text:
    Eagle Brewing Company, Defendant in Error, v. August Netzel, Plaintiff in Error.
    Gen. No. 16,186.
    Landlord and tenant—power of joint tenant to lease. As against every one except only his -cotenant, either one of two joint tenants can grant a lease of the entire premises and thereby enable his lessee to recover possession of the entire premises and not merely of an undivided half, as against any one wrongfully withholding the same.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Michael F. Girten, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed January 6, 1911.
    Mayer, Meyer, Austrian & Platt, for plaintiff in error.
    Stanley S. Walkowiak, for defendant in error; Marvin E. Barnhart, of counsel.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

Plaintiff recovered against defendant in a forcible detainer suit in the Municipal Court of Chicago. To reverse this judgment a writ of error was sued out of this court.

There is considerable conflict in the evidence. Most of the witnesses gave their testimony in Polish; the trial judge, to whom the cause was submitted without a jury, and who understood this language, acted also as interpreter. We have carefully considered the record in the case and we are unable to say, under these circumstances, that the court was not justified in finding that the preponderance of the evidence was with the plaintiff.

Its claim was based on a lease signed by husband and wife, joint tenants, in the body of which, however, only the husband was named as lessor. Defendant’s claim was. based on a document signed by the husband alone in which there were combined a receipt for one month’s rent and an agreement to give a five years ’ lease of the premises to defendant.

The trial court was justified in finding that this agreement for a lease was a nullity as having been procured by fraud and without the knowledge or consent of the signer inasmuch as he, being nearly deaf, did not hear the interpreter, who knew nothing of the deafness, translate that part of the document, and he never intended to sign such an agreement.

While defendant was the assignee of a former tenant whose lease however prohibited him from assigning it, he did not take possession of such assignee but only by virtue of the tenancy from month to month and the alleged agreement for a five-year lease contained in the receipt given by one only of two joint tenants. Inasmuch therefore as his right of possession is based on an alleged tenancy derived from one joint tenant, he would be estopped from denying the right of his landlord or of one claiming under him, in this proceeding.

Moreover we are of the opinion that as against every one except only his co-tenant, either one of two joint tenants could grant a lease of the entire premises and thereby enable his lessee to recover possession of the entire premises and not merely of an undivided half, as against any one wrongfully withholding the same. Freeman Cotenancy, 2nd ed., secs. 253, 343 and 344.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Mack

license: Public Domain

text:
    Louis Lyon, Plaintiff in Error, v. Dave Earl et al., Defendants in Error.
    Gen. No. 16,267.
    Appeals and ekrobs—effect of striking Mil of exceptions. Where the errors assigned are such that a bill of exceptions is essential to their consideration the striking of the bill of exceptions from the transcript necessarily must result in affirmance.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 6, 1911.
    Levy & Levy, for plaintiff in error.
    Dwight D. Root, for defendants in error.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

The bill of exceptions having been stricken from the record, the errors assigned therein cannot be considered. The judgment is therefore affirmed.

Affirmed.


text:
    Sidney W. Worthy, Appellee, v. Edward Hale Bush, Appellant.
    Gen. No. 16,961.
    Appeals and errors—effect of setting aside judgment appealed from. If a judgment appealed from has been set aside by the lower court and a new judgment entered in lieu thereof, such new judgment will not be reviewed in the absence of an appeal prayed and perfected therefrom.
    Appeal from the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Appeal dismissed.
    Opinion filed January 6, 1911.
    Richard H. Peterson, for appellant.
    Clark M. Cavenee, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

From a judgment rendered in the Municipal Court in a first-class case, an appeal was prayed and allowed and the time fixed for filing a bond. Subsequently, on motion, the judgment was set aside and remittitur entered and a new judgment rendered for a lesser amount.

The record fails to show that any appeal was prayed or allowed from this last judgment. An appeal bond, however, was filed after the time fixed in the order allowing the appeal from the first judgment. This bond was approved by a judge of the Municipal Court other than the trial judge. Inasmuch as the record fails to show that an appeal was prayed or allowed from the latter judgment, or any time fixed for filing an appeal bond this appeal must, on motion of the appellee, be dismissed.

Appeal dismissed.


author: Mr. Justice Baldwin

text:
    Dennis Mulcahy et al., Defendants in Error, v. H. L. Kobenus et al., Plaintiffs in Error.
    Gen. No. 14,589.
    1. Appeals and errors—when assignments of error deemed •waived. Assignments of error not argued are deemed waived.
    2. Appeals and errors—when finding of chancellor not disturbed. The findings of a chancellor upon the facts will not be disturbed if they are justified by the evidence. ■
    Bill for injunction. Error to the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 6, 1911.
    John D. Farrell, for plaintiffs in error.
    Mather & Hutson, for defendants in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

In this case we have for review a decree of the Circuit Court of Cook county entered in a cause in which two bills against the same defendants were consolidated, and in which the decree was entered in the consolidated cause.

The first bill was brought by the officers of the General Council or Supreme Body of the Woodworkers’ Union, personally, and as the “General Council” of the Order,—alleging that the order was composed of local unions of workingmen; that the next higher order was the Woodworkers’ Council, usually called the “District Council,” and that the next above was the General Council, having supreme control of the entire order; that all members subscribed to a constitution, and were bound by its terms; that the constitution provides that no local union shall dissolve or withdraw from the union if seven members of the local union object; that when a local union shall be suspended, or withdraw, it shall send to the general office of the union all hooks, property and funds, that it may possess, to be held in trust, etc.; that complainants for many years had paid dues, and in the event of death would be entitled to death benefits; that they have a financial interest in all local unions, etc.; that certain members of Locals One and Seventy-eight conspired to wreck the union, etc., and that defendants are seeking to withdraw from the union, induce others to do so, and to take with them all of the union’s property, and have passed a resolution in which they urge the abandonment of the Woodworkers ’ Union and that all money and property be turned over to rival unions; that the intermediate body (“District Council”) complained to the General Council and requested that the defendants be tried for treason to the organization; that notice was served upon the defendants of the proposed trial; that they failed to appear, after which the General Council suspended the members of said Locals One and Seventy-eight, and revoked their charters; that defendants refused to turn over the funds and property to the General Council as required by the constitution, and intend to divide the funds among themselves or turn them over to a rival organization, and are about to pass resolutions to accomplish this purpose. The bill made parties defendant all officers and members of Locals One and Seventy-eight, and prayed for an injunction. A copy of the charter attached as an exhibit to the bill expressly provides:

“Amalgamated Union hereby declares its right to suspend or revoke this charter for any neglect or refusal to perform' the duties required by the constitution and laws of this organization, and should the aforesaid local union be dissolved, or forfeit its charter, then all property, books, papers and money shall be transferred to the general office of the Amalgamated Woodworkers’ International Union.”

Another bill was filed by loyal members of local union No. 1, objecting to the property of the locals being carried off by them. This bill, except that it was brought by and on behalf of the loyal members of local No. 1, contained substantially the same' allegations as were made in the former bill, with the additional allegation that unless the defendants were restrained complainants would lose all of their insurance, sick and death benefits, etc.

These two bills were afterward consolidated and amended, concluding with a prayer for an accounting, and that the moneys, funds and properties be returned and delivered up to complainants, in accordance with the constitution,—that a receiver be appointed, etc.

After demurrers had been overruled, defendants answered, admitting the existence of the local unions, as stated; the constitution and its terms; that the “General Council have power and authority of granting and revoking charters of local unions;” that “said General Council has the management and supervision of the order;” that defendants pay dues to the General Council, and that the General Council gets a revenue from the sale of supplies to the defendants; the answers made general denial of the allegations', of the other portions of the bill, including their intention to divide the funds among their members, or to turn them over to any hostile union.

The defendants filed a cross-bill, but it appears that no evidence was offered under it, and it was practically abandoned.

The consolidated causes were referred to a master, before whom testimony was taken, and who subsequently made his report to the court. The court below entered a decree substantially in conformity with the prayer of the bill, to reverse which the defendants brought the cause to this court.

Though numerous errors were assigned on the record by the plaintiffs in error, only two were argued on their behalf. Accordingly we consider only the two assignments argued. See Keyes v. Kimmel, 186 Ill. 109, 113.

The alleged errors argued are, first, that “complainants have failed to prove their case;” and second, “The decree is against the weight of the evidence.” These two practically amount to but one, that is that the evidence does not justify the decree.

We have carefully considered the evidence submitted to the court below. No substantial purpose would be served by referring in this opinion to details of the evidence. It is sufficient to say, that we are of the opinion that the evidence fully justifies the decree of the court below, and accordingly it must be affirmed.

