author: Mr. Presiding Justice Baldwin

text:
    Martha C. Richardson, Executrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,893.
    1. Verdicts—when not excessive. Held, in a personal injury action that a verdict for $4,000 was not excessive, where it appeared that the plaintiff, as a result of the accident, suffered abrasions and slight wounds upon his head and face and partial paralysis with attendant nervous shock, and resulting in weakness and inability to attend to his business as before the accident.
    2. Verdicts—when not disturbed as against the evidence. Notwithstanding the appellate court might have reached a different conclusion from the evidence, yet a verdict -will not be disturbed as against the evidence unless clearly and manifestly so.
    3. Instructions—when modification as to exercise of ordinary care not improper. Held, that it was not error to Substitute for the following sentence, “ordinary care and prudence is the exercise of that care which a person of common prudence bestows upon his or her own affairs and concerns,’' the following, “ordinary care and prudence is the exercise of that care which a person of ordinary care and prudence ordinarily exercises under the same or like circumstances as shown by the evidence.’’

      4. Instructions—when as to quantum of proof of damages properly refused. An instruction is too broad which is to the effect that “every item and element of damage claimed by the plaintiff must be shown by a preponderance of the evidence in the case.”
    5. EvitoBNCEL-tohat tests proper. Held, that it was not incompetent to permit expert medical witnesses to testify as to tests applied to ascertain the plaintiff’s strength.
    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, 1910.
    Affirmed.
    Opinion filed May 21, 1912.
    Rehearing denied June 4, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    Elmer & Cohen, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Tliis is an action brought by John B. Bichardson, the deceased husband of appellee, against the Chicago City Bailway Company, in the Superior Court of Cook County. The case was tried before a jury and resulted in a verdict and judgment against appellant for $4,000. Subsequently and after the original briefs of both sides were filed in this court, Bichardson died, and his widow, Martha C. Bichardson, executrix of his last will, was substituted as appellee.

It appears that on the 4th of February, 1909, the deceased, John B. Bichardson, then a practicing physician and surgeon in the city of Chicago, was driving east on Thirty-seventh street in Chicago, in a top buggy drawn by a single horse, and at the intersection of Wallace street, h’is buggy was struck by a south bound street car, operated by appellant; he was thrown from the buggy, and claimed to. be seriously injured. The declaration charges that the appellant company so carelessly, negligently, and recklessly operated, managed, manipulated, ran, drove, propelled and handled its car in question that while plaintiff was then and there exercising due care and caution for his safety, the street car struck his buggy with great force, knocking it over, and throwing him to the ground with great force and violence, causing the injury complained of. Dr. Richardson was then and had for many years been in active practice in the city of Chicago; he was about sixty-five years of age, and the evidence showed that at and prior to the time of the accident, his hearing was somewhat defective, and the sight of one eye had been impaired, as a result of a previous injury.

Appellant relies upon four grounds in his brief and argument for setting aside the verdict and reversing the judgment, viz: (1) The verdict is against the manifest weight of the evidence; (2) errors in the admission of improper evidence and the rejection of proper evidence; (3) errors in the refusal of proper instructions requested by appellant; (4) damages awarded by the verdict are excessive.

Taking up the contentions made by appellant in their reverse order, we consider first the claim that the verdict was excessive. We think it a fair conclusion from the evidence, that up to the day of the injury Dr. Richardson had attended to his daily practice in and about the city, visiting and treating his patients, at his office, at their homes, and at hospitals, and operating in surgical cases; that before the accident his general health was good, though his hearing was noticeably defective, as was also the sight of one eye, both of which physical defects were said to be due to his service in the army many years before; that he had a very considerable practice both in medicine and surgery, aggregating for the year immediately preceding the accident from $400 to $500 per month; that following the accident, and as a result of it, his income was reduced to approximately one third of what it was formerly. It is true that none of his bones were broken, nor were any serious bruises apparent at the time of the accident, and it also appears that immediately following it, he got about and seemed nearly or quite normal; that the apparent effect of the fall consisted of abrasions and slight wounds upon his head and face; on the other hand, however, the witnesses for the plaintiff testified that in their opinion a partial paralysis was the immediate result of the accident, with its attendant nervous shock, the effects of which continued down to the time of the trial, resulting in weakness and inability to attend to his business as formerly. In the light of all the evidence before the jury, we cannot say that we think the damages awarded excessive.

Appellant complains that the court improperly modified an instruction offered by it, defining ordinary care, and also refused an instruction (No. 8) offered by it, bearing upon the question of damages claimed by the plaintiff. As offered by appellant, the instruction as to ordinary care was, in part, as follows:1 ‘ ordinary care and prudence is the exercise of that care which a person of common prudence bestows upon his or her affairs and concerns. ” This part of the instruction the court modified by making it read, “ordinary care and prudence is the exercise of that care which a person of ordinary care and prudence ordinarily exercises under the same or like circumstances as shown by the evidence.”

It is true that this court in Chicago City Railway Company v. Schuler, 111 Ill. App. 470, and in Chicago Union Traction Company v. Hansen, 125 Ill. App. 153, condemned the use of the word “ordinarily” in the instruction, yet our Supreme Court, in Chicago Union Traction Company v. Chugren, 209 Ill. 429, on page 431, expressly approved an instruction defining ordinary care, which instruction contained the word “usually,”'which is similar in meaning to the word “ordinarily” here objected to. Under this authority we must hold the instruction good. Moreover, the tenth instruction given by the court in the case at bgr, properly defined the care required of the motorman, and applied the same test to the plaintiff.

