text:
    George Sauder, Appellee, v. Richards Manufacturing Company, Appellant.
    Gen. No. 5535.
    1. Verdicts—when not disturbed. A verdict will not he set aside on review as against the weight of the evidence where not clearly and manifestly so.
    2. Instructions—must not ignore material fact. In an action by a servant against his master for personal injuries, held, that an instruction was erroneous which ignored evidence which showed that such servant had been shown by a foreman how to do the particular work in question and had been told to do it in that manner and had followed such instruction.
    Action in case for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Murphy & Lyon, for appellant.
    John M. Raymond and John K. Newhall, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

On July 14, 1909, George Sauder was running a punch press in the machine shop of Richards Manufacturing Company, in the city of Aurora, in Kane county, and while so engaged, had two of the fingers of his left hand caught in the machinery and amputated. He brought this suit against Richards Manufacturing Company to recover damages for said injuries and, upon, a jury trial, received a verdict and a judgment for $1,500, from which defendant below appeals.

The punch press, on which appellee was working at the time of the injury complained of, consisted of an upper and a lower die and a foot lever, which, being pressed by the foot, caused the upper die to descend and thereby any plate, inserted between the two dies, would be pressed into the desired shape and pattern. Upon removing the foot from the lever, the upper die would ascend to its proper position and remain there until the foot lever was again pressed. The steel plate, which was to be pressed into shape by the press, could be put into position by placing it against the gauge on the side of the lower die and, as the lower die was permanently fixed in an inclining position, the steel plate would at once drop, of its own weight, down against the back gauges. But, after the plate had been pressed and the upper die had resumed its proper eleyated position, it was necessary to remove the plate and this could be done, according to the evidence, in three ways. It could be knocked out of the machine with the next steel plate which the operator was about to place on the die; it could be taken out by means of a metal hook; and it could be taken out by hand. The operation of placing the steel plate in the machine against the side gauge did not require the hand of the operator to go under the upper die at all, but the process of removing the pressed plate from the machine by hand required the operator to place his hand under the upper die, and it was in this way appellee was injured.

When appellee went to work for appellant, he was taken- in charge by Patterson, appellant’s foreman, and put to work on a punch press. Appellee testified that the foreman showed him how to operate a punch press and, in so doing, used his hands for the various operations; that is, the foreman put a plate of steel in on the lower die with his right hand, stepped on the lever, and then removed the plate with his left hand, and told appellee that that was the way to operate the machine. This testimony by appellee as to the instructions he had received from the foreman is not denied. Appellee continued to work on a punch press up to the time "of his injury and, so far as the evidence shows, continued to operate it in the manner in which he had been instructed by the foreman. On the 13th of July, 1909, the day before appellee was injured, he noticed a jerking motion of the press he was operating and called the attention of the foreman to it. Appellee testified that the foreman then tried the machine himself and then said to appellee: “We cannot stop to repair it now, we are so busy. We will repair it as quick as we can get around to it;” and then told appellee to go ahead with his work and went away. Appellee continued to work with this press the rest of that day and until about nine a. m. of the next day, when he was injured. The undisputed evidence is that, at the time he was injured, appellee did not have his foot on the lever which operated the press.

Appellant claims that appellee was guilty of such contributory negligence in removing the steel plates with his hand that he cannot recover; that, with the machine running fast enough to stamp 600 or 700 steel plates an hour, as it was at the time of the injury, appellee must have known that he was sure to be injured if he attempted to remove the plates with his hand; and that, before the injury, appellee had been instructed by the foreman to cease the use of his hand in the removal of the plates. Appellee claims, as before stated, that he was instructed by the foreman, at the beginning of his service with the company, to put in and remove the plates by hand. Appellant claims that its foreman instructed the appellee, before he was injured, that the use of the hand in removing the plates was dangerous and that he should use a hook. Appellee’s claim as to his instructions from the foreman is not denied. Appellant’s claim is denied by appellee. It therefore became a question of fact for the jury to decide what were the instructions given appellee by appellant, and the jury seem to have believed appellee. In view of the fact that appellant’s foreman did not deny having instructed appellee to remove the plates with his hand, we cannot say that the" jury decided this point against the weight of the evidence. Again, while appellant’s witnesses testified that appellee should have poked the steel plates out of the machine with the hook or with other plates and allowed them to fall upon the floor, to be removed from there by laborers hired for that purpose, appellee testified that he had been provided with a barrel in which to place the pressed plates and that the top of the barrel being higher than the machine, it was necessary for him to pick out the plates with his hands, so that he might throw them into the barrel, and the jury have decided this question of fact in appellee’s favor. The evidence on this point was evenly balanced as to the number of witnesses, and we cannot say that the jury disregarded the greater weight of the evidence.

It is contended by appellant that, even if it be true that the foreman, when notified of the defect in this particular machine, had instructed appellee to proceed with his work on a promise to have the machine repaired as soon as they “could get around to it,” still this could only be regarded as permission to appellee to use the machine for as long a time as would reasonably be required to repair the machine, and that, as the machine was repaired in one hour’s time after appellee was hurt, therefore appellee should have used the machine only one hour and no longer and that his operation of the machine for nearly twenty-four hours after he discovered it defective was at Ms own risk and he cannot recover. While it may be true, as contended by appellant in its brief, that, “where the danger of operating a machine is open, and obvious, and can be seen, known and understood by the operator of such a machine, then the doctrine of assumed risk will bar a recovery by such servant, notwithstanding the master’s promise to repair,” the proof here does not justify the application of such a principle of law in this case. Appellee was not a machinist and had no duty imposed upon him of inspection and repair of these presses. That part of the mechanism of this machine which was out of order was inclosed in an iron box and appellee could not and did not see it. He had therefore no reason to know that he was liable to be hurt by reason of the jerking motion of the machine and no reason to believe that the upper die would slip and fall while his foot was not on the lever. The evidence showed that the upper die had never before fallen and that appellee’s foot was not on the lever at the time the accident occurred. While appellee knew that men had been hurt in that shop, there is nothing in the evidence to show that he knew that they had been hurt in that way, nor that such men had, in fact, been hurt in that way at any time. The answer of the foreman to appellee, when complaint was made of the machine, indicated that it was not to be repaired at that time, but at some future time when they were not so busy, and his telling appellee to go on with his work was an assurance by the master that he could safely do so, and appellee was justified in continuing his work under such permission, unless the danger was so obvious that no man, in the exercise of ordinary care, would have worked with the machine in that condition.

As we have shown above, the danger was not obvious and appellee had no reason to suppose that this particular trouble in the machine would cause the upper die to fall. The upper die did not fall, in fact, at all during Ihe rest of the day on which he complained of the machine and there is nothing in the record to show that appellee knew the machine had not been repaired between the stopping of work that afternoon and the commencement of work the next morning. It was a question for the jury whether the danger was so obvious that appellee should not have continued to work with this machine in spite of the permission given by the foreman, and the jury have decided against the contention of appellant. Appellant complains of the action of the trial court in refusing to give certain instructions, requested by appellant. Appellant’s first refused instruction was as follows:

“You are instructed that if you believe from all the evidence that there were two methods open to the plaintiff for the performance of the work for which he was employed, one of which was dangerous and the other safe; and if you further believe from the evidence that the dangerous way of performing the work was the easier and more simple that fact alone would not justify the plaintiff in selecting the dangerous method of doing the work. The plaintiff, in the exercise of ordinary care and caution, was bound to select that method of performing the work which would insure to him the greater safety, and this even though the safer method involved considerable more trouble than the dangerous way in performing the work.”

We consider this instruction clearly bad, for it entirely ignores the evidence showing that appellee had been shown by the foreman, Patterson, how to do the work and. had been told by him to do it in that manner. The instruction should have left it to the .jury to determine whether one method or the other of doing the work had been explained to the appellee and its use urged upon him. The same criticism applies to appellant’s second and third refused instructions, in that they make no sufficient reference to that portion of the evidence which tended to show that appellant had directed appellee to perform his work in a certain manner. These last mentioned instructions state the case as if appellee had voluntarily selected the method most dangerous of putting his hand under the die to take out the plate, whereas he testified that he was shown and directed by the foreman to do it that way, and this evidence was met, not by a denial that such directions were given him when he commenced to work for appellant, but by testimony on the part of the foreman that at a later date the foreman told appellee not to put his hand under the die but to remove the plate in another way, and this was denied by appellee in rebuttal. Therefore both sides claim that appellee had directions from the master before this injury as to the manner in which he was to perform his work, but they disagree as to what those directions were, and these two refused instructions practically failed to leave it to the jury to determine whether he had received the instructions he claimed or those which appellant claimed to have given him. We think therefore that they were properly refused. Under the evidence the jury must find, either that appellee received instructions from the master to use his hands in doing the work and obeyed such instructions and was thereby injured, or that he received instructions at a later date and before the injury to refrain from using his hands and disobeyed such instructions and, as a result of such disobedience, was injured.

