtue of an arrangement like this the Ward Commission Company has since April 29, 1910, received a number of consignments diverted to it by the Great Western Commission Company through its shippers and customers, and that since the organization of the complainant, the Great Western Live Stock Commission Company, that Company, for the purpose of unfair competition, has so advertised its business as to deceive shippers into the belief that it was the same concern as the Great Western Commission Company, and has received in consequence many consignments which should and would have been received by the Ward Commission Company through the recommendation and influence of the Great Western Commission Company, and in consequence of the unfair dealing of the Great Western Live Stock Commission Company, complainant and cross-defendant, it, the cross-complainant, is being irreparably injured. Therefore, it asks the same injunction and other relief against the cross-defendant asked by the Great Western Commission Company.
    The answer of the Great Western Live Stock Commission Company to the cross-bill of the Great Western Commission Company denies that the Great Western Live Stock Commission Company ever practiced any fraud or deception upon the public or upon the customers of the Great Western Commission Company for the purpose of obtaining its business or for any other purpose; admits the confusion consequent upon the similarity of names; asserts that the relations and arrangements between the Great Western Commission Company and the Ward Commission Company about profits are immaterial and denies that it ever received any consignment of live stock designed for the Great Western Commission Company, but that the reverse is true. The emphasis of the answer is placed upon the allegation that the confusion between the Companies is due to the—■
    “Open, flagrant and notorious violation of the laws of this State by the said cross-complainant and because of its defiance of the orders of the Secretary of State of this State, but that the name of the cross-defendant was given to it by the Secretary of State of Illinois in conformity with the statutes of the State of Illinois, and that it has in all things at all times conformed itself to the laws of the State of Illinois for the sole purpose of engaging in legitimate business in the State of Illinois, while the said cross-complainant has no lawful right or authority to do business in this State under its corporate charter.”
    No answer of the Great Western Live Stock Commission Company to the cross-bill of the Ward Commission Company so far as the transcript of the record (which is certified to be complete) shows, was ever filed, although the Ward Commission Company seems to have filed a replication to a supposititious one.
    Replications were also duly filed by the various parties to all the answers actually made in the cause and an order was entered which the transcript of record shows to be that the cause should be referred to a master in chancery to take evidence upon the issues therein upon the bill and cross-bill, and report his conclusions of law and fact, but which the abstract speaks of as referring to bill and cross-bills. The master reported findings of fact and law, which are referred to in the opinion following, with the conclusion that “the cross-complainant Great Western Commission Company, by reason of being unlicensed to do business in Illinois, is not entitled to the relief prayed for in its cross-bill,” but that the injunction prayed for by the Great Western Live Stock Commission Company should be granted. It made no reference to the cross-bill of the Ward Commission Company.
    Exceptions were taken to the master’s report in many particulars by the Great Western Commission Company and the Ward Commission Company, and were argued before the chancellor. A decree was entered by him July 8, 1912, which made no express disposition of the exceptions, but made findings of fact and law in favor of the complainant and cross-defendant, the Great Western Live Stock Commission Company, and ordered the dismissal of the cross-bills and the injunction and cost judgment as set forth at the beginning of this statement.
    From this decree an appeal was taken to this court by both the Great Western Commission Company and the Ward Commission Company, and in addition to general assignments of error, in that the court enjoined the defendants as stated and dismissed the cross-bills, they allege that the court erred in not finding that “the cross-complainant, Great Western Commission Company, had acquired a.property right to the use of its name, and that the use of the name Great Western Live Stock Commission Company by the com-, plainant was a deprivation of that right and intended to get fraudulently a share of the business of the said cross-complainant;” that the defendant Great Western Commission Company was transacting business within the State of Illinois in violation of the Foreign Corporation Act of this State and in contravention of the public policy of the State of Illinois, and in not holding “that the defendant Great Western Commission Company was doing an interstate commerce business.”

      P. A. Wells and George V. McIntyre, for appellants.
    Charles J. Trainor, for appellee.

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

   Mr. Justice Brown

delivered the opinion of the court.

This is a case in which two corporations in the same business and with very similar names find, naturally, that confusion has resulted, which each party insistently alleges is to its peculiar detriment. Concerning this confusion and its results, conflicting evidence is to be found in the record. We do not think it necessary to say more of this phase of the matter than that we are satisfied that such confusion exists and is detrimental to the business interests of each party.

But the theories which underlie the remedy which each party is seeking against the other cannot be so easily disposed of, nor can rights which each party claims as legally belonging to it be reconciled.

On the one hand, the older corporation, formed many years ago, under the laws of another State, and with its principal place of business in another State, maintains that with the purpose of absorbing its business not only unjustly and unfairly, but by actual deception and fraud, persons possessing knowledge of the good-will and enviable reputation which it had acquired, conspired to appropriate them for their personal pecuniary advantage,—a manifestly inequitable proceeding, if no worse, and one to which no court of equity should, if escape is possible, lend its aid.

But while suffering from the partially successful attempt which the unfair competitors were making through the organization under the laws of this State of a corporation with a very similar name to do the same business—business originating in identical territories and finished in territories that are certain to overlap—this older corporation is confronted with the strenuous contention of its newly organized competitor that it should be restrained by the. power of the courts from so acting as to minimize its loss and retain some of the business intended for it, but which, in default of such action, would go to its competitor. The ground of this demand is that the junior corporation alone can be recognized in this State as having any rights as to business intended for either corporation, inasmuch as it has a license to do business within the State, while its competitor has none and is violating the law in asserting one.

