text:
    Charles L. Millhouse, Appellee, v. Herman H. Krotz, Appellant.
    Gen. No. 18,871.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Fenihobe Coopee, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed January 13, 1914.
    Statement of the Case.
    Action by Charles L. Millliouse, surviving partner of a copartnership formerly composed of Daniel McHenry and Charles L. Millliouse, on a stay bond to recover against defendant as surety thereon. From a judgment in favor of plaintiff in the sum of $689.29 as damages together with costs, defendant appeals.
    The bond in this case was executed to stay execution on a judgment recovered in the Municipal Court in favor of the copartners against Alfred E. Croft upon an indebtedness dne from Croft for a balance of the purchase price for certain shares of stock. This judgment was afterwards affirmed in McHenry v. Croft, 163 Ill. App. 426.
    Abstract of the Decision.
    1. Appeal and error, § 1859

      —when surety, on a stay bond es-topped by terms of bond to claim satisfaction of judgment. In an action against a surety on a stay bond, defendant is estopped to claim plaintiff’s retention of certain promissory notes operated as a satisfaction of the judgment, where such retention took place before the execution of the bond.
    2. Appeal and error, § 1877

      —defense to action an stay bond. In an action on a stay bond, any defenses in the nature of payment or discharge of the judgment must he based upon facts arising after the execution of the bond.
    3. Appeal and error, § 1884

      —evidence inadmissible in action on stay bond. In action against surety on a stay bond, held not error to refuse to permit the defendant to introduce in evidence the transcript of the proceedings in the trial court and the opinion of the Appellate Court to show what facts bad been adjudicated in the original suit.
    4. Appeal and error, § 1859

      —when surety on stay bond estopped to deny validity of judgment. Surety on a stay bond is estopped to deny that a valid judgment was in force at the time of the execution of the bond.
    5. Election of remedies, § 5

      —when creditor has concurrent remedies. The law is that a creditor holding collateral security may prosecute an action against the debtor and at the same time proceed to realize upon the security, and is entitled to follow both remedies until the debt is finally satisfied.
    Robert D. Melick, for appellant.
    Musgrave, Oppenheim & Lee, for appellee.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    American Sand & Gravel Company, Appellee, v. Chicago Gravel Company and Joliet Sand and Gravel Company, Appellants.
    Gen. No. 18,879.
    1. Contracts, § 153

      —when agreement not to sell products of sand and gravel pits not in unreasonable restraint of trade. Where a contract grants the exclusive right to excavate and remove sand and gravel from a tract of land for a certain period, and in consideration for the privilege granted the grantee agreed to make certain payments in money, to deliver to the grantor not to exceed twenty-five carloads of the product per day, and not to sell during the contract term any products from any of its pits for use in Cook county, except to the grantor, held that the negative covenant contained therein is not in unreasonable restraint of trade, but that its provisions are reasonable and only in partial restraint, and founded upon a valid consideration.
    2. Contrasts, § 152

      —when negative covenant in partial restraint of trade not invalid. Where the restriction of a negative covenant is partial, reasonable and calculated to foster the business of the covenantee, rather than to destroy competition, it cannot he held to he in violation of the Federal or State statutes, or against public policy, and therefore void.
    3. Contracts, § 329

      —-when breach of contract waived. A party to a contract waives a breach thereof by the other party where he makes no attempt to rescind therefor but avails himself of its benefits long after the breach was committed.
    4. Injunction, § 75

      —when lies to enforce negative covenant though remedy at law. The right to an injunction for the enforcement of a negative covenant in a contract does not depend on the question whether complainant has an action at law or not to recover damages.
    5. Injunction, § 75

      —when violation of negative covenant may be enjoined. Equity may interfere to restrain the violation of a negative provision in a contract although it cannot enforce the affirmative one where the negative and affirmative provisions are entirely separate and distinct.
    6. Assignments, § 22

      —when assignment of rights under a contract operates to establish privity of estate. Where a contract grants an exclusive privilege to take sand and gravel from certain land for a term of years and the grantee assigns his entire term leaving no reversionary right, there is a privity of estate .between the assignee and the original grantor.
    7. Assignments, § 25

      —when assignee of rights under a contract takes with notice of liabilities. Where a contract grants a company a privilege of taking sand and gravel from certain premises and such company assigns all its interest thereunder to another company, the latter company will be charged with knowledge of the duties and liabilities of the former company under the contract where both companies had substantially the same persons as officers, each company occupying the same offices and sharing the same telephone service.
    8. Licenses, § 29

      —when grant of right to take gravel from land not grant of mere personal license. A contract granting the exclusive right to take sand and gravel from certain premises, the right not being limited to any particular piece or section, clearly grants an interest in the land and not a mere personal license.
    Appeal from the Superior Court of Cook county; the Hon. Chables A. McDonald, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed January 13, 1914.
    Rehearing denied January 27, 1914.

      Oertiorari denied by Supreme Court (making opinion final).
    Ullmann, Hoag & Davidson and Vail & Vette, for appellants; Edward P. Vail and Parker H. Hoag, of counsel.
    John T. Richards, for appellee.

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

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellee, American Sand & Gravel Company, a corporation, filed its bill in the Superior Court of Cook county against appellants, Chicago Gravel Company and Joliet Sand and Gravel Company. Upon answers filed and the report of a. master the court entered a decree substantially in accordance with the recommendation of the master, enjoining the appellants from selling any washed products prepared from sand and gravel mined and excavated from any or either of flip gravel pits located on the premises known as the Gilbert, Hammond, Gifford and Hillsdale properties, or from any pits that were then and might be thereafter opened on any land owned or controlled by the Chicago Gravel Company, at any time during the life of a certain agreement dated August 10, 1905, for use within Cook county, to any one other 'than the complainant in the bill, except for use at points along the lines of the Elgin, Joliet & Eastern Railway and the Chicago, Lake Shore & Eastern Railway, as said respective railways were located on August 10,1905, and referring the cause to a master to take an accounting of the damages sustained by complainant by reason of the violation of a negative covenant contained in the contract of August 10, 1905. From that decree appellants prosecute this appeal, and have separately assigned errors upon the record.

There is no substantial controverted question of fact in the case. Appellants present their ease in this court upon questions of law mainly arising upon the contract and the assignment or transfer thereof, which formed the basis of the relations between the parties to the suit.

It substantially appears from the bill and the evidence that on June 15, 1905, a contract was entered into between one Louisa Gilbert and Sebastian Krug, by which Krug acquired the exclusive right to excavate and remove sand and gravel from a tract of land situated near Elgin, in Kane county, Illinois, during a period of fifteen years from June 15, 1905. July 15, 1905, the American Sand & Gravel Company, appellee, entered into a contract with Krug, under which appellee became possessed of the exclusive rights conferred by said first mentioned contract for the period of fourteen years and ten months from July 15, 1905. On August 10, 1905, appellee entered into a contract with appellant Chicago Gravel Company, by the terms of which the Chicago Gravel Company was granted the exclusive right to excavate and remove sand and gravel from the Gilbert land for a period of fourteen years and nine months from said tenth day of August, 1905.

At the time of the making of said last mentioned contract, the Chicago Gravel Company owned or controlled a large amount of other lands containing deposit of sand and gravel. Under the contract between Louisa Gilbert and Krug and the contract between Krug and appellee, appellee was required to erect certain machinery on the gravel land for the purpose of mining or excavating the sand and gravel, and washing, cleaning and preparing the same for the market. This would involve the expenditure of a considerable sum of money by appellee, and as said Chicago Gravel Company owned a washing and screening plant adjacent to the Gilbert land and was operating the same at the time of the making of the contracts above mentioned, in order to avoid the expenditure required to be made under the Gilbert contract, a supplemental agreement was entered into between Louisa Gilbert and Krug, whereby the Gilbert contract was modified so as to permit the letting of the gravel land by Krug, and this supplemental contract also contained a provision waiving the requirement that a washing and screening plant should be erected on the Gilbert land, so as to enable the Chicago Gravel Company to prepare the product from the Gilbert land for the market by means of the plant which that company then had in operation adjacent to the Gilbert land.