Affirmed.


text:
    Jennie Kolber, Plaintiff in Error, v. Dr. Lester E. Frankenthal, Defendant in Error.
    Gen. No. 14,934.
    1. Evidence—when husband competent for wife. An action for malpractice brought by the wife is her separate property and her husband is competent as a witness in her behalf.
    2. Evidence—when offer of proof not essential. If a witness be excluded from testifying as incompetent an offer as to what he will testify to is not essential to save for review the question of his competency.
    3. Evidence—to what extent records competent. A witness is only permitted to use a record made by himself to refresh his recollection; he cannot read it as independent evidence where he has no recollection of the circumstances and could only say that they were true because he found them on his memorandum.
    4. Appeals and errors—when estoppel arises to question saving of question for review. If upon the trial counsel concedes that a question is sufficiently saved for review he is thereafter estopped from urging that such question is not saved for review.
    5. Statute of Limitations—lohen new cause of action set up. If the original counts charge malpractice and the additional ones set up assault and battery the additional counts state new causes of action.
    Trespass on the case. Error to the Circuit Court of Cook county; ^ the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed January 6, 1911.

      Statement by the Court. This is a suit brought by plaintiff, a married woman, living with her husband, against appellee, a surgeon upon the medical staff of the Michael Reese Hospital, who performed an operation upon her at the hospital early in September, 1901.
    The original declaration, filed in June, 1903, contained two counts, charging in substance malpractice on the part of the defendant. In February, 1906, three additional counts were filed, to which pleas were filed, including one plea of the statute of limitations to all three counts. Plaintiff’s demurrer to this plea of statute of limitations was overruled as to the third count, but sustained as to the other two.
    At the close of the trial the court gave a peremptory instruction for the defendant, and, after overruling the motion for a new trial, entered judgment. The plaintiff brings the case here upon a writ of error, and contends that the court erred in
    1. Excluding the testimony of the husband tendered as a witness in behalf of his wife.
    2. Overruling the demurrer to defendant’s plea of the statute of limitations to the third additional count.
    3. In not permitting a witness (Dr. Murphy) to read from a record made by him at the time of a physical examination of the plaintiff which he made in the latter part of September, 1901.
    The evidence tends to show that plaintiff was a married woman, who, accompanied by her husband, went to the hospital to have an operation performed by the defendant; that one Dr. Haberlain, an interne at the hospital, was directed by the defendant to examine plaintiff and report her condition; that he made such examination, but declined to state to her what he found until after he should have a talk with the defendant; that before the operation, defendant told plaintiff that the operation he was about to perform upon her was nothing but curettement or scrape; that after the operation she was in much pain, and believed that a more extensive operation had been performed than was agreed, upon; that defendant several times answered plaintiff’s inquiry by stating that he would not tell her what operation had been performed; that plaintiff told defendant that she came to the hospital for a scrape, and that he replied, “Yes, you had more too, but I would not tell you what operation you had. ’ ’ Plaintiff claimed that, instead of the operation contemplated, the defendant performed a more extensive one, and without her knowledge or consent actually removed her uterus.
    The husband of the plaintiff was tendered as a witness on her behalf, and the trial court held that, being such husband, he was disqualified from testifying. The plaintiff evidently expected to prove by the witness some admissions by the defendant, and she made a somewhat informal tender or offer of what the witness would testify to. Subsequently, being in doubt whether the offer was sufficiently specific, plaintiff recalled him and sought to make the offer in due form, and to submit authorities in favor of the admissibility of his testimony, and counsel for defendant conceded that the point was sufficiently saved in the record.
    Doctor Murphy was called by the plaintiff, and gave his recollection as to her condition late in September, 1901, when he examined her. He was then asked to state what his record of the examination showed, in addition to what he had testified, to which question the court sustained an objection.
    Ossian Cameron and Samuel J. Andalman, for plaintiff in error.
    Kickham Scanlan and D’Ancona & P.flaum, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

We are of the opinion that this suit is brought by the plaintiff in her own right, and that the cause of action is her separate property. This being so, the husband was a competent witness, and in refusing to allow him to testify the court below committed error, for which the judgment must be reversed and the cause remanded. Johnson v. McGregor, 157 Ill. 350; Anderson v. Friend, 71 Ill. 475. Nor do we think that a specific offer as to what the husband would testify to necessary, where, as in this case, he was excluded as being incompetent to testify. Haussknecht v. Claypool, 66 U. S. 431; State v. Thomas, Ill Ind. 515. In an event, however, the defendant is es-topped from raising this question.

As to the demurrer to the statute of limitations; the second original count charges, in substance, that the defendant was guilty of malpractice while the third additional count, to which the statute of limitations was interposed, charges wilful and wanton conduct on the part of the defendant, and is essentially one for assault and battery,—being a different cause of action from that stated in the two original counts. This count having been filed more than four years after the cause of action accrued, the demurrer to the plea of statute of limitations as to this additional count was properly overruled.

The court below did not err in refusing to allow Doctor Murphy to state what his record of the examination showed, in addition to what he had testified to. The witness was at liberty to examine the record to refresh Ms recollection, but he could not read it as independent evidence where he had no rcollection of the circumstances, and could only say they were true because he found them on Ms memorandum. C. & A. R. R. Co. v. Adler, 56 Ill. 344.

Reversed and remanded.

Mr. Presiding Justice Mack did not participate in the consideration of this case.


text:
    Thomas Heaney, Appellee, v. Wells Brothers Company, Appellant.
    Gen. No. 15,107.
    1. Master and servant—duty as to appliances. It is the duty of the master to use reasonable diligence to supply and keep for the use of his servants reasonably safe appliances and tools. They must be such as are ordinarily sufficient for the purpose for which they are used, and such as, with reasonable care, can be used without more danger than is ordinarily incident to the business.
    2. Master and servant—duty as to safe place. A master is required to use reasonable care in furnishing his employes with a reasonably safe place in which, and reasonably safe surroundings and appliances about which to work.
    3. Master and servant—who are fellow servants. Servants doing like work but in different shifts are fellow servants and a workman engaged in one shift injured by the negligence of a workman of another shift cannot recover of the master who was not guilty of negligence.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed January 6, 1911.
    Statement by the Court. Appellee brought this action to recover for an injury to one of his eyes caused by the alleged negligence of the appellant.
    It appears that appellant, a building contractor, had a contract for erecting a large building in Chicago for Handel Brothers. The building was to rest on numerous concrete piers, which were filled into deep wells or caissons, from 5 to 10 feet in diameter, sunk in the ground from 85 to 125 feet to solid rock. The location of the holes being first prescribed by the contractor, workmen proceeded to make them, working in gangs of two or three workmen to each hole, and in shifts of eight hours, each shift carrying forward the work from the point where it was left by the preceding shift.
    As the hole is sunk it is lined with lagging, which consists of plank about 5 inches wide, 3 inches thick and 6 feet long, beveled on the edges,—with a, tongue and groove to fit together around the. hole. When the hole is about 5 feet deep the lagging is set in a circle therein, and iron rings are put on the inside near the top and bottom, respectively, to prevent the lagging from falling or being pressed in. The diggers then dig out from beneath the lagging, which is then struck on the top, by a man standing on the ground, to sink it down until the top of the circle of lagging is level with the surface of the ground. The previous shift had dug this hole to a depth of about 5 feet, had set the lagging around it, and put the iron rings in place; then, at about 4 o’clock p. m. on the day of the occurrence they were succeeded by the shift of which appellee was a member. Appellee had not previously seen this particular hole, nor the lagging surrounding it, though he had, for several years just preceding, been engaged in this kind of work, for appellant and other contractors. At 4 o’clock on the day in question appellee and his fellow workmen proceeded to continue the hole downward. Appellee, being in the well, dug out from underneath the lagging, and then directed the man on the surface to lower the lagging by striking on the upper end of it. After having gone partly around the circle of lagging in the process of pounding 'it down, the workmen struck a piece of lagging, which was afterwards found to have at or near its upper end a small knot, and the knot flew off and struck appellee in the eye, resulting in a serious injury. At the trial appellee introduced evidence to the effect that a wooden maul was ordinarily used to drive down lagging, but, it being out of order, a metal hammer was being used at the time of the accident.
    On the first trial of the case the jury disagreed. On the second trial the jury rendered a verdict of $5,500, in favor of appellee, which the lower court set aside. On the third trial appellee recovered a verdiet of $8,500, of which, however, the court required a remittitur of $3,500, and entered judgment for $5,000, from which judgment appellant prayed an appeal to this court.
    The declaration charged in substance, negligence on the part of the appellant in furnishing a piece of lagging which was defective, in not being sound, safe and proper lumber and not being adapted for the purpose for which it was being used, and having therein a knot or loose part at or near the upper part thereof, and in directing and causing other of its servants than the appellee to drive or pound upon such lagging, and in having work so done that it was necessary to pound and hammer upon the lagging, by means of all of which appellee, without fault or negligence on his part was injured by being struck in the eye by a certain part of the defective lagging so pounded upon.
    One count of the declaration seems to include a charge against the appellant of furnishing defective lagging, coupled with a charge that the appellant negligently ordered appellee to work in the excavation.
    Kraus, Alschuler & Holden, for appellant.
    Brandt & Hoffmann, for appellee; Oscab C. Miller, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

Counsel have discussed several alleged errors in the trial below, but in the view we take of the matter, it will not be necessary to pass upon but one.