The situation suggests to us the speech of Hamlet to the gravedigger: “Here’s fine revolution an’ we had the trick to see it.”

'The master and the chancellor did “see” the matter in this light; nor is the argument for the position that they have taken without force and plausibility.

The majority of this court, however, are constrained to a different conclusion after a full consideration of the facts which they think the evidence shows, and the application to those facts of the rules of law which they believe relevant.

The evidence to our minds establishes not only the fact found by the master, that the subscribers for eighty per cent, of the stock of the Great Western Live Stock Commission Company on its organization, who were also its promoters and incorporators, knew of the existence of the Great Western Commission Company as an incorporated Company, but also negatives and establishes the reverse of the findings of the decree, that “the incorporators of the complainant Company in no manner intended to use the name or to derive any benefit from the advertising of the defendant Great Western Commission Company,” and that “their conduct was entirely free from any purpose to obtain any undue advantage by reason of the name or good-will of the said Great Western Commission Company.” •

To go over the evidence, oral and documentary, from which we draw what we deem these legitimate inferences, would be useless. They are conclusions reached after a study of the record.

To the further finding of the decree, that “the incorporators acted strictly within their legal right in making application for the name of the Great Western Live Stock Commission Company,” we accede; but “legal rights” are not always identical with “clean hands,” required in a court of equity when its extraordinary powers are invoked to coerce and restrain a competitor. We think the complainant in this case did have a legal right to secure from the State of Illinois incorporation under the name which its incorporators selected, as we believe, for the purpose of securing an unfair advantage over a foreign corporation with a very similar name; and for that reason we cannot hold that to grant the prayer of the cross-bill of the Great Western Commission Company and of the cross-bill of the Ward Commission Company would have been justifiable. The portion of the decree which dismissed the cross-bills we think correct.

But this was not the main effect of the decree. By a sweeping injunction it restrained the Great Western Commission Company from transacting any business whatever under its own name, and also restrained the Ward Commission Company from transacting any business in the State of Illinois under the name of its alleged principal, the Great Western Commission Company, and enjoined both companies, the one incorporated in Illinois as well as the Nebraska one, “from shipping any live stock in the State of Illinois under said name or appellation, and from receiving any stock shipped into the State of Illinois under said name or appellation.”

It is in the words of the injunction order which we have italicized that its chief force lies. If the prohibition contained in them is not a proper relief for the complainant to be given, its bill might as well, it was in argument conceded by the appellee, be dismissed.

We do not think it is proper relief. First. We do not think that the complainant corporation has “clean hands” with which to pray for it or receive it. Not only do we disagree with the finding of the court below that the conduct of the incorporators was free from the purpose's of obtaining an inequitable advantage of the Great Western Commission Company, but we disagree also with the conclusion of law formulated by the master that “the Great Western Live Stock Commission Company is not chargeable with the knowledge possessed by certain of its incorporations nor liable for the actions of said incorporators prior to its actual incorporation. ’ ’

The theory of a corporation as an entity distinct from any of its corporators or all of them together has been carried far, but in our opinion it stops short of such an unlimited statement of it as this.

We think in this case, where, as we believe, the persons who subscribed for eighty per cent, if not for all of the stock of the new corporation, and who became at once its officers and managers, knew certain things and acted in the incorporation under the influence of that knowledge to effect certain purposes for the unfair advantage of the corporation when formed, that the corporation is affected with that knowledge and must be debited with those purposes. Equity in such a case will disregard forms and ignore to some extent and pro hac vice the corporate entity by attributing to the corporation any disability in suing that the promoters would be under. It would be a halting jurisprudence which could not do this.

The relief in this case given to the complainant corporation was recommended by the master and given by the court solely on the ground that any business transacted by the Great Western Commission Company in Illinois was so transacted in violation of the laws of this State because it had no charter or license 'from the State. But to justify the right of the complainant to an injunction on that ground it seems plain to us it must be acting in good faith, with clean hands, and not in pursuance of a purpose and design to use the good-will and prestige of the foreign and older corporation for its own advantage. The chancellor finds by his decree that the complainant was thus acting in entire good faith. The report of the master leaves it open whether he was of this opinion. We are not, and think that on this account the bill of the complainant, equally with the cross-bills, should have been dismissed even if the conclusions of the master and chancellor are correct that the Great Western Commission Company was, through the Ward Commission Company, doing business in Illinois, and that said business was not interstate commerce, which the State of Illinois could not forbid nor render unlawful.

We are not, however, in accord with either of these conclusions. In other words, we do not think the evidence shows that the business done by the Ward Commission Company (an Illinois corporation) under the “open order” system described in the testimony, was business done by the Great Western Commission Company. But if it is to be considered the business of the Great Western Commission Company, then, so far as that Company is concerned, it is interstate commerce.

There are findings in the master’s report and in the decree, which we may concede there was evidence sufficient to justify, that advertisement to some extent of the Great Western Commission Company, and of its being able to deal with shipments of live stock made to Chicago, was made after the organization of the complainant Company; but it was not this advertising which was enjoined, nor was this advertisement “doing business” in Illinois.