In the fourth paragraph of the contract between the Chicago Gravel Company and appellee, complainant below, it was provided that the Chicago Gravel Company should supply appellee with not less than fifteen carloads per day of its washed products during each and every day, Sundays and holidays excepted, beginning with April 1st and ending December 1st in each year during said term of fourteen years and nine months, weather conditions permitting, and not to exceed twenty-five carloads per day during the period. The contract provided that it should be optional with appellee whether it would accept and receive from the Chicago Gravel Company any more than fifteen carloads of said product per day. The contract further provided that strikes, lockouts, interruptions to transportation, lack of cars, accidents and other causes beyond the control of the Chicago Gravel Company should excuse compliance with the terms of the contract while such condition continued; but provided further that in case of lack of cars appellee should be entitled to at least seventy-five per cent, of the available car supply. The fourth paragraph of the contract also contained the following provision:

“It is further expressly understood and agreed that the said party of the second part (Chicago Gravel Company) shall not ship to any person, firm or corporation within Cook County, Illinois, other than said party of the first part (American Sand & Gravel Company, appellee) any of its washed products, and will not, after the first day of January, 1906, sell any of its washed products within said County of Cook except to said party of the first part, provided, however, that said party of the second part shall have the right to ship so much of said material as may be required to complete its present contract for the elevation of the tracks of the Chicago Junction Railway; it being hereby intended that said party of the first part shall have the exclusive right, within the County of Cook aforesaid, to all the washed product of gravel pits owned or controlled by said party of the second part; and that said party of the second part shall not sell the washed product of any of its gravel pits for use within said County of Cook to any other person, firm or corporation: Provided, however, that said party of the second part shall have the right to ship product from its said gravel pits along the lines of the Elgin, Joliet & Eastern Railway and the Chicago, Lake Shore & Eastern Railway, as said respective railways are at present located.”

Upon the execution of the last mentioned contract, possession of the Gilbert land was delivered to the Chicago Gravel Company and the latter proceeded to make preparations for and entered upon the performance of the contract. During the season of 1907, the Chicago Gravel Company was unable for various reasons to furnish to appellee all of the sand and gravel to which it was entitled under the terms of the contract, but appellee took from the Chicago Gravel Company all the material it could get. During the season of 1908, the Chicago Gravel Company offered to appellee the fifteen carloads of product required under the terms of the contract, but appellee was unable to accept the full amount. Shipments, however, were made from time to time, all orders given being accepted by the Chicago Gravel Company and all material shipped to appellee was paid for according to the terms of the contract. During the seasons of 1909 and 1910, the Chicago Gravel Company supplied substantially all the material ordered by appellee, and the same was accepted and paid for by appellee according to the contract, and this condition of affairs continued until the time of the hearing of the cause before the master.

The bill avers, and the evidence shows, that during the years of 1908, 1909 and 1910, the Chicago Gravel Company shipped a number of cars of washed sand and gravel into Cook county for use in Cook county in violation of the negative covenant in said contract above set forth. In May, 1911, appellee, having learned that washed products from the pits of the Chicago Gravel Company were being shipped and sold in Cook county, filed its bill in _ the Superior Court of Cook county, alleging the violation of the negative covenant contained in the contract, and set forth that sales of such material had been made by the Chicago Gravel Company, and that although warned to desist from doing so, said company still continued to sell to sundry persons, firms and corporations, whose names are set out in the bill, and to other persons and corporations to appellee unknown, washed sand and gravel in Cook county from its gravel pits, and continues to make shipments and sell products in violation of the covenant above set forth, and asking that the Chicago Gravel Company be enjoined from the violation of the negative covenant, and for an accounting of the material-sold by tlie Chicago Gravel Company in violation of the covenant, and that the Chicago Gravel Company be required to set forth the price at which the said washed products were sold, the names of the persons, firms and corporations to whom such sales were made, and that an accounting of the profits realized by the Chicago Gravel Company from such sales in violation of the terms of the contract be taken, and that the Chicago Gravel Company be required to pay appellee all the profits realized by it from such sales.

Appellee, having learned that appellant, Joliet Sand and Gravel Company, on or about January 1,1911, had entered into an agreement with the Chicago Gravel Company, whereby the latter company granted to the Joliet Sand and Gravel Company the right to excavate gravel from its gravel pits for a period of ten years from the date of the contract, and that the Jdiet Sand and Gravel Company was acting under said contract in connection with the Sand & Gravel Company a party defendant, and, afterwards, on July 15, 1911, a supplemental bill was filed by appellee.

The amended and supplemental bill sets out the two contracts above referred to between appellee and the Chicago Gravel Company, and the Chicago Gravel Company and the Joliet Sand & Gravel Company, and alleges that the agreements were made for the purpose of enabling the Chicago Gravel Company to evade the force and effect of its contract of August 10, 1905, and that James A. Hart, president of the Chicago Gravel Company, is also president of the Joliet Sand and Gravel Company; that both companies occupy the same or connecting offices in the city of Chicago, use the same telephone service, and that the Joliet Sand and Gravel Company has sold and shipped to divers and sundry persons, for use within Cook county, large quantities of said washed products, and which, under the terms of the contract of August 10, 1905, the Chicago Gravel Company had no right to sell directly or indirectly. The supplemental bill avers that the Joliet Sand and Gravel Company is chargeable with notice of the provisions of said contract of August 10, 1905, and acquired no greater rights from the Chicago Gravel Company than were granted by appellee to it under the contract, and that the Joliet Sand and Gravel Company was bound to the performance of all the covenants contained in the contract between appellee and the Chicago Gravel Company. The supplemental bill then alleges the violation of the provisions of the contract by the Joliet Sand and Gravel Company, and prays for an accounting.

It is admitted that the Chicago Gravel Company violated the negative covenant of the contract of August 10, 1905, during the years of 1909 and 1910. It is also admitted in the record that at the time the contract was made between the Chicago Gravel Company and the Joliet Sand and Gravel Company of January 1, 1911, James A. Hart was president and F. W. Ben-wick was vice president and general manager of both appellant companies, and that they continued to be such officers of both companies up to the time of the hearing before the master.

The first question to be considered is the validity of the contract of August 10, 1905, between the American Sand & Gravel Company, appellee, and the Chicago Gravel Company, appellant.

By the recitals and terms of that agreement it appears that a copy of the agreement of June 15, 1905, between Louisa Gilbert and Sebastian Krug, was attached thereto, marked “Exhibit A.” It was also recited that the American Company had acquired from Krug for the term of fourteen years and ten months all the rights and privileges granted to Krug under his agreement with Gilbert, subject to all the conditions and limitations therein contained except as modifled and changed by the supplemental agreement between Gilbert and Krug, a copy of which was also attached marked “Exhibit B.” The agreement of August 10, 1905, gives and grants to the Chicago Gravel Company the exclusive right to enter upon the Gilbert property and to take and remove therefrom gravel, sand and stone, and dirt which may cover the same. In consideration therefor the Chicago Gravel Company makes the covenants and agreements contained in the second clause of the agreement. In further consideration therefor the Chicago Gravel Company, in the third clause of the agreement, agrees to pay the complainant two thousand four hundred dollars in cash to cover the expenses theretofore incurred by Krug and the complainant in obtaining the privilege granted in the June A, 1905, agreement as modified, and a royalty of three cents per cubic yard for each and every cubic yard excavated and removed in excess of 40,000 yards; and further to pay one thousand two hundred dollars during each and every year of the period covered by the contract which should be applied on the royalties reserved. In further consideration for the privileges granted, the Chicago Gravel Company makes the agreements contained in the fourth clause of the agreement, including the negative clause or agreement in question, which has been set forth above.