It is undoubtedly the duty of the master to use reasonable diligence to supply and keep for the use of his servants reasonably safe appliances and tools. They must be such as are ordinarily sufficient for the purpose for which they are used, and such as, with reasonable care, can be used without more danger than is ordinarily incident to the business. It is also true, that a master is required to use reasonable care in furnishing his employes with a reasonably safe place in which, and reasonably safe surroundings and appliances about which to work.

The evidence establishes the fact that the lagging used was such as was ordinarily used for that purpose, and the setting of" the lagging was simply one stage of the work which was performed by the gangs or shifts of men. Taking up the work where the previous shift had left it, the workmen were engaged in practically a continuous service. Appellee had seen and used lagging for such purposes on many similar jobs, and, though he had not seen this particular lagging, it had been set there by the shift next preceding his own, and he found it there when he came. If one end of the lagging contained the knot referred to, and such knot thereby rendered it unsafe to pound upon that end of the lagging (there being no evidence that the lagging was- otherwise in any manner unfit for the use made of it), it is clear that if the previous shift of workmen had put in that piece of lagging the other end up, the injury would have been averted. In other words appellee was not injured because he was set to work in an unsafe place. His injury resulted from the pounding upon the knotty end of a piece of lagging, and if the knot constituted such a defect as that reasonable care would have required the lagging to have been used the other end up, the negligence was that of the employe in the previous shift who thus improperly placed the piece of lagging with the knotty end upward. This being so, we are compelled to find that appellant was not guilty of negligence by which the accident was caused, and, if there was negligence, it was the negligence of a fellow servant of appellee, and, therefore, that appellant was not liable. Illinois Steel Co. v. Coffey, 205 Ill. 206.

With the general policy of the doctrine of nonliability of a master for the negligence of a fellow servant we have nothing to do^.but it is the law of this State, which we are not at liberty to disregard.

The judgment is therefore reversed, and judgment entered here in favor of appellant.

Reversed and judgment for appellant upon finding of facts.


text:
    Augusta M. Hoglund, Appellant, v. Royal Trust Company et al., Appellees.
    Gen. No. 15,142.
    1. Conveyances—what essential to establish absolute deed as mortgage. Courts will not declare a deed, absolute upon its face, to be a mortgage, unless the evidence is clear and satisfactory.
    2. Statutory law—right of redemption construed. The assignee of a judgment not rendered until after the conveyance of the fee by the judgment debtor is not a “person interested in the premises” entitled to redeem.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 6, 1911.
    Statement by the Court. Appellant filed her bill in equity to redeem certain premises from the lien of two trust deeds, and from a warranty deed and a quit-claim deed, absolute on their face, and claimed by appellant to have been given for certain trust purposes.
    On March 7,1902, the record title to the premises in controversy was in one Ernst T. Johnson, though the property was owned by Johnson and one Martin Holmgren, as partners. On that day these partners, with their respective wives, executed a trust deed to the Royal Trust Company to secure their note for $31,000, payable three months after date. This trust deed was recorded March 7,1902, and on the same day the same parties executed another trust deed conveying the same premises to secure another note for $8,000, also three months after date, and this trust deed was recorded on March 8,1902. On March 18,1902, Johnson and wife conveyed the premises by warranty deed to one James E. Jennings, which was recorded March 28, 1902. On the same day and recorded at the same time, Holmgren and wife executed a quit-claim deed to the premises to said Jennings. On May 17, 1902, one William C. Hill recovered judgment in the Circuit Court of Cook county against said Johnson and Holmgren for the sum of $3,046 and costs, upon which judgment and execution was issued on the 27th of May, 1902, delivered to the sheriff of Cook county, and returned by him August 25, 1902, unsatisfied.
    On April 5, 1902, said Jennings, with his wife, conveyed by quit-claim deed the premises to one Samuel H. Hodge, the deed being recorded on April 9, 1902. This deed was without any consideration, and was for the purpose of preventing the property from becoming involved or clouded by certain threatened litigation against Jennings. .
    On the 25th of July, 1902, Jennings, Holmgren and Johnson made affidavits, constituting what was termed a “verified declaration of trust,” to the effect that said Jennings negotiated the loan for $31,000, above referred to, for the erection of a building on the premises; that after the loan was partly disbursed, it became apparent that the remainder would be insufficient to complete the building free from liens, and that it would be necessary to negotiate an additional loan on the property; that he did negotiate the second mortgage loan for $8,000, for the purpose of completing the building; but upon further investigation, refused to recommend the further disbursement of the proceeds of either of said loans, unless Johnson would put in sufficient money to complete the building; that thereupon Johnson and Holmgren voluntarily proposed to deed the property to Jennings, he to disburse the proceeds of the two loans for the completion of the building, and to complete it as soon as possible, and thereafter, as soon as practicable, sell the property, and from the proceeds first pay the two mortgages referred to, and thereafter all other claims against the premises for material and labor and all other expensés in connection with the running and management of the property and commis.sions, if the sale of the property should leave sufficient funds, and after the payment of these items to then take out one-third of the profits over and above all claims just referred to, disbursing the balance of the profits equally between Holmgren and Johnson.
    On November 24, 1902, Hill assigned his judgment against Johnson and Holmgren to appellant, the assignment being filed with the Clerk of the Circuit Court April 9, 1903. The Eoyal Trust Company, through Wilber, its president, had notice of this assignment prior to the foreclosing of the trust deed for $8,000.
    On November 24, 1903, one John F. Sinnott, claiming to be the owner of the $8,000 note, filed his bill to foreclose the trust deed securing said note, and on the 18th of the following month he filed a supplemental bill in the same proceeding. From the supplemental bill it appeared that the holder of the promissory note secured by the trust deed might pay, settle or otherwise remove any mechanic’s lien claim, or any claim on the premises, and that the moneys thus paid, with interest, should be so much additional indebtedness secured by the trust deed; alleged also that Sinnott had been compelled to satisfy a decree against Johnson and the premises in question for mechanics’ liens and costs thereon, aggregating $7,-909.95, and asked that said amount be added to the amount due upon the note.

      Appellant was not made a party to either the original or the supplemental bill.
    At the time Sinnott filed his bill and during the foreclosure proceeding, the Royal Trust Company was the legal owner and holder of the note, and paid all the expenses of the foreclosure proceeding, including the money paid in satisfaction of the mechanic’s lien decree, Sinnott having- no direct interest therein, but acting for the Trust Company.
    On May 19, 1904, a decree was entered in the foreclosure proceeding for the amount claimed, $17,323,83, under which decree the premises were sold on June 24, 1904, to Sinnott, and a master’s certificate issued therefor, which certificate has since, prior to the filing of the bill by appellant, been the property of the Royal Trust Company.
    On December 13, 1904, the sheriff of Cook county sold the premises under an alias writ of execution, issued by the Circuit Court of Cook county on a judgment in the suit of Hill against Johnson and Holmgren, dated November 10, 1904, to appellant, for the sum of $3,518.01, and issued the usual certificate of sale thereof.
    On April 25, 1902, Jennings made his note for $500, which was endorsed by Johnson and Holmgren, and in May, 1902, Johnson and Holmgren made a note for $1,000, which was endorsed by Jennings, both of which notes were payable within three months, and were discounted by Jennings with the Royal Trust Company, and the proceeds were used in the construction of the building. These notes were taken upon the 30th of July, 1902, and a new note for $1,500 substituted. The proceeds of these notes, together with the two previous loans, were sufficient to complete the building.
    The cause having been referred to a master in chancery, he filed his report on the 19th of June, 1907, in which he found that the conveyance from Holmgren and Johnson and their wives to Jennings did not constitute an equitable mortgage; that the conveyance, and the agreement made at the same time, constituted a trust in Jennings to do the things mentioned in the declaration of trust; that by and through said conveyance, Holmgren and Johnson were absolutely divested of title to the premises; the only interest retained by them was the right to two-thirds of the net proceeds of the sale of the premises after payment of all encumbrances on the property and all sums paid by Jennings in connection with the property; that the interest of Holmgren and Johnson was not real estate, but personal property; and that the Hill judgment had not become, at any time, a lien on real. estate, and that appellant had no such interest under her judgment as would entitle her to redeem under either the first or second trust deeds, or from the alleged equitable mortgage, or any of them.
    The court sustained the master’s report and entered a decree dismissing appellant’s bill for want of equity.
    Tatge, Abbott & Koepke and John H. Hoglund, for appellant.
    Kretzinger & Rooney, for appellees.
   Mr. Justice Baldwin

delivered the opinion of the court.