The course of events which the master and the court found constituted doing business by the Great Western Commission Company in Illinois was this: Although the Great Western Commission Company was a Nebraska corporation and had its principal office in South Omaha in that State, stock was sometimes consigned to it at Chicago by its clients in the Western cattle raising country, in order that it might be sold in Chicago, and sometimes stock consigned to it at South Omaha was by it diverted and sent on to Chicago for sale upon the market here, if it could not sell it satisfactorily to itself or to the owner in South Omaha. Such a course of dealing, it appears, is a concomitant of the cattle raising and selling business, because of variations and changes, more or less sudden, in the market prices at different points. But something must be added to this to show that the Great Western Commission Company did business in Illinois. It must be also shown that when the stock airrived in Chicago it was handled and sold by the Great Western Commission Company. This the master and chancellor found happened, because an “open order” had been given by the Great Western Commission Company to deliver to the Ward Commission Company, an Illinois corporation, for handling and sale, all stock received at the Chicago Yards consigned to it. This, in their view, made the Ward Commission Company the agent of the Great Western Commission Company, and its acts in relation to said stock the acts of the Great Western Commission Company. We do not agree with this. The Ward Commission Company did not account to the Great Western Commission Company for any compensation received by it for such handling or sale. That went directly to the Ward Commission Company and was retained by it. So far as these shipments go, the evidence shows that the only compensation the Great Western Commission Company gets is the moral one of feeling that the interests of its customers which it cannot satisfactorily further in Omaha are well taken care of in Chicago. This does not make an agency. Nor in our opinion is it made an agency, nor is the connection of the Great Western Commission Company with this course of things made the doing of business by it in Illinois because, in return for the favor shown by it to the Ward Commission Company, that Company gave a similar “open order” to the Great Western Commission Company in relation to shipments to the Ward Commission Company consigned or directed to Omaha. This was a mere interchange of orders, analogous in principle to that which might take place between lawyers of different States in regard to local business they could not attend to, or to reciprocal recommendations of hotels in different cities, or interchange of services between newspapers in different cities, or a thousand other examples of reciprocal recommendations or service. We do not think it merits the importance evidently attached to it in the theory of the appellee.

The considerations we have indicated lead us to the conclusion that the Great Western Commission Company is not, in the transactions that we have detailed, doing business in Illinois, and for that reason, irrespective of the one already given and that which will follow, the injunction which prevents the Illinois corporation, the Ward Commission Company, “from receiving any stock shipped into the State of Illinois under the name” of the Great Western Commission Company, is necessarily erroneous and oppressive.

But even if we should be held wrong in this, we cannot see why, if this course of dealing constitutes the doing of business by the Great Western Commission Company in Illinois, it is not “interstate commerce” that it is transacting. We shall not dwell on this phase of the case, so conclusive seem the others to our minds. But it is beyond doubt that if it be an interstate commerce that the Great Western Commission Company is doing, it cannot be prevented or interfered with under the pretext of enforcing the law of Illinois. Lehigh Portland Cement Company v. McLean, 245 Ill. 326.

It is 'maintained by the appellee that the case of Hopkins v. United States, 171 U. S. 578, is conclusive against the position that the business involved is an interstate commerce. We do not so consider it. All that that case decides is that selling on commission live stock received from one -State at stock yards in another State is not that kind of interstate commerce which is affected by the - Federal Antitrust Act. The case has nothing to do with an interchange of orders between brokers or commission men of different States of business coming primarily to each. Such an interchange frequently takes place in connection with other kinds of “stock,” as well as with live stock. We do not think it makes the interchange brokers transactors of business in the State foreign to them; but if it does, it is in our opinion an interstate business they do.

The decree of the Circuit Court is reversed and the cause remanded to that court, with instructions to dismiss both the bill of the Great Western Live Stock Commission Company and the cross-bills of the Great Western Commission Company and of the Ward Commission Company for want of equity.

Reversed with instructions.

Mr. Justice McSurelt, dissenting.


text:
    Otto F. Raschke, Appellee, v. William F. Klemp, Appellant.
    Gen. No. 18,937.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by Otto F. Raschke against William F. Klemp to recover a balance claimed to be due for erecting certain steel poles to carry electricity transmission •wires and also for extra work. The claim was for $1,648.85. The work was originally let to the defendant by the Sanitary District of Chicago and defendant sublet the work to plaintiff. Defendant set up as a recoupment a claim for the cost of altering, repairing and finishing defective work done in making the job comply with the contract. From a judgment in favor of plaintiff for $1,579.51, after requiring a remittitur of $69.34, defendant appeals.
    Abstract of the Decision.
    Contracts, § 384

      —when recovery for worJc sustained by the evidence, In an action for work done in erecting certain poles for electric transmission wires and for extra work under a contract by which defendant relet the work to plaintiff, a recovery for plaintiff held sustained by the evidence.
    Caswell & Healy, for appellant.
    Edward R. Litzinger, for appellee.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    Anne Harold Martin, Appellee, v. Adams Express Company, Appellant.
    Gen. No. 18,975.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed May 25, 1914.

      Abstract of the Decision.
    1. Carriers, § 139

      —when evidence insufficient to sustain amount of recovery. In an action against an express company to recover the value of a lost box of jewelry, which contained a set of coral jewelry, held that a verdict and judgment for plaintiff for two thousand five hundred dollars could not be upheld for the reason that there was not sufficient evidence of the value of the jewelry to warrant the verdict.
    2. Carriers, § 138*—admissibility of evidence. In an action against an express company to recover the value of a lost shipment of jewelry, held that plaintiff’s father in writing a letter to the company describing the articles and their value acted as agent of the plaintiff and that the letter was relevant as an admission on the question of the value of property and also competent to impeach his testimony that the jewelry was of a greater value.
    3. Witnesses, § 340*—evidence competent for impeachment. Direct contradiction is not necessary to make matter competent for impeachment; inconsistency is sufficient.
    4. Appeal and error, § 1514*—when remarles of counsel prejudicial. In an action against an express company, conduct of plaintiff’s counsel in speaking “of the war that is waged by express companies of this country and in our State of Illinois against the 'individual,” held prejudicial.
    Statement of the Case.
    Action by Anne Harold Martin against Adams Express Company to recover the value of a box of jewelry, which included a coral necklace and cross and bracelets claimed to be of extraordinary value, and which had been delivered to the defendant for carriage from Chicago to Philadelphia. From a judgment entered on a verdict in favor of plaintiff for two thousand five hundred dollars, defendant appeals.
    Charles B. Elder, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellee.