These three instructions did not submit that question to the jury at all, but sought to make the case turn upon the question whether or not the servant, without any instructions, voluntarily chose the more dangerous way of doing the work. This does not conform to the evidence, for there is no dispute but what he did receive some instructions. The question is, what were those instructions, and that question is ignored by these refused instructions.

The action of the trial court in refusing to give appellant’s eighth instruction, is also complained of, but we see no merit in that contention, for all the material and essential parts of the refused instruction are contained in appellant’s eighth given instruction. Plaintiff’s only given instruction was faulty, under Elgin, Joliet & Eastern Ry. Co. v. Lawlor, 132 Ill. App. 280, but no point is made upon it here by appellant and we therefore ignore it.

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

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baldwin

license: Public Domain

text:
    People of the State of Illinois, for use of Fortune Bros. Brewing Company, Plaintiff in Error, v. Thomas E. Barrett et al., Defendants in Error.
    Gen. No. 15,711.
    1. Executions—statute governing pro rating of proceeds conr strued. This statute which provides for pro rating proceeds of sale under executions on judgments rendered at the same term of court, has no application to special executions issued upon a claim allowed by the Probate Court, such special execution having for its sole function the redemption of real estate.
    2. Redemption—right of, defined. Held, that the statutory right of redemption is not real estate nor is it an interest legal or equitable upon which a judgment can become a lien.
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 20, 1911.
    Thomas J. Young, for plaintiff in error.
    Seymour Edgerton, for defendants in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

On January 24, 1905, a claim was allowed by the Probate Court of Cook county against the estate of Cornelius Griffen, deceased, and in favor of John Griffen, in the sum of $2,233.31.

On February 17, 1905, a special execution was issued thereon under the provision of section 27, chapter 77, Hurd’s Revised Statutes, which provides for the issuing of a special execution on claims allowed by the Probate Court for the purpose of redemption by the claimant. John Griffen thereupon placed such execution in the hands of the then sheriff of Cook county, Thomas E. Barrett, since deceased, and paid to said sheriff the sum of $2,449.48 to redeem certain real estate of the deceased, from a foreclosure sale. Thereafter and on March 15, 1905, a redemption sale was had pursuant to the statute, where there was bid for the property the amount of the redemption money, interest and costs, and in addition about $2,350, making in all $4,800.

After the sale the sheriff, in compliance with the statute, applied the excess over the amount of the redemption money, interest and costs upon the execution under which the redemption was made and the sale had.

On February 9, 1905, another claim had been allowed by the Probate Court against the estate, in favor of Fortune Brothers Brewing Company in the sum of $7,561.34. Upon petition a special execution was issued on said claim on February 24, 1905, and placed in the hands of the sheriff on March 13, 1905. On the 14th day of March Fortune Brothers Brewing Company served upon the sheriff a written demand that there be paid to it its pro rata share of the amount realized at the redemption sale under the John Griffen special execution over and above the amount of the redemption money, interest and costs, claiming to be entitled to the sum of $1,814.17, under section 13, chapter 77, Hurd’s Revised Statutes of Blinois. The sheriff refused to comply with the demand, but, applied all of the excess over the redemption money, interest and costs realized at such sale upon the execution under which the redemption was made.

Thereupon Fortune Brothers Brewing Company brought this action in the name of the people of the State of Illinois for its use against the sheriff and the sureties upon his official bond. The death of Barrett haying been suggested the cause was continued as to his bondsmen. Defendants in error filed a general demurrer to the declaration. The demurrer was sustained by and the suit dismissed by the lower court, and error is assigned upon this action.

Upon this writ of error we are called upon to decide whether or not executions, when issued for the purpose of redemption only, are controlled by the provisions of section 13, chapter 77, R. S., which provides for a pro rata division of the proceeds of the sale. Unless this section does govern in cases of this kind, the judgment of the court below must be affirmed.

Section 13, chapter 77, R. S. reads as follows:

•‘When the lien of several judgments is concurrent, by reason of the same having been rendered at the same term of court or on the same day in vacation, and execution issued, upon any one of such judgments is levied upon property subject to such lien, the property so levied upon shall be sold for the benefit of aH executions issued upon such judgments, and delivered to the same officer or any of bis deputies before sale; and the proceeds of such sale shall be divided, upon the several executions, pro rata, according to their several amounts.”

The authority for a special execution on a claim allowed by the Probate Court is found in section 27, chapter 77, Revised Statutes. Its purpose is to enable a redemption, and it is not effective for any other. McIlwain v. Karstens, 152 Ill. 135.

Section 22 of the same chapter provides that if more than the redemption money, interest and costs is bid at the redemption sale, “the excess shall be applied on the execution under which the redemption is made.”

Section 23 provides that “successive redemptions may be made of the premises at any time within sixty days of the last sale at which they were sold for more than the amount of the redemption money, interest and costs, and the premises again sold in the same manner and upon the same terms and conditions, and certificate shall be made in like form and manner as upon the sale on the first redemption, and the person redeeming shall be considered to have bid the amount of his redemption money, interest and costs.”

Section 24 provides that “when there are several decrees or judgment creditors, the creditor having the senior judgment or decree shall have the preference to redeem,” etc., and “the other creditors shall respectively have preference to redeem during a like time in the order of seniority of their several judgments or decrees; but where two or more judgments or decrees bear equal date, the creditor first paying the redemption money shall have the preference.”

Plaintiff in error contends, (1) that “an order of the Probate Court allowing a claim against an estate has the same force and effect as a judgment,” (2) that “upon redemption being made upon such a Probate claim, thereafter like proceedings shall be had as upon other executions;” (3) that “the redemption laws should be given a liberal construction in order that the property of the debtor shall pay as many of the debts as possible,” and claims that, in this case special executions were issued upon judgments rendered at the same term of court, and therefore by virtue of section 13, supra, the proceeds of the sale should be divided pro rata. ISTotwithstanding the correctness of several of these contentions as abstract propositions of law, we do not think the question here involved is settled by them.

Section 1, chapter 77, provides that a judgment of a court of record shall be a lien on the real estate of the judgment debtor, and section 13 of the same chapter, unquestionably refers to such judgments as are liens within section 1,—that is, liens upon real estate. In the ease at bar, the judgment was not a lien upon the real estate because the title of the judgment debtor had been extinguished by foreclosure and there was left to the judgment debtor and to his judgment creditors only such rights of redemption as the statute gives in express terms. This right of redemption conferred by the statute is only as to real estate.

When the claims of Griffen and of the Fortune Brothers Brewing Company respectively were allowed by the Probate Court and the special executions issued thereupon, the property which was subsequently redeemed under the execution issued in favor of Griffen had already been sold under foreclosure decree, and there remained in the deceased and his heirs or devisees merely the statutory right of redemption. This “right of redemption” is not real estate, nor is it an interest, legal or equitable, upon which a judgment can become a lien. It is entirely distinct from what is known as the “equity of redemption,” which was an incident to the mortgage, and which was cut off by the foreclosure sale. The “right of redemption” is not an estate, but a mere privilege granted to the mortgagor whose “equity of redemption” has been foreclosed, and to a judgment debtor whose property has been sold under execution to regain it by paying the amount realized at the sale with interest and costs. The statutory “right of redemption” cannot be sold on execution. Merry v. Bostwick et al., 13 Ill. 398; Hill v. Blackwelder, 113 Ill. 283; Freeman on Judgments, 4th Ed., section 349, note 7.

Sections 20, 21, 22, 23, and 24, chapter 77, R. S., provide for redemption, and prescribe the mode of procedure, which must be followed by judgment creditors, and there is no other authority under which, or procedure by which such redemptions may be had. The “right of redemption is statutory and must be exercised in pursuance of the statute; otherwise it will be ineffective.” Littler v. The People, 43 Ill. 188; Herdman v. Cooper, 138 Ill., 583.

In construing the law with respect to the right of one having a special execution issued, as was this, on a claim allowed against the estate of a deceased person under section 27, chapter 77, the Supreme Court says: “His right to redeem does not exist outside of the statute and he must follow the proceeding pointed out in the statute and in the mode therein presented.” McIlwain v. Karstens, 152 Ill. 135.

Plaintiff in error here strongly urges as the reason for adopting the construction of the law for which he contends, the fact that the executor or administrator of an estate may unjustly enable one creditor to obtain priority over another by consenting to the allowance of one claim and contesting the other so as to delay its allowance and thus giving an unjust preference ; indeed, the contention here is that exactly this was done in the case at bar. But whether or not the law with respect to the allowance of claims in the Probate Court needs amendment in order to avoid such miscarriage of justice, we are satisfied that, in the case at bar, the provisions of section 13 have no application.

