text:
    Stefan Turon, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,816.
    1. Verdict—when set aside as against the evidence. Although the evidence is conflicting, and the evidence of the successful party, standing alone and considered by itself, is sufficient to sustain the judgment, it is nevertheless the duty of the Appellate Court to reverse the judgment if it is clearly against the weight and preponderance of the evidence.
    2. Trial-—when exhibition of injury to jury subject to criticism. Where the injury was not disputed it is doubtful if the injured member should be allowed to be exhibited to the jury.
    3. Evidence—when improper cross-examination will not reverse. Notwithstanding a cross-examination proceeded too far, it will not reverse where the baneful effect, if any, was removed by the remarks of the trial judge to the effect that the matters elicited were immaterial.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed January 18, 1910.
    Rehearing denied February 1, 1910.
    George W. Miller, for appellant; John B. Harrington, of counsel.
    Johnson, Belasco & McCabe, for appellee; Joel Baker, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

Appellee, Stefan Turón, recovered a judgment in the Superior Court against the appellant, Chicago City Eailway Company, for $5,000 for personal injuries received by him October 7,1905.

The declaration filed contained two counts. The defendant pleaded to the first count and filed a general and special demurrer to the second count. The demurrer was sustained by the court, and the case went to trial on the first count.

The first count of the declaration averred that the defendant owned and operated certain street car tracks on Ashland avenue, in Chicago, for the purpose of carrying passengers for hire, on which the cars were propelled by electricity and operated by the servants of the defendant; that on the date named the plaintiff was a passenger on a certain car of the defendant which was driven along Ashland avenue in a northerly direction; that plaintiff desired to alight at Thirty-seventh street, and the defendant stopped the car for the purpose of permitting the plaintiff to alight, and while the plaintiff was attempting to alight from the car, with all due care and caution for his safety, the defendant carelessly, wrongfully and negligently started the car suddenly and with a violent jerk, and thereby greatly and permanently injured the plaintiff.

The testimony of the plaintiff and one other witness tends to support the theory of the accident set out in the declaration. The contention of the defendant is that the plaintiff attempted to alight from the car while it was in motion. This is the controversy of fact in the case. In support of the theory that the car had not stopped and was running at a speed of five or six miles an hour, at the time plaintiff stepped off the front platform where he was riding, the defendant introduced the testimony of seven witnesses.

It is urged with great earnestness on the part of appellant that the verdict and judgment are contrary to the weight of the evidence, and that we should reverse the judgment for that reason. Although the evidence is conflicting, and the evidence of the successful party, standing alone and considered by itself, is sufficient to sustain the judgment, it is nevertheless our duty to reverse the judgment if it is clearly against the weight and preponderance of the evidence. Donelson v. East St. Louis Ry. Co., 235 Ill. 625. In that case the court uses the following language: “If a verdict is manifestly against the weight of the evidence, it is not necessary that it should further appear that it was not the result of the impartial and honest judgment of the jury, nor that it resulted from prejudice, passion or some improper motive or condition. To permit a verdict which is clearly and manifestly against the weight of the evidence to stand, upon the supposition that the jury were impartial and honest, would be as unjust and injurious to the defeated party as though it proceeded from passion, prejudice or some improper motive.” This duty, however, does not require us to usurp the province of the jury and set aside their verdict on the ground merely that had we been sitting as jurors, we might or would have found differently. Guided by these rules as to our powers and duty, we have carefully considered the evidence in the case, not only as to the substantive facts sworn to by the witnesses but all the incidental facts appearing in the record which tend to throw light upon the credibility of the witnesses, and afford us a basis for determining the weight of the testimony of each witness. The plaintiff’s case rests entirely upon his own testimony, and that of Bilak, which corroborates Turón’s testimony fully. An effort is made in argument to cast some doubt upon the fact that Bilak was on the car at the time of the accident. But we think the basis for that idea is too shadowy to be recognized as having any substance. The evidence shows that Bilak was on the platform of the car with the plaintiff and was standing beside the plaintiff at the time he started to alight from the car, and had the best opportunity to observe what happened at the time.

It is urged that as against this evidence is the testimony of seven witnesses called by the defendant, six of whom were on the car at the time, and that this testimony absolutely precludes a recovery by appellee.

As to the testimony of Skindzier, we think it may be disposed of by the remark that he was sent out to the hospital by appellant to obtain an admission from Turón as to the manner of the accident, and testify to it at the trial. The jury were justified in giving it little weight.

. The witness Link did not see the accident. He was the conductor of the car and was engaged in the car collecting fares at the time.

The motorman, Fogarty, testified that the car did not stop at Thirty-ninth street until after the accident; that he felt some commotion on the car behind him and looked around and saw a man falling. He did not notice the man so as to recognize him and did not get a bell or signal to stop the car when he made the stop. In this last statement he is contradicted by Mrs. Coleman.

The witness Coleman had been in the employ of the defendant from September 11, 1907, to the time of the trial. He testified that he was on the car at the time of the accident, sitting on the east side of it near the front end. He saw a man standing on the east side of the front platform and “all of a sudden I seen him drop off the car,” while it was moving. Coleman’s wife was with bim on the car and they were conversing at the time of the accident. She testifies that the conductor went through the car to collect fares on the front end, and “as he came there he pulled the bell rather sharply and the car stopped, and at the time I felt the car went over something.” On cross-examination she said: “I called his (husband’s) attention to the fact that the car was going over something, then he got up and went out. Before that time he had not remarked anything to me. * # * We were sitting on the east side (of the car); he was facing southwest at the time, talking to me. ’ ’ The testimony of this witness impairs the force of Coleman’s testimony.

Another witness, Duerwerth, testified that he was riding on the front platform at the time of the accident, and when the car was about twenty feet past Thirty-ninth street, “there was a motion—I never saw the man—with a rushing kind of crowding on the front platform of the car, and there was somebody leaped off. ’ ’ The car was in motion at the time. The substance and character of the witness’ testimony do not entitle it to much weight.

The witness Ward testified that he was a motorman for the defendant at the time of the trial, and was working for the defendant in October, 1905; that at the time of the accident he was on the front platform. “I heard something kind of crash and I looked around and. saw a man going to the ground; the ear was going at half speed; I didn’t hear any bells rung to stop or anything else.” What it was that produced the “crash” does not appear. The witness ’ testimony is in conflict with Mrs. Coleman’s and Bilak’s testimony as to the ringing of the bell, and considering the general character of his testimony, it is not entitled to much weight, in our opinion.

This testimony, taken all together, does not produce upon our minds the conviction or conclusion that the verdict of the jury is manifestly and clearly against the weight of the evidence. Whether we might or would have found differently from the jury, if we had been sitting as jurors in the case, is not material to state. The evidence is conflicting, and some consideration must be given to the superior opportunities of the trial judge and the jury over this court sitting as a court of review, for determining the credibility of the witnesses, where there is a direct conflict as to material facts. Calvert v. Carpenter, 96 Ill. 63. We are unable to say that the verdict is so palpably against the weight of the evidence that the judgment must be reversed.

It is urged that the court erred in allowing the exhibition of the injured foot to the jury. It is conceded that it is ordinarily within the reasonable discretion of the court, but it is contended that in this case where the injury was not disputed, there was such a clear abuse of the discretion as warrants a reversal on that ground. We think it is questionable whether the exhibition was proper under the circumstances. But, we are not prepared to say that it was a clear abuse of the discretion possessed by the trial court, or that it worked any harm to appellant.

We think the court allowed the cross-examination of the witness Ward to be carried too far. Upon the direct examination of the witness no questions were asked as to where he went or what he did that night after the accident. Further, it was entirely immaterial matter, as the court remarked. There was no good reason or excuse for counsel’s persistence in making such a cross-examination, especially after the court stated that he could not see its materiality. We do not think; however, in view of the remarks of the court in the presence of the jury, that the admission of the evidence had any material effect upon the jury tending to impair the credibility of the witness.

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

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Annie Woolf, Defendant in Error, v. Peter F. Deahl, Plaintiff in Error.
    Gen. No. 14,830.
    1. Amendments and jeofails—when nunc pro tunc order improper. A court cannot, under guise of amending its record, correct judicial errors or" remedy the effect of judicial non-action.
    2. Verdicts—when against one defendant will not sustain judgment in action against two. If a verdict is rendered, in an action against two defendants, against one defendant only, without naming such defendant, a judgment predicated upon such a verdict will he set aside and a nunc pro tunc order of discontinuance as to the other defendant will not cure the irregularity.
    3. Master and servant—burden to show injury not caused by fellow-servant. The burden is upon the plaintiff to show that the injury in suit was not caused by the act or omission of a fellow-servant.
    Action in tort for personal injuries. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed January 18, 1910.
    Rehearing denied January 28, 1910.
    Iles & Martin, for plaintiff in error.
    Lee & Lee and David J. Lyon, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Defendant in error, Annie Woolf, brought an action in the Municipal Court in tort for personal injuries against plaintiff in error, Peter F. Deahl, or Deohl (it appears both ways in the record) and the Derby Steam Laundry Company, a corporation, defendants.