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

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

   Mr. Justice Brown

delivered the opinion of the court.

5. Cabbiebs, § 182 —when copy of classification of rates filed with Interstate Commerce Commission admissible. In an action against an express company to recover the value of a lost shipment of jewelry where the defense relied on a condition in the receipt limiting the value of the shipment to fifty dollars unless a greater value is stated therein, held that the court erred in refusing to admit in evidence a copy of the classification and tables of graduated charges applying on all business carried by the lines of the company where it was certified by the secretary of the Interstate Commerce Commission.

6. Cabbiebs, § 33a*—when schedule of rates presumed in force. A schedule of rates of an express company approved by the secretary of the Interstate Commerce Commission several months before the date of a shipment is presumed to have been in force on the date of such shipment.

7 Cabbiebs, § 33a*—admissibility of schedule of rates without basing booh. A schedule of the rates of an express company approved by the secretary of the Interstate Commerce Commission, though not sufficient proof of the differentiated rates without the “basing book,” is competent nevertheless as a part of the proof.


text:
    Nellie Loeb, Defendant in Error, v. Blanche Yovin, Plaintiff in Error.
    Gen. No. 19,076.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed May 25, 1914.
    Statement of the Case.
    Action by Nellie Loeb against Blanche Yovin in the Municipal Court, claiming “moneys paid by the plaintiff to the defendant on account of goods, wares and merchandise which said defendant agreed and promised to deliver to the plaintiff, but which the said de-' fendant has failed to deliver, whereby said plaintiff is entitled to the return of the money so paid.” On the same day .the suit was begun, an attachment in aid was sued out on the ground of nonresidence of the defendant and the Adams Express Company was garnished.
    Defendant filed an affidavit of defense stating that she had not received from plaintiff any money on account of goods she had failed to deliver hut that she had sold certain goods to plaintiff on which plaintiff paid three hundred dollars on account and promised to pay the balance, seven hundred dollars, on delivery of said goods to plaintiff to Chicago; that she had shipped said goods to Chicago by express C. O. D. and that plaintiff failed to pay for said goods and in place thereof attached said goods in the hands of the express company.
    The defendant also filed an affidavit of set-off, the substance of it, being the following bill:
    £.‘Oct. 15 Black cloth suit and skirt.........$ 90.00 Black and white net waist......... 40.00 Blue satin charmeuse gown....... 160.00 Silk Persian evening coat, lined velvet ............•........... 175.00 White satin charmeuse evening gown ....................... 160.00 Black char, satin embr. Blk. and gold wrap .................. 175.00 Black and white check velvet frock with antique collar........... 140.00 Remaking old wisteria gown, new lining, chiffon and lace....... 50.00 $990.00 Oct. 10 Deposit by check................ 300.00 Balance .................$690.00”
    The cause was submitted to a jury, which found in favor of plaintiff, both as to the attachment and as to the merits of the action, and assessed plaintiff’s damages at two hundred and fifty dollars. Judgment was entered on the verdict October 26,1912, and final judgment also entered against the garnishee. To reverse the judgment, defendant prosecutes a writ of error.

      Abstract of the Decision.
    Assumpsit, action op, § 89

      —when recovery of money paid for goods alleged not to have teen delivered not sustained hy the evidence. In an action for money paid on account for dress goods which defendant failed to deliver to plaintiff, a judgment for plaintiff, held not sustained by the evidence, it appearing that the goods had been sent to plaintiff C. O. D. according to the agreement and that plaintiff had refused to pay for same except by check, which the express company refused to receive.
    November 21, 1911, a writ of replevin for the “wisteria gown” had been sued out of the Municipal Court by the plaintiff against the defendant and the express company and the gown was taken from the express company. The express company defaulted in the replevin suit but the defendant asserted a right to the gown by virtue of a lien she had thereon for the sum of $50 for work done and materials furnished thereon. The cause was tried by the court without a jury and the finding and judgment was for the plaintiff. For disposition of writ of error to review the judgment, see Loeb v. Yovin, p. 219, post.

    Charles Daniels, for plaintiff in error.
    Goldzier, Rodgers & Froehlich, for defendant in error.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    Nellie Loeb, Defendant in Error, v. Blanche Yovin, Plaintiff in Error.
    Gen. No. 19,075.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed May 25, 1914.
    Statement of the Case.
    This is a writ of error in the replevin suit referred to in Loeb v. Yovin, p. 217, ante. The cause was tried by the court without a jury and the court found for plaintiff on the same evidence that was presented in that case, and for the reasons stated in that case held that the finding was against the weight of the evidence.
    Charles Daniels, for plaintiff in error.
    Goldzier, Rodgers & Froehlich, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.


text:
    R. A. Watson, Defendant in Error, v. The Missouri Pacific Railway Company, Plaintiff in Error.
    Gen. No. 19,173.
    1. Cabbiebs, § 139