In behalf of appellants it is argued that the negative covenant in question is in unreasonable restraint of trade, and is in restraint of the alienation of personal property, and therefore equity will not enforce it.

For the purpose of considering this question, it will aid us to summarize the substance of the provisions of the contract. The complainant granted certain privileges to the Chicago Gravel Company. In consideration therefor the Chicago Gravel Company agreed: (1) to pay two thousand four hundred dollars in cash; (2) to pay not less than one thousand two hundred dollars per year and the royalty named in the contract; (3) to deliver to appellee not to exceed twenty-five carloads of its washed product per day during the term of the contract at the prices named therein; and (4) that it would not sell, during the contract term of fourteen years and nine months, any washed products from any of its pits for use in Cook county, except to complainant.

Beading the provisions of the contract with these main features in mind, and looking into the facts and circumstances surrounding the parties at the time the contract was entered into, we think it is clear that each and all of the covenants of appellant, Chicago Gravel Company, formed and constituted the agreed consideration for the privileges granted to that company by the complainant. It is only reasonable to say, in view of the circumstances and the situation of the parties and the provisions of the contract, that if the Chicago Gravel Company refused to agree to any one of the four substantive provisions of the contract above set forth, the privileges described in the contract would not have been granted by the American Company. It is also quite apparent that the covenant in the fourth clause of the agreement, that the Chicago Gravel Company “will not after the first day of January, 1906, sell any of its washed products within said County of Cook, except to said party of the first part,” etc., was not the least important part of the consideration named in the contract, for it tended directly to foster and increase the business of the American Company. If the restriction of the covenant is partial, reasonable and calculated to foster the business of the American Company, rather than to destroy competition, it cannot be held to be in violation of the Federal or the State statutes, or against public policy, and therefore void. We think the contract is not one in general restraint of trade, but that its provisions in that respect are reasonable and only in partial restraint, and are founded upon a valid consideration, and were intended to foster and increase the business of the American Company. The contract in our opinion must be held valid upon the principles and for the reasons clearly stated in Southern Fire Brick & Clay Co. v. Garden City Sand Co., 223 Ill. 616, and Hursen v. Gavin, 162 Ill. 377, and the authorities cited in those cases.

We next consider the question whether a breach of the expressed negative covenant may be enjoined. The bill seeks no specific enforcement of the contract other than an injunction against the continuing breach of that covenant, and the decree does not otherwise command the specific performance of the contract.

On this question the case of Southern Fire Brick & Clay Co. v. Garden City Sand Co., supra, which cannot be distinguished from the case before us on principle, is both instructive and decisive. In the opinion in that case, the Court quotes with approval from Singer Sewing Mach. Co. v. Union Button-Hole & Embroidery Co., 1 Holmes (U. S.) 253. A part of the quotation is:

“It was formerly thought that an injunction would not be granted to restrain the breach of any contract unless the contract were of such a character that the court could fully enforce the performance of it on both sides. Upon this ground there were many decisions refusing to interfere with contracts for personal services, however flagrant might be the breach of them. *■ * * But all these cases were overruled by one of the ablest chancellors who has adorned the woolsack, in Lumley v. Wagner. * * * It is now firmly established that the court will often interfere by an injunction where it cannot decree performance.”

The Court then says :

“The prayer for performance was refused but the injunction ordered. (See also Consolidated Coal Co. v. Schmisseur, 135 Ill. 371.) Numerous decisions from other States might be cited to the same effect. ’ ’

It is however argued in behalf of appellants that this is a bill to enforce the contract, and that it will not lie because there is no mutuality of remedy as distinguished from mutuality of obligation in the contract set up in the bill. It is conceded by counsel for appellants that there is some confusion in the authorities in regard to these two classes of mutuality, and whether equity may interfere by injunction to prevent a breach of the negative covenant when the affirmative is of such a nature that it cannot be specifically enforced by a judicial decree. We are of the opinion that the later and better considered doctrine is that equity may interfere to restrain the violation of a negative provision although it cannot enforce the affirmative one, where the negative and affirmative parts of the contract, as in this case, are entirely separate and distinct. 2 High on Injunctions (2d Ed.) pp. 728, 763, 764; Waterman’s Specific Performance of Contracts, sec. 110; Kerr on Injunctions (3d Ed.) p. 357; Lumley v. Wagner, 1 DeG. M. & G. 604; Singer Sewing Mach. Co. v. Union Button-Hole d Embroidery Co., supra; and Southern Fire Brick Co. v. Garden City Sand Co., supra, where it is said:

“While a court of equity might not compel him to mine and sell the product to complainants in conformity with his agreement, yet there is equitable jurisdiction to prevent him from selling to other parties.”

In Pomeroy on Equity Jurisprudence & Equitable Remedies, vol. 2, sec. 769 (pp. 1291, 1292), the learned author says:

“The frequent statement of the rule of mutuality, ‘that the contract to be specifically enforced must, as a general rule, be mutual, that is to say, such that it might at the time it was entered into have been enforced by either of the parties against the other’ is open to so many exceptions that it is of little value as a rule.”

As said in the Singer Sewing Mach. Co. case, supra, the fair result of the later cases may be thus expressed :

“If the case is one in which the negative remedy of injunction will do substantial justice between the parties, by obliging the defendant either to carry out his contract or lose all benefit of the breach, and the remedy at law is inadequate, and there is no reason of policy against it, the court will interfere to restrain conduct which is contrary to the contract, although it may be unable to enforce a specific performance of it.”

Ñor does the right to an injunction for the enforcement of the negative covenant in this contract depend on the question whether complainant has an action at law or not to recover damages. Southern Fire Brick & Clay Co. v. Garden City Sand Co. supra. A court of equity fastens upon the real contract and compels the execution of the very thing covenanted to be done.” Ropes v. Upton, 125 Mass. 258. This is the rule even though the complainant has a right of action at law or has taken a bond in connection with the covenant.

It is contended in argument that the negative covenant in question is a personal covenant and not binding on third parties either with or without notice. With this contention we cannot agree. The contract between Gilbert and Krug conveyed the privileges thereby granted for a period of fifteen years, or until June 15,1920. The contract between Krug and appellee, dated July 15, 1905, and the privileges granted by it, extended for the period of fourteen years and ten months, or until May 15, 1920, leaving a remainder of one month still vested in Krug. The contract between appellee and the Chicago Gravel Company, dated August 10, 1905, assigned or transferred the privileges thereby granted for the period of fourteen years and nine months, or, in other words, until May 10, 1920, leaving a remainder of five days in appellee out of the period granted to appellee by Krug. The contract between the Chicago Gravel Company and the Joliet Band and Gravel Company dated January 1, 1911, assigned and transferred the privileges and rights therein expressed to the Joliet Sand and Gravel Company for a period of ten years, or until January 1, 1921, seven months and twenty-one days beyond the term granted to the Chicago Gravel Company by appellee under the contract of August 10, 1905. The whole term which was vested in the Chicago Gravel Company was, by the contract of January 1, 1911, vested in the Joliet Sand and Gravel Company, and the latter company, by reason of that fact, became and was vested with all the rights acquired by the Chicago Gravel Company and subject to all the liabilities of the Chicago Gravel Company thereunder; and we think that appellant, the Joliet Sand and Gravel Company, became bound to the performance of all the covenants contained in the contract of August 10, 1905, which, by its terms, were required to be performed by the Chicago Gravel Company.