The plaintiff’s claim filed sets out a joint employment of plaintiff by the defendants as follows:

“P. F. Deahl, 141 East Ontario street,

The Derby Steam Laundry Co.,

141 East Ontario street.

Bill of Particular.

Plaintiff’s claim is for damages for personal injuries sustained by plaintiff on, to-wit: August 15, 1907, while in the employ of said defendant at 141 East Ontario street, Chicago, Illinois, caused by her first finger being caught in the laundry mangle of said defendant.”

A summons was issued against both defendants and both were duly served; and both appeared and defended.

On the trial the jury returned the following verdict on May 23, 1908: “We, the jury, find the defendant guilty, and assess the plaintiff’s damages at the sum of Three Hundred Fifty 00/100 Dollars.”

From the “Statement of Facts and Law,” certified to by the trial judge and filed in the cause, it appears, in substance, that the plaintiff was employed and was working at the Derby Steam Laundry, 141 E. Ontario street, Chicago, on or about August 15, 1906; that on that date she was working at a mangle, a machine used for ironing flat, unstarched goods, and the first finger of her left hand was slightly caught in the mangle. When her finger was caught plaintiff cried out, and “the defendant by his agent in charge of operating said machinery * * * immediately went to and without further investigation grasped the lever controlling the speed of said mangle and controlling the operation of the same, increased the speed of the machinery and in the wrong way, which caused the mangle to operate faster and quickly drew the finger within the hot rolls of the mangle, when he should have stopped the machinery and reversed the revolutions of the mangle to withdraw the finger; that the result of the finger being so drawn into the mangle wqs to burn and crush the end of the finger for a distance of about one-half inch so that the end of the finger including the nail shriveled up and disappeared.”

Upon the return of the verdict the defendants entered their motion for a new trial which was continued several times, and finally on June 26, 1908, the court set aside the verdict as to the Derby Steam Laundry Company; and further ordered that the suit “be, and the same is hereby discontinued as to the said defendant the Derby Steam Laundry Company, nunc pro tunc as of May 27, A. D. 1908.”

The power of a court during the term at which a record is made, to amend or correct it so as to make it speak the truth, has never been questioned, it being a fiction of the law that during the term at which any judicial act is done the record remains in the breast of the judges of the court, and therefore alterable as they may direct. But the control of the court over its records is limited to the power of making the records show what the judicial action really was. A court cannot, under the guise of amending its record, correct judicial error or remedy the effect of judicial non action. Ency. of P. & P., vol. 17, p. 912.

The nunc pro tunc order quoted above, discontinuing the suit at a day prior to the trial, does not purport to be based upon any action of the court on that day, or any omission of the clerk to enter and record any order of court then made. The record does not speak on this point. As said in Lindauer v. Pease, 192 Ill. 456: "The office of an order nunc pro tunc is only to supply some omission in the record of an order which was really made but omitted from the record. * * * No court has a right to create an order by that method or to supply an order which was never in fact made. A nunc pro tunc order cannot be made to supply an omission to make an order, but only an omission in the record of the order. (Hawley v. Simons, 157 Ill. 218; 15 Ency. of Pl. & Pr. 344; Perkins v. Hayward, 132 Ind. 95; Nabers v. Meredith, 67 Ala. 333.) ” In the absence of anything in the record showing that an order of discontinuance was made on May 27, 1908, the order was and is invalid and ineffectual in so far as it attempts to discontinue the action as of May 27, 1908, as to the defendant, the Derby Steam Laundry Company. At the time of the trial, then, there were two defendants to the action, and both defendants made the motion for a new trial. The verdict, however, signed by the jurors and entered of record, was against one defendant. The recorded verdict, being against only one of the defendants, without naming which one, is clearly insufficient to support a judgment, as it fails to show which defendant was convicted, and which acquitted. Lambert v. Borden, 10 Ill. App. 648. The verdict amounted to a negative finding of not guilty to one of the defendants, but it does not appear which one. It may have been the plaintiff in error. Wilderman v. Sandusky, 15 Ill. 60.

If the statement of facts in the record is a fair and full statement of the proof made on the trial, the evidence failed to make out a case against the defendants in at least two essential particulars! There is no proof of due care on the part of the plaintiff for her own safety. This is necessary when no wilful tort is shown. C., B. & Q. Ry. Co. v. Johnson, Admr., 103 Ill. 512, 521; C., B. & Q. Ry. Co. v. Hazzard, 26 id. 373. Second, the evidence fails to show that the servant in charge of operating the machinery was not a fellow-servant. The word “agent” as used in the statement means simply an employe or servant of the defendants; and it appears that such employe or servant was engaged in operating the same machine at which the plaintiff was working, thus warranting the inference that they were fellow-servants. The burden of proving that the servant causing the injury was not a fellow-servant rested upon the plaintiff. Joliet Steel Co. v. Shields, 134 Ill. 209-214; Chicago City Ry. Co. v. Leach, 208 Ill. 198.

For these errors the judgment must be reversed and the cause remanded for a new trial. It is unnecessary, therefore, for us to express at this time any opinion as to the effect of the release shown in the record, as it would not guide the court or the parties on the trial of the cause.

The judgment is reversed and the cause is remanded.

jReversed and remanded.


author: Mr. Presiding Justice Chytraus

text:
    William Moorehead, Defendant in Error, v. George W. Briggs, Administrator, Plaintiff in Error.
    Gen. No. 14,634.
    1. Amendments and jeofails—how affidavits cannot Be amended. It is improper to permit an affidavit to be amended by erasures or interlineations; if an affidavit is so amended without being resworn to, it ceases to be either an affidavit or an amended affidavit.
    2. Parties—when action is against individual rather than against him in a representative capacity. A party sued merely “as administrator” is sued in his individual capacity; the words “as administrator” being merely descriptio personas and regarded as surplusage.
    Replevin. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed November 19, 1909.
    Petition for rehearing withdrawn February 17, 1910.
    Charles G. Hutchinson, for plaintiff in error.
    M. W. Cagney, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

William Moorehead, defendant in error, brought suit in replevin against George W. Briggs, “as administrator,” in the Municipal Court. The bailiff to whom the writ of replevin was issued, being unable to find the goods described in the writ, made a return to that effect and of demand and service upon Briggs, “individually or as administrator.” There was a trial by jury, verdict for plaintiff, and a judgment in trover for $200 against George W. Briggs.

Prior to the commencement of the trial plaintiff moved for and obtained an order which, so far as now material, is as follows: “It is' ordered by the court that leave he, and the same is, hereby granted the plaintiff to amend the affidavit of replevin herein by striking out the words ‘individually or’.” These words appeared in the affidavit before the word “administrator.”

Following decisions of the Supreme Court, we have, not long since, condemned the practice of trial courts permitting amendments of pleadings by erasures or interlineations. Such practice becomes still more objectionable and dangerous when an affidavit is involved. No trial court should allow erasures or interlineations in an affidavit. The purpose of the law, in requiring an affidavit instead of an unsworn statement, is practically nullified when, as in this instance, an affidavit is allowed to be amended without being again sworn to before an officer authorized to administer oaths. It is the duty of the courts, generally, to permit amendments of pleadings and the filing of new or additional affidavits. But the interests of parties and the public should be safeguarded by requiring that court records and court documents should, when amended, be amended in a proper manner. Am affidavit should be amended only by the filing of an amended affidavit, sworn to. Am affidavit merely altered is, in the true sense, neither an amended affidavit nor an affidavit amended.

The controversy herein is in regard to the ownership of the household furniture and goods which plaintiff, William Moorehead, and his deceased wife, Sarah A. Moorehead, had used in their household for somewhere about ten to fifteen years. Plaintiff is a workingman who, with his wife and family, came here from Ireland in 1891 and the furniture has been purchased since then, from time to time. Defendant is one of plaintiff’s several stepchildren. Mrs. Moorehead died in 1906 or 1907, the date is not shown, and, apparently, some time thereafter defendant, Briggs, caused himself to be appointed administrator of the estate of his mother, Mrs. Moorehead. Subsequently he, in the absence of the other members of the family, took away the household goods and furniture. For these goods the replevin writ herein was issued. We find no reason whatever, so far as the merits are concerned, for disturbing the verdict of the jury approved, as it is, by the judgment of the trial judge.

The argument is made on behalf of plaintiff in error that the judgment runs against George W. Briggs individually while the suit was brought and prosecuted against George W. Briggs “as administrator of the estate of Sarah A. Moorehead, deceased.” We find nothing in the record to support the assertion in the statement of facts on behalf of plaintiff in error that the suit proceeded against Briggs as administrator of said deceased. True, the affidavit originally named Briggs “individually or as administrator” party defendant and the writ ran against him “individually or as administrator,” but, nothing being- said or stated as to whom or what he was administrator for or of, the quoted verbiage was entirely superfluous and meaningless. The suit was at all stages conducted against him in his individual capacity and the verdict and judgment are, in that respect, perfectly proper.