The contention of the appellant is that the warranty deed of Johnson and wife, and the quit-claim deed of Holmgren and wife, to Jennings, though absolute on their face, were in fact mortgages; and, second, that if they were not equitable mortgages, they, with the declaration of trust, constituted Jennings an active trustee; that by the foreclosure proceedings to which Jennings, the Royal Trust Company, and Holmgren and Johnson were parties defendant, and the sale thereunder, this trust was stripped of its executive character, and no duties were left that were to be or could be performed by the trustee, and, accordingly, that under the Statute of Uses, Johnson and Holmgren were reinvested with the same rights and the same title that they had at the time at the execution of these deeds, and the Hill judgment, therefore, became a lien.

It is a well established rule of law that courts will not declare a deed, absolute upon its face, to be a mortgage, unless the evidence is clear and satisfactory. We are satisfied, from a careful consideration of the evidence submitted to the master, that, by the execution and delivery of the two deeds to Jennings, under the arrangement then made between the parties, that Holmgren and Johnson were absolutely divested of title to the real estate, and therefore, that the judgment under which appellant claims as assignee was never a lien upon the land. The trust which was created by the transaction, required Jennings to complete the building and ultimately to sell it, and, after the payment of the mortgages upon the property and all other expenses in connection with its running and management, and a commission for the sale of it, if there should be sufficient funds, to then pay over and distribute equally between Holmgren and Johnson two-thirds of the remaining profits. Accordingly, from the date of the transaction, the interest of Holmgren and Johnson was only in their respective shares of the net profits, and not in the real estate.

The sale under the decree entered in the foreclosure proceedings did not change the status of the parties to the trust agreement. The equity of redemption was still an asset from which Holmgren and Johnson might have received a distributive share of the profits contemplated in their agreement with Jennings at the time they conveyed title to him.

The statute under which redemption is sought, sec. 18 chap. 77, provides: “Any defendant * * * or any person interested in the premises through or under the defendant may * * * redeem the real estate so sold by paying to the purchaser thereof,” etc.

Appellant as assignee of the Hill judgment, which was entered nearly two months after the conveyance by Johnson and Holmgren to Jennings, was not, therefore, “any person interested in the premises,” entitling her to redeem.

The court below did not err in sustaining the master’s report and entering the decree complained of. The decree is therefore affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. M. D. Brown et al., Plaintiffs in Error.
    Gen. No. 15,295.
    Cbimihal law—when verdict set aside. Notwithstanding the evidence may tend to establish one crime if it does not support the crime charged in the indictment a reversal will be awarded.
    Error to the Criminal Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed January 6, 1911.
    William C. Parker, S. P. Douthart, Robert P. McNulta and Lasley & Lasley, for plaintiffs in error.
    John E. W. Wayman, for defendant in error; William A. Rittenhouse, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

This is a writ of error bringing before this court for review a judgment of conviction in the Criminal Court of Cook County upon an indictment charging a conspiracy to kill and murder.

The indictment, which was returned on the 24th day of April, 1908, contained but one count, and charged that the three defendants, Moses D. Brown, Austin E. Kelley, and Buth E. Laughlin, otherwise called Buth E. Barnes, on the 13th day of December, 1907, in the County of Cook, State of Illinois, conspired together to kill and murder one Annie M. No-lain.

A trial was had in August, 1908, resulting in a verdict of guilty as to all three of the defendants, and fixing the punishment of Brown at a fine of $1000, and that of each of the other defendants at imprisonment in the penitentiary.

From the evidence it appears that in November, 1907, Annie M. Nolain, then about sixty or seventy years of age, was residing in her home in Chicago, and that the defendant Brown became her attorney to defend a suit then pending in the Municipal Court; that the defendants Kelley and Buth E. Barnes then occupied friendly and more or less confidential relations to Brown, the latter being employed in his office as an assistant; that, within a few days after Brown met Miss Nolain, and in the first half of December, 1907, and while Brown was still claiming to be and was acting as the attorney of Miss Nolain, he (Brown), Mrs. Laughlin and Kelley, co-operating together, induced Miss Nolain to make a loan of $400 upon her home, the proceeds of which were turned over to Mrs. Barnes.

It further appears that the defendants had Miss Nolain removed from her home at 1221 West Fifty-ninth street, in the latter part of November, and taken to 295 East Chicago avenue, Chicago, where all three of the defendants were then rooming, and where she was kept for a week or ten days, when Mrs. Barnes took her back to her former home, where she was kept until Christmas day, when, upon complaint made to the city police, she was removed to Saint Bernard’s Hospital, the defendants, particularly Brown, strenuously protesting against and opposing such removal.

On the 13th day of December, 1907, the defendants procured from Miss Nolain a warranty deed, conveying her home to Ruth E. Barnes, the deed reciting a consideration of $5, and purporting to be in further consideration of the care, support and nursing in sickness of Miss Nolain in accordance with an agreement between the parties.

It appeared that Miss Nolain during the entire period was infirm and in a very feeble condition,— being much of the time in a partial stupor induced by her age, ill health and alcoholism, which rendered her partially helpless, and her person and surroundings filthy, and the defendants claimed that they were nursing and caring for her, and giving her medicines in conformity with the directions of reputable physicians.

Numerous errors were assigned to the action of the court below, but, reaching the conclusions we do, it will be necessary to pass upon but one. Is the evidence sufficient to justify the verdict of the jury that the defendants conspired to kill and murder Miss No-lain?

The evidence offered by the State consisted of proof tending to show that the defendants conspired together evidently to secure her property without paying or rendering any adequate equivalent therefor, and that they, or some of them, were administering to Miss Nolain strychnine, morphine and arsenic, ostensibly as medicine, and that they were not supplying her with sufficient food,—but were starving her. But the evidence shows that these drugs were given in very small quantities and in conformity with directions of the physicians, and apparently for a legitimate purpose,- considering her condition of health. As to her being starved by the defendants, the evidence is too slight to merit serious discussion. Moreover, if the object of the defendants was to secure the property of Miss Nolain without rendering any substantial equivalent in the way of caring for her for any length of time, her physical condition indicated but short life, even under favorable conditions, so that there was lacking any adequate inducement to cause her death by their active participation.

If the defendants had been convicted of the conspiracy to cheat and defraud Miss Nolain, and to secure her property without rendering adequate equivalent therefor, and were we asked to review that conviction, a different question would be presented; but in this case we do not find the evidence with reference to the killing sufficient to justify the verdict of the jury.

The judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Smith

text:
    John P. Marsh, Appellant, v. Leslie P. Mick et al., Appellees. William O’Meara, Appellee, v. John P. Marsh, Appellant, and Leslie P. Mick et al., Appellees.
    Gen. Nos. 15,093 and 15,094.
    Consolidated for Hearing.
    1. Mechanic’s lien—when fraud will defeat allowance. If a claim for lien is wilfully and fraudulently filed for an excessive sum the allowance of any lien will be denied.
    2. Mechanic’s lien—extent of lien upon default of owner. In the event of failure of the owner to comply with his part of the contract the statute does not give a contractor a lien for the whole amount of his contract, nor for the entire amount of his damages against the owner, because of a breach of the contract, but simply for the value of what has been done. If by reason of the default of the owner the contractor .fails to complete his contract, a contractor is entitled to a lien for a part of his claim only. Under the present statute he is entitled to a personal judgment in a .proceeding for mechanic’s lien against the owner for his damages because of such breach, instead of being compelled to resort to a separate proceeding at law.
    3. Mechanic's men—when alloioance for attorney's fees not subject to review. In the absence of objections having been filed before the master to the allowance of attorney’s fees, the question of the propriety of such allowance is not saved for.review.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed January 6, 1911.
    Statement by the Court. John P. Marsh, one of the appellants, as owner of the indebtedness, filed a bill in the Circuit Court to foreclose a trust deed, recorded April 24, 1905, given by Leslie P. Mick, as the owner of the premises, and his wife, to the Chicago Title & Trust Company as trustee, upon lot 21, block 4, in Peleg Hall’s Addition to Chicago, to secure the payment of the sum of $2,500, payable two months after date, with interest at five per cent. Leslie P. Mick, William O ’Meara and others were made defendants.
    William O’Meara, appellee, on August 2, 1905, filed a bill for a mechanic’s lien against the same premises. Leslie P. Mick and others were made defendants to that bill. Marsh was not made a party to the bill, but he subsequently filed an answer thereto. Numerous, other parties, mechanic’s lienors, judgment creditors and encumbrancers, were also made defendants in both suits. Answers to the intervening petitions were filed, and by an order entered December 14, 1905, these two suits were consolidated under the suit of Marsh v. Mick and others.
    Inasmuch as the principal question involved in these appeals relates to the claim of O ’Meara for a lien upon the premises, we give a somewhat more full statement of his petition and the evidence thereunder. O ’Meara avers in his bill or petition that on April 20, 1905, he made a written contract with Mick, the owner, to furnish and set the stone for an apartment building then about to be erected by him on the premises described, for the sum of $4,000. A copy of his contract is attached and made a part of Ms bill. In the contract O’Meara agreed to furrnsh and set the cut stone for said building for the sum of $4,000, according to certain, plans and specifications made by George O. Garnsey, architect; that he entered upon the construction of the building under the contract, and continued to perform thereunder until he was prevented by Mick; that after making the contract, the plans and specifications for the building were changed by Mick, so that the building was to be constructed three feet wider, whereby it became necessary to furnish and set a large amount of extra stone, not included in the contract, which he did, to the amount and value of $325; that on July 1, 1905, Garnsey, the architect, issued to hi-m a certificate in writing, showing that there was due him for work and material to that time, furnished under his contract, “as estimated,” the sum of $2,800; that Mick paid him $300 on said contract, and that there was due him from Mick “for materials and labor furnished under said contract and for extra material and labor furnished as aforesaid, after deducting the $300 paid by Mick, the sum of” $4,025, and that “said work under said contract was to be completed in a reasonable time, to-wit, within one year.” O’Meara’s contract also provided that O’Meara might make alterations in the plans, drawings and specifications, or either of them, which he should deem proper, as the architect should advise, without impairing the validity of his contract, and in all of such cases the architect should value or appraise such alterations, and add to or deduct from the amount therein agreed to be paid, the excess or deficiency occasioned by such alterations.
    O’Meara’s petition makes a part thereof the claim for lien filed by O’Meara in the office of the Clerk of the Circuit Court on the 31st day of July, 1905, in which O’Meara states that he made the contract of April 20th to set the cut stone on said building, and “that the claimant was to complete the cut stone work under said contract within a reasonable time, to-wit: one year;” that he did furnish extra cut stone for said building on said premises of the value of $325, and that all said “material, labor and services so furnished was used in and about the erection and improvement of the building on said premises; there is now due him for the furnishing of said material, labor and services aforesaid, after allowing to him all just credits, deductions and set-offs, the sum of $4,025, all of which is still due and unpaid, and he now comes and claims a lien upon the said land and improvements thereon for the amount of his claim, $4,025.” He prays that he may be declared entitled to a lien upon the premises for the amount due him under said contract,, pursuant to the statute in such case made and provided.
    The cases were consolidated, and were referred to a special master, to take testimony and report the testimony, with his conclusions thereon, to the court. •
    The master reported that the appellant, Marsh, was the owner of the indebtedness secured under the trust deed described in his bill, and that there was due him the sum of $3,356.21, which was a first and prior lien upon the land, and was also a lien on the improvements thereon, subject to the mechanic’s liens for labor and material set out in his report. No question is made in this regard as to the amount due the complainant Marsh. The master found that the claim for lien filed by O ’Meara and set up in his petition included the total contract price for the completion of the cut stone work on the building, as well as an additional sum of $325 for extras; that the testimony of O’Meara gives the ' sum of $2,833.71 as the total value of the cut stone and extras actually used in the construction of the building, as well as the cut stone and extras furnished at the building, but not actually set in the building; that deducting the $300 admitted by O ’Meara as having been paid, leaves a balance of $2,533.71, or $1,491.29 less than the amount claimed by O ’Meara in his lien filed in the office of the Clerk of the Circuit Court, and that this amount is so much in excess of the amount shown by the evidence to be due, as to show an intent to defraud on the part of O’Meara in setting up said claim for a lien, and that there was not a sufficient statement as to what constituted the extra work claimed as a lien; and concludes that by filing his claim for a lien O’Meara elected to rely on that claim and is bound by such election, and cannot afterwards ignore such claim for a lien, and that in the suit instituted by O’Meara he relies on the claim for the lien previously filed; that the contract to furnish and set all cut stone was an entire contract, and that by reason thereof the claim of O’Meara for stone delivered on the premises does not come within the provisions of the lien law providing for a lien for material men who shall have delivered material to the owner or his agent, or who shall have delivered such material on the premises for the purpose of improvement of said premises; that O’Meara’s contract being to furnish and set the cut stone, the depositing of the material on the premises was not a delivery to the owner or his agent, but was a delivery to O’Meara himself for the purpose of being set; that until it was set the cut stone did not pass out of the possession of said O’Meara, and that O’Meara has knowingly and willfully claimed a lien for a much larger amount than he was justly entitled to, and that in making said claim for a lien he has not brought himself within the statute, and recommends that the prayer of his petition for a lien be denied, but that a judgment be entered in the cause in favor of O ’Meara and against Mick for the sum of $3,133.71 as damages upon breach of contract, with interest from July 1,1905.
    The master also in his report found that the value of the land described was $7,500, and the value of the improvements placed thereon $2,500. He finds that sundry claims for labor and materials should be allowed as liens against the improvements, together with solicitor’s fees in each case.
    On objections and exceptions filed, the court by its decree approved and confirmed the findings and conclusions of the special master, except as to the claim of O’Meara, and except as to solicitor’s fees allowed for all liens for labor and materials, and except also as to the value of the improvements put upon the described premises, and decreed that O’Meara was entitled to a mechanic’s lien for $2,525 upon the premises described prior to the lien of appellant Marsh, with legal interest thereon from June 30, 1905; and allows solicitor’s fees on all claims for labor.
    From this decree appellants, John P. Marsh and James D. Lynch, have prosecuted separately appeals and assigned errors, questioning the decree of the court below, in so far as it allows O ’Meara a mechanic’s lien upon the premises in question, and making it a superior lien to all others presented in the cases; and also questioning the decree of the court in allowing solicitor’s fees to the lienors mentioned in the decree.
    Robert C. Fergus and George C. Fry, for appellants.
    Defrees, Buckingham, Ritter and Campbell, for appellee, William D. O’Meara; Herman A. Fischer, Jr., of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The principal question, as suggested in the foregoing statement, raised by the assignment of errors on the record, relates to the lien of appellee O’Meara. Hpon a careful examination of the evidence in this case, we are of the opinion that the decree is erroneous in so far as it allows the complainant, O’Meara, a mechanic’s lien upon the premises in question. The evidence in the record shows that the claim for a mechanic’s lien filed by O’Meara, and asserted in his petition for a lien, includes the total contract price for the completion of the cut stone work on the building, as well as an additional sum of $325 for extras. We think that the master was justified in his conclusion that by filing his claim for a lien he elected to rely on that claim, and that he did in fact rely upon the claim by setting it out in his petition for a lien; that O’Meara’s contract was an entire contract to furnish and set all the cut stone in the entire building, and that O’Meara was not entitled to a lien under the statute for materials delivered at the premises but not set in the building. It appears from the record that O’Meara sublet the contract for setting the stone in the wall to one Charles Lindle, for the sum of $550, and that the cost of setting the stone which was actually put in the building was $250. It does not appear what the value of the cut stone was which was delivered on the premises and not put into the building. In making and filing his claim for a lien in the office of the Clerk of the Circuit Court, and in asserting that claim in his petition for a lien, we think that O ’Meara was guilty of fraud; that he could not have honestly believed that he was entitled to the full contract price for the work which he had contracted to do, but which was not done, and that the attempt to claim a lien upon the premises so much in excess of the amount to which he was entitled, shows an intent on O’Meara’s part' to defraud the other lienors on the premises. It was a statement of a fact which he ought to have known, and in our opinion did know, was false. The evidence in this case satisfies us that it was deliberately and willfully made for the purpose of compelling appellant Marsh and others having liens on the property to pay him an unjust amount to clear the property of his claim, or resort to expensive litigation in regard thereto; and we think that because of the fraud thus practiced by O ’Meara in this regard his lien should be denied. We cannot believe, from the evidence in the record, that the amount claimed by O’Meara for a lien was a mere mistake or an error. We are compelled to believe from the evidence it was an overcharge to such an extent as to constitute a fraud.

By section 4 of the act of 1903 it is provided that in case of failure of the owner to comply with his part of the contract ‘ ‘ the contractor may discontinue the work * * * ” and “that in such a case the contractor shall be entitled to enforce his lien for the value of what has been done, and the court shall adjust his claim and allow him a lien accordingly.”' The statute does not give a contractor a lien for the whole amount of his contract, nor for the entire amount of his damages against the owner, because of a breach of a contract, but simply for the value of what has been done. If by reason of the default of the owner the contractor fails to complete his contract, a contractor is entitled to a lien for a part of his claim only. Under the present statute he is entitled to a personal judgment in a proceeding for mechanic’s lien against the owner for Ms damages because of such breach, instead of being compelled to resort to a separate proceeding at law.

Section 4 of the Lien Act recognizes what was the law as it previously existed, that if a claimant for a lien shall make such an overcharge as to indicate that it was done with intent to defraud, he cannot be allowed to enforce alien. Phillips on Mechanic’s Liens, sec. 525. O ’Meara, in his claim filed with the Clerk of the Circuit Court, stated what he knew was not the fact when he said that all the material, labor and services for which he claimed a lien “were used in and about the erection and improvement of the building on said premises,” and that there was justly due him the sum of $4,025. At the most, and under the most favorable interpretation and construction of the evidence, his proof shows that all the material and labor which was furnished and used in the erection of the building did not exceed the sum of $2,825. We think it cannot be said that the assertion of O’Meara in his claim for a lien for the sum of $4,025 is a mere mistake and error.