The contract by which appellant, the Joliet Sand and Gravel Company, acquired the right and privilege of going upon the Gilbert land and excavating sand and gravel therefrom was a contract with reference to the use of that property and was more than a license to go upon the property and remove sand and gravel. In the case of Consolidated Coal Co. v. Peers, 150 Ill. 344, it was contended that the contract in that case was a mere personal license, but the Court said, on, page 350:

“A license is an authority to do a-particular act or acts upon another man’s land without possessing any estate therein. * * * The lease here involved invests the lessee with the ‘sole and exclusive right’ to mine and operate in coal on certain described lands. The right granted is not limited to any particular vein or stratum, but extends to all coal under said lands, and it is exclusive of the whole world, including the lessors themselves, and is for the full term of twenty-five years from the date thereof. The law, as we understand it, is, that a lease of the right and privilege to mine or take away stone or coal from the lessor’s land is the grant of an interest in the land, and not a mere license to take stone or coal.”

In Gartside v. Outley, 58 Ill. 210, it was contended that the instrument there involved was not a lease. The contract granted certain lands for an indefinite period with permission to take, under certain conditions specified in the grant, all the coal contained in said lands. It also contained mutual covenants and the provision of forfeiture in case of noncompliance on the part of the lessee. The Court said:

“We think the fair construction to be given to that instrument is that it is in the nature of a lease and creates only the relation of lessor and lessee.”

To the same effect are Harvey Coal & Coke Co. v. Dillon, 59 W. Va. 605, and Heywood v. Fulmer, 158 Ind. 658. In the Heywood case, the written instrument was in the form of a receipt for money paid, executed by the owner of the land, and gave to the person named therein exclusive right to all the sand and gravel on certain premises for one year, and excluding all other persons from said premises, and the Court held that it amounted to a lease and not a mere license, and was valid against the grantee.

In that case the Court said:

“A lease may not only confer upon the lessee the right to the occupancy of the leased premises, either generally for the time limited, or for some specific purpose, or in some specific manner, or the right to occupy and cultivate the land and to remove the products of cultivation, but it may confer upon him the power to occupy and remove a portion of that which constitutes the land itself. Familiar and common examples of such leases are those authorizing the lessee to quarry and remove stone, to open mines and remove ores, minerals, mineral coal, etc., or to sink wells for procuring and removing petroleum 'and natural gas. * * * In our opinion the writing in question contains all of the essential elements of a valid lease.”

So we think in this case the contract between appellee and the Chicago Gravel Company gave the latter company the right to mine and remove any sand, stone, dirt or gravel on the premises, and the Chicago Gravel Company was not limited to any particular piece or section, but had an exclusive right to take all the sand, gravel, etc., on said premises. It, therefore, clearly granted an interest in the land, and was not a mere personal license.

The contract between the Chicago Gravel Company and the Joliet Sand and Gravel Company operated as an assignment to the latter company of the contract of August 10,1905. It transferred the entire term of the Chicago Gravel Company and left no reversionary right. It was, therefore, an assignment of the entire term of the Chicago Gravel Company, and this established a privity of estate between the parties to-it. Stewart v. Long Island R. Co., 102 N. Y. 601; Sexton v. Chicago Storage Co., 129 Ill. 318; Chicago Attachment Co. v. Davis Sewing Mach. Co., 142 Ill. 171; Lee v. Payne, 4 Mich. 106; Coal S Coke Co. v. Tax Commissioner, 59 W. Va. 605.

If, however, we are mistaken as to the effect of the contract of January 1, 1911, we think that in view of the fact that the officers of the two appellant companies were substantially the same, that the same person was president of both companies, and that the same person was vice-president and general manager of both companies, there can be no doubt that the Joliet Sand & Gravel Company had full notice of the rights, duties and liabilities of the Chicago Gravel Company under the contract of August 10, 1905, at the time that the contract of January 1, 1911, was made. The further facts that the Chicago Gravel Company and the Joliet 'Sand and Gravel Company have always occupied one and the same suite of offices in the city of Chicago, that the lease of their offices was for several years in the name of the Chicago Gravel Company, and the present lease is in the name of the Joliet Sand and Gravel Company, that both companies have always shared the same telephone service and their telephone numbers have been the same, show such intimate relations between the two companies in the same business that there is no reasonable ground for believing that the Joliet Sand and Gravel Company did not have full knowledge of the contracts relating to the Gilbert property under which the Joliet Sand and Gravel Company finally obtained its interest under which it is operating.

The above facts are only a portion of the facts appearing in the record which tend to show that while technically two different corporations they virtually represent and control the same interests. We think the injunction properly included the Joliet Sand and Gravel Company.

The negative covenant in question is a part of the consideration for the making of the contract in which it appears, and that contract, as we have seen, relates to the land and the use of it. We need not hold and do not decide that it is a covenant running with the land. It is sufficient that it is a covenant which both appellants were bound to observe under the facts shown in the record.

Other points are argued at length in the briefs of counsel. Many of them we do not regard as material to the decision of the case.

There is only one other contention made on behalf of the Chicago Gravel Company to which we deem it material to refer. It is contended that because complainant did not take from the Chicago Gravel Company fifteen carloads of gravel per day during the year 1908, the negative covenant in question cannot be enforced. The evidence is undisputed, and the master so finds, that there was a failure on the part of the Chicago Gravel Company to furnish appellee prior to 1908 the amount of sand and gravel demanded and to which appellee was entitled by the contract, and that appellee was unable to accept the minimum amount during the year 1908. But it is not shown or attempted to be shown that the Chicago Gravel Company made any attempt to forfeit or rescind the contract of August 10, 1905, on that account, or that it offered to surrender the rights acquired by it under that contract. It appears on the contrary that the Chicago Gravel Company attempted to evade the negative covenant and still retain the benefit of all other provisions of the contract. It seems to have failed to perform its contract during the year 1907, but in 1908 it demanded strict performance of the contract by appellee. At the beginning of 1909 it tried to repudiate the negative covenant but was notified by appellee that it would be held to the performance of the entire contract. The written evidence in the form of letters shows conclusively that the parties proceeded under the contract during 1909 and 1910, appellee paying the prices fixed by the contract in accordance with the terms thereof. It is not claimed anywhere that the rights and privileges granted by the contract have ever been surrendered. If, therefore, there was a breach in 1908 by appellee, the breach was waived by the Chicago Gravel Company when it retained possession of- the Gilbert property and in other respects availed itself of the benefits of the contract in question after the alleged breach by appellee had been committed. If appellee violated the contract during the year 1908, the Chicago Gravel Company might then-have elected to terminate the contractual relations and surrender the Gilbert property; on the contrary, it elected to proceed under the contract and is bound to the performance of all its covenants. The rule is so well established that it seems unnecessary to cite any authorities. Pomeroy in his Equity Jurisprudence, vol. 6, sec. 806, says:

“Of course, a waiver of the condition makes the contract operate against the waiver, and equity will then treat it as any other contract.”

Fry in his work on Specific Performance (5th Ed.) sec. 940, says:

“A defendant who has waived the performance by the plaintiff of what was on his part to be performed cannot, of course, use the non-performance as a defense. ’ ’

Page on Contracts, vol. 3, p. 2217, says:

“If the party originally in default performs before the adversary party elects to treat it as a breach, his rights under the contract stand as if the contract had never been broken, except as concerns his liability for damages. Subsequent breach by the party not in default may prevent the latter from recovery and in such case he can not revert to the original breach as a discharge.”

To the same effect is Pratt v. S. Freeman & Sons Mfg. Co., 115 Wis. 648.

Finding no error in the decree, it is affirmed.

Affirmed.


text:
    German American Savings Loan and Building Association et al., Appellants, v. John C. Trainor et al., Appellees.
    Gen. No. 18,902.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed January 13, 1914.
    Statement of the Case.
    This is an appeal by complainant, German American Savings Loan and Building Association, from an order fixing the amount of master’s fees. The record contains over sixteen hundred pages of typewritten testimony and pleadings and exhibits. Portions of the testimony was taken by three different masters when later the cause was referred to another master to take additional evidence and report his conclusions of law and fact upon all the testimony taken in the case. From an order fixing the fee of the master at nine hundred and seventy-five dollars, and directing that sum between the parties, complainant and defendant, equally, complainant appeals.