As we find no reversible error in the record the judgment must be affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. N. K. Zlotincke, Plaintiff in Error.
    Gen. No. 14,905.
    1. Criminal law—what not reached by motion in arrest. The remark in Gardner v. People, 3 Scammon, 83, to the effect that a motion in arrest opens the entire record and reaches any defect apparent upon its face is an obiter dictum and too broad.
    2. Criminal law—when motion in arrest may be granted. A motion in arrest may be granted, first, where there is a total variance between the declaration and the original writ; second, where the verdict materially differs from the pleadings and the issues thereon; and, third, if the case laid in the declaration is not sufficient in point of law to found an action upon. Exceptions that are moved in arrest of judgment must be much more material and glaring than such as will maintain a demurrer; or, in other words, many inaccuracies and omissions which would be fatal if early observed, are cured by a subsequent verdict and not suffered in the last stage of a cause to unravel the whole proceeding.
    3. Criminal law—what not jeopardy. Where a prisoner has been indicted and found guilty by the verdict of a jury, if the judgment has been arrested on his motion, he has not been legally in jeopardy and cannot plead the conviction in bar to a subsequent indictment.
    4. Criminal law—effect of defective information. If an information is merely defective and not void but susceptible of amendment, a conviction obtained upon a sufficient amended information will not be reversed.
    5. Criminal law—when irregular information will not reverse. An information after verdict will not reverse if insufficient merely in not having the proper affidavit attached and in lacking the endorsement of the judge, required by statute.
    Proceeding by information. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed December 7, 1909.
    Petition for rehearing denied March 11, 1910.
    Statement Tby the Court. An information was filed in the Municipal Court of Chicago, on January 20, 1908, by Kashmir Motykowski, charging that on January 12, 1908, in Chicago, 1ST. K. Zlotincke “did unlawfully, wickedly and maliciously write and publish and cause and procure to be written and published a false, scandalous, defamatory libel” concerning Motykowski, editor of the Kumoszka, a weekly paper, in the Dzwon, another weekly paper, while he, Zlotincke, well knew “the said defamatory libel to be false,” to Motykowski’s “great damage, scandal and disgrace” and “contrary to the form of the statute in such case made and provided.” This information was duly verified by affidavit of Motykowski. Before the information was filed, the same was examined by one of the judges of the Municipal Court and, according to his endorsement thereupon, he satisfied himself that there was probable cause for the filing thereof. The language complained of, as having been published and as being libelous, was not set forth in the information. The defendant having been brought into court, moved to quash the indictment and thereupon the state’s attorney made a counter-motion for leave to file an amended information. The counter-motion was allowed and a few days thereafter an amended information was filed. The amended information by Motykowski, which was not sworn to, stated that the language complained of was published in the Polish language and, after reciting the published Polish language, gave the following translation thereof, namely:
    “To Polish Merchants.
    Under the address of the Polish merchants in Chicago, who formed an organization for the development and support of the Polish trade, we send the following questions:
    1st. Is it proper that at the head of a society should stand a thief, and a professional one, namely the editor of the Kumoszka? (meaning thereby to charge the said Kasimir Motykowski who was then and there the head of the said society, and also then and there the editor of the said Kumoszka, with having been guilty of the crime of larceny).
    2nd. Does not the ambition and honor of the associated merchants and their interests suffer from, that a thief directs their steps? (meaning then and there to charge the said Kasimir Motykowski with being a thief).
    3rd. Can people have confidence in stores which advertise themselves in a paper of a thief?” (meaning thereby to charge the said Kasimir Motykowski with being a thief and unworthy of confidence).
    “Against the editor of Kumozska, publicly, makes the following charges, which we can prove:
    1. About three years ago, the editor of Kumozska disappeared from Chicago, having ruined many Poles, and the Alliance Group No. 346 Tow. Listopadowe” (meaning thereby to charge the said Kasimir Motykowski with having wrongfully and wickedly ruined many persons).
    2nd. The wife of the editor of Kumoszka told us in the presence of witnesses that her husband allowed himself to do whole lots of foul plays, and therefore, was forced to escape to Canada” (meaning thereby to charge the said Kasimir Motykowski with being guilty of dishonesty and criminal practices).
    3rd. The editor of Kumoszka kept boarders, and in their absence robbed them of cash, opening skillfully the trunks of the boarders” (meaning thereby to charge the said Kasimir Motykowski with being a thief and robber).
    4th. When he was the treasurer of the Group 340 he misappropriated its money, which up to the present time he is paying in installments, and although three years passed, he has not returned all, so hard it is for him to refund other people’s money. And such thief is the representative of our merchants” (meaning thereby to charge the said Kasimir Motykowski with being an embezzler and thief).
    “Is this not a shame for the whole Polish population?”
    The information also alleged that the publication was intended to impeach the honesty and integrity of Motykowski to expose him to public hatred, contempt and ridicule. A motion was made to quash the amended information and overruled. Defendant pleaded not guilty and after a trial by jury a verdict of guilty was returned. Motions for new trial and in arrest of judgment were made and overruled and defendant was sentenced to pay a fine of $300 and costs of suit.
    Stedman, Soelke & Shutan, for plaintiff in error.
    John E. W. Watman, for defendant in error; William Prentiss, of counsel.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The Criminal Code provides: “A libel is a malicious defamation, expressed * * * by printing * * * tending to * * * impeach the honesty, integrity or reputation * * * of one who is alive, and thereby to expose him to public hatred, contempt, ridicule, or financial injury.” The article, a translation of which appears above, was shown to have been published by Zlotincke, in Chicago, in the Polish language and to have been read by some persons. The article is clearly libelous and there is no doubt of defendant’s guilt so far as the merits are concerned. Indeed there was really no defense made upon the merits, and it appears defendant has once pleaded guilty to a similar offense.

In the brief and argument on behalf of plaintiff in error points and propositions are advanced as follows:

“I. A motion in arrest of judgment is available for any error or defect upon the face of the record where the indictment is insufficient.”

“II. The original information stated no offense and conferred no jurisdiction upon the Municipal Court to arrest, try and sentence the plaintiff in error.”

“III. The original information being void could not be amended. ’ ’

“IV. The amended information was filed without the endorsement of the judge as required by the Municipal Court Act. It fails to state any offense, and it was not sworn to and is therefore void. That the words pleaded are not libelous and do not bear the innuendoes pleaded.”

“V. An information is void without an affidavit.”

“VI. The record is silent as to what information the defendant was arraigned or as to what information he pleaded not guilty.”

No other points have been presented or argued. Proposition VI is not argued. It appears that the amended information was filed on February 21, 1908, and that the defendant joined issue on February 26, 1908, by pleading not guilty. “Informations are as declarations in the king’s suit.” Long v. People, 135 Ill. 435, 441. The silence of the record which is referred to is obviously immaterial and, clearly, defendant pleaded to the amended information.

We cannot accede to proposition I. The proposition is based upon a paragraph in Gardner v. People, 3 Scam. 83, as follows: “The last assignment is, that the court erred in overruling the motion in arrest of judgment. This motion opened the entire record, and would reach any defect apparent upon its face. All the objections, however, which could have properly been urged under this motion have been separately considered under distinct assignments of error and overruled.” The record there referred to is the common law record, exclusive of the bill of exceptions. The questions that might have arisen upon the motion having already been disposed of, the remark relative to the effect of the motion in arrest is an obiter dictum, without citation of any authority, and states the rule too broadly. The other Illinois cases cited are not at all in point.

The scope and function of the motion in arrest is clearly laid down in Blackstone’s Commentaries, 3 Cooley’s Blackstone, 393. It is there said: “Arrests of judgment arise from intrinsic causes, appearing upon the face of the record.” In explanation it is then added that of this kind of causes are, first, where there is a total variance between the declaration and the original writ; secondly, where the verdict materially differs from the pleadings and issue thereon; and, thirdly, if the case laid in the declaration is not sufficient in point of law to found an action upon. Respecting this third cause it is said to be “an invariable rule with regard to arrests of judgment upon matters of law, ‘that whatever is alleged in arrest of judgment must be such matter as would upon demurrer have been sufficient to overturn the action or plea. ’ As if, on an action for slander in calling the plaintiff a Jew, the defendant denies the words, and issue is joined thereon; now if a verdict be found for the plaintiff, that the words were actually spoken, whereby the fact is established, still the defendant may move in arrest of judgment, that to call a man a Jew is not actionable; and, if the court be of that opinion, the judgment shall be arrested, and never entered for the plaintiff. But the rule will not hold e converso, ‘that every thing that may be alleged as cause of demurrer will be good in arrest of judgment; ’ for if a declaration or plea omits to state some particular circumstance, without proving of which, at the trial, it is impossible to support the action or defense, this omission shalf be aided by verdict. * * * For the verdict ascertains those facts, which before from the inaccuracy of the pleadings might be dubious; since the law will not suppose that a jury, under the inspection of a judge, would find a verdict for the plaintiff or defendant, unless he had proved those circumstances, without which his general allegation is defective. Exceptions, therefore, that are moved in arrest of judgment, must be much more material and glaring than such as will maintain a demurrer: or, in other words, many inaccuracies and omissions, which would be fatal, if early observed, are cured by a subsequent verdict; and not suffered, in the last stage of a cause, to unravel the whole proceedings.” In note 3 on the same page it is said: “The parties cannot move in arrest of judgment for anything that is aided after verdict at common law, or by the statute of amendments, or cured, as matter of form, by the statute of jeofails,” and the common law rule as to defects cured by verdict is quoted as follows: “When there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection on demurrer, yet if the is.sue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission, is cured by the verdict at the common law.” To the same effect 2 Tidd’s Pr. 918, 919 and notes. This quoted common law rule is quoted and approved in C. & A. R. R. Co. v. Clausen, 173 Ill. 100, 103-4, and followed in Hanley v. Hibbard, 222 Ill. 88, 91. See Wallace v. Curtis, 36 Ill. 156, which is a case where there occurred an omission to set out a material fact in the declaration, but the judgment was, nevertheless, affirmed; also, Nichols v. People, 40 Ill. 395, where it was held that the want of venue in the body of an indictment cannot be taken advantage of after verdict. And see Young v. People, 193 Ill. 236.