In Christian v. Allee, 104 Ill. App. 177, where the lienor untruthfully stated that the time of completion was extended and then accepted by the owner, the court said the authorities are that an untrue statement of a material matter will vitiate the claim. 1st Jones on Liens (2d ed.), sec. 1408; Foster v. Schneider, 2 N. Y. Sup. 875; Kling v. Ry. Co., 7 Mo. App. 410; Lynch v. Cronin, 63 Gray, 531; Crandall v. Lyon, 188 Ill. 87.

Where a party seeking a lien knowingly and willfully claims more than his due, he forfeits his lien. Jones v. Keen, 115 Mass. 171; Stubbs v. Clarinda College Springs, 62 Iowa 280; Gibbs v. Hanchette, 90 Mich. 657; Brennan v. Miller, 97 Mich. 182. The reason of the rule as stated in Nelson v. Withrow, 14 Mo. App. 270, is “that the owner of the building has the right to know, from the account filed, the amount which, under the law, has become a charge upon the property, in order that, by payment or tendering this amount, he may discharge the property of the encumbrances.”

In our opinion the evidence shows, as found by the special master, that the value of the land on which the improvement stands is $7,500, and the value of the improvements placed thereon is $2,500, making the value of the land and improvements $10,000. Appellant Marsh is entitled to a first and prior lien on the land and the proceeds thereof for the amount due under his notes and trust deed as found in the decree, together with his reasonable solicitor’s fees as found therein, and that each of the other liens found in the decree except that of O ’Meara, who is not entitled to a lien, as we hold, are subject to the lien of Marsh on the land or the proceeds thereof; and there should be set aside out of the receipts from the proportionate proceeds of the sale of the premises of the sum of $3,663.83 and interest thereon, being the amount found due appellant Marsh for the payment of the amount due Marsh, and the master should then apply the balance remaining of such proportionate share to the amounts due the workmen and laborers, and then the surplus, if any, to the other persons entitled to mechanic’s liens.

A personal judgment against Mick in favor of O’Meara should be entered in this proceeding for the sum of $3,133.71, being the damages found by the master for breach of contract, with interest from July 1, 1905.

Error is also assigned on that part of the decree allowing attorney’s fees to the masons, carpenters and laborers. We do not find, however, any objections or exceptions to the allowance of attorney's fees were made before the master or in the court below, and we think appellant Marsh who assigns error on this part of the decree has waived his right to raise this question. Haas Electric Co. v. Amusement Co., 236 Ill. 452.

The decree is affirmed in part and reversed in part and the causes are remanded to the Circuit Court with directions to enter a decree in accordance with the views herein expressed.

Affirmed in part, reversed in part and remanded with directions.


text:
    Elbridge Hanecy, Appellant, v. John R. McLaughlin, Appellee.
    Gen. No. 15,150.
    1. Instructions—predicated upon evidence. An Instruction which authorizes a verdict upon a theory of law not supported by any evidence, is erroneous.
    2. Instructions—misleading as to theory of recovery. An instruction calculated to mislead the jury and cause them to ignore a theory of recovery upon which a recovery is sought, is erroneous and ground for reversal.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed January 6, 1911.

      Arthur A. O’Brien and John F. Gavin, for appellant; Robert J. Folonie, of counsel.
    Winkler, Baker and Holder, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Appellant, Elbridge Hanecy, brought this action to recover for attorney’s fees against John R. McLaughlin, appellee. Appellant’s evidence tended to show that he was employed by Gordon Ramsay, a practicing attorney in Chicago, in a cause in equity, the facts of which are set forth in a bill in equity, a copy of which was offered in evidence. The bill was signed and sworn to by appellee McLaughlin, and was filed on behalf of the American Percheron Horse Breeders Association, a voluntary association, and appellee and others, naming them, being the officers and directors of the Association, and of certain others, naming them, being a committee authorized to represent the Association. The bill averred that it was filed on behalf of the Association and its members, who sue on behalf of themselves and all the members. Gordon Ramsay signed the bill as solicitor for complainants, and placed the name of appellant thereon as counsel. The affidavit of appellee McLaughlin to the bill states that he had read the bill and knew the contents thereof, and that the same was true, and “makes this affidavit and subscribes said bill on behalf of himself and on behalf of all other members of said Association similarly associated and affected.” The evidence of appellant shows the services rendered in the litigation without dispute.

At the time appellant was retained he requested a retainer of $1,000, and presented a bill therefor in August, 1903. In October, 1903, appellee gave his check to appellant for $500 on account as treasurer of the Association, and requested appellant to wait until November, 1903, for the other $500, which he would send after November 25, 1903.

According to the evidence appellant rendered services in the litigation of the value of $2,600 or $3,000. but by an arrangement with Ramsay he rendered a bilí to appellee for retainer and services for the amount of $2,000, with a credit for the $500 which had been paid by McLaughlin. Appellant introduced in evidence the testimony of three attorneys besides his own testimony, to the effect that $2,000 was less than the usual and customary fee for the services detailed in the record. The amount of the usual and customary fee for the services shown was not controverted on the trial, nor was there any controversy that only $500 had been paid by McLaughlin to Hanecy to apply on the fee for services rendered.

The jury returned a verdict for the defendant. After overruling a motion for a new trial the court entered judgment on the verdict.

On the trial the court gave the following instruction:

“The court instructs you that if you believe from the evidence that defendant was liable to plaintiff and that there was no specified sum agreed upon as compensation for plaintiff, then he is entitled to reasonable compensation for services rendered, and if you believe from the evidence that he has already received such reasonable compensation, then you will find for the defendant.”

This instruction is erroneous for the reason that it directs a verdict, and that there was no evidence before the jury upon which to base it. The only evidence in the case of reasonable compensation for services rendered was that the services were reasonably worth not less than $2000. There was no evidence that $500 was reasonable compensation. Nevertheless, the instruction permitted and authorized the jury to find that appellant had received reasonable compensation for his services. The instruction was erroneous.

We are of the opinion that there is nothing in the first instruction asked by appellant and given by the court which estops or prevents appellant from excepting to the instruction and assigning error on it.

After the jury had retired to consider its verdict, it asked the court in writing the following question:

“Is an individual member liable for the contracts or indebtedness of a deftinct voluntary association?”

And thereupon, in answer to the written question put by the jury, .the court gave to the jury the following instruction:

“You are instructed that an individual member of a defunct voluntary association; not organized for the purpose of conducting a business for a profit, is not liable for its contracts merely by reason of his membership therein. If, however, such an association be organized, for the purpose of conducting a business for profit, then a member would be liable for its contracts because of his membership therein. ’ ’

The question of the jury clearly indicates that they misconceived the true theory of appellant’s case and were considering the case as based entirely and exclusively upon the liability of the defendant, appellee, being a member of the voluntary association, which at the time of the trial had ceased to exist. Whereas the theory of liability for the services rendered, as stated in the pleadings, is that the contract for the services was made or ratified by the appellee McLaughlin himself and for his own benefit, as well as for the benefit of the Association and other members of the Association.

There is evidence in the record tending to support the issues presented by the pleadings, and appellant was entitled to have that issue submitted to the jury and passed upon by them. While some things occurred on the trial which indicated that the plaintiff appellant relied upon appellee’s liability by reason of his membership in the Association, the theory of a personal contract was not abandoned or waived by appellant. The instruction, though it may be acccurate in a case where the member of an association had done or said nothing tending to show a personal contract, or that he was personally identified in any way with the transaction and was a stranger to it and had no relation to it in any way, except by or through his membership in an association, or, had contracted for and on behalf of the association with the express understanding and stipulation that he assumed no personal liability, was misleading and therefore erroneous, under the pleadings and proofs in this case.

The cause was not properly submitted to the jury, and the judgment is therefore reversed and the case is remanded for a new trial.

Reversed and remanded.


text:
    Walter Woodley, Defendant in Error, v. Leopold Zeman, Plaintiff in Error.
    Gen. No. 15,272.
    Municipal Court—when judgment reversed. If from a consideration of the transcript the Appellate Court is not satisfied that substantial justice has been done by the judgment rendered a reversal will he awarded.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed January 6, 1911.
    H. M. Pierce, for plaintiff in error.
    Wolfsohn & Wallbrunn, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This writ of error brings before us the record and judgment in an action brought by Walter Woodley, defendant in error, against Leopold Zeman, plaintiff in error, in the Municipal Court of Chicago, to recover for money claimed to be due from the plaintiff in error under a contract between the parties for the mason work of a building. The trial resulted in a verdict and judgment against the plaintiff in error for $550.

The main controversy in the case related to the use by Woodley of old walls on the property in the foundation for the new building, and the amount to be deducted therefor from the contract price.