It follows, therefore, that the court below did not err in sustaining the demurrer to the declaration, and its judgment will be affirmed.

Judgment affirmed.


text:
    Graham & Morton Transportation Company, Appellant, v. Ira J. Owens, Appellee.
    Gen. No. 15,752.
    Cobpobatioiís—power ta maintain action after dissolution. A corporation has power to prosecute to final judgment after the expiration of its charter a suit instituted by it before its charter had expired.
    Trover. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion filed October 20, 1911.
    Kremer & Greenfield, for appellant.
    Arthur Humphrey, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Appellant, Graham & Morton Transportation Company, brought an action in trover in the Circuit Court of Cook county against Ira J. Owens, appellee, to recover the value of a quantity of sugar stolen from its warehouse, which it was claimed was delivered to Owens, and sold by him at retail in his grocery store. The suit was begun September 26, 1903, and a declaration filed October 9, 1903.

At the times referred to in the declaration, the Transportation Company was engaged in the business of lake transportation, and late in 1900 brought to Chicago from Bay City, Michigan, and unloaded into its warehouse at its Chicago dock, a large quantity of sugar, for Arbuckle Brothers. This sugar was delivered from its warehouse, from time to time, through the winter, upon the written orders of Ar-buckle Brothers. When the Transportation Company checked up its deliveries with the amounts received and placed in its warehouse in the fall, a shortage of 174 barrels was discovered. Upon investigation, it was found that this sugar had been stolen and taken out of its warehouse by two of its employes, and it claimed that this sugar, thus stolen, was sold to appellee, Owens, by one William Fonger, a friend, and, for many years previously, an employe of bis.

On March 6,1909, the declaration was amended, showing that appellant was incorporated under the laws of Illinois. Two days later, appellee filed three special pleas, the third of which averred that the final certificate of incorporation of the Transportation Company was issued by the Secretary of State on February 20th, 1880; and that, in and by its terms, its life was limited to a period of twenty-five years from and after February 20, 1880, at which last mentioned date the life of the corporation expired. The plea further averred that under and by virtue of the laws of the State of Illinois, the corporate existence of said pretended corporation was extended for the term of two years from and after the expiration of its charter rights, “for the purpose only of collecting the debts due said pretended corporation, and selling and conveying the effects thereof, and that said additional two years for said purpose expired February 20,1907.”

To this plea, appellant filed a general demurrer, which, upon argument, the court overruled, holding the plea good, and was about to enter judgment in favor of defendant, when it was agreed between the counsel for the respective parties, that, notwithstanding the court’s ruling upon the demurrer, the court should hear the proofs of the parties before entering final judgment, in order that, if this court should hold that the court below was in error in sustaining the plea, it might here enter judgment upon the evidence heard in the court below. Thereupon the cause was submitted to the court for trial without a jury, and the court, after hearing the evidence, and passing upon the propositions of law submitted to it, entered judgment upon the demurrer and for costs in favor of appellee.

Six propositions of law were submitted to the court, of which it held all but the third and the sixth, which it marked “Refused”, and which are as follows:

“3. The court holds as a proposition of law that the plaintiffs are entitled to recover in this case for all sugar stolen from their warehouse while the same was in storage in said warehouse and in their possession, at the full market value thereof at the time the same was stolen and which came into the possession of the defendant whether the same was purchased by him in good faith or not.”
“6. The court holds as a proposition of law that a suit properly instituted by a corporation before the expiration of its charter by its terms, and while such charter is in full force and effect, does not abate upon the expiration of its charter or at the expiration of a period of two years thereafter; but such corporation may prosecute such suit to a final conclusion in its own name, whether the same be in form an action in assumpsit, based on contract, or an action in trover to recover the value of property stolen.”

The action of the court in overruling the demurrer of appellant, and in refusing to hold the third and sixth propositions of law, are before us for review, as is also the testimony of the witnesses in the event that we shall hold that the court below erred in sustaining the demurrer, and in refusing to hold as the law the third and sixth propositions submitted.

We have thus presented for our consideration specifically this question: Has a corporation, in this state, the power to prosecute to final judgment, after the expiration of its charter, a suit instituted by it before its charter had expired?

We have considered the comprehensive brief and argument of appellee, in which there is cited and discussed a large number of authorities, to the effect that a corporation, after the expiration of its charter, has no right to proceed further, even in a suit instituted by it before its charter had expired.

Decisions of our own Supreme Court settled the law in this state adversely to the contention of appellee. Commercial Loan & Trust Company v. Mallers, 242 Ill. 50-53; Singer & Talcott Stone Company v. Hutchinson, 176 Ill. 48; and Life Association of America v. Fassett, 102 Ill. 315.

These adjudications being binding upon us, leave us no alternative, for, under them, it is clear that the court below erred in its ruling upon the demurrer and the refused propositions of law.

In the Fassett case, supra, the court declared it to be “a part of a settled policy of this State, that, upon the dissolution-* of a corporation, no matter how the dissolution may be effected, the corporation will be regarded as still existing for the purpose of settling up its affairs. In this case, the suit was commenced while the defendant in error was a going corporation, and we see no reason why it should not be permitted to prosecute its suit to final judgment, for the purpose of collecting its assets and settling up its affairs, even though it went into voluntary liquidation pending the litigation.”

In Singer & Talcott Stone Company v. Hutchinson, supra, the Supreme Court held that a writ of error (which is concededly a new suit), might be sued out by a corporation to review a judgment rendered against it, notwithstanding the fact that at the time the writ was applied for, more than two years had elapsed after the dissolution of the corporation.

Commercial Loan & Trust Company v. Mallers, supra, was a suit brought by the Trust Company in the Circuit Court of Cook county against Mailers, upon a promissory note, a judgment being entered in the court below in favor of the defendant, was appealed from, and this court reversed that judgment, without remanding, and entered a judgment here in favor of plaintiff below. The judgment of this court was subsequently affirmed by the Supreme Court, and thereupon an execution was issued by the Clerk of the Appellate Court for the amount of the judgment. The suit was brought in 1895. In 1898 (about three years after the suit had been begun), the Trust Company went into voluntary liquidation, but the final judgment was not rendered until 1908. When execution was issued, Mailers appeared in the Appellate Court, with a motion to quash the execution upon the grounds that the Trust Company had no legal capacity at that time to sue out an execution, because of its having gone into voluntary liquidation about ten years previously. The motion was denied by the Appellate Court, and this action was affirmed by the Supreme Court. This case had not been decided when the learned trial judge heard and disposed of the case at bar.

As to the merits of the case at bar, six witnesses testified in behalf of appellant, but appellee did not submit any testimony. After a careful consideration of the testimony, which is before us by the agreement of the parties, we think it fully justifies a finding against the defendant for $1263.97, with interest at five per cent, from April 11, 1901, making a total of $1933.77.

We cannot doubt from the testimony in the record that Owens, appellee, knew that the sugar he was getting from Fonger, was stolen, and while it is true, that the evidence in behalf of appellant is somewhat lacking in that definiteness which might be desired, yet, as the defendant produced no testimony, we are bound by the testimony offered in behalf of the appellant, together with all reasonable inferences to be drawn therefrom.

Thus applying the testimony, we are forced to the conclusion that appellant is entitled to a judgment for at least the amount above stated. The judgment of the court below will be reversed and judgment entered here in favor of appellant, for $1933.77, with a finding of fact.

Judgment reversed and judgment entered here in favor of Appellant.


text:
    Thomas Prokes, Appellee, v. Bohemian Roman Catholic First Central Union, Appellant.
    Gen. No. 15,941.
    1. Judgments—effect of excessive rendition. If a judgment is for a larger amount than is claimed in the ad damnum,, it is erroneous.
    2. Fraternal benefit societies—construction of word “will” as employed in particular certificate. Held, in this case, that the word “will”, as applied to the manner of disposing of the benefit fund, should not be construed in its technical sense, but should be held as the equivalent of “wish”, “desire” or “direction”.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 20, 1911.
    Kraus, Alschuler & Holden, for appellant.
    Charles D. Lusk and DeWitt C. Jokes, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Appellee brought suit in the Superior Court of Cook county, to recover from appellant, a fraternal beneficiary society, upon a certificate issued by ih Judgment was entered upon a verdict for $1000, which the court below refused to vacate, and the defendant there appealed to this court.