It is also a rule in this state, as well as elsewhere, that “a motion in arrest of judgment cannot be sustained for any matter not affecting the real merits of the offense charged in the indictment.” Young v. People, 193 Ill. 236, 244. “The motion in.arrest of judgment, * * * cannot be sustained for any matter not affecting the real merits of the offense charged in the indictment.” Winship v. People, 51 Ill. 296.

As quoted by Mr. Justice Adams, in Gregg v. People, 98 Ill. App. 170-74: “These great niceties and strictness in pleading should only be countenanced and supported when it is apparent the defendant may be surprised on the trial, or unable to meet the charge, or make preparation for his defense, for want of greater certainty or particularity in the charge.” Niceties and technicalities in pleading and procedure should not be permitted to impede the administration of justice but should only be invoked to promote it.

In the present case it is, beyond question upon this record, that the defendant published the article here in question and that the article is libelous. Upon the merits defendant is clearly not entitled to a reversal. It would be worse than useless to reverse and remand this case, for it is fair to assume the evidence would be the same upon another trial. Even if a new information or an indictment were necessary again to put defendant on trial, he could not plead former jeopardy for “where a prisoner has been indicted and found guilty by the verdict of a jury, if the judgment has been arrested on his motion, he has not been legally in jeopardy and cannot plead the conviction in bar to a subsequent indictment.” Bedee v. People, 73 Ill. 320; Phillips v. People, 88 Ill. 161; Rubush v. State, 112 Ind. 107; State v. Goudalock, 1 Brev. (S. C.) 48; State v. Koerner, 51 Mo. 174. The statute of limitation for prosecution would not aid defendant, for section 6 of division IV of our Criminal Code stays the running of time where there is a reversal in such case.

The remaining propositions advanced may he disposed of together. We do not understand the original information filed to be void. The original information charged an offense. True, the statement of the offense was defective because the- defamatory language used by defendant was not set up therein, nor was it stated that the words used were in a foreign language and that they were read by persons here who understood them. But this omission or defect was amendable and also curable by verdict. In the original information conclusions and not facts were pleaded; but such pleading is amendable. There was here not a failure to state an offense, but an offense defectively stated.

The amended information lacked in some of the formalities required by law. It did not have such an affidavit attached as was attached to the original information and it also lacked such an endorsement of a judge as appears upon the original information. So far as this record shows, these particular objections were not raised before trial. While these lacking requirements are material and the absence thereof would be fatal to the particular information challenged, if objection were specifically made before trial, yet as they do not go to the merits upon the question of guilt or innocence, and as their absence could not tend to prevent the accused from obtaining and having a full, fair and impartial hearing and trial upon the question of his guilt or innocence, therefore, after a verdict of guilty, the law does not require a reversal for these irregularities.

So far as the argument that the words pleaded are not libelous is concerned, it is sufficient to refer to the words themselves.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Smith Mr. Justice Smith.

text:
    Stewart Hodges, Appellant, v. The Bankers Surety Company, Appellee.
    Gen. No. 14,650.
    1. Agent—powers of manager. A business manager or representative in general has implied authority to do those things which are necessary and proper to be done in carrying out the business in its usual and accustomed way and which the principal could and would usually do in like cases if present. The question of the authority of the agent must depend, so far as it involves the rights of innocent third persons who have relied thereon, upon the character bestowed and not upon the instructions given; or, in other, words, the principal is bound to third persons who have relied thereon in good faith and in ignorance of any limitations or restrictions, by the apparent authority he has given to the agent, and not by the actual or express authority, where that differs from the apparent; and this, too, whether the agency be a general or a special one.
    2. Agenct—scope of manager's authority. The powers of a general manager are at least as broad as those of a general agent, and the apparent powers of a general agent managing the business of a foreign corporation in any locality are as binding upon the principal as an express authority when the facts are proven showing express authority. If the agent acts within the scope of either express or implied actual or apparent authority, the principal is bound.
    3. Contracts—what sufficient consideration to support. Mutual promises afford a sufficient consideration to support a contract.
    4. Appeals and errors—what errors not considered. Errors not assigned on the record will not be considered on review.
    5. Statute of Frauds—what essential to avail of. Where a contract is declared on specially, the defense of the Statute of Frauds must be pleaded.
    6. Statute of Frauds—what promise not within. Held, that the agreement in question in this case was not a promise to answer for the debt of another but was a new and independent contract based upon a new and independent consideration moving directly from the plaintiff to the defendant.
    7. Amendments and jeofails—when refusal of leave to file plea not atuse of discretion. Refusal at the close of a trial to grant leave to file a plea of the Statute of Frauds, held, not an abuse of discretion.
    Mack, J., dissenting.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.

      Opinion filed December 7, 1909.
    Petition for rehearing denied January 14, 1910; additional opinion filed.
    Colin C. H. Fyffe, for appellant.
    Philip Stein and Elias Maybe, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This case comes here upon appeal from a judgment of the Municipal Court of Chicago in favor of the defendant, appellee. The case was tried before a jury on the first count of the amended declaration, a demurrer to the second count having been sustained by the court, and the plaintiff having elected to stand by the count. The verdict of the jury was in favor of appellee by direction of the court.

The suit is in assumpsit for the recovery of damages growing out of an alleged agreement of appellee to pay the plaintiff, appellant, whatever the cost and expenses of furnishing materials and performing work and labor relative to the mason, concrete and carpenter work on the Eugene Dietzgen factory building at Sheffield and Fullerton avenues, Chicago, exceeded the amount payable to the Federal Concrete Steel Company, hereafter called the Federal Company for convenience. Appellant Hodges was a general contractor for the construction of the building, and had sub-let the mason, concrete and carpenter work to the Federal Company. The appellee had given its bond to appellant guaranteeing the faithful performance of the contract by the Federal Company. The Federal Company failed to perform its contract, and the agreement sued on was made after such failure, and in view of the situation produced thereby. 1

The first' count of the amended declaration avers that the “plaintiff, Stewart Hodges, being a general contractor, for the purpose of carrying out an agreement entered into between him and a corporation known as the Eugene Dietzgen Company, by and under which said agreement the said Stewart Hodges, for the certain consideration of forty-seven thousand, five hundred dollars ($47,500) agreed, among other things, to complete on or before the 1st day of September, 1906, certain building work and construction of a proposed fireproof factory building for the said Eugene Dietzgen Company at the northeast corner of Fullerton and Sheffield avenues in the City of Chicago, did make and enter into an agreement with a corporation known as the Federal Concrete Steel Company; that by and under said agreement the Federal Concrete Steel Company, for the certain consideration of thirty-three thousand dollars ($33,000) agreed, among other things, to complete on or before the 1st day of July, 1906, at the northeast corner of Fullerton and Sheffield avenues in the City of Chicago, certain building work and construction of certain portions of a proposed fireproof factory building, which said building work and construction the said Stewart Hodges was required to do under his agreement with the said Eugene Dietzgen Company; that the said agreement provided, among other things, that if the work should be delayed beyond the stipulated time, provided no general strike interfered, there should be a deduction from the contract of twenty-five dollars ($25) for each and every day the work remained unfinished after July 1, A. D. 1906.