      Abstract of the Decision.
    1. Equity, § 404*—when master’s fees not excessive. Allowance of nine hundred and seventy-five dollars as master’s fees held not excessive.
    2. Appeal and error, § 1208*—cross-errors. Cross-errors assigned by a person not a party to the cause will not be considered.
    Charles B. Stafford, for appellants.
    John W. Ellis, pro se.

   Mr. Presiding Justice Smith

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    T. E. Hill Company for use of William A. Bither (Assignee), Appellee, v. The United States Fidelity and Guaranty Company, Appellant.
    Gen. No. 18,026.
    1. Bankruptcy, § 47

      —effect of filing of appeal bond as a supersedeas. A proceeding for the appointment of a receiver under section 3e of the Bankruptcy Act is separate and distinct from a proceeding to adjudicate; so that where an appeal is taken from an order dismissing the petition, the filing of an appeal bond does not operate as a supersedeas so as to prolong the receivership but operates to supersede only the order of dismissal.
    2. Bankruptcy, § 48

      —damages recoverable in action on appeal bond. In an action against a surety on an appeal bond given under section 25 of the Bankruptcy Act on the taking of an appeal from an order dismissing a petition to have plaintiff adjudicated a bankrupt, held error for the court to assess damages based upon proof of the detention of the property by the receiver after the appeal bond was filed and held error for the court to assess other than nominal damages, there being no competent proof of damages and no proof even of the costs incurred in the proceeding for adjudication.
    2. Appeal and error, § 1810

      —when Appellate Court may reverse and enter final judgment. In a case in which the jury was waived, the Appellate Court may not only reverse but may also render final judgment if the law as applied to the facts found by that court necessitates such a judgment, and if it can be ascertained from the facts so found what judgment ought to have been rendered by the court below.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed January 13, 1914.
    John A. Bloomingston, for appellant.
    Buell & Abbey and Fred W. Bentley, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This was an action of debt brought against appellant as surety on an appeal bond. The plea was nil debet, but the breach of the bond was not questioned at the trial, the controversy being over the extent of liability. The court found the damages exceeded ten thousand dollars, and assessed them at five thousand dollars, the full amount of the penalty.

The bond was given under section 25 of the Bankruptcy Act on appeal from an order dismissing a petition to have appellee adjudicated a bankrupt.

The petition was filed by three creditors, and on the same day a receiver was appointed on the application of one of them who gave a bond as required under section 3e of said act. Appellant was surety on the latter bond also, on which judgment had been previously rendered and affirmed. T. E. Hill Co. v. U. S. Fidelity & Guaranty Co., 250 Ill. 242. The measure of damages relied on was the rental value of the property while held by the receiver after the filing of the appeal bond.

In the time allowed for filing the latter, one Either was appointed assignee of appellee under the State voluntary assignment act, and moved for a rule on the receiver to turn over to him the property so held. The motion was resisted by an attdrney who, the record shows, had in the different proceedings appeared not only for the receiver and the creditor who applied for his appointment, but for the creditors who filed the petition for adjudication. The motion was not acted on until after the appeal was perfected when it was denied “without prejudice to a renewal of the same in the event said appeal shall not be prosecuted with effect. ’ ’

Under such circumstances appellee contends that the bond in question operated as a supersedeas and to prolong the receivership, and calls attention to the provision in section 25, that appeals may be taken in bankruptcy proceedings as in equity cases, and cites certain cases in equity deemed analogous to the one at bar. On the other hand, appellant refers to the fact that the bond and condition thereof are the same in form and language as in bankruptcy appeals where no receiver is appointed, and contends that there is no liability under the bond except for costs of the proceeding to adjudicate.

As we view it, the bond must be construed with reference to the fact that the proceeding for the appointment of a receiver under section 3e of the Bankruptcy Act is separate and distinct from proceedings to adjudicate. In re Kelly, 91 Fed. 507; In re Ogles, 93 Fed. 426. In the Kelly case it was said that the implication of the statute is that it is altogether a separate procedure, and that “the seizure of property is a subsequent and independent proceeding, which is not necessarily a part of the proceedings in bankruptcjn” Before a petition is dismissed or a trustee qualifies, any party in interest may apply for the appointment of a receiver (section 2, par. 3, Bankruptcy Act), and it is a principle of general application that those responsible for an appointment wrongfully made are liable for the expenses incurred thereby (Beach v. Macon Grocery Co., 60 C. C. A. 557, 125 Fed. 513; In re La Cov., 74 C. C. A, 130, 142 Fed. 960), and costs and expenses incurred under one of these proceedings are not taxable under the other (In re Ghiglione, 93 Fed. 187; In re Williams, 120 Fed. 37; In re J. A. Smith, 16 Am. Bankr. Rep. 478; Selkregg v. Hamilton Bros., 16 Am. Bankr. Rep. 474, 144 Fed. 557; In re Moehs, 174 Fed. 165).

It is true that on dismissal of the petition the purpose of the receivership ceased. But while the appeal bond in question operated to supersede the order of dismissal of the petition it did not ipso facto discharge the receiver. Beach on Receivers, par. 799; Whiteside v. Prendergast, 2 Barb. Ch. (N. Y.) 471; Crook v. Findley, 60 How. Pr. (N. Y.) 375; Baughman v. Superior Court, 72 Cal. 572.

Presumably when the court fixed the amount of the bond given at the time of the appointment of the receiver it took into consideration the statutory rig]it of appeal from an order of dismissal and deemed the amount adequate to that end.

In construing the language of said section 3e, it was said in In re Spaulding, 150 Fed. 150: “The fact that the second paragraph provides that all costs, etc., shall be allowed is based upon the assumption that a bond will be taken large enough to cover all costs.” And again in In re Haff, 68 C. C. A. 380, 135 Fed. 743, referring to the provisions of said section, the court said that it was their purpose to furnish the bankrupt with a security adequate for his complete protection.

Two of the creditors on the bond in question were not parties to the proceeding for the appointment of the receiver. But had the court deemed it desirable to make them parties thereto it could, no doubt, have required a new or additional bond as a condition precedent to the continuance of the receivership. But they did not become parties thereto merely by exercising their right to appeal from an order in a different and independent proceeding. A discharge of the receiver was not superseded by the appeal bond, nor did the prolongation of the receivership follow as a legal consequence of the appeal. In view, therefore, of the court’s power over the receiver regardless of the appeal, of the independent character of the two proceedings, and of the express provisions in section 3e for indemnity for wrongful detention of property by a receiver, we do not think the appeal bond operated to supersede anything except the order of dismissal, or that the two bonds can be deemed cumulative securities. Hence the court erred in assessing damages based upon proof of the detention of the property by the receiver, and the assignment of error in admitting such evidence as a basis of the damage is well taken.

The court refused to find, as requested, that there could be no recovery for an alleged breach of the bond except for nominal damages. In the absence of competent proof of damages, there being none even of the costs incurred in the proceeding for adjudication, the court’s refusal was error. We do not concur in appellant’s contention that the pleadings would not support a judgment, but hold that judgment should be entered here on a finding different from the trial court as to the damages.

In this ease the jury was waived. It was said in Osgood v. Skinner, 186 Ill. 495, that “such waiver also extends to the review of the judgment in idle Appellate Court, so as to enable the Appellate Court to decide the issue of fact and enter final judgment.” Several cases are there cited where on waiver of a jury the Appellate Court, on reversal, assessed the damages and entered judgment. Among them was the case of Manistee Lumber Co. v. Union Nat. Bank of Chicago, 143 Ill. 490, where the Court said that “the Appellate Court may not only reverse, but may also render judgment for the plaintiff, if the law, as applied to the facts found by that court, necessitates such a judgment, and if it can be ascertained from the facts so found what judgment ought to have been rendered by the court below.”