The declaration alleges that appellant issued its certificate to one Joseph Prokes, wherein it is provided that he is “entitled to participate in the death beneficiary fund to the extent of one thousand dollars, which sum, shall at his death, be paid to the person or persons named in his will as herein indicated; for my wife’s funeral $300 which will be paid to Thomas Prokes. For lot in cemetery $120. For reinterring parents in lot $25. For removing tombstone of father to lot $35. The balance for my funeral. This bequest is a true copy of the original signed by aforesaid member and deposited in the office of the secretary of said Union.”

It further alleges the death of Joseph Prokes,— his membership in good standing in the order at the time of his decease, and demand by appellee for payment to him of “the amount mentioned in the certificate. ’ ’

Attorney John O. Hruby, Jr., filed a plea of general issue on behalf of defendant. On April 22, 1909, the cause was reached for trial in the absence of any one representing defendant Society. A jury was called, —the certificate was offered in evidence, together with the testimony of a sister-in-law of deceased, to the effect that she was in the habit of paying the dues and assessments of deceased to the Society; that shortly before his death she tendered his dues and assessments to the treasurer, who would not accept them, and who told her that deceased was expelled from the order. She also testified that no notice of the suspension or expulsion was ever served on deceased.

This was all the evidence heard, and thereupon, the jury returned a verdict in favor of appellee for $1000, upon which the court entered judgment the same day.

Eight days later, and during the same term, appellant entered its motion to vacate the judgment, and filed affidavits in support thereof. The motion was continued for hearing, and when heard it appeared from the evidence that Hruby was, at and before the time of the trial, a member of the Illinois Legislature, and that upon the day of the trial he was actually in-attendance upon its sessions; that some time previously thereto, he engaged a law clerk, whose duty it was to watch and report to Hruby the call of the docket; that said clerk left his employ three days before the case was reached, without any notice whatever to Tiiin, and that affiant (Hruby) did not know the case was called or disposed of until April 24,1909; that deceased had long before his death been expelled from the Society, in conformity with its by-laws, etc.

After a hearing the motion to vacate the judgment was overruled.

We are asked to reverse the action of the court below, because it is claimed that the court erred in not vacating the judgment upon the showing made by the affidavits, and because it is manifest from an inspection of the record that the judgment is erroneous.

Taking up the latter contention first, we observe that if the judgment be for a larger amount than is claimed in the declaration, it is erroneous. Taylor v. Richman, 87 Ill. App. 419.

The declaration properly sets forth the entire certificate, but clearly those parts of it which make provision for payments to other than appellee, cannot avail to increase the amount which is payable to him. The very certificate sued upon provides that the payment shall be made to the “person or persons named in his will, as herein indicated.” The word “will” as here used, probably should not be construed according to its technical meaning, but should include “wish”, “desire”, or “direction”. What, then, was the wish, desire or direction which should control the society in making the payment? Was it not clearly stated to be, “for my wife’s funeral $300, which shall be paid to Thomas Prokes. For lot in cemetery $120. For reinterring parents in lot $25. For removing tombstone of father to lot $35. The balance for my funeral.”

Appellee was named only in connection with the provision, “for my wife’s funeral $300, which shall be paid to “Thomas Prokes,” and, passing the questions as to whether the wife’s death preceded that of her husband, and whether she was, or was not, alive at the time the suit was brought, it is clear that $300 is all that Thomas Prokes was to receive in any event. He was not shown by the pleadings or evidence to have any more right to the remainder of the $1000 than any unnamed stranger to the suit.

The verdict and judgment are thus shown to have been wholly unsupported by the declaration and proof. The judgment is therefore erroneous. Taylor v. Richman, 87 Ill. App. 419; Hays v. McCoy, 6 Blackford (Ind.) 69.

The verdict and judgment are thus shown to have •discussion of the other point raised by appellant.

The judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    John D. Casey, Administrator, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 15,964.

      Instructions—must not ignore defense. An instruction which embodies the theory of the defense should not be refused and the refusal .of such an instruction is error if its contents are not substantially contained in another or other instructions given.
    Action in case. Appeal from the Superior Court of Cook county; the Hon. Marcus Kayanaqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 20, 1911.
    Kretzinger, Rooney & Kretzinger, for appellant.
    John H. Lally, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This was an action brought against appellant, and Esch Bros. & Rabe Ice Company in the Superior Court of Cook county to recover damages for personal injuries resulting in the death of plaintiff’s intestate, a lad of nine and one-half years, on account of the alleged negligence of defendant railway company in the operation of one of its locomotive engines, while plaintiff’s intestate was lawfully upon said railroad, with the knowledge, consent and permission of the defendant.

A jury trial was had resulting in a verdict and judgment against appellant for $1,999.

The declaration contains five counts, the first alleging that on August 27, 1904, the railway company was possessed of, and operated a certain railroad extending through a part of the city of Chicago, crossing certain, and passing certain other, public highways; and, also was possessed of, and operated a certain locomotive engine and car attached; that the engine and car were operated by the railway company; that the ice company was at the time engaged in the business of selling ice to the public from railroad cars standing upon one of its tracks, commonly called a side track; that for a long time prior to the accident, large numbers of the public customarily crossed over the railroad at the point where the accident occurred, to said sidetrack, for the purpose of purchasing ice from the ice company, with the knowledge, consent, permission and invitation of the railway company; that it was the duty of the railway company to use proper care and warn persons of the approach of locomotives, which it failed to do; and, while plaintiff’s intestate was lawfully upon said railroad, with the consent and at the invitation of the railway company, for the purpose of buying ice from the ice company, while using due care for his own safety, the defendants, by their servants, carelessly and negligently failed to keep proper lookout or warn plaintiff’s intestate of the approach of said engine and car; that by reason of such neglect plaintiff’s intestate was run into by said car and engine with such force that he died from the injuries received.

The second count is the same as the first, except that it sets out a city ordinance governing the speed of trains, then in effect, and charges that at the time of the injury the railway company was running the locomotive engine and car at a greater speed than permitted by the ordinance.

The third count is the same as the first, except that it alleges that at the time of the accident there was in force in the city a certain ordinance requiring every corporation, owning, or operating a steam railroad within its limits, to construct and maintain walls, fences, gates, signal bells, and other safety appliances at such places, with reference to its tracks, as directed by the mayor and commissioner of public works; that the place where the accident occurred was one where the railway company should have had a substantial wall or fence, in compliance with said ordinance, but that the company failed to do this, and, as a result of such negligence, the engine ran into plaintiff’s intestate with such force and violence that because of the injuries received he died, on September 1, 1904.

The fourth count is the same as the first, except that it sets forth an ordinance of the city of Chicago, in force at the time of the accident, requiring bells to be rung continuously while running within that part of the city; that it was the duty of the railway company to comply with this ordinance; that by reason of its negligence to so comply with it, and ring its bell continually, the plaintiff’s intestate met with the injuries resulting in Ms death.

The fifth count is the same as the first, except that it alleges that there was a certain team roadway running along parallel with the railroad track, and that along said teamway and across the said railroad were the only ways provided by defendant and used by the public for ingress and egress for the public to said ice market; that said team roadway, at the time of the accident, was covered with teams and wagons hauling ice to and from the freight house on the sidetrack, thereby making it dangerous for plaintiff’s intestate to use said team roadway in going to or from the said ice market.

A demurrer of the ice company was sustained so that the case went to trial only against the railway company.

Appellant seeks a reversal of the judgment against it, contending (1) that the deceased was guilty of want of due care, which bars a recovery in this action ; (2) that the jury were not justified in finding appellant guilty of negligence; (3) that decedent was, at most, an implied licensee upon the track, and the only duty owed him by appellant was to refrain from wantonly and wilfully injuring him, and that there was neither allegation nor proof of such misconduct; (4) that the court erred in refusing to give the jury appellant’s 17th instruction, which it claimed embraced its theory of defense, and in support of which it had introduced evidence.

From the testimony of the witnesses it appears that at the time of the accident, and for some months previously, it was the custom of the ice company, while unloading its cars' of ice, to sell ice from cars standing on the side track of the railway company to such of the public as requested; that large numbers of people crossed over the tracks at the point where the accident occurred every day; that at the time of the accident there were numerous other persons on and about said tracks of the railway company, for the purpose of getting ice.

The switch track was the south one of the several tracks of appellant at that point. Deceased was at the car on the switch getting a small quantity of ice in a bag. Finding it too heavy to carry, he started north across the other railroad tracks to get a small wagon, in which to take away his ice. While on the tracks he was in some manner struck by the engine in question, and so severely injured that he died only a few days later.

There is some testimony in the record which tends to sustain the contention of appellee that the engine and car were being run at a higher rate of speed than permitted by the ordinance; that no bell was being rung, nor any other warning being given by the company; and that the deceased was rightfully upon the premises, by the invitation of the railway company, upon business in which it was engaged, or which it permitted to be carried on there.