      —when recovery for damages to fruit warranted by the evidence. In an action against a railroad company to recover damages to a shipment of peaches alleged to have been damaged by delay resulting from a deviation from the routing as provided in the receipt, or bill of lading, held a verdict and judgment for plaintiff was warranted by the evidence.
    2. Cabbiebs, § 160*-—when conditions in receipt or bill of lading cannot be availed of. Where the routing in a shipper’s receipt is deviated from by the fault of an initial carrier, it cannot take advantage of a condition, exemption or stipulation in the receipt or bill of lading concerning the time for giving notice of a claim for damages or the valuation of the property in case of loss, but becomes liable as though carrier, under the common- law for any damage caused by delay or otherwise to the goods while en route; and the rule applies though the plaintiff in a suit against it introduces the bill of lading or contract in evidence and makes it a part of his case.
    3. Contbaots, § 329*—ivhen proof of contract does not waive penalty for breach. To prove a deviation from a contract or a breach thereof, the person alleging it must show what the contract was, and he does not thereby waive the penalty which the defaulting party has brought on himself by the breach.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Rehearing denied June 8, 1914.
    Jeffery & Campbell, for plaintiff in error; Herbert J. Campbell and Charles V. Clark of counsel.
    Charles A. Butler, for defendant in error; Franklin Raber, of counsel.

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

   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error to reverse a judgment of the Municipal Court of Chicago for $200.10 in favor of the plaintiff, E. A. Watson (defendant in error here), and against the defendant, The Missouri Pacific Eailway Company (plaintiff in error here). It was rendered on the verdict of a jury in that court.

The statement of claim asserted the plaintiff’s claim to be for “money damages sustained to 361 crates, 222 bushels, and 55% bushels of peaches shipped from Lexington, Missouri, on August 22, 1906, via said defendant to said plaintiffs at Chicago.”

The damages, which were estimated at $234.24, in the statement of claim were said to have been incurred by reason of the failure of the defendant to observe the shipping directions of the plaintiff and its failure to exercise the care necessary to preserve said peaches while in its possession, and by reason of the unreasonable delay in the transit to the destination.

The fair and reasonable cash market value of the peaches at the time and in the condition they should have arrived was alleged to have been $851.51, and at the time and in the condition they did arrive to have been $617.31.

The defense set up by affidavit of an agent of the railroad was, (1) that the peaches were not worth more than $617.31 at the time they should have arrived; (2) that the defendant was not guilty of any negligence or want of care in the handling of said peaches; (3) nor was the defendant guilty of any unreasonable delay; (4) that the plaintiff’s cause of action arose in the State of Missouri and is barred by the statute of limitations of that State; (5) that the bill of lading limits any liability of the defendant by conditions which were not in this case complied with by plaintiff, and limits it in amount by a measure which was not proven in this case.

The material facts which the evidence tended to show are that the agent of the defendant at Lexington informed the plaintiff that the car shipped from Lexington, Missouri, by the route selected and expressed in the receipt or bill of lading received by the plaintiff would get to Chicago the second morning after the shipment; that the car left Lexington about seven o ’clock in the evening of August 22, 1906, in time to be taken up by a through freight train on the defendant’s road at Myrick Junction (a mile and three-quarters from Lexington), due there at 9:25 p. m., and carried to St. Louis, where it was due about noon on Thursday, August 23rd; that by the routing instructions expressed in the bill of lading, the defendant road had agreed to forward it from St. Louis to Chicago by the Illinois Central Railroad; that a fast freight train from St. Louis on the Illinois Central Road carrying fruit and cars of fruit gets into Chicago at five o ’clock in the morning and that that train leaves St. Louis late in the afternoon of the previous day, and therefore could, if the car in question had been properly treated by the defendant have presumably brought it into Chicago on the morning of August 24th, which was Friday, at about five o’clock, at about which time on that morning the Illinois Central train arrived as usual; that the plaintiff was at the Illinois Central trades to receive and handle the car at that time, but that it did not come in the train in question and did not come in that train on the subsequent morning, when the plaintiff was again at the Illinois Central tracks to meet it, but that it came on that morning, Saturday, August 25th, at about 8:30 a. m. in a train from St. Louis on tho Wabash Railroad, to which road the defendant, in disregard of its instructions and routing contract, had evidently delivered it at St. Louis; that half past eight on Saturday morning was too late an hour to get the benefit of a good market on Saturday; that the plaintiff did the best possible thing to minimize any damages for which the defendant would be liable by re-icing the car and keeping the peaches on the track until the early market on Monday, August 27th, when he unloaded and sold them; that the fair market price of the peaches on Monday, August 27th, was greater than it would have been on Saturday 25th, in the condition they were in on both days, and that there was no market on Sunday, August 26th; that had the peaches been received in the early morning of August 24th, in the condition in which they were shipped and should have been received at that date if the car was “efficiently refrigerr ated,” the market price of them would have been $200.10 more than it was on Monday, August 27th, when they were handled and sold by the plaintiff; that the temperature in the car on the morning of Saturday, August 25th, “was not as cold as it should be for refrigeration; that efficient refrigeration was lacking somewhere”; that peaches are perishable merchandise; that the peaches in question were in good merchantable condition when shipped and not overripe; that on Saturday and on Monday the peaches were “ripening”, had ripened, that is, too much to be in “perfect marketable condition,” the principal outlet for peaches then being in shipping from Chicago, for which these peaches were then too ripe to be most suitable.