The witness I. D. Zeman, called by plaintiff in error, testified to negotiations between himself, representing the plaintiff in error, and the defendant in error for the purpose of settling the amount of the allowance to be made by Woodley for using the old walls, and that Woodley said he would allow $411.40 for the south wall, $88.22 for the north wall, and $56.60 for the east wall. The witness said he made memoranda at the time, and refreshed his recollection from a paper, which appeared on his cross-examination not to be the original memoranda made at the time, but merely a copy. Thereupon the attorney for defendant in error moved to strike out all his testimony as to the agreement and the court sustained the motion. The witness was then asked if he could bring in the original memoranda and the witness said he would in the afternoon. Thereupon the court said: “Very well.” Later in the day the attorney for plaintiff in error during the trial told the court that the witness was in court and had the original memoranda with him. and asked the court to allow him to testify regarding them, but the court refused to allow the testimony.

We think plaintiff in error’s attorney and witness were led to believe that if they produced the original memorandum of these items later in the day, the witness would be allowed to testify, and that it was error to refuse to hear the testimony when it was offered.

If we could determine from the record that substantial justice had been done in the result reached we would not reverse for the error indicated. But we are unable to determine from the record that the judgment is just. It is clear that an allowance should be made to plaintiff in error for the use of the old walls by defendant in error contrary to the provisions of the contract. As the record stands there is no evidence from which it can be determined how much should be deducted from the contract price for the failure of the defendant in error to take out the old and build new walls as provided in the contract. Defendant in error offered in evidence the contract, and a certificate of the architect which allowed deductions for the use of the old walls and for other claims amounting to $200 and rested -his case, relying on the architect’s certificate. This was not evidence of the amount to be allowed for the use of the old walls for the reason that by the provisions of the contract the architect had no authority to pass upon that question. That question was a matter for arbitration between the parties under the provisions of the contract, if they could not agree in regard to it.

There is evidence in the record tending to show that the parties met in the architect’s office and agreed on $2.00 as the amount which should be allowed. This is, however, flatly contradicted and denied. If the jury believed such an agreement had been made and had rendered a verdict accordingly there would have been some basis for sustaining the judgment, for plaintiff in error could not complain of it. The verdict, however, does not indicate that the jury believed there was such a settlement or adjustment between the parties, for the amount of the verdict is not based upon such a settlement.

The judgment is therefore reversed and the cause is remanded for a new trial.

Reversed and remanded.

Mb. Justice Baldwin took no part in the decision of this case.


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    The City of Chicago, Defendant in Error, v. James Murnell, Plaintiff in Error.
    Gen. No. 15,284.

      Ordinances—when conviction of violation reversed. If the evidence is insufficient to support the conviction the judgment will he reversed and the cause remanded.
    Error to the Municipal Court of Chicago; the Hon. Michael F. Girten, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed January 6, 1911.
    Charles E. Erbstein, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

James Murnell, plaintiff in error, was arrested on November 25,1908, charged with violating section 1454 of the Revised Municipal Code of Chicago of 1905; and on December 3,1908, was fined $100 and costs. On December 30, 1908, this writ of error was sued out to reverse the judgment.

Upon a careful consideration of the evidence we are of the opinion that it is insufficient to make out a case against plaintiff in error, even if we are to take judicial notice of the ordinance of the city of Chicago set out in defendant in error’s brief under the provisions of the Municipal Court Act, which we do not find it necessary to decide in view of our conclusion on the evidence. The evidence fails to show a violation of the ordinance. The judgment has no support in the evidence other than suspicion, and must be reversed.

Reversed and remanded.

Mr. Justice Baldwin took no part in the decision of this case.


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    Delmont N. Felthousen, Appellee, v. Lanward Publishing Company, Appellant.
    Gen. No. 15,290.

      Set-oef—claims acquired after assignment. After assignment of a contract and notice of such assignment to the other party, such other party has no right to purchase claims against the assignor of such contract and interpose them as against the assignee.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 6, 1911.
    Fassett & Andrews, for appellant.
    Frank W. Sweet and William E. Cloyes, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The material question presented, on this record is the right of appellant, defendant below, to set off against the plaintiff as assignee of a contract for the payment of money, any off sets or counter claims in favor of the debtor against the assignor of the contract, created or acquired after notice to the debtor of the assignment.

The evidence in the record shows, without controversy, that on April 1, 1908, there was due to Charles Í. Felthousen, the assignor, under a contract with appellant for commissions dated August 26, 1907, the sum of $398.30; and that on April 9, 1908, Charles I. Felthousen, for a good consideration, assigned to Delmont NT. Felthousen, the plaintiff, all moneys due him under the contract. The plaintiff, appellee, served the assignment on appellant on April 14, 1908. On June 17, 1908, appellant procured an assignment from Estelle C. Woodward, executrix, of her claim as executrix against Charles I.- Felthousen, in consideration of a promissory note given by appellant to the executrix for $2,800, with the understanding at the time between Mrs. Woodward and appellant that she would protect appellant against any loss it might sustain by having taken the assignment and given the note for it. Notice of this assignment was given to Charles I. Felthousen June 18, 1908. When this action was brought by the assignee under the first named assignment, it was attempted to set-off the claim assigned by the last named assignment of Mrs. Woodward to appellant against the claim sued on. The trial court disallowed the set-off and entered judgment for the plaintiff for $398.30, the amount admitted to be due the plaintiff’s assignor for commissions.

In thus holding the court did not err. Appellant had no right at law to interpose its claim as a set-off to appellee’s demand. Appellant’s claim was purchased after notice of appellee’s assignment for the purpose of interposing it as a defense against appellee’s demand. The law is well settled that appellant had no right, after notice, to go out and purchase claims against appellee’s assignor and interpose them as a defense. Pettis v. Westlake, 3 Scam. 535; Ellis v. Cothran, 117 Ill. 458; Ewen v. Wilbor, 99 Ill. App. 132; Sprigg v. Granneman, 36 Ill. App. 102.

To the issues raised in this action at law the authorities cited on behalf of appellant have no application. In a bill in equity to set aside fraudulent conveyances or transfers on behalf of a proper complainant the authorities cited would be applicable.

The judgment is affirmed.

'Affirmed.


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    E. W. Merck White Lead Company, Defendant in Error, v. William McGahey, Plaintiff in Error.
    Gen. No. 15,301.

      Recoupment—to whom, defense available. The defense of recoupment is available as well to the guarantor as to the principal debtor.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed January 6, 1911.
    Charles O’Donnell, for plaintiff in error.
    Charles Daniels and Sumner C. Palmer, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The Merck "White Lead Company, defendant in error, brought an action against William McGahey, plaintiff in error, on his guarantee of the payment for goods sold to M. E. Orser & Co. and J. D. Cochrane by the Lead Company, relying upon the guarantee. Orser & Co. and Cochrane declined to pay for the goods on the ground that they were inferior to the standard and quality warranted.

The defendant, plaintiff in error, offered evidence on the trial tending'to show the inferior quality of the goods delivered to Orser & Co. and Cochrane, and that they were not as represented when the purchases were made. The court ruled out the testimony and instructed the jury that if the defendant, plaintiff in error, agreed to guarantee the payment for the goods, and that the goods had not been paid for, they should find for the plaintiff. The jury returned a verdict for plaintiff and the court entered judgment on the verdict.

It is beyond question the law that in an action against Orser & Co. or against Cochrane for the price of the goods, the defendant would be entitled to show in defense of the action, or in reduction of damages, that the goods delivered were of inferior quality and were not equal in quality and durability to the goods ordered. The plaintiff in error, when sued on his guaranty of payment, was entitled to make the same defenses in this regard as the purchasers could make.

The court erred in excluding the evidence. The judgment is accordingly reversed and the cause is remanded for a new trial.

jReversed and remanded.


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    Chicago Woolen Mills Company, Defendant in Error, v. Adams Express Company, Plaintiff in Error.
    Gen. No. 15,310.
    Express companies—when XiabXe to consignor. If goods are delivered to an express company for delivery to the consignee c. o. d. and within a reasonable time neither goods nor money is delivered to the consignor, the express company is liable.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 6, 1911.
    Rehearing denied January 17, 1911.
    Charles B. Elder, for plaintiff in error.
    David K. Cochrane, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

We think the bill of exceptions to this case was presented to the court in apt time under the law, and that it is properly a part of the record.

Only two of the items enumerated in the plaintiff’s statement of claim are now involved—the shipment of goods to Will Crawley, Lakewood, Florida, and the shipment to J. McConnell & Son, Gate City, Virginia, for $10 as to which the defendant plaintiff in error makes no question.

The evidence tends to show that on October 20, 1905, the Chicago Woolen Mills at Chicago, Illinois, shipped one suit of clothes to Crawley at Lakewood, Florida, by the plaintiff in error with directions to deliver to him and collect $32, the value of the suit, and return the money to the defendant in error. The package and the receipt given by the Express Company were marked C. O. D. $32. The plaintiff in error did not return the goods or the money to the defendant in error in reasonable time. No inference can be drawn from the evidence that the goods were tendered to the consignee.