On the other hand, four witnesses on behalf of plaintiff in error testified positively that the rate of speed was only between six and eight miles per hour, and that the whistle was blown and that the bell was being automatically rung.

The trial necessarily involved two questions; First-: was the appellant guilty of the negligence set out in the declaration, and was such negligence the proximate cause of the death? Second: Was plaintiff’s intestate, at the time of the injury, in the exercise of ordinary care for his own safety?

To, authorize a finding for the plaintiff the jury must reach an affirmative conclusion as to both these questions.

The railway company contends both that it was not guilty of the negligence charged against it, and also that deceased was not, at the time of the accident, in the exercise of ordinary care for his own safety. . If the proof established either proposition, then the company was" entitled to a verdict.

The railway company contended that the deceased was standing at the track next to and north of that on which the train was running, and where (being eight or ten feet away) he was perfectly safe; and that, when the approaching engine was within approximately ten feet from him, he turned and started to run south across the track on which the engine was approaching; that immediately upon his turning to run south across these tracks, the engineer, who saw bim before and at the time he started south, did all he could to stop the engine and avoid injuring him.

In this view of the case, appellant requested the court to give the following instruction:

“17. The court instructs the jury that if you believe from the evidence that when the persons in charge of the engine first came in sight of the deceased, he was so far removed from the track as to be free from the danger of collision, but, as the train approached, he placed himself in a dangerous position, immediately in front of the advancing train, and when it was too late for the engineer to stop the train and avoid a collision, and in so doing, failed to exercise due care for his personal safety, and was struck by the engine and killed, then I instruct you that the plaintiff, his administrator in this case, cannot recover, and your verdict should find the defendant not guilty.”
On behalf of appellee, one Clark, the engineer, had testified: “As I got close to him, I should judge 8 or 10 feet, he" was standing right on top of the rail, balancing himself on the rail. This rail was north of the one I was on. Just as I got within ten feet of bim, he turned and started to run back across the track I was on. He had about the same distance to go as I did, and we met just about the corner of the track.”

•This instruction embodied the theory of the defense, and, as there was evidence in the case tending to support it, the court erred in its refusal to give it. Keokuk Bridge Co. v. Wetzel, 228 Ill. 253; C. U. T. Co. v. Browdy, 206 Ill. 615; C. U. T. Co. v. Hansen, 125 Ill. App. 157.

For this error of the court, the cause must be reversed and remanded for a new trial.

The views we have just announced render unnecessary any discussion upon other questions raised.

The judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Chicago Brick Company et al., Appellees, v. Edward C. McLester, on appeal of Edward C. McLester et al., Appellants.
    Gen. No. 15,984.
    1. Mechanic’s liens—when contract sufficient. A contract for improvements to be made upon several separate though contiguous and adjacent lots made by the agent of the several owners of such lots is sufficient to support a lien for improvements made upon any of such lots which have not been paid for.
    2. Variances—when and how objection should be made. Objections charging variance must be specific, and in" chancery, if the testimony is taken before a master, should be made before him.
    3. Interest—when properly allowed. Lien claims by statute expressly bear interest.
    4. Interest—when unreasonable and vexatious delay established. If indebtedness is clearly established and it does not appear to have been denied, an unreasonable and vexatious delay of payment is established where the defense to' the action to recover such indebtedness is predicated solely upon technical grounds.
    6. Decrees—when sufficiency of evidence to support cannot be questioned. A defendant cannot, after a decree pro confesso against him, question the decree or the sufficiency of the evidence to support it.
    Mechanic’s lien. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 20, 1911.
    Edmund W. Froehlich, for appellants.
    McCulloch & McCulloch and William S. Corbin, for appellees; Bertram W. Rosenstone, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

On the 4th of December, 1906, appellee, the Chicago Brick Company, filed its petition for a mechanics ’ lien against certain real estate owned by appellants. The South Side Lumber Company and William Downs, respectively, became parties to the proceeding by answers and intervening petitions, and set up their own respective claims for mechanics’ liens upon the same property. Other intervening petitions filed in the case were dismissed in the court below, and are not involved in this appeal.

The intervening petitioners, the South Side Lumber Company, and Downs, respectively, claim under contracts made by them severally with George W. McLester, as agent, for and on behalf of appellants, while the Chicago Brick Company claims as a subcontractor under one Fritz Nelson, who had a similar contract with George W. McLester, as agent, for all the mason work for the three buildings. The case was referred to a master in chancery, who reported in favor of a lien for each of the claimants. Upon a hearing, the court entered a decree on the 9th of April, 1909, sustaining the master’s report, except that the court reduced the amount of the lien of William Downs; the decree established the liens in favor of the Brick Company for $257.50 with interest and costs, the Lumber Company for $297.88 with interest and costs, and William Downs for $295 with interest and costs, instead of $445 as fixed by the master.

The appeal brings before us for review the three alleged liens on the property belonging to Edward C. McLester and Nora McLester, his wife, and also the cross errors of William Downs who objects to the reduction made by the court in the amount of his claimed lien. The same questions (as to the Byan property) are pending in this court, as No. 15985, on a separate appeal. (Post, p. 120.)

It appears that the premises involved in this proceeding is one of three adjoining lots; one of the three is owned by Pauline McLester, wife of George W. McLester, another by appellants, Edward C. McLester and Nora McLester, his wife; and the third by Edward J. Ryan and Mary A. Ryan, his wife, as joint tenants. Each of these parties decided to erect improvements on their respective lots in 1906. George W. McLester took charge of the erection of the house upon the lot owned by his wife, and also entered into a contract or agreement with the owners of the other two lots, under which he was to let the contracts for and to supervise the erection of the improvements upon their respective premises, for which he was to receive a stipulated sum as compensation. The various contracts for furnishing labor and material for the three improvements were made by George W. McLester on behalf of, and as agent of bis respective principals.

The proceeding involves the question whether improvements made on three separate, though adjacent and contiguous, pieces of ground, owned by three separate owners, and where the contracts under which the liens are claimed, were made with the agent of all the owners, afford the basis for mechanics’ liens in favor of the respective contractors, who furnish labor and material for the improvements. The houses were identical in size and the buildings were accepted by their respective owners without objection.

It is stated that Pauline McLester paid the respective contractors for the building constructed by them for her, and that accordingly no lien proceedings were instituted against her property.

The principal contention of appellants as to all the claimants, is (1st) that the mechanics’ lien law of this state does not entitle a claimant to a lien under an entire contract to furnish labor or deliver material jointly to two or more persons for improvements on two or more pieces of property; (2nd) that as to all three of the claims there is a variance between the allegations and the proofs; (3rd) that interest was improperly allowed upon the claims; and (4th) as to the Chicago Brick Company, that the notice of lien is not shown to have been properly served.

At the outset, we observe that there appears to be no denial that the material was furnished and delivered and the work performed according to the respective contracts; indeed, upon this record, we are justified in finding it as an established fact.

Section 39, Mechanics’ Lien Act of 1903, chapter 82, B. S., provides in terms that the mechanics’ lien act “is, and shall be liberally construed as, a remedial act.” Under this mandate of the Legislature, and the conceded and proven facts in the case, we do not see any legal objection to sustaining the several liens, even though the improvements were erected on separate parcels of land, belonging to different owners; indeed, sections 1, 2 and 21, of the statutes, providing for mechanics’ liens, seem to contemplate and in terms to provide for just such a situation.

In the case at bar, it should be noted that the owners of these separate and contiguous lots severally authorized one person to act as their agent in the matter of making the proposed improvements, letting contracts, etc., and that George W. McLester did, as the agent for the others, actually let the contracts for, and supervise the improvements in question. There is no dispute in the evidence that the material and labor furnished, and for which the mechanics’ lien was decreed, were furnished equally for each of the buildings. The decree declared the liens of the three appellees severally, for the respective amounts heretofore shown, upon the lot owned by appellants.

The contention made by appellants that such liens could be enforced against several pieces of property only when owned by the same person, cannot be sustained. The phraseology of the statute (sections 1 and 7) seems clearly to negative that contention. Moreover, it is said in Steigleman v. McBride, 17 Ill. 300:

“A mechanics’ lien, as created by the statute, is not upon the specific thing furnished, nor upon the interest alone of the party in the land, for whom furnished, but against the land, to be satisfied in any way consistent with the statute and the principles of equity.”

To substantially the same effect, see also Lewis et al. v. Rose, 82 Ill. 574; and see also Paulsen v. Manske, 126 Ill. 72, where it is said:

“He (Paulson) was in fact acting for and on behalf of the Browns, and they cannot be permitted to receive the benefit and escape the liability of the mechanics’ lien attaching to their interest.”