We think that under the evidence the jury had a right to consider these things proven, and their verdict and the judgment on it must therefore certainly be considered justified without reference to many of the questions raised and argued by counsel. The statute of limitations of Missouri was not introduced nor any defense made based on it. The only plausible grounds of defense are reduced to these: That the receipt or bill of lading which the plaintiff accepted and which he introduced in evidence contained these clauses, which govern this case and with the conditions of which the plaintiff has not complied:

1 ‘ Claims for damages must be reported by consignee in writing to the delivering line within thirty-six hours after the consignee has been notified of the arrival of the freight at the place of delivery. If such notice is not there given, neither this Company nor any of the connecting or intermediate carriers shall be liable.
In the event of the loss of property under the provisions of this agreement, the value or cost of the same at the point of shipment shall govern the settlement.”

It is true that these conditions appear on the receipt and that the plaintiff gave no such notice as is required by them and produced no evidence of the value or cost of the goods at Lexington.

But it is also true that the receipt contained the words, “Boute via Ills. Cent, from St. Louis,” and that routing was deviated from by the act or default of the defendant Company. Authority is abundant that in ease of such deviation by the fault of the initial carrier, it can take advantage of no such conditions, exemptions or stipulations in the receipt or bill of lading, but becomes liable as a through carrier, under the common law, for any damage caused by delay or otherwise to the goods while en route. McKahan v. American Exp. Co., 209 Mass. 270 (reported with note containing many similar authorities in 35 L. R. A., N. S. p. 1046); Dunseth v. Wade, 3 Ill. 285.

The defendant’s principal answer to this is that,

“This rule of law has no application to the case at bar because in the present case the plaintiff introduced the bill of lading or contract in evidence and made it a part of his case, and therefore under the authority of the A. M. Forbes Cartage Company case in the 162 Illinois Appellate Beports, he is thereby estopped from denying his assent to the terms of the contract. ’ ’

'This is sophistical, reminding one of the classical example in treatises on logic of the “dilemma.” We cannot assent to the argument. To prove a deviation from a contract or the breach of a contract, the person alleging it must show what the contract was, and he does not thereby waive the penalty which the defaulting party has brought on himself by the breach.

The opinion in A. M. Forbes Cartage Co. v. Grand Trunk Western Ry. Co., 162 Ill. App. 448, was never meant to declare any such legal proposition, we are sure. If it did, we should not follow it. It is not binding on us except in the case in which it is rendered. Of more persuasive force and of equal “authority” is the opinion of Branch C, Appellate Court of this district, in a case very similar to the one at bar, Coyne v. Grand Rapids & I. Ry. Co., 185 Ill. App. 431.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    E. B. Teague et al., Appellees, v. John E. Burns Lumber Company, Appellant.
    Gen. No. 19,283.
    1. Accra® and satisfaction, § 4

      —when retention of check does not constitute. Where a purchaser of lumber sent its check for a certain sum in payment therefor and a “contra” account for a certain sum for damages caused by an alleged delay in the shipments, in a letter stating “check enclosed herewith is tendered in full payment. * * * If incorrect, return all papers with check. If correct, please return settlement blank receipted,” and the seller on receipt of the letter cashed the check and kept the money without returning settlement blank receipted but notified the purchaser at once that the check was not accepted in full, held on a finding that there was no bona fide dispute as to the amount of the debt; that the seller’s retention of the check did not constitute an accord and satisfaction in view of section 55 of the Practice Act of 1907, J. & A. IF 8592.
    2. Accra® and satisfaction, § 10*—questions for jury. In determining whether a creditor’s retention of a check sent in payment of a debt constitutes an accord and satisfaction, held that the question whether there was a bona fide dispute as to the amount of the debt was for the jury.
    Appeal from the Superior Court of Cook county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 25, 1914.
    William G. Wise, for appellant.
    Tenney, Harding & Sherman, for appellees.

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

   Mr. Justice Brown

delivered the opinion of the court.

A jury in the Superior Court, under certain instructions hereafter described, returned a verdict for $1,183.11 in favor of the plaintiffs in this case, E. B. Teague, H. B. Wood and J. E. Jones, ag'ainst the John E. Bums Lumber Company, the defendant. From this judgment the defendant has appealed to this court, asserting in its assignment of errors and in argument that there was error in rulings on evidence and error in the instructions of the court, and that the court should have given the jury a peremptory instruction for defendant.

The alleged indebtedness sued on arose out of a sale of lumber by the Standard Lumber and Manufacturing Company of Birmingham, Alabama, to the defendant. The Standard Lumber and Manufacturing Company assigned its assets to the plaintiffs, who were continuing its business. Among these assets was the claim herein involved.

One objection made to the judgment by the appellant is that the assignment to the plaintiffs was not sufficiently proven. The circumstances and method of assignment were not given in detail, but we think in the absence of any evidence to the contrary, that which was given was sufficient to sustain the allegation properly made under oath in connection with the pleadings as required by the Practice Act.

Nor do we think there was any error or injustice in the verdict and judgment, so far as the merits of this case were involved. We think the evidence clearly enough shows that the lumber was not only furnished and accepted to the amount recovered, but also that it was shipped as promptly as the transactions and correspondence shows was finally implied if not expressly agreed to by the defendant.

The question therefore in the case is reduced to the claim made by the defendant of an accord and satisfaction, because on February 3, 1910, it sent to the plaintiffs a check for $853.94, and a “contra” account for $1,022.63 for damages caused by alleged delay in shipments contrary to the contract, in a letter which said “check enclosed herewith is tendered in full pay-, raent of invoices named in this settlement. If incorrect, return all papers with check. If correct, please return settlement blank receipted as this blank is necessary to complete our files;” and because on receipt of this letter the plaintiffs cashed the check and kept the money without returning settlement blank receipted, but instead notifying the appellant at once that the check was not accepted in full.