“The plaintiff further avers that The Bankers Surety Company, having given its bond for fifteen thousand dollars ($15,000) for the faithful performance by the said Federal Concrete Company of its part of the contract with the said Stewart Hodges, and the said Federal Concrete Company, having been in default on, to wit: May 15, 1906, in the performance of its part of the contract with the said Stewart Hodges, the plaintiff immediately thereupon, in accordance with a condition of the said bond, notified the said The Bankers Surety Company of the default in performance of the said Federal Concrete Steel Company; that subsequent to said, to wit: 15th day of May, 1906, under the authority and hy the direction of the said defendant, said plaintiff did procure and invite bids for the completion of the work contemplated under the said agreement dated, to wit: the 4th day of April, A. D. 1906, in accordance with the drawings, plans and specifications therefor; that the lowest of the said bids procured as aforesaid was for a price and consideration for the completion of the work so provided to be done under the contract aforesaid, to wit: the sum of four thousand dollars ($4,000) in excess of the balance provided to be paid to the said Federal Concrete Steel Company under the said contract of, to wit: April the 4th, A. D. 1906; that the. said The Bankers Surety Company, upon the request of the said plaintiff, refused to itself complete or re-let the completion of the work to be done under the contract of the said Federal Concrete Steel Company with the said Stewart Hodges, which privilege was secured to the said The Bankers Surety Company by a condition of its bond, or to authorize the plaintiff to let the completion of the said work to the lowest bidder that plaintiff had procured to bid upon the completion of the contract; but believing that the said plaintiff could himself furnish the labor and materials to complete the said work cheaper than the said work could be completed by letting its completion to the lowest bidder procured as aforesaid, said defendant authorized and directed the said plaintiff to proceed to complete the work contemplated under the said agreement by himself furnishing the labor and materials to complete and do the work provided under the said agreement; and the said defendant then and there agreed to pay the said plaintiff whatever aniount the costs and expenses of completing the said contract and the work provided to be done under the said contract in furnishing labor and materials therefor exceeded on its completion the balance payable under the said contract of, to wit: April 4, A. D. 1906, to the said Federal Concrete Steel Company; and the said plaintiff then and there agreed to pay to the said Federal Concrete Steel Company whatever amount the balance payable under the said contract of, to wit: April 4, A. D. 1906, to the Federal Concrete Steel Company exceeded on the completion of the said work the costs and expenses of the plaintiff in completing the said work provided to be done as aforesaid.

“And the plaintiff further avers that, further relying upon the said authority of, direction of and agreement with the said defendant, The Bankers Surety Company, the said plaintiff did, on, to wit: June 1, A. D. 1906, enter upon the completion of the work provided to be done under the said contract of, to wit: April 4, A. D. 1906,- between him and the said Federal Concrete Steel Company, and did then and there hire such superintendents as was necessary to carry on the said work to completion.

“And plaintiff further avers that, relying upon the said agreement of the said The Bankers Surety Company and its direction and authority hereinbefore referred to, to complete the said work provided to be done by the said agreement of, to wit: April 4, 1906, the said plaintiff did then and there furnish labor and materials and such workmen and the services of other persons as was necessary to complete the work provided to be done under the said contract in accordance with the plans and specifications thereof and did carry the said work on to completion, furnishing said labor and materials, and expended in the completion of the said work provided to be done under the said contract the sum of, to wit: sixty-two thousand dollars ($62,000) (in addition to the sum of two thousand dollars ($2,000) paid directly to the said Federal Concrete Steel Company on the authority and direction and with the consent of the said defendant, The Bankers Surety Company, prior to the abandonment of the said work by the said Federal Concrete Steel Company; that the said sum of, to wit: sixty-two thousand dollars ($62,000) represents the cost and expenses of the said plaintiff in furnishing labor and materials for and in the completion of the said work provided to be done under the said contract; that the said work was completed, to wit: November 7, 1906, and yet the defendant has not paid the plaintiff the money justly due him, the said plaintiff, though often requested so to do.”

Under this count the plaintiff, Hodges, introduced evidence tending to show that George K. Thomas was the general manager of appellee in the State of Hlinois, and documentary evidence of the contracts and bonds set out and referred to in the count.

Plaintiff’s evidence also showed that after the various contracts and bonds were executed the Federal Company started to perform the work and furnish the materials specified in its contract with plaintiff, and continued the work for about six weeks or until about the middle of May, 1906, and then ceased work. The work which it did was imperfectly and improperly done, and Thomas, as the agent of the defendant, was notified of the manner in which the work was done. The evidence also showed that the Federal Company could not meet its payroll, and Thomas as such agent and manager agreed with the plaintiff that he might advance $2,000 to the Federal Company to meet its payroll, and plaintiff advanced the money; and that the Federal Company about that time abandoned the contract and refused to carry it out. The evidence further shows that by mutual agreement of all the parties interested, including Thomas for the defendant, bids were taken for the completion of the work by the plaintiff and the bids received were reported to Thomas, who declined to agree to have the work re-let because it might relieve from liability defendant’s indemnitor, and requested the plaintiff to proceed and complete the work.

The evidence of the plaintiff further showed that when the bond to the Dietzgen Company was issued it had upon it a rubber stamp mark, reading “George TC. Thomas, Manager, 604 Chamber of Commerce; Tel. M. 2651, Chicago,” and that the bonds issued by the defendant were issued and delivered through Thomas as its manager and he collected the premiums or charges therefor.

The evidence offered by plaintiff further tended to show that Thomas had an office in the Chamber of Commerce Building in the city of Chicago, and that plaintiff had been to the office a great many times for the purpose of obtaining bonds for himself and his subcontractors on the building in question and, about the same time, on other buildings, that Thomas ordered all the stationery for the office and had five or six persons in the office, all connected with the business of the defendant company, and that the application blanks, the bonds, and everything of that kind were printed at the Cleveland office of defendant and sent to him; that Thomas corresponded with the defendant regularly during the months of March, April and May, 1906, using the following form of letter paper:

“The Bankers Surety Company op Cleveland, Ohio.

Capital $500,000.00 Surplus $100,000.00.

General Surety and Bonding Business.

George K. Thomas,

Manager for Illinois,

604 Chamber of Commerce,

Telephone Main 2651.”

The evidence further tended to show that the defendant company was doing a general bonding and surety business and that Thomas kept a record of the business and made reports every month to the company. The officers of the company occasionally visited Thomas’ office, but the agents of the company did so frequently. The sign on the office was: “George K. Thomas, Manager for Illinois,” at the top, and underneath appeared “Bankers Surety Company.” On the right hand side of the door as one enters the office was “General bonding and surety business.” On the left hand side was: “The Bankers Surety Company of Cleveland, Ohio, Harvey Golder, President.”

On behalf of plaintiff the following offer of proof was made: “That about the first of June, 1906, plaintiff and Thomas met at the office of Stein, Mayer, Stein & Hume; that Sidney Stein, one of the firm, was the attorney and counsellor for the Bankers’ Surety Company; that there were present at the interview Mr. Hodges, Mr. Thomas, Mr. Sidney Stein and Edmund D. Adcock, who was then attorney for Mr. Stewart Hodges; that Thomas at that interview offered the plaintiff that if he would go on and complete the contract of the Federal Concrete Steel Company, he (Thomas) would agree for the Bankers’ Surety Company that in case the cost of completion of the contract, including the payment of $2,000 to the Federal Concrete Steel Company, and including payment by plaintiff of certain amounts owed by the said Federal Concrete Steel Company to workmen employed in and about the work on said building, and including the further payment of material bills then due and incurred by the Federal Concrete Steel Company, referring to material already placed in the building, the defendant, the Bankers’ Surety Company, would reimburse and pay over to said plaintiff, Hodges, the amount which the cost of completing the work under the contract of the Federal Concrete Steel Company would be in excess of the contract price between plaintiff and the Federal Concrete Steel Company; that plaintiff accepted the offer and agreed to complete the work in accordance with the plans and specifications; that Hodges, plaintiff, told Thomas that a bid was received from Brown & Beed under which bid Brown & Beed offered to complete the contract and finish the work for $35,000, assuming the labor and material bills above mentioned; that Thomas refused to assent to the acceptance on behalf of plaintiff of the bid of Brown & Beed; that the bid of Brown & Beed was the lowest bid made by any person for the completion of the work; that the said Thomas in the same conversation told plaintiff of the indemnity agreement of George W. Stewart to the Bankers’ Surety Company, and that the Bankers’ Surety Company did not wish to execute any written agreement for fear that it might in some way release Stewart, whom they considered responsible. Hodges agreed to pay any balance that might arise in favor of the Federal Concrete Steel Company, to wit: in case the money still left in the contract was more than sufficient to pay the bills and complete the work”

The trial court excluded all the evidence, including the offer of proof, upon the ground that no authority was shown to Thomas to make the agreement alleged in the first count of the amended declaration, and instructed the jury to find for the defendant.

The question is thus presented by the record whether or not, assuming the truth of all the evidence offered, and all fair and reasonable inferences in favor of the plaintiff which may be drawn from it, the evidence was competent to go to the jury, under proper instructions, and was suEcient to make out the plaintiff’s case. If the evidence was competent and sufficient, it was a question of fact for the jury, and not a question of law for the court, and could not be disposed of by excluding the evidence and giving a peremptory instruction.