In Sorg v. Crandall, 233 Ill. 79, the court, in defining the word “owner” of real estate, held, in effect, that the word “owner”, as used in the act, means all owners who are acting together in the making of the improvements.

We think, therefore, under the conditions shown in this case, the liens were properly enforceable.

If appellants desired to insist upon their point that' there was a variance between the proofs and allegations, they should have specifically and with clearness made that objection before the master, instead of relying upon only general objections; indeed, it is not clear that the court was bound to consider them; they should have been specific. Thornton v. Commonwealth Loan & Building Association, 181 Ill. 456-459. The specific point should have been raised before the master, and appellants should have preserved their rights by objection and subsequent exception. The question cannot be raised for the first time in this court. Murphy v. Cicero Lumber Company, 97 Ill. App. 510-517.

Appellants contend that interest should not have been allowed upon these claims, but the statute expressly allows interest on all lien claims. (See sections 1 and 21, Mechanics’ Lien Act of 1903.) Murphy v. Cicero Lumber Company, supra; Sorg v. Crandall, 129 Ill. App. 255. Appellants suggest that such provisions of the statute may be unconstitutional, but here disclaim any attack upon the constitutionality of the act allowing interest, which has repeatedly been allowed by the courts under this statute. Merritt v. Crane Company, 126 Ill. App. 337; Murphy v. Cicero Lumber Company, supra; Carey-Lombard Lumber Company v. Jones, 187 Ill. 203.

Independently of this particular statute, however, we think the court below was justified in allowing interest. Nowhere is there any denial of these contracts, nor of the indebtedness, except in the case of Downs, whose claim against the owner was not reduced, the reduction being made only in the amount for which a lien was established.

Under these circumstances, we think the court might well have held that interest was chargeable under the provisions of the statute, imposing interest where the money was withheld by unreasonable and vexatious delay of payment. Section 2, chapter 74, E. S.

Considering now appellants ’ contention that the notice of the Chicago Brick Company was not properly served,—we observe; first, that appellants were defaulted in the bill filed by the Brick Company and a decree pro confesso entered against them; second, that the bill alleged the serving of notice and the decree followed the allegations of the bill. As long as the decree is within the allegations of the bill, defendant cannot, after a decree pro confesso against him, question the decree or the sufficiency of the evidence to support it. Roby v. Chicago Title & Trust Company, 94 Ill. App. 379; Monarch Brewing Company v. Wolford, 179 Ill. 252.

Appellee,, William Downs, assigns as cross errors, the action of the court in fixing the amount of the lien to which he was entitled at the sum of $295, instead of $445, as found by the master. In the light of the evidence before the master, we think the court was justified, in making the reduction. It appears that Downs secured an order for $800 to apply on the contract on November 23,1906, from George W. McLester. With that order, George W. McLester and Edward O. McLester went with him to the bankers, where Downs drew out that amount and turned over $300 of it to Edward O. McLester; the order evidently having been made $300 larger than it otherwise would have been, for the purpose of including the amount which the McLesters wished to use. After drawing $800, Downs gave Edward C. McLester his check for $300, and took therefor a writing promising to repay the amount within ninety days, thereby accepting other security.

We have carefully considered the decree appealed from the master’s report, and the evidence upon which it is based, and we see no sufficient reason for disturbing the decree of the court below, and it will, therefore, be affirmed.

Decree affirmed.


text:
    Chicago Brick Company et al., Appellees, v. Edward J. Ryan et al., on appeal of Edward J. Ryan and Mary A. Ryan, Appellants.
    Gen. No. 15,985.
    This case is controlled by the decision in Chicago Brick Co. v. McLester, ante, p. 114.
    Mechanic’s lien. Appeal from the' Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 20, 1911.
    Edmund W. Froehlich, for appellants.

      John E. Crawford, for appellees; William A. Doyle, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an appeal by Edward J. Ryan and Mary A. Ryan, his wife, from a decree entered April 9, 1909, establishing mechanic’s liens against the property owned by them, in favor of the appellees, Chicago Brick Company, the South Side Lumber Company, and William Downs.

By the decree, the court fixed the lien for Downs at a less amount than the master found in his favor, and upon this action Downs assigned cross errors. The entire record is identical with No. 15984, pending in this court, and the proofs and arguments presented by counsel are also the same. For the reasons set forth in our opinion in that case, and filed this day, to which reference is hereby made {ante, p. 114), we find no reversible error in the action of the court below, and the decree will, accordingly, be affirmed.

Decree affirmed.


author: Mr. Justice Clark

text:
    Ossian Cameron, Plaintiff in Error, v. Illinois Steel Company, Defendant in Error.
    Gen. No. 15,903.
    1. Assignments—when, of chose in action, void. An assignment of an action for personal injuries is contrary to public policy and void.
    2. Fraud—when compromise of assigned claim not actionable. Held, that under the evidence, no fraud was shown which rendered actionable the compromise by the defendant of an action for personal injuries and that no action could be maintained against such defendant by an attorney to whom the claim in suit had been assigned.

      Tort. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 20, 1911.
    Ossian Cameron, plaintiff in error, pro se; A. S. Lakey and John C. Murphy, of counsel.
    Knapp & Campbell and William Beye, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

This suit was brought by the plaintiff in error, hereinafter called the plaintiff, against the defendant in error, hereinafter called the defendant, and one Barancik, for damages in tort.

Upon a trial before the court and a jury the court directed the jury to find a verdict in favor of the defendant, and upon the rendering of the verdict entered judgment against the plaintiff for costs. To reverse such judgment this writ of error is brought.

The declaration in the cause consists of two counts. In the first count it is alleged that the plaintiff was at the time of the commission of the grievance alleged an attorney and counselor licensed to practice by the Supreme Court of Illinois; that he entered into a contract with one Frank Bubish, by which contract the plaintiff in his professional capacity was to protect and secure certain rights which Bubish had against the defendant, and by which contract Bubish agreed to pay to the plaintiff one-half of the amount recovered from the defendant; that the plaintiff entered into numerous negotiations with the defendant with a view of effecting a settlement, and began suit in behalf of Bubish against the defendant for personal injuries, in which suit damages were fixed by the declaration in the sum of $20,000; that the defendant, the Illinois Steel Company, and Barancik, the other defendant, knew of this contract and that it was their duty to refrain from interfering with the plaintiff in his contractual relations, but that conspiring together to damage and injure the plaintiff, they wilfully and maliciously persuaded and induced Bubish to break his contract with the plaintiff for the purpose of injuring the plaintiff and depriving him of the profits; that said Steel Company and Barancik with certain other persons caused Bubish to settle his suit with the Steel Company for the sum of $4,000; that Bubish then departed from the state; that he is wholly irresponsible financially and has concealed and disposed of the money received from the Steel Company, whereby plaintiff suffered damage to the extent of $10,000.

The second count is practically the same as the first excepting that the contract is set out in haec verba. This contract, after a paragraph by which the plaintiff is made the attorney of Bubish to bring suit against the Steel Company, authorizes the plaintiff to compromise or adjust the same in court or out of court. By the contract Bubish agreed to pay the court costs and necessary expenses, and to pay plaintiff one-half of the amount received as his attorney’s fees. Bubishi by the contract further attempted to assign and transfer to the plaintiff his right, title and interest in and to the claim and to any judgment recovered thereon, and to any money or valuable thing paid in settlement, and he agreed that any money received by him he would hold as the agent of the plaintiff. The contract was acknowledged by Bubish before a notary public.

The plaintiff, called as a witness in his own behalf, testified as to the making of the contract and as to the beginning of the suit against the Steel Company, also as to sundry conversations he had with Barancik, who appears to have been an agent of the defendant in effecting a settlement, and as to conversations with the attorneys for the defendant with respect to settlement.

Bubish was also called as a witness by the plaintiff, and testified to settling the case for the sum of $3,00Q and to his conversation with Barancik in regard to the same. He testified further that he was told by Barancik when he made the settlement that the defendant would pay his doctor bill and his lawyer.

Other witnesses were called by the plaintiff, but their testimony, in the view we take of the case, it is unnecessary to consider.

• The contract above referred to, in so far as it purported to be an assignment to the plaintiff of the claim of Bubish against the defendant, was void, and the defendant had a perfect right to compromise its suit directly with Rubish. North Chicago Street R. R. Co. v. Ackley, 171 Ill. 100.