There being no proper proof of damages in the record but the breach of the bond being shown, the court should have assessed merely nominal damages. We shall, therefore, reverse the judgment and make a different finding here as to the amount of damages, assessing them at one cent, and requiring appellee to pay the costs of this appeal.

Reversed.


text:
    David E. Jeffris et al., copartners as Chicago Car Lumber Company, Appellants, v. Ayer & Lord Tie Company, Appellee.
    Gen. No. 18,831.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed January 13, 1914.
    Statement of the Case.
    Action by David K. Jeffris and others, copartners as Chicago Car Lumber Company, against Ayer & Lord Tie Company, a corporation, to recover the value of a quantity of certain railroad ties alleged to belong to plaintiffs and to have been taken and used by defendant. From a judgment in favor of defendant on a directed verdict, plaintiffs appeal.
    Adams, Bobb & Adams, for appellants; S. G. Abbott and G. L. Wire, of counsel.
    C. C. Grassham and Jennings & Fiber, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 17 —necessity of written motion to direct verdict. A motion for a directed verdict in the Municipal Court need not he in writing.

2. Trover and conversion, § 39 —rollen evidence insufficient to connect defendant with taking of plaintiff’s property. In an action to recover the value of railroad ties alleged to belong to plaintiffs and to have been taken and used by defendant, evidence held insufficient to establish a prima facie case for plaintiffs, it appearing from the evidence that both parties had separate piles of ties at a certain place, and that the ties were distinguished by private marks, but the evidence to connect the defendant with the taking of the ties was largely circumstantial, which considered with other evidence did not fairly tend to show that defendant took the ties.

3. Trover and conversion, § 38 —when statement of defendant’s employe inadmissible. In an action to recover the value of railroad ties alleged to have been taken and used by defendant, a statement by an employe of defendant made some two years after the event amounting to an admission that he took the ties, held inadmissible for the reason that it was no part of the res gestae.

4. Evidence, § 185 —when declaration of agents not admissible. Rule that declarations of an agent to be admissible must he part of the res gestae applies to corporations who can speak only through agents.

5. Appeal and error, § 1467 —when error in admission of incompetent evidence harmless. Whether error was committed in permitting one of plaintiff's witnesses on cross-examination to testify to a certain fact need not he considered where such evidence may well have been excluded in acting on a motion to direct a verdict.


text:
    Emma Hubbard, Appellee, v. G. Gordon Martin, Incorporated, Appellant.
    Gen. No. 18,875.
    (Not to be reported in full.)
    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, 1912.
    Affirmed.
    Opinion filed January 13, 1914.

      Abstract of the Decision.
    1. Dentists, § 1—right of corporation to engage in practice. Hurd’s R. S. ch. 91, ¶ 44h, J. & A. f 7450, contemplates that a corporation may engage in the practice of dentistry.
    2. Dentists, § 2—when evidence sufficient to sustain verdict for malpractice. In an action for malpractice in dentistry, evidence tending to show that one of defendant’s employes negligently bored through the roots of four of plaintiff’s teeth into the alveolar process or bony tissues of the jaw, thereby causing a painful condition requiring long treatment and rendering improbable the placing of a permanent dental bridge, held, sufficient to sustain a verdict for plaintiff.
    3. Dentists, § 2—admissibility of evidence in action for malpractice. In an action for malpractice in dentistry, refusal of court to strike out testimony of plaintiff as to pain and suffering both while and after the work was performed, held not error where other testimony tended to show that immediate intense pain and conditions causing additional and unnecessary pain would result from negligence of the character charged.
    4. Dentists, § 2—competency of evidence to show want of license. Testimony of the State Board of Dental Examiners in a suit for malpractice in dentistry, that they had examined the record of licenses issued and found no record of a license issued to the defendant’s employe who operated on plaintiff,. held competent evidence.
    Statement of the Case.
    Action by Emma Hubbard against G. Gordon Martin, Incorporated, and another to recover damages for injuries sustained by plaintiff by reason of negligent performance of dental work done for plaintiff by defendants. From a judgment in favor of plaintiff for one thousand dollars, defendant, G. Gordon Martin, appeals.
    Harry Strickler, for appellant.
    George I. Haight and Boland M. Hollock, for appellee.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

5. Dentists, § 2 —when admission of expert testimony as to condition of plaintiff’s teeth not error. Permitting an expert witness to testify in a suit for malpractice as to the condition of the bore in plaintiff’s teeth the following year, without requiring plaintiff to show that no one else had bored into the tissues subsequent to the treatment by defendant, held not error, since whether or not the conditions complained of were caused or aggravated by anything done by either of the dentists who testified was a matter for the jury upon which cross-examination was afforded.

6. Tbial, § 276 —when interrogatories do not call for ultimate and controlling facts. In an action for malpractice in dentistry, where interrogatories were given asking whether any of plaintiff’s teeth were lost and whether any were injured as a result of the conduct of defendant, held that neither of the interrogatories nor both together called for all the ultimate and controlling facts, where the declaration alleged and the evidence tended to show other results of the alleged negligence, such as unnecessary anguish and distress and shock and injury to the nervous system.

7. Tbial, § 276 —when interrogatory does not call for an ultimate and controlling fact. In an action for malpractice in dentistry, an interrogatory whether boring holes into the roots of certain teeth for the purpose of fixing pegs therein for fastening and attaching bridges was improper dentistry does not call for an ultimate and controlling fact, where the claim was not that such method was improper but that the boring through the teeth into the bony tissues of the jawbone was negligence.

8. Tbial, § 276 —when interrogatory does not call for all the ultimate and controlling facts. In an action for malpractice in dentistry, an interrogatory whether plaintiff afforded the defendant a reasonable opportunity to cure the alleged soreness and pain does not call for all the ultimate and controlling facts, where the evidence tends to show not only the causing of unnecessary pain and soreness but also ruination of the teeth for permanent bridge work.

9. Appeal and ebbob, § 269 —when refusal to submit interrogatories harmless. Refusal to submit interrogatories as to facts not controverted is harmless.

10. Appeal and ebbob, § 542 —when error in admission of evidence not preserved. If the competency of evidence is not questioned until after its admission, error can be assigned only on a motion to strike it out.


text:
    Emery Stanford Hall et al., Appellants, v. George Beidler et al., Appellees.
    Gen. No. 18,891.
    (Not to be reported in full.)
    Abstract of the Decision.
    Architects and engineers, § 3

      —when contractors not jointly liable for commissions. Architects entered into a contract with a partnership for commissions to be based upon $80,000 as the cost of a building. The contract contemplated that the defendants as partners should jointly let the contract for the building, but the contract was let for the erection of the building, to cost $130,000, by one of the defendants after the architects’ services were discontinued and after defendants had dissolved partnership. Held, in an action by the architects against the defendants jointly for commissions on the basis of the $130,000 costs, that a direction of a verdict for defendants was proper on the theory that the contract imposed no joint liability to pay commissions on the actual cost of the building in view of the fact that the contract for the structure was not a joint undertaking.

      Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed January 13, 1914.
    Statement of the Case.
    Action by Emery Stanford Hall and Frank Spencer Baker, suing as copartners under the name of Hall & Baker, against George Beidler and Michael S. Hyland, to recover commissions alleged to be due them as architects under a certain contract entered into between the plaintiffs and defendants. From a judgment for defendants upon a directed verdict, plaintiffs appeal.
    Baldwin & Barnes, for appellants.
    William J. Lacey, for appellees.