The evidence offered by the plaintiff tends to show, in our opinion, that the defendant company is a foreign corporation with its principal ofice at Cleveland, Ohio; and that it held out Thomas as the manager of its business for the State of Illinois. In Mechem on Agency, paragraph 395, the learned author says: “In general terms it may be said that such an agent has implied powers to do those things which are necessary and proper to be done in carrying out the business in its usual and accustomed way, and which the principal could and would usually do in like cases if present;” and cites German Fire Ins. Co. v. Grunert, 112 Ill. 68. The same author says in paragraph 283 of the work: “The question of the authority of the agent must depend, so far as it involves the rights of innocent third persons who have relied thereon, upon the character bestowed and not upon the instructions given. Or, in other words, the principal is bound to third persons who have relied thereon in good faith and in ignorance of any limitations or restrictions, by the apparent authority he has given to the agent, and not by the actual or express authority where that differs from the apparent, and this too, whether the agency be a general or a special one.”

The evidence presented tended to prove the apparent authority of Thomas to make the agreement set out in the declaration, and that the plaintiff relied upon such authority and the character of the agency bestowed. The Century Dictionary defines “manager” as “one charged with the management, direction or control of an affair, undertaking or business; a director.” Webster defines “manage” as “to have under control and direction; to conduct; to guide; to administer; to treat; to handle.” Bouvier’s Law Dictionary defines ‘1 manager ” as “A person appointed or elected to manage the affairs of another. A term applied to those officers of a corporation who are authorized to manage its affairs.” The powers of a manager are at least as broad and comprehensive as those of a general agent. In Washington Gas Light Co. v. Lansden, 172 U. S. 534, 547, the court, speaking of the term “general manager” say: “The term in our judgment, when used in connection with such a corporation cannot, in the absence of any evidence on the subject, be presumed to mean anything more than that the person filling the position has general charge of those business matters for the carrying on of which the company was incorporated. ’ ’

The question presented as to the apparent authority of general agents or managers representing foreign corporations has arisen more frequently, perhaps, in litigations with insurance companies than in any other class of cases; and in our judgment the principles applicable in those cases are applicable to this case. In Hartford Life & A. Co. v. Hayden’s Adm’r., 90 Ky. 39, the court in discussing the power of a general agent to waive conditions of a policy, say, at page 47 of the opinion: “Where a company is located in a State remote from that in which the insurance is effected, one intrusted with the general management of its business in the latter State should be regarded as a general agent (Southern Life Insurance Co. v. Booker, 9 Heiskell, 606) and possessing all the powers of those in charge of its business at the head or home office. Both the interest of the company and the protection of the public require this to be the rule.”

In The Home Life Ins. Co. v. Pierce, 75 Ill. 426, the court say near the close of the opinion: “We understand a general agent to be one empowered to transact all his principal’s business, 1 Pars, on Cont., 40.

“As Kellogg was held out by the company and acted in the capacity of general agent, even if the secret arrangement between him and the company was that he had no authority to adjust losses, that cannot relieve the company from being bound by what he said and did while acting in the capacity of general agent.”

In Phenix Ins. Co. v. Stocks, 149 id. 319, the court in answering the objection that the agent upon whom a demand was made to submit the question of extent of the loss to arbitration in compliance with a provision of the policy in that regard, had no authority to act for the company in that behalf said, at page 335 of the opinion: “We think, under the facts of this case, the assured were warranted in treating the agent as a general agent of the company. Persons dealing with an agent cannot know, nor are they required to know, the limitations upon his power to represent his principal. The Company is bound by the acts of its agent in the exercise of powers within the apparent scope of his authority, unless limitations upon such powers is brought to the notice of the assured. (Fire & Marine Ins. Co. v. Chesnut, supra; Electric Life Ins. Co. v. Fahrenkrug, 68 Ill. 463; Home Life Ins. Co. v. Pierce, 75 id. 426; Commercial Ins. Co. v. Ruckman, supra.) ” And to the same effect are Continental Ins. Co. v. Ruckman, 127 Ill. 364, 372; Lowenstein v. Lorn-bard Ayres & Co., 164 N. Y. 324; Van Werden v. Assurance Society, 99 Ia. 621; St. L. & S. W. Ry. Co. v. Elgin Condensed Milk Co., 74 Ill. App. 619; and Phenix Ins. Co. v. Hart, 149 Ill. 513, 523.

In Van Werden v. Assurance Society, supra, the manager of the Society for Iowa had received a horse, buggy and harness in part payment of the premium for three years in advance, and had remitted to the Society the first and second annual premiums but failed to remit for the third. The Society demanded the third premium, and, on failure of payment, notified the assured that the policy was not in force. The petition asked to recover the amount originally paid. The trial court directed a verdict for the defendant. The court in disposing of the case said, at page 628 of the opinion: “Our consideration of the character of the agency at Des Moines is to fix the relation of the Society itself to the transaction in receiving the horse and buggy, and from that standpoint to determine its liability for the repayment of the premiums. We said in the second division of the opinion that ‘Dunstine was manager for Iowa in the sense that he was the society’s general agent;’' that the ‘office in Des Moines was a branch office through which the business of the state was done.’ The record is an abundant justification for the conclusion-that in every essential particular the agency at Des Moines was general in Iowa, and no one would have thought of, nor should they be held to, a duty of looking beyond that office for information or adjustments in the matter of the defendant’s business in the state.”

In Southern Life Ins. Co. v. Booker, 65 Tenn. 606, cited in Hayden’s Admr., supra, the action was brought on a policy of insurance for $10,000. One of the grounds of defense was that the policy was never in fact delivered so as to become binding upon the company, because it was the duty of the agents, and they were so instructed, .to deliver policies only upon the actual payment of the cash part of the premium. The agent, it appeared, deliverd the policy without the cash payment, accepting the note of Booker for the amount. Frequent demands were made for the payment of the note, but Booker expressed his inability to pay, and no part of it was paid prior to Booker’s death. The question arose, as stated by the court: Did the agent have the authority to waive that part of the stipulation in the written application providing that the policy should not be binding until the amount of the premium was received by the Company or some-agent thereof during the lifetime of the assured. The court, after quoting from Bohen v. The Williamsburg Ins. Co., 35 N. Y. Appeals 131, and The Trustees, etc., v. Brooklyn Fire Ins. Co., 19 N. Y. Appeals 305, and Groit v. The National Protection Ins. Co., 25 Barb. 189, and Sheldon v. The Con. Mut. Life Ins. Co., 1 Bigelow Ins. Reports, 27, at page 613 of the opinion say: “These authorities, we think, are founded in reason and sound principle. * * * - Therefore we hold, that Smithurste, if he was a general agent of the company, had the right to waive the payment of the cash part of the premium and deliver the policy; and if he did so, absolutely and unconditionally,—in the absence of fraud,—the delivery would be binding upon the Company.”

It is apparent from the number of cases cited and quoted from in the very elaborate brief of counsel for appellee that there is a considerable apparent confusion in the authorities upon the question before us, but, we think that the apparent confusion disappears very largely, if not completely, when the language of the opinions is read and construed with reference to the facts and issues before the court in each case, and the decisions are given force and authority so far only as the facts in each case justify. The cases of Merchants’ Nat. Bank v. Nichols & Co., 223 Ill. 41, and Jackson Paper Co. v. Commercial Nat. Bank, 199 Ill. 151, are referred to and quoted several times in the course of appellee’s argument and are strongly relied upon in support of the proposition that the authority of the agent can only be established by tracing it to the source of authority,—the principal, and that parties dealing with an assumed agent must be careful to see and be assured that he is the agent he represents himself to be, by so tracing his authority back to some act or word of the principal. A careful reading of these cases, however, shows that in both of them, the question of the power of an agent to sign his principal’s name to negotiable paper or endorse the same in his principal’s name was involved. In the Nichols case the power to borrow money was involved. These powers are of such extraordinary character and nature that nothing short of express authority to do an act to which either of those powers is indispensable will be sufficient, unless by necessary implication the duties to be performed cannot be discharged without the aid of such power, and the law of apparent authority is inapplicable. Mechem on Agency, secs. 389-394. This, we think, is the principle involved in those and similar cases.

In Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188, cited by appellee, a question of fraud was involved, and the case has no application to the question before us.

In our opinion the great weight of authority in this country and in England is to the effect that the apparent powers of a general agent managing the business of a foreign corporation in any locality are as binding upon the principal as an express authority when the facts are proven showing express authority. If the agent acts within the scope of either express or implied actual or apparent authority, the principal is bound.

We think that upon the authorities the evidence offered on the question of agency was competent, and if adduced, would have required the court to submit the question to the jury under proper instructions, and that it was error to exclude the proof.

On the question of the alleged contract we think the tendered proof on behalf of plaintiff tended to show a valid legal contract which was performed by the plaintiff, at a cost of $30,114.30 more than the amount that' would have been payable to the Federal Company under its contract had it completed the work. If the plaintiff was able to make the proof according to his tender of proof it was admissible under the first count, and it was error to exclude it.