The plaintiff’s case as shown by his declaration is founded upon the proposition that the defendant together with Barancik fraudulently induced Bubish to break his contract with the plaintiff. We find no evidence in the record that the contract between Bubish and the plaintiff was broken. It is true Bubish settled his claim direct with the defendant, but the contract evidently contemplated that he might do so, and provided that in the event of his doing so he should hold the amount received as agent for the plaintiff. If this provision of the contract is valid, which is extremely doubtful in view of the fact that the claim was not assignable, the plaintiff would have his right of action against Bubish upon it. Nothing that the defendant did could in any way operate to prevent the plaintiff from maintaining an action against Bubish upon this provision of the contract. Nor is there in the record any evidence tending to show that Bubish discharged the plaintiff as his attorney. As stated before, there, is evidence tending to show that the defendant agreed to pay the attorney’s fees of Bubish, but this action is not based on any contract relation between the defendant and Bubish or between the defendant and the plaintiff. It is founded entirely upon the alleged tortious acts of the defendant in connection with Barancik, and so far at least as the defendant is concerned, the record discloses no evidence tending to sustain the contention.

After the court below had instructed the jury to find a verdict for the defendant the plaintiff asked permission to file an additional count. This count charges that the defendant and Barancik entered into a conspiracy to defraud the plaintiff and to hinder and prevent him in the practice of his profession and to destroy his clientage, and that in pursuance of such conspiracy the defendant and Barancik and others unknown to the plaintiff, fraudulently, wickedly, maliciously and wilfully induced Bubish to break his contract with the plaintiff and to terminate the relation of attorney and client so existing. As heretofore stated, we find nothing in the record tending to support the contention that the defendant entered into any such conspiracy as charged. We think, therefore, that the trial judge committed no error in refusing to allow the additional count to be filed.

From what has been said it follows that in our opinion the judgment of the court below should be affirmed.

Judgment affirmed.


text:
    Isaac N. Rice, Defendant in Error, v. Thomas E. Dougherty et al., Plaintiffs in Error.
    Gen. No. 15,679.
    1. Chancery—when relief should not he granted. Relief not prayed for as against a person not joined as a" party should not be granted.
    2. Decrees—effect of uncertainty. If a decree is indefinite and uncertain it is erroneous even though not void and will be reversed.
    3. Accounting—when should not he awarded. If the status of the case is such that the master cannot tell between whom and upon what basis to state an account, reference for the Statement of an account should not be awarded.
    Bill in chancery. Error to the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded with directions.
    Opinion filed October 20, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    W. S. Oppenheim, for plaintiffs in error.
    Lowes & Richards, for defendant in error; Walter Olds, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

On January 22,1900, the defendant in error, as complainant, filed a bill of complaint against the plaintiffs in error, Dougherty and Schaeffer Piano Manufacturing Company, as defendants. Thereafter answers were filed by the defendants, and on November 21, 1900, the case was referred to Edward A. Dicker. Esq., a master in chancery, “to take and report the evidence, together with his opinion thereon as to whether the complainant is entitled to an interlocutory decree directing an accounting herein.” On May 23, 1905, the report of the master was filed, recommending that the bill be dismissed for want of equity. An order was entered that the objections of complainant filed before the master stand as exceptions, and on July 13, 1906, a "decree was entered by Judge Heard, acting as chancellor, sustaining the exceptions and finding that the complainant “is entitled to an interlocutory decree directing an accounting herein,” and referring the case to Roswell B. Mason, Esq., a master in chancery, “to take and state an account herein, allowing the defendant Thomas E. Dougherty interest on the money invested by him at the legal rate and a salary of two hundred dollars per month and allowing the complainant a salary of two hundred dollars per month and half of the net profits.” On October 3,1907, a rehearing was granted by Judge Carpenter, sitting as chancellor, and upon such rehearing the exceptions to the master’s report were overruled and a decree entered dismissing the bill for want of equity. An appeal was taken from the decree of Judge Carpenter to this court, and it was reversed in this court, solely upon the ground that Judge Carpenter was without jurisdiction because the decree entered by Judge Heard was final and had been entered at a term of court prior to the term at which the motion for rehearing was granted and the decree entered by Judge Carpenter. The opinion of this court may be found in 148 Ill. App. 368. Thereafter Dougherty and the Piano Manufacturing Company sued out a writ of error from the decree of Judge Heard, and it is the questions brought to our attention by this writ of error alone that we are called upon to decide.

There is some discussion in the briefs as to whether or not certain questions of law were settled by the former appeal. In the opinion filed at that time the following language is used:

“But as we are obliged to reverse and remand this cause, without consideration of the merits, we have refrained from an examination into these merits and we have no opinion thereon.”

It is quite clear, therefore, that none of the questions presented by this writ of error were disposed of on the former appeal. However, in the statement preceding the opinion a synopsis of the bill of complaint is set forth. (148 Ill. App. 369.) It is therefore unnecessary for us to recapitulate its allegations. It is sufficient to say that it charges a partnership between Dougherty and Bice.

The conclusion reached by the master to whom the case was referred, was as follows:

“Taking, therefore, into consideration all the facts and circumstances surrounding the parties at the time, their subsequent course of conduct, as well as the testimony of the parties, I am of the opinion that the only arrangement at the time the property was purchased by Dougherty was the arrangement, as testified to by Dougherty, that is, that Bice should be employed with a salary of $200 per month as sales agent and should receive, in addition, one-half of the net profits for the first year if there were any.
“I find further that the complainant has failed to sustain the allegations of his bill of complaint, and that the bill should be dismissed for want of equity.”

In the bill of complaint the complainant states that he and Dougherty entered into the business of manufacturing and selling pianos on or about January 1, 1898; that they conducted such business until January 1, 1899, and arranged for continuing the business during 1899. We are unable to find in the record any evidence that Bice and Dougherty “entered into the business of manufacturing and selling pianos.” On the other hand, it appears undisputed that Dougherty after buying the property at once turned it over to the corporation which was formed by him and which is now one of the plaintiffs in error herein.

After praying for process and that the defendants may be required to answer, the bill prays that the defendants “fully set forth a true and just account of all Ms actings and doings in respect to said copartnership business from the date of the formation of the same, and of all property purchased and on hand or sold or disposed of by said copartnership * * * and that an account may be taken under the direction of this honorable court, of all and every the said copartnership dealings and transactions, and that the same may be fully adjusted, and the respective rights of your orator and the defendant ascertained; and that the defendant may be decreed to pay to your orator what, if anything, shall appear upon such account to be due from Mm,” etc.

The bill prays for a receiver of the partnership property; also prays for an injunction restraining the defendants and their agents or attorneys “from collecting or receiving any of the debts due and owing to the said firm, and from using and applying any of the copartnership funds to Ms own use until the further order of the said court.” It will he noticed that no relief is asked against the corporation defendant except possibly an injunction.

None of the stockholders of the corporation save Dougherty are made parties to the suit. It is true that the bill in effect charges that the Piano Manufacturing Company is dominated and controlled by Dougherty, but it does not ask that any of the shares of stock be declared to be the property of the complainant. Nor does it ask that a receiver of the Piano Manufacturing Company be appointed, nor that the transfer of the property to the Company be set aside. There would seem to be abundant reason, therefore, for reversing the decree so far as the Piano Manufacturing Company is concerned.

The master found, as heretofore stated, that the only arrangement between Dougherty and Rice was that Rice should be employed at a salary of $200 per month as sales agent, and should receive in addition one-half of the net profits of the first year if there were any. This arrangement in itself does not constitute a partnership, and proof of it does not sustain the allega-' tions of the bill.

The decree entered sustains in terms all the exceptions to the report of the master. It had previously been ordered that the objections to the master’s report stand as exceptions thereto. These so-called objections consist of seventeen typewritten sheets in the record, but they are more in the nature of an argument for the complainant’s contention on the merits of his case than objections. The decree makes no finding except that the complainant “is entitled to an interlocutory decree directing an accounting herein,” and the case is by the decree then referred to a master in chancery to make an accounting. The decree does not direct whether the accounting shall be merely between Rice and Dougherty or between Rice and both of the defendants.

In the bill of complaint three agreements are alleged to have be.en made between Rice and Dougherty. Under one of these agreements Dougherty was to furnish certain money, taking the title to the property in his own name as security for advances, and the profits were to be equally divided between Rice and Dougherty.

By the second agreement, • as alleged in the bill, Dougherty was to organize a new corporation, turn the property over to it, issue preferred stock for the money advanced by him, and to divide with Rice the common stock to be issued.

By. the third agreement, as alleged in the bill, it was provided that Dougherty should take the bonds of the corporation for $35,000 for the money advanced and to be advanced by him, and was to divide the stock of the corporation equally with Rice.

It is difficult to see how a master in chancery could, on a reference, state an account and base it upon the allegations of the bill. He would be unable to determine between whom the account was to be stated, or upon what basis the accounting should be made. He was directed by the decree to “take and state an account herein, allowing the defendant, Thomas E. Dougherty, interest on the money invested by him, at the legal rate, and a salary of $200 per month, and allowing the complainant a salary of $200 per month and half of the net profits.” It is not stated in the decree what period of time the accounting is to cover. The evidence discloses the fact that the salaries of Dougherty and Rice had been paid by the defendant corporation, but the decree does not inform the master how these payments are to be treated in the accounting, if it be assumed that the account is to be stated as between the complainant and both defendants, nor upon which one of. the three agreements referred to in the bill the accounting shall be based.