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

   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Clark

text:
    Lillian Ullrich by William Ullrich, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,978.
    1. Damages, § 110

      —when not excessive for personal injuries. A verdict for five thousand five. hundred dollars for personal injuries to a girl fifteen years of age caused by street cars, held not excessive, it appearing that she was practically confined to her bed for two years after the accident, that her abdomen was swollen and distended and that she was rendered a nervous wreck.
    2. Infants, § 54

      —when judgment not erroneous as being in favor of next friend. Where a father sues, as next friend for his minor daughter, a judgment is not erroneous as being entered in favor of the next friend for the reason that the language of the judgment order is that plaintiff recover “his said damages * * * together with his costs,” the defendant having treated the judgment as in favor of the minor on the appeal and the bond running to the minor.
    3. Infants, § 66

      —when next friend not liable for costs. A person suing as a next friend is not liable for costs in case the suit is decided against the plaintiff, where the bond for costs is signed by a stranger to the record and not joined in by the next friend.
    4. Witnesses, § 45

      -—when wife of next friend competent witness. In an action by a next friend for personal injuries sustained by a minor, the wife of the next friend is competent to testify; the question as to the weight of her testimony, because of her interest as mother of the next friend, is for the jury.
    5. Evidence, § 282

      —competency of statements in medical boohs. It is well established that statements made in medical books are not competent evidence, and quotations therefrom should not be incorporated in questions asked of a medical witness in such a manner as to lead the jury to infer that the attorney propounding same is reading from such books.

      6. Appeal and error, § 1506

      —when appellant cannot complain of error in propounding questions on cross-examination of expert witness. Defendant cannot complain that plaintiff’s counsel in propounding questions to defendant’s medical expert witnesses on cross-examination gave the jury the impression that he was reading from a medical hook, where defendant’s counsel on redirect examination of one of the witnesses read from a hook handed him at his request by plaintiff’s counsel.
    7. Appeal and error, § 1514

      —improper remarles of counsel. Refusal of court to grant a new trial for improper remarks of counsel made in arguing questions of law before the court in the presence of the jury, held not an abuse of trial court’s discretion as to authorize reversal.
    Appeal from the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 13, 1914.
    Rehearing denied January 27, 1914.

      Certiorari granted by Supreme Court.
    Jambs G. Condon and Charles LeRoy Brown, for appellant; Leonard A. Busby and Warner H. Robinson, of counsel.
    James C. McShane, for appellee.

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

      See Illinois Notes Digest, Vols. XI to XV, samo topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.

This is a suit for damages on account of personal injuries sustained by the plaintiff through the negligence of the defendant. There was a trial before the court and a jury, a verdict being rendered for five, thousand five hundred dollars upon which judgment was entered.

Liability of the defendant for some amount was admitted by it, the accident being due to a collision of two cars, both operated by the defendant, and in one of which plaintiff was riding as a passenger.

The points relied on for a reversal are: First, that the damages are excessive; second, that there was error in permitting the wife of the next friend to testify; third, that there was error .in the judgment in that, as alleged, the judgment treats as the plaintiff, William Ullrich, the father and next friend, and that the judgment should have been in favor of the infant and not in favor of the next friend; fourth, that counsel for plaintiff erroneously made use of medical works in the cross-examination of witnesses, making improper statements distinctly prejudicial to the defendant, under the guise of asking questions, and in making arguments for the admissibility of evidence; and fifth, that there were other errors in the admission of evidence.

I.

Counsel for both parties have devoted the larger part of their briefs and argument to the first proposition advanced by the defendant, namely, that the damages are excessive. On the part of the plaintiff, who was fifteen years of age at the time of the accident, it is insisted the record discloses that she was confined to her bed for several months after its occurrence, and practically up to the time of the trial, which was nearly two years thereafter; that during the early portion of this period she suffered from almost daily attacks of hysteria and hysterical convulsions, which became worse and more violent until November following the accident, which occurred in August, 1909; that in the former month she was taken to a hospital, where she stayed for a few weeks, from which time the hysterical attacks gradually became less frequent, until about two months prior to the trial, when she was having them only during her monthly periods, and perhaps once besides in each month; that her abdomen was swollen and distended, necessitating almost constant use of hot applications to her stomach; that this condition was diagnosed by one of her attending physicians as peritonitis, and by another as being some injury to the internal organs of the abdomen; that there was also inflammation of the abdomen, and for the greater portion of the time considerable temperature; that the inflammation resulted in a prolapsus of the uterus with adhesions; that during this time she became greatly emaciated; that her weight was 153 pounds before the accident, and 117 pounds at the time of the trial; that she was by the accident rendered a nervous and physical wreck.

On the part of the defendant it is claimed to be demonstrated by the evidence that the plaintiff’s manifestations of hysteria antedated for a long time the street car accident; that the expert evidence in the record is conclusive of the proposition that trauma-j tism, which is defined as external violence producing bodily injury, is incapable of producing hysteria in a healthy person; that it is also demonstrated by the evidence that peritonitis cannot be caused except by infection, and that the accident in question could not and did not produce any pelvic infection.

We have carefully read all of the testimony in the case, both lay and medical, and find it decidedly conflicting as to many material matters. After such careful perusal, however, we are not of the opinion that the verdict is as alleged, so manifestly against the weight of the evidence as to require a reversal of the judgment on that ground. It will be necessary, therefore, to consider the other points raised by the defendant.

II.

It is urged that there was error in the admission of the testimony of the mother of the plaintiff because she was the wife of the father, who appears as next friend to the plaintiff in the case. The question as to the weight to be given to her testimony, because of her interest as mother of the plaintiff, was of course one for the jury. Does the law inhibit her testimony because she happens to be the wife of the one who sues as next friend ? We think not. It is urged that the next friend would be liable for costs in the suit if the case were decided against the plaintiff. We do not so construe the statute. A bond for costs was given in this case by a stranger to the record, and was not joined in by the next friend nor was it required to be. Notwithstanding the assault made by defendant upon the logic of the opinion, we think that in Illinois Cent. R. Co. v. Becker, 119 Ill. App. 221, Mr. Justice Creighton has correctly set forth the principles of law governing the question at issue.

III.

It is next said that the judgment is erroneous because it is in favor of William Ullrich, the next friend. The language of the judgment order is “that the plaintiff do have and recover of and from the defendant his said damages of five thousand five hundred ($5,500) dollars in form as aforesaid by the jury assessed, together with his costs and charges in this behalf expended and have execution therefor.”

The contention is that the use of the word “his” makes the judgment one in favor of William Ullrich, next friend. The point is technical and, in view of the Ulinois statute respecting judgments, is untenable. The defendant treated the judgment as in favor of-the minor on the appeal. The bond runs to “Lillian Ullrich a minor,” etc.

IV.

It is urged by the defendant that the attorney for the plaintiff in the cross-examination of medical experts whose testimony was taken on behalf of the defendant, indirectly got before the jury statements contained in medical works on questions of hysteria, etc., by improperly incorporating the language taken from such works in questions propounded to such witnesses, and that he also made improper statements distinctly prejudicial to the defendant, under the guise of asking questions and of making argument for their admission. It is said that his conduct was such that the court erred in not granting the motion for a new trial because of it. The answer of the attorney for the plaintiff is that no such statements were introduced in evidence (a proceeding which he admits would be improper), and that the only reference made by plaintiff’s counsel to medical authorities was for the purpose of developing the extent of the witness’ knowledge of the subject and the basis of his opinion; that the questions propounded by him came within the rule laid down in Chicago Union Traction Co. v. Ertrachter, 228 Ill. 119, viz., that a medical expert may be cross-examined as to the basis of his opinion and as to whether the authorities do not lay down a different rule, and the like.