It is undoubtedly true that the law of this State as laid down by its highest tribunal in a long line of cases, of which Ostrander v. Scott, 161 Ill. 339; Lapp v. Smith, 183 Ill. 179; Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244; and Snow v. Griesheimer, 220 Ill. 106, are but examples, is that where there is a bona fide dispute between a debtor and creditor as to a portion of a claim made by the creditor, and the debtor sends to the creditor payment of the sum he admits to be due, with the expressed or implied condition that it is to be accepted as payment in full or returned, there is an accord and satisfaction if the creditor retains it, and the creditor cannot thereafter recover the balance he claims to be due. This carries the doctrine of accord and satisfaction farther than the law in most other jurisdictions does. We do not think, however, that this doctrine should be carried farther than these cases render absolutely necessary, in view of the later legislative policy of this State, expressed in section 55 of the Practice Act of 1907, by which, if a plaintiff sues upon a claim of which a part only is disputed, the defendant is required involuntarily, through judgment and execution, to pay at once the part he admits to.be due, while “the suit shall thereafter proceed as to the portion of the plaintiff’s demand in dispute as if the suit had been brought therefor.”

If the debtor can be made to pay promptly though unwillingly, by execution, the portion of the indebtedness admitted, without prejudice to the right of the creditor to the rest, why should he not be so made to pay by the creditor by the use of a check for such admitted portion, notwithstanding his desire to have it returned Í

The questions here, however, are narrower, and are only, in effect, first, the general one whether a jury may, as a part of their duty, properly decide whether in any particular case there is a bona fide dispute, under instructions of the court leaving that matter to them; and, second, whether in this particular case the evidence warranted the court in instructing for the defendant on the ground that the evidence conclusively showed a bona fide dispute and consequently an accord and satisfaction; and, third, whether, if this were not true, the verdict is against the clear weight of the evidence.

To the first of these questions our answer is affirmative. Although we do not find in the decisions in our own State any directly in point, we think, in reason, that the existence of bona fides in the dispute on the part of the debtor in such cases is a question of fact, and as such belongs to the jury to decide. It cannot be that a debtor shows such good faith merely by asserting it. Every dishonest and reluctant debtor might thus harass his creditors by saying: “Take part or nothing except at the end of a law suit.”

The St. Louis Court of Appeals in Missouri, where the law of “accord and satisfaction” by the payment and acceptance of a lesser sum than that claimed seems like that of Illinois, has decided in the line of our view of the matter. Barrett v. Kern, 141 Mo. App. 5.

To the second and third questions our answers are in the negative. This required a review of the evidence by us, which we have given it. We see no reason to dissent from the conclusion of the jury in the matter.

The judgment of the Superior Court is affirmed.

Afifirmed.


author: Mr. Justice McSurely

text:
    Imperial Safe Deposit Company, Appellant, v. The University of Chicago, Appellee.
    Gen. No. 19,240.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Fraud, § 14

      —when false representations actionable. An action cannot he maintained for damages resulting from false representations unless the plaintiff has relied and acted thereon to his injury.
    2. Exchange of property, § 8*—when directing verdict in suit for false representations proper. In an action to recover damages for false representations alleged to have been made by the defendant to plaintiff in an exchange of real estate between them, held that a direction of a verdict to find defendant not guilty was proper for two reasons, first, because there was no evidence that the person making the representations had authority to make them; and, second, because it did not appear that plaintiff relied on such representations.

      Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Rehearing denied June 8, 1914.
    Statement of the Case.
    Action by Imperial Safe Deposit Company, a corporation, against The University of Chicago to recover damages for false representations alleged to have been made by the defendant to plaintiff in an exchange of real estate between them. Upon the trial the court instructed the jury to find the defendant not guilty. To reverse a judgment entered on the verdict, plaintiff appeals.
    P. H. O’Donnell and Ben J. Altheimer, for appellant; Elijah N. Zoline and Henry Jackson Darby, of counsel.
    Tenney, Harding & Sherman and Judah, Willard, Wolf & Reichmann, for appellees; Horace Kent Tenney and A. F. Reichmann, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Treae, § 192*—rule as to direction of verdict. Although a ease should not be taken from the jury where there is any evidence from which reasonable inferences favorable to the plaintiff may be drawn, such inferences must be reasonable and not mere speculations produced-by fervid appeals to the emotions or imagination.


text:
    Quaker Oats Company, Appellant, v. Armour Grain Company, Appellee.
    Gen. No. 19,252.
    1. Warehousemen, § 25

      —when shipper not entitled to money paid warehouseman by carrier for transferring grain. A shipper who has paid a company operating a public warehouse its charges for storage, etc., as provided by section 15 of the act regulating public warehouses, J. & A. If 8979, is not entitled to recover from it the additional charges paid to it by carriers for transferring the grain from cars to elevator and from elevator to cars on the theory that the warehouse company was the shipper’s agent in receiving the additional charges and that the additional charges are for the same services.
    2. Warehousemen, § 11*—what charges not included in schedule of rates. The schedule of rates required to be published by ware-housemen under section 15 of the act regulating public warehouses is of rates for the storage of grain and does not cover rates for transferring grain from car to elevator and from elevator to car.
    Appeal from the Circuit Court of Cook County; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 25, 1914.
    Chester Arthur Legg, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; Ralph M. Shaw, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit in assumpsit, seeking to recover certain moneys paid to defendant by railroads for elevator services in connection with shipments of grain. The case was tried by the court upon a stipulation of facts and the testimony of witnesses. The issues were found for the defendant, and from the judgment thereon the plaintiff has appealed.