In our opinion the demurrer to the second count of the declaration as amended was properly sustained. The supposed agreement set forth in this count is alleged to be contained in two letters, one dated June 5, 1906, from plaintiff to Gf. K. Thomas, and the reply thereto of Thomas as manager, dated June 25, 1906. An examination of these letters convinces us that the first letter to Thomas is a mere notice of liability and contains no proposition or offer. The whole tenor of the letter is to the effect that the plaintiff intends to complete the Federal Company’s contract and to hold the principal in the bond given to him, the Federal Company, and the defendant, as its surety, liable for the deficit if there was any after completion of the work by the plaintiff. The reply of Thomas to the letter says: “In reference to your letter of June 5, 1906, whereby you are going to proceed with the work, in accordance with that letter, * * * will say that the same meets our approval.” The only meaning of this reply is that which is expressed on its face, namely, that he is willing to have plaintiff proceed and complete the unfinished building and hold defendant liable on its bond. This is not, and does not even suggest, the making of a contract.

Four motions were made by appellee and taken with the case. The first, second and third of the motions are to strike certain portions of appellant’s reply brief which contain a reference to the statutes of this state, and citations of authorities, from the brief. These motions are denied.

The fourth motion for leave to correct appellee’s brief in certain particulars is allowed.

For the error indicated the judgment of the Municipal £)ourt is reversed and the cause remanded.

Reversed and remanded.

Additional Opinion on Petition for Rehearing, by

Mr. Justice Smith.

In its petition for rehearing appellee calls the attention of the court to two points urged in its brief which we failed to discuss in our opinion filed in this case; namely, that the agreement set out in the first count of the declaration as amended is void for want of a consideration; and, second, that the agreement proposed to be proven is within the statute of frauds and void because not in writing. It is urged that these points should be disposed of for the guidance of the trial court, if we adhere to our judgment heretofore entered.

In the opinion filed we said: “On the question of the alleged contract we think the tendered proof on behalf of plaintiff tended to show a valid legal contract which was performed by the plaintiff,” etc. This, we thought, disposed of that question, as it could not be a valid contract without a good consideration.

The reasons urged by counsel for the defendant that the contract set out is without consideration were, first, that there was an existing contract between the plaintiff and a third person, the Dietzgen Company, for doing the work sought to be recovered for, and, second, that the plaintiff had agreed to indemnify the defendant against all loss and damage arising from the plaintiff’s failure to perform his contract with the Dietzgen Company. We do not regard the contention or the reasons given therefor as sound.

There is one fundamental infirmity to both reasons urged. They ignore the fact that after the plaintiff entered into his contract with the Dietzgen Company he made a contract for a part of the work and materials with the Federal Company and the defendant had given its bond to the plaintiff for the faithful performance by the Federal Company of its contract with the plaintiff, and the Federal Company had defaulted in its contract and abandoned the same, and the defendant was liable in damages on its bond to the plaint^ iff for such default, at the time the alleged contract was made. All this had happened after the making of the plaintiff’s contract with the Dietzgen Company and after plaintiff’s agreement to indemnify the defendant against all loss and damage from plaintiff’s failure to perform his contract. Thus the situation of the parties had changed and new rights and liabilities had arisen between the parties.

In our opinion the alleged agreement between the plaintiff and the defendant is based on a new and independent consideration, arising out of the rights and liabilities of the parties to it in consequence of the default and abandonment of the contract of April 4, 1906, between the plaintiff and the Federal Company, and the resulting liability of the defendant on its bond given to plaintiff to secure the faithful performance of that contract by the Federal Company. The liability of the defendant upon the bond dated April 26, 1906, signed by it and the Federal Company, had become fixed for the amount of the difference between the cost to the plaintiff to complete the contract of the Federal Company and the amount payable to that company had it fulfilled and completed its agreement of April 4, 1906. In regard to this liability under the facts shown, we think there can be no legal controversy or question. The Federal Company was liable for it under its contract with plaintiff; and the defendant was liable for it under its bond. By the terms of the bond it had the right to be notified in writing of any act on the part of its principal which should involve a loss thereunder, and it was so notified. It also had reserved the right and, privilege to assume the contract of the Federal Company and to sub-let or complete the work covered by the contract as it might elect. Under this provision of the bond it had consented to join with plaintiff or to authorize plaintiff to request bids for the completion of the work. The lowest bid for the work was that of Brown & Bead, which if accepted would have made the cost of completing the contract $4,000 more than the amount which would have been payable under the contract. Plaintiff desired to accept this bid and requested the defendant to consent thereto. But defendant did not want to sub-let the work for obvious reasons, one of which it gave, namely, that if it gave a written consent to the acceptance of the bid of Brown & Bead for the amount of $35,000 it might in some way be construed as a release of its indemnitor. Plaintiff thereupon said that he looked to defendant to see to it that the work was completed.

It is clear, we think, that at this point the defendant was obligated to see this work completed or to pay damages if it was not completed. It is likewise clear, we think, that the plaintiff had the legal right, on the refusal of defendant, to go on and complete the work, and hold the defendant for the damages he sustained, which would have been $4,000 if the bid of Brown & Bead had been accepted.

In this situation of affairs according to the tendered evidence and the averments of the first count, the defendant requested the plaintiff to complete the contract of the Federal Company giving his time and energy to the work and furnishing the materials and labor necessary therefor and agreeing to pay over any balance that might result or arise in favor of the Federal Company after paying the bills for materials and labor to that company, and agreed to reimburse and pay the plaintiff whatever amount the costs and expenses of completing the contract and the work exceeded on its completion the balance payable under the contract; and in consideration thereof the plaintiff accepted the proposal and agreed to complete the work in accordance with the plans and specifications in the manner proposed by the defendant.

This was an advantageous adjustment of the loss as it appeared at that time for the defendant. If the plaintiff had relet the contract to the lowest bidder there would have been a fixed and direct loss of $4,000 to the defendant from which there was no escape except by the agreement shown by the tendered proof. Presumably there was in the lowest bid a contractor’s profit on the work. This the defendant hoped and believed it would save by the adjustment. There was likewise a detriment to plaintiff necessarily involved in the adjustment. He agreed to waive his right under his contract with the Dietzgen Company to sub-let a part or all of the work, which he had exercised when he sub-let the mason, concrete and carpenter parts of the work to the Federal Company, and thus relieve himself of the labor risks and responsibilities of personally performing the work, and to take upon himself personally the labor risks and responsibilities of completing the work, giving his time and energy necessary therefor, and thus saving the contractor’s profits to the defendant. This was for the benefit and advantage of the defendant and, from the standpoint of the parties at that time, constituted a direct and substantial benefit and advantage to the defendant. In other words, it was a direct and substantial consideration moving from the plaintiff to the defendant.

Furthermore, there are the express mutual promises of the parties, the agreement of each party to the contract being a consideration for the agreement of the other party.

We come now to a consideration of the second point, that the agreement proposed to be proven is within the statute of frauds. In the first place this question is not before us for the fundamental reason that no error is assigned on the record covering the point. It has been repeatedly held that no errors should be considered by the court except such as are assigned on the record. Ditch v. Sennott, 116 Ill. 288. Passing this, however, we find other reasons for not considering the question on this record.

The record shows that on March 5, 1908, before the trial was entered upon, the court granted leave to the plaintiff to withdraw the common counts filed by him. The cause was tried, therefore, on the first special count (as amended) of the declaration. No plea of the statute of frauds was pleaded. The question is here sought to be raised, and is argued, on objection to the evidence upon that ground, and upon the motion of defendant to instruct the jury. The question cannot be raised in this manner. The record before us does not present the question, which we are thus specifically by the rehearing petition requested to discuss and pass upon. If there is any thing well settled in this state it is that where the contract is declared on specially, the defense of the statute of frauds must be pleaded. If a party does not set it up as a defense either by demurrer, plea or answer, he is deemed to have waived it. Beard v. Converse, 84 Ill. 512, and cases there cited; Koenig v. Dohm, 209 id. 468; Highley v. Metzger, 187 id. 237; Sanford v. Davis, 181 id. 570; Snow v. Griesheimer, 120 Ill. App. 516; Rozenski v. Dewes Brewery Co., 93 Ill. App. 370. The only exception to this rule is where the declaration consists only of the common counts. Under such a declaration it is competent to rely on that statute as a defense under the general issue without pleading it, by objection to the evidence on that ground, or a motion to strike out evidence stating that ground for the motion, or in some other available form.

We have not overlooked the fact shown by the record, though no argument is based on it, that at the close of the trial, after the evidence had been closed, counsel for defendant moved the court for leave to file a plea of the statute of frauds, and subsequently tendered a plea to the court. The court refused to allow the plea to be filed. We think it was within the reasonable discretion of the court to deny the motion at that time, and we find no error in the ruling for that reason; and for the further reason that the agreement set out in the first count was not a promise to answer for the debt of the Federal Company, but a new and independent contract based upon a new and independent consideration moving directly from the plaintiff to the defendant, as we have shown above while discussing the consideration of the contract. For these reasons we did not indulge in obiter dictum on this point in our opinion.

The petition for rehearing is denied.

Petition denied.