Counsel for the plaintiff admittedly had medical works before him in court, but we are unable to say that in any question propounded on the cross-examination of defendant’s witnesses extracts from the works are incorporated. Defendant’s counsel repeatedly objected to plaintiff’s counsel “asking’ questions and giving the impression that he was reading from a book.” The former himself, on the redirect examination of one of defendant’s witnesses, read from a book handed him at his request by plaintiff’s counsel, and in the brief it is said “he 'was able to find extracts which were decidedly favorable to defendant’s theory.” As we understand it, these extracts were placed before the jury by incorporating- them in questions asked by defendant’s counsel. In our opinion he is not in position now to complain that there was reversible error in what is alleged to be a fact, that plaintiff’s counsel in asking the question on cross-examination gave the jury “the impression that he was reading from a book.”

The rule is well established that statements made in medical books are not competent evidence. We agree also with counsel for defendant in the proposition that that which cannot be accomplished directly should not be done indirectly; that is to say, quotations from so-called authorities should not be incorporated in questions in such a manner as to lead the jury to infer that the attorney propounding same is reading from the so-called authority or text-book.

Complaint is made that in arguing questions of law before the court, plaintiff’s counsel made remarks in the presence of the jury calculated to prejudice them. It has been held in a recent decision that although when counsel is corrected and the jury instructed to disregard improper remarks, the attorney’s misconduct ordinarily is not ground for reversal, yet in a clear case courts of review will reverse a judgment for such improper conduct, even though the trial court has sustained objections interposed by opposing counsel. Appel v. Chicago City Ry. Co., 259 Ill. 561. It is said in the case of West Chicago St. R. Co. v. Annis, 165 Ill. 475: “It is, however, as held in the Cotton case, supra (140 Ill. 486), a matter resting in the sound discretion of the trial judge to say when, under all the circumstances of the case, and in view of the counter remarks which may be made and the temper and character of the jury, whether a new trial should be granted or not, and unless it satisfactorily appears from the record that the trial court has abused its discretion in this regard courts of review cannot interfere.”

After careful esamination of the record we are unable to say that in the refusal to grant a new trial in the present case there was an abuse of discretion by the trial judge.

The remarks which are criticized were not made in an argument to the jury as in the Appel case, supra, but, as heretofore stated, were addressed to the court.

V.

We have carefully considered the other questions raised as to the alleged erroneous rulings of the court on the admission of evidence, and are of the opinion that no error was committed on account of which the judgment should be reversed.

The judgment will be affirmed.

Affirmed.


text:
    Joseph Wajer, Appellee, v. United States Brewing Company, Appellant.
    Gen. No. 18,839.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 686

      -—when employer not negligent in providing fireman in hotter room*a safe place to work. In an action by a fireman for injuries sustained by falling in an ash pit beneath defendant’s boilers, the defendant being charged with negligence in not properly guarding the pit as required by section 4 of the Act of 1910 (R. S. ch. 48, ¶ 92, J. & A. ¶ 5389), in permitting the steam to escape in the room and allowing broken windows to permit the cold air to come in contact with the steam so as to cause it to condense, held that the evidence did not show the statute was violated and that the mere escape of steam did not render the boiler room an unsafe place to work.

      Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed.
    Opinion filed January 13, 1914.
    Statement of the Case.
    Action by Joseph Wajer against United States Brewing Company, a corporation, to recover for personal injuries sustained by plaintiff while in the employ of defendant as fireman in defendant’s boiler room. Plaintiff’s injuries resulted from falling into an uncovered ash pit beneath the boilers. From a judgment in favor of plaintiff for one thousand and fifty dollars and costs, defendant appeals.
    George W. Miller, for appellant.
    John W. Sutton and Martin L. Wilborn, for appellee.

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

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

   Mr. Justice Clark

delivered the opinion of the court.

2. Master and servant, § 561 —admissibility of evidence. Under a declaration charging employer with negligence in- allowing steam to escape in the boiler room and in allowing window glass to remain broken so that cold air would cause the steam to rapidly condense, held that testimony as to the breaking of a “T” was erroneously admitted as no mention was made thereof in the declaration.

3. Master and servant, § 98 —statute imposing duty to guard hatchways construed. Section 4 of the Act of 1910 providing for the health, safety and comfort of employes (R. S. 1911, ch. 48, ¶ 92, J. & A. ¶ 5389) does not require hatchways to be fenced while in use, in addition to providing a covering therefor when not in use.

4. Statutes, § 27 —when defendant not required to plead the exception in a statute. In an action based on section 4 of R. S. ch. 48, 92, J. & A. ¶ 5389, to recover for personal injuries resulting from falling into an open hatchway, defendant is not required to plead specially the exception mentioned in the statute.

5. Master and servant, § 302 —when doctrine of assumption of risk inapplicable. Doctrine of assumption of risk is not applicable where there has been a violation of a statute.


text:
    Edward Mertzen, Appellee, v. Herman H. Hettler Lumber Company, Appellant.
    Gen. No. 18,882.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed January 13, 1914.
    Statement of the Case.
    Action by Edward Mertzen against Herman H. Hettler Lumber Company, a corporation, to recover damages for personal injuries sustained by plaintiff while in the employ of defendant and alleged to have re-suited by the starting of a planing machine when plaintiff was cleaning the same preparatory to changing the knives. From a judgment in favor of plaintiff for two thousand five hundred dollars, defendant appeals.
    Abstract of the Decision.
    Master and servant, § 683

      —when evidence sustains verdict for injury to employe resulting from defective belts starting a planing machine. In an action to recover for injuries sustained by plaintiff resulting from the starting of a planing machine while he was cleaning it, the declaration alleging that defendant was negligent in allowing a belt to remain improperly laced and fitted to a pulley so as to run from a loose to a tight pulley, a verdict for plaintiff held sustained by the evidence, it appearing that the belt had been fixed just prior to the accident and had been represented to be in proper condition for running by a person in the position of a vice principal.
    H. L. Howard, for appellant.
    John W. Sutton, for appellee; Martin L. Wilborn, of counsel.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Grace V. Wiesbach, Appellee, v. Herman H. Hettler Lumber Company, Appellant.
    Gen. No. 18,883.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed January 13, 1914.

      Abstract of the Decision.
    1. Master and servant, § 867

      —when evidence sufficient to sustain finding that team and wagon were not under the _control of an independent contractor. In an action to recover for personal injuries sustained in a collision between a carriage in which plaintiff was riding and a team and wagon alleged to be owned and controlled by defendant, evidence held sufficient to warrant a finding by the jury that the team and driver were under the direction of the defendant and that a third party, who owned the team and employed the driver, was not an independent contractor.
    2. Negligence, § 129

      —when special plea does not put in issue ownership and control of instrumentalities causing injury. In an action for personal injuries sustained by plaintiff alleged to have been caused by the negligent driving of a team and wagon owned and controlled by defendant, a special pled which recites that defendant or its servants or agents were not in the use, possession, ownership and control of the wagon, without denying ownership of the horses and without denying that the horses and wagon were owned and controlled by defendant, does not properly put in issue the ownership, possession or operation of the instrumentalities which are alleged to have caused the injury.

      Statement of the Case.
    Action by Grace V. Wiesbach against Herman H. Hettler Lumber Company, a corporation, and E. S. Ormsbee to recover damages for personal injuries sustained by plaintiff in a collision between a carriage in which plaintiff was riding and a team claimed to have been owned and controlled by the defendant. The jury rendered a verdict of not guilty as against Ormsbee and of guilty against the Lumber Company, damages being fixed at the sum of one thousand dollars. From a judgment entered on the verdict, the defendant Lumber Company appeals.
    H. L. Howard, for appellant.
    Moses, Rosenthal & Kennedy, for appellee; Walter Bachrach, S. Sidney Stein and Sigmund W. David, of counsel.

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

   Mr. Justice Clark

delivered the opinion of the court.

3. Appeal and ebbob, § 1699 —when error in refusing to direct verdict for defendant waived. Error of court in denying a motion to direct a verdict at the close of plaintiff’s evidence is waived where defendant thereafter submits instructions based upon its theory of the case.