In onr opinion, therefore, the decree is erroneous, if not void, because of its uncertainty and indefiniteness. We think, also, the decree is improper because the testimony did not sustain the allegations of the bill. Complainants are not permitted to state a case one way in their bill and make another and different showing by their testimony. The allegata and probata must correspond. Purdy v. Hall et al., 134 Ill. 298; Coale v. Moline Plow Co. et al., 134 Ill. 350; Hawley v. Hawley, 187 Ill. 351.

The case was pending before the master in chancery for about five years, and he found, as heretofore stated, that the allegations of the bill of complaint were not sustained by the proofs. We agree with him in that finding, and the decree will therefore be reversed and the cause remanded, with directions to the Circuit Court to enter an order dismissing the bill.

Reversed and remanded with directions.


text:
    William Martin, Appellee, v. Borden’s Condensed Milk Company, Appellant.
    Gen. No. 15,869.
    . Peksonal injuries—when recovery for, as result of collision, not sustained. In an action by a motorman to recover tor injuries sustained as the result of a collision with a wagon driven upon the track, held, that the evidence showed no negligence upon the part of the driver in charge of such wagon.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed October 20, 1911.
    Pringle & Fearing, for appellant.
    Guerin, Gallagher & Barrett, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

The appellee in this case was a motorman in the employ of the Chicago City Railway Company in the City of Chicago, and on the 16th of August, 1907, was injured in a collision between a wagon of the appellant company and an electric car upon which the appellee was employed. The accident occurred about 3:15 in the morning, on State street, a short distance south of Fifty-sixth street. .

The declaration charges “that the defendant, through its agent, carelessly, negligently and improperly drove, managed and guided the said wagon and team of horses at a great, reckless and dangerous rate of speed in the dark in the said car track and on said left-hand side of said public highway, and did then and there carelessly, negligently and recklessly drive the said wagon and team of horses into and against the said car and into and against the plaintiff, who was then and there using all due care and caution on his part, and the plaintiff was then and there, through said defendant’s said negligence, knocked down, pushed and knocked against portions of the said car and hurt and bruised. And by reason of said negligence of said defendant he, the said plaintiff, was greatly and permanently injured both internally and externally in divers portions of his body,” etc.

There was a trial before the court and a jury, and a verdict in favor of the plaintiff for the sum of $500 upon which judgment was entered. It is sought to reverse the judgment on two grounds: first, that no negligence on the part of appellant was shown; second, that from the undisputed evidence the appellee is shown to have been guilty • of contributory negligence.

We have looked in vain in the record for evidence of negligence on the part of the defendant as charged in the declaration, viz: that through its agent it negligently and improperly drove, managed and guided the wagon and team of horses at a great, reckless and dangerous rate of speed in the dark in the car track and on the left-hand side of the public highway, and carelessly, negligently and recklessly drove the wagon and team of horses into and against the car and into and against the plaintiff, etc. There is evidence tending to show that the milk wagon of the appellant had no light upon it so placed that it could be seen by appellee, and that the driver of the milk wagon of the appellant saw the car coming when it was two or three blocks away. There is evidence also tending to show that while the street was in bad repair, the wagon could have been driven on the side of the street. The declaration nowhere charges the defendant with negligence in failing to keep a light upon its wagon where it could be seen. Such failure would not in our opinion be negligence in itself, especially if, as would appear from the evidence, there was a lighted lantern at each end of the wagon. Nor does the declaration charge as negligence the conduct of the defendant by its agent, namely the driver, in causing the teám and wagon to remain upon the car track after he saw the car approaching.

The appellee’s testimony is substantially as follows:

“At the time of the accident my car was going north. I was going north at 57th place and all of a sudden this wagon appeared before me and the car and wagon crashed into one another, and the front vestibule of the car was broken in on top of me * * * I saw this wagon when I was within twenty-five or thirty feet of him, as near as I can judge. Didn’t see a light on it. The wagon was going south. Then I put on the power to stop the car and I could not stop it. I had not space enough to stop it. I applied the air to the brakes and shut off the power. Then they both crashed into one another and the front end of the car was all broken in on top of me, and it tore my leg all to pieces here into the bone. * * # There were no lights there on the street. I could not see only just as far as the headlight of the car could show me. * * * It had been raining for several hours; had been raining very heavy all night from about twelve o’clock. There was water on the rails. * * * The rail was all right, but water was in the brakes; they were wet from the dashing of water against them. That affects the stopping of the car. It affects the shoes that catch hold of the wheel. Does not make them take better hold. They take hold best when dry. I know the brakes won’t work as good when they are real wet as when they are real dry. The brakes had been wet ever since it began to rain that night. * * * As soon as I saw this wagon about twenty-five feet ahead of me I shut off the power and applied the air right away. The car slacked a little, and I had not time enough to check it quick enough. I could not say exactly how-much it slacked, I was right on top of the wagon like a shot you know. Think I slacked down from six miles to about four. I know I did. Couldn’t tell exactly the speed I was going when I struck the wagon. I don’t think I was going more than four miles an hour, about three or four. * * * This wagon was one of those big heavy trucks. I guess it was loaded. Don’t know whether there was two or four horses. The horses were the first thing I hit. Don’t know how far the car went after it struck the wagon. * * * My car was lighted up with electricity and it had a head light. The night was gloomy and the light was not able to carry very far. Didn’t have a weak headlight, but the light cannot go through a gloomy night very far when it is raining heavy. I had the window up in front of me and there were rain drops on it. It was raining heavy on the window. I didn’t let the window down because I could not stand there then. I didn’t have a raincoat. Could not see very far. * * * All of the street lights were out at that time.”

From other testimony in the record it appears that the driver of appellant’s truck which came in collision with the street car was one Martin Swenningsen; that about one-half a block in front of him there was another truck wagon belonging to appellant which was driven by Charles H. Wells. Swenningsen was driving southwardly, using the west track, otherwise called the south-bound track, until he was near Fifty-sixth street, when a street car from the ‘north came upon him and he turned into the east or north-bound track to allow the car to pass. The truck he was driving weighed 4,700 lbs. and carried a load of six tons consisting of crates filled with bottles of milk and cream. Wells, who as heretofore stated was in front of him, also drove over into the north-bound track to allow the car coming southwardly to pass. After the south-bound car had passed Swenningsen he was about to return to the south-bound track when a second south-bound car came up behind him. The motorman of the second car rang the bell to keep- the track clear. When this bell sounded Swenningsen was still driving southwardly in the north-bound track; he was holding this track until the second south-bound car should pass. The second south-bound car was going very slowly and Swenningsen was unable to get back into the south-bound track after the second south-bound car had passed him in time to escape the north-bound car.

It further appears from the testimony of appellee that his car was going about six miles an hour when he first saw the wagon, and that when going at that rate the car could be stopped with the air brakes within about 45 feet. It also appears from his testimony that on account of the darkness and the rain and because of the fact that his window was up and had rain drops on it he was unable to see the truck until it was about 25 feet ahead of him. In such circumstances it is very questionable whether appellee was using proper care for his own safety and the safety of others who were on the car with him, if he allowed the car to go at so high a rate of speed that with all his efforts he would be unable to stop it within a distance of 45 feet. In other words it would seem that he ought to have reduced the speed of his car to such an extent that he would be able to stop it within the distance at which he was able to see an object in front of him. Moreover it is questionable from all the testimony in the case whether the rate of speed at which he was going was not considerably in excess of six miles an hour. He testified himself, “I was right on top of the wagon like a shot you know. ’ ’ The driver of the truck which came into collision with his car is not shown to have been negligent in any manner. He had the same right to use the street as appellee or the street car company. North Chicago Railway Company v. Peuser, 190 Ill. 67; Brunhild, admr., v. Chicago Union Traction Co., 239 Ill. 621. It was not necessarily his duty to use the portion of the street unoccupied by the street car tracks especially if, as would seem to be the fact from the evidence in the case, the other portions of the street were unpaved. He was not driving his team at a high or dangerous rate of speed as charged in the declaration but apparently was driving it at a walk.

It is unnecessary to consider the proposition first argued by appellant in the brief, namely, that the accident was due to the negligence of appellee himself. We prefer to rest the decision upon the proposition that no negligence on the part of appellant or its agents or servants is shown in the record and that therefore no basis for recovery by appellee appears.

The judgment will be reversed with a finding of fact.

Reversed with finding of fact.