Me. Justice Mack : I dissent from the original' opinion herein on the ground that the agent had no authority, actual or apparent, to bind the appellee by the alleged contract.


author: Mr. Presiding Justice Holdom

text:
    Philip Stein et al., Appellees, v. Automatic Electric Company, Appellant.
    Gen. No. 14,841.
    1. Pasties—when objection to non-joinder of proper plaintiff comes too late. An objection to the non-joinder of a proper plaintiff comes too late when first made on appeal.
    2. Evidence—right of witness to refresh recollection. A witness has the right to use memoranda made by himself for the purpose of refreshing his recollection.
    3. Evidence-—when restriction of cross-examination will not reverse. ■ The extent of cross-examination and the latitude to be allowed rest in the sound discretion of the trial judge, and unless such discretion has been abused, a restriction imposed upon the cross-examination will not work a reversal.
    4. Accobd and satisfaction—what not dispute which will support. An offer to compound a claim by the payment of a lesser sum resulting from the financial stress of the debtor, does not inject the element of dispute, where none before existed.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. W. N. Gem mill, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.

      Albert E. Wilson, for appellant; Sears, Meagher & Whitney, of counsel.
    Tenney, Coeeeen, Harding & Sherman, for appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The plaintiffs, a firm of practicing lawyers at the Chicago bar, brought this suit in the Municipal Court of Chicago against defendant for legal services rendered to the Strowger Exchange, subsequently merged into defendant company, as its attorneys in matters of considerable importance, and recovered a judgment entered upon the verdict by a jury for $9,000, and defendant brings the record to this court for review, on an appeal, and asks a reversal of that judgment.

It is argued that the rulings of the trial court in allowing the senior plaintiff to testify from a memorandum prepared by him, in admitting as evidence conversations relating to an alleged offer to compromise, in limiting the cross-examination of plaintiff, Philip Stein, a witness testifying for plaintiffs, and in giving certain instructions, are so erroneous as to necessitate a reversal; and further, that the services for which compensation is sought were not rendered for or at the request of the Strowger Exchange, but for certain directors, who were in a factional fight for control of the corporation, and that there is a want of proper parties plaintiff.

Preliminary to deciding the cause upon the merits we will dispose of- the motion of plaintiffs to strike the bill of exceptions from the record, which was reserved to the hearing. Were this motion allowed, the ultimate effect on the rights of the parties would be the same- as a decision of affirmance resting upon the merits. Therefore, without elaborating the reasons which impel us to deny the motion, we will say that a careful examination of the record and of all that has been said for and against the motion convinces ns that it should be denied, and it is accordingly so ordered.

Plaintiffs’ firm, at the inception of the services rendered, was composed of plaintiffs and Judge Hume of the Municipal Court of Chicago. Upon the accession of Judge Hume to the Municipal Court, the legal partnership was dissolved and the present firm established as successor thereto, and the interest of the retiring partner in the claim before us assigned to the new firm. Whatever effect section 18 of the Municipal Court Act may have upon this situation, the fact remains that neither pleading nor motion in the Municipal Court suggesting a want of proper parties, or calling for a ruling of that court upon the question of parties plaintiff, was made, and it comes too late when made here for the first time. It would be preposterous to send a meritorious cause back to the trial court for a new trial because a person not in: terested in the cause at the time suit was started was not joined as plaintiff after the cause had been tried, without objection on that ground being made in the court below. Motions or pleadings which are in their essence or nature dilatory must be interposed at the first opportunity in order to be availing. If the right to raise this question ever existed, it has been lost for lack of diligence in raising it in the trial court.

It appears that the retainer of plaintiffs was brought about through Kesner, Hast & Campbell, officers of the Strowger Automatic Telephone Exchange, who rebelled against certain actions, conduct and manipulation of one Joseph Harris, the president of the exchange (who by sufferance and the inactivity of the directors had been allowed practically to dominate the business of the Exchange) in his dealings for the exchange with the defendant Automatic Electric Company. An understanding of the facts from the record which are not denied conclusively demonstrates that the vital existence of the exchange was involved in such dissensions. To correct the wrongs done by Harris to the exchange, through which at this time its stock had been rendered almost worthless, plaintiffs were retained with directions to wage a vigorous legal warfare against defendant to right the wrongs perpetrated through Harris and to restore the exchange to the property and business of which it had been wrongfully divested. Later a resolution was passed by the board of directors authorizing plaintiffs, as its attorneys, to institute legal proceedings against defendant to enforce its rights. From the 22nd day of February, 1906, to the ninth day of October, 1907, plaintiffs instituted a considerable volume of litigation and rendered much valuable legal service which inured to the material benefit of their clients and terminated finally in the absorption by defendant of the Strowger Exchange and its amalgamation into the defendant corporation. By the consolidation of these two corporations defendant took over its assets and became responsible for its liabilities. In fact its liability, if any exists, is not seriously disputed; that is to say, if the services were rendered for the Strowger Exchange and the exchange was liable to plaintiffs, then defendant is liable. The defenses interposed to defeat such liability are limited to such as could be successfully urged by the Strowger Exchange but for the consolidation of the two corporations.

Without reciting the evidence here, it is sufficient to say that a careful perusal of it convinces us that the amount of the verdict and judgment is amply sustained by the proofs in the record, which satisfies legal requirements as to its admissibility. It is not controverted but that the services, covered by the hypothetical question put to the eminent counsel who answered it, were rendered by the plaintiffs, and their estimate of value, as to which they were well qualified to give testimony, sufficiently established the reasonableness of plaintiffs’ charges, within the limitations of which the verdict was rendered and the judgment thereon entered. But it is said that the plaintiff, Philip Stein, in giving Ms testimony referred to a typewritten memorandum wMch he had prepared from original data in his possession, about all of which he had positive recollection, and that thereby the rule of law that such memorandum could not be resorted to except for the purpose of refreshing the memory of the witness, was contravened. As we read the evidence and the rulings of the court in admitting it, this contention finds no support except in the assumption of the counsel who tried the case in the Municipal Court and who is not on the briefs in this court. As illustrating this point we will indulge in some quotations from the record of Philip Stein’s examination and testimony. In answer to a question of defendant’s counsel, interrupting his examination in chief, Mr. Stein said, ‘ ‘ * * * I have prepared a statement here of the principal items based upon the entries then made by me in my charge book, which I have here. * * *”

“Mb. Tenney: Q. Refreshing your recollection from that Judge, does that refresh your recollection so that you can state these facts? A. Yes.” After an objection by defendant’s counsel the presiding judge remarked, “I understand he may use the memorandum for the purpose of refreshing his recollection.” Mr. Tenney then said, “Yes, he may do that,” and the witness responded, “That is all I am doing.” After many objections by defendant’s counsel and a colloquy between him and the court about the memorandum, the court ruled thus: “I think he may use it. I understand you may use any document that serves to refresh your recollection of the things concerning which the witness is testifying;” and again the court said, “He may state Ms recollection of it, and if he has omitted anything he may look at this paper and refresh his recollection.” Mr. Tenney then said, addressing the witness, “That is all right, use the paper to refresh your recollection as you go along.” On this witness attempting to read a summary of certain contracts from his memorandum, counsel yielded to the objection of defendant and the original contracts were offered and received as being the best evidence. The attitude of counsel for plaintiffs and the court, as well as that of the witness, leads us to no other conclusion than that the use made of the memorandum by the witness was restricted to the refreshing of his memory in relation to the matters about which he gave evidence. This was in consonance with the law controlling such condition. Bonnet v. Glattfeldt, 120 Ill. 166; Graham & Morton Trans. Co. v. Young, 117 Ill. App. 257.

We do not regard the conversations with Sello, the secretary of the Strowger Exchange, detailed by the witness Philip Stein, as relating to a compromise or settlement of a disputed claim. Plaintiffs’ claim was not disputed anterior to the bringing of this suit. The attempt to settle was not based on a dispute as to the amount of the claim, but related to the inability of the parties to pay it for the lack of sufficient funds to meet it in full. The testimony stricken out on the motion of defendant might well have remained in the record, as it was free from error and consequently in being primarily admitted could not tend to prejudice defendant’s case. As logically said by counsel for plaintiffs in their brief, “there can be no compromise of a claim or an offer to compromise it unless it be in dispute, unless there be a controversy about it.” An offer to compound a claim by the payment of a lesser amount, resulting from the financial stress of the debtor, does not inject the element of dispute, where none before existed. Teasley v. Bradley, 120 Ga. 373.

The trial judge did not unduly limit the cross-examination of the witness Philip Stein. Such cross-examination was quite thorough, and nothing excluded would, in our judgment, if admitted, have added to its force in weakening his direct testimony. The extent of cross-examination and the latitude to be allowed rest in the sound discretion of the trial judge, and we are unable to perceive that in the instant case such discretion was abused.

We find no such errors in the instruction's criticised which adversely affected the rights of defendant upon the merits of the whole case as would justify the awarding of a new trial. The record is free from reversible error. The trial was fair and in accord with legal precedents, and the judgment of the Municipal Court must therefore be affirmed. While we do not intend to be understood as holding that plaintiffs’ additional abstract was not justified in the abundance of caution, yet as we have been able to arrive at the conclusion which we have reached without reference to it, the motion to tax the expense of printing it at the statutory rate as a part of the costs of the appeal is denied.

The judgment of the Municipal Court is affirmed.

Affirmed.