Plaintiff is engaged in the business of buying grain and shipping it to various eastern points. The defendant owns and operates public elevators in Chicago. The particular facts involved in this case are typical of what probably are the facts in a very large volume of business. In 1910, plaintiff caused to be delivered by cars from the west to the public elevators of the defendant 312,224 bushels of grain, and later in the same year ordered the grain loaded out of the elevators into the cars of eastbound railroad carriers. These carriers, under a certain published tariff, paid to the defendant one-fourth of one cent a bushel for the services of the elevators in transferring the grain through the elevators from the cars coming from the West and arriving in Chicago, to the cars of the eastbound carriers. This amounted to $780.56, which is the amount for which plaintiff brought suit.

The theory of plaintiff is that the defendant, as a public warehouseman, in transferring the grain was the agent of the plaintiff, and that after defendant had received from plaintiff the highest charges for its services which it is permitted to charge under the laws of Illinois and its published schedule for the year, it cannot collect from the carriers and retain additional compensation for the same service, but must pay over this sum to its principal, the plaintiff.

This service of transferring grain, the compensation therefor, and the conditions under which the carriers may call upon elevators for it, are stated in the pub-listed tariffs of the carriers filed with the Interstate Commerce Commission, and which substantially are as follows:

“When grain, in carloads, is transferred, and the transfer facilities used are not owned or operated by this company, this company will pay to the owner or operator for the transfer service not to exceed one-fourth (*4) of one (1) cent per bushel providing transfer becomes necessary on account of one or more of the following reasons; (a) Bad order cars(b) to secure heavier loading; (c) to release cars which owners will not allow to run through; (d) when condition of the grain calls for transfer to protect railroads from loss; (e) to secure the weight of grain not,previously officially or regularly weighed; (f) when required by state laws of inspection; (g) when transfer at junctions is required by Board of Trade rules.”

We are of the opinion that defendant in transferring the grain as above described was not, in so doing, acting as the agent of the plaintiff, but was performing thé service for the carrier. For the time being the defendant was the hand of the carrier, and for rendering such services was entitled to receive and retain reasonable compensation from the carrier.

The cases cited by plaintiff’s counsel as to the general fiduciary character of a public warehouseman as custodian of grain are not applicable to this particular form of service. In Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 42, these services are considered and treated as “services in transportation,” and the Court says, speaking through Mr. Justice Holmes: “As the carrier is required to furnish this part of the transportation upon request he could not be required to do it at his own expense, and there is nothing to prevent his hiring the instrumentality instead of owning it.” This opinion describes the conditions which brought about the practice of carriers paying elevators for transferring grain, and its reasoning and conclusion are adverse to plaintiff’s contention.

A plausible basis for plaintiff’s position is sought in the deduction attempted from the provisions of the Illinois statute regulating public warehouses. It is said that by this statute (section 15, J. & A. if 8979) defendant was required on the first of the year to publish a schedule of rates or charges for receiving, storing and delivering out grain from its warehouses and elevators during the ensuing year, which charges could not be exceeded during, the year; that plaintiff paid defendant the charges for these services; that these services included the operation of transferring the grain, for which defendant also collected compensation from the carrier; hence plaintiff can recover this amount of compensation from the defendant. We have some doubt whether this conclusion follows from the premises stated; however, the error in the argument lies in the assumption that plaintiff in paying defendant at its published rates was paying for the particular service in question. This error arises from a misconstruction of the statute. The table or schedule of rates required to be published at the first of the year is of rates for “the storage of grain.” We find no provision calling for the publication of rates for transferring grain, or any other operation in connection therewith except “storage.” There is a provision that, “The maximum charge for storage and handling of grain, including the cost of receiving and delivering, shall be, for the first ten days or part thereof, one and one-quarter (114) cents per bushel, and for each ten days, or part thereof, after the first ten days one-half of one cent per bushel.” This manifestly contemplates a number of operations by the elevator with respect to the grain, but that the aggregate charge for storage plus the charges for handling and for receiving and for delivering shall not exceed the amounts stated in the statute. The schedule published by defendant in compliance with the statute contained nothing concerning charges for handling or receiving ox delivering grain, but only the rates for storage. We do not agree with the contention that the word “storage” includes the operation of “transferring” grain to cars. The dictionaries give different meanings to the words, and the witness who testified on this point said that “loading” was an entirely different service from “storage”; that “loading in” was a different service from “loading out”; that “handling” was a distinct service from either of the above and had reference to such operations as drying the grain; that it cost a certain specific sum to “load” grain into an elevator, an additional sum to “store” it, an additional sum to “handle” it and an additional sum to “load it out.” These considerations lead us to conclude that plaintiff in proving that it paid the defendant the rates in the published schedule proved that it paid only for the service of “storage” and not for the service of transferring the grain, for which latter service defendant collected from the carrier, and is entitled to retain such compensation.

In our opinion the claim of plaintiff is directly in conflict with the theory upon which the Supreme Court of the United States decided. Interstate Commerce Commission v. Diffenbaugh, supra. The judgment of the trial court was in accord with that decision and our construction of the Illinois statute as heretofore stated.

We are impressed with the argument of counsel for defendant that to permit plaintiff to recover this charge would be in effect the allowance of a rebate to it from the published tariff rates for transportation on file with the Interstate Commerce Commission, but we refrain from discussing this suggestion as the reasons above indicated seem to us sufficient and conclusive.

The judgment is affirmed.

Affirmed.