We think the evidence brings the case within the rule of A. M. U. Express Co. v. Wolf, 79 Ill. 430; and that there was a breach of the contract on the part of plaintiff in error and its duty thereunder for which the defendant in error is entitled to recover. Substantial justice was administered in the judgment of the trial court, and we therefore do not find it necessary to discuss the alleged errors in procedure under the provisions of the Municipal Court Act.

The judgment is affirmed.

Affirmed.


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    John F. Devine, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,155.

      Vebdicts—when set aside as against the evidence with finding of facts. A verdict will he set aside as against the evidence and reversed with a finding of facts where the decided preponderance of the evidence is against the verdict of the jury and establishes that the defendant was not guilty of the negligence charged in the declaration.

      Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of fact.
    Opinion filed January 6, 1911.
    Statement by the Court. This appeal is prosecuted by the defendant to reverse a judgment for $3,000 entered in an action brought by the administrator of Millard M. MeKeehan, deceased, for alleged negligence which caused the death of MeKeehan.
    The declaration consists of two 'counts, in each of which the negligence averred is that the defendant carelessly and negligently permitted the air brakes on the car which struck plaintiff’s intestate to become and to remain out of order and in bad condition and repair, so that when the air was applied by the motorman of the defendant the brakes would not work and would not stop defendant’s car; and that the defendant had notice, or in the exercise of reasonable care would have known and discovered the defective condition of the brakes.
    The only controverted question of fact in the case on the trial was the condition of the air brakes on the car which struck and killed MeKeehan.
    MeKeehan, plaintiff’s intestate, was the conductor of defendant’s car No. 2300, which left Washington street, Chicago, on its south-bound journey along Clark street at about 7:30 on the evening of February 15, 1904. The intersection of Clark and Twelfth streets is elevated twenty-five or thirty feet in order to permit the trains of the Bock Island and Lake Shore railroads to pass under the Twelfth street viaduct. The grade of Clark street begins to rise at about Taylor street and reaches its highest point at Twelfth street, and after crossing Twelfth street, it gradually descends to the level of the street, which is reached between 13th and 14th streets.
    On the evening in question, after McKeehan’s car had passed 12th street and was about at the foot of the southern decline therefrom, the trolley left the wire and in consequence thereof the lights in the car were extinguished, leaving it in darkness. McKeehan attempted to adjust the trolley to the wire from the rear platform of his car, but without success. He then stepped to the ground, and while trying to adjust the trolley he observed the following car, No. 2732, coming down the decline. He thereupon endeavored to attract the attention of the motorman so as to prevent a collision by standing between the rails of the track on which it was approaching several feet to the rear of his own car and swinging his arms as a signal to stop. He not only failed to attract the attention of Bucher, the motorman, but he remained so long on the track that he was struck by the approaching car and fatally injured.
    It appears that car 2732 was one of the large double truck type of cars. It reached 12th street on its southern run, and after starting down the incline was brought to a stop and held in place at the top of the incline by the application of the air brakes. It was started again without turning on the current, by simply releasing the brakes, and no stop was made thereafter until the collision occurred, when it had attained a speed, according to the witnesses, of from six to twelve miles an hour.
    At the close of the plaintiff’s evidence, and again at the completion of all the evidence, the defendant tendered a peremptory instruction to find the defendant not guilty. The court in each instance refused the instruction.
    Calhoun, Lyford & Sheean, for appellant.
    David K. Tone, H. M. Ashton and Ayres & Ayres, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

In the view we take of this case, it is only necessary for us to consider whether the negligence averred in the declaration is proved by the evidence in the record.

But one witness was called by the plaintiff whose testimony tended in any manner to show any defect of any nature in the brakes of car 2732. This witness was Bucher, the motorman on car 2732. His testimony is that he left the car barn at 77th Street and Vincennes avenue at 4:30 o’clock in the afternoon in question and ran the car until the accident happened. He stated that the first three stops he made with the car were bad, the third stop being a little bad, “not what you would call real bad, I made the fourth stop fine. I can’t remember the fifth stop; I can’t remember every stop you know, that is impossible.” He then assumes to give an average of good and bad stops of three to one, or, he says, “it might have worked half and half; I got two bad stops in succession, and I would get two good stops in succession.” Concerning the conditions just before the accident, he says that he came to a full stop at the top of the incline at 12th street, and that as the car stood there at 12th street the mere releasing of the brakes caused it to start; that the brakes were powerful enough at 12th street to stop and hold the car on the incline in a position of rest, and that when he released the brakes the car simply coasted down the incline, starting off at the rate of a mile an hour and attaining a speed at the bottom of the incline of about six or eight miles an hour. He says he did not see anything until he got nearly to 14th street, when he saw some object of some description, when he was between eighty and a hundred feet from it. He then applied his brakes, but could not get any pressure from them, and threw them off and used the reverse power. The witness admits that with the car moving it was difficult to judge the distance of the car from the object in front of him when he first saw the object.

Bearing upon the value of this witness’ testimony as proof of what it tends to prove, it was shown that on the night in question he filled out a form report, in which he stated that he “Didn’t see car 2300 until about 35 feet from it. ’ ’ And in the report following the printed question: “Was the brake in good order?” there appeared the word “Tes.” With reference to this report Bucher admitted that every written part of the report except the word “yes” was in his handwriting and was in the identical condition that it was in when made by him on the night of the accident, but stated that the word “yes” was not in his handwriting, although it was a good imitation of his writing. A well known expert on handwriting testified from a microscopic examination of the document that the word “yes” was written by the same person who wrote the remainder of the report, and that there had been no erasure under the word “yes.”

Furthermore, it appears that on the day following the accident Bucher appeared before the coroner’s jury and signed a statement, which the deputy coroner swears was read to Bucher before he signed it, containing the following: “I saw nothing in my way until I saw an object of some description going northeast towards my car on the south-bound track. I did not see the object again until I hit said car 2300, which shattered the windows and knocked the stove down. * * * I first saw the car when about 35 feet away from him. I had reversed my car when I first saw the object, and when I saw the car I applied sand and turned the controller four notches. The night was dark and I could see about 25 feet ahead of me. * * * My brakes were in good condition.” The shorthand reporter who took the questions and answers of Bucher while he was testifying at the coroner’s inquest, which formed the basis of the narrative form of statement above quoted, testified that the following questions were put to Bucher and the following answers were given by him:

“Q. The first you saw of the car was when you were about'35 feet from him? A. Tes, sir. * * *
A Juror : Q. Was your brake in good order?
A. Tes, sir.”

The testimony also shows that in an interview between the witness and the attorney who tried the case for the defendant, less than a week before the trial, Bucher said that he tried the brakes of the car before leaving the barn and that they worked all right, and that he testified before the coroner that the brakes were in good condition; that he so answered the coroner’s juror who put the question above quoted at the inquest, and his answer was true. The witness further said in that interview that from the time he first saw the man, as the car was coasting down the incline, he could not stop the car, with the heavy load of passengers it had, with the brakes, no matter what their condition was, and that he did not make use of the brakes, but used the sand and the reverse, as he had testified before the coroner because he thought the reverse would make the quickest stop.

Bucher offered no explanation of his statements to the attorney of defendant differing so materially and radically from his testimony delivered a few days later on the trial of the case. He undertook, however, to explain why he committed perjury at the coroner’s inquest by saying that when he reported to the office of the defendant on the morning following the accident, a man who subsequently took him to the inquest looked over his report and told him it did not appear to be very favorable to him, and that he had got to make himself good with the Company in order to keep working, and say that the brakes were in order, and that if he did not he would put two car repairers on the stand' to testify against him at the inquest. The man Hayes, with whom ¡he claimed this conversation was had, made a categorical denial of it, and the plaintiff’s witness Voll, who was present at the time of the conversation, according to the testimony of Bucher, denied that he went into any private office with Bucher, but on the contrary stated that all the witnesses remained in the general office.

Upon consideration of the contradictory and irreconcilable statements of this witness, we are of the opinion that his testimony has little, if any, value as proof in the case standing by itself. When the testimony of Bosengard and Sehettler, car inspectors' for the defendant, who inspected the brakes before the car left the barn, and Davis, the chief car inspector, who inspected and tried the car on the tracks after the accident by running the car nearly two blocks, putting the air on the brakes and throwing it off, again and again, and backed the car up, and started and stopped it a dozen times, observing the air pressure and that it ran down to 60 and then jumped up to 80, which were the limits within which the pressure is kept automatically by a generator, and that he found nothing wrong with the air brakes; also the evidence of Veil, the conductor, who testified that in all the stops of the car in its two trips from the time it left the barn at 4:30 up to the time of the accident, and the testimony of Halstead and Quilly, and Storey, we think that the decisive preponderance of the evidence is strongly against the verdict of the jury, and that the defendant is not guilty of the negligence averred in the declaration.

The judgment is accordingly reversed with a finding of fact.

Reversed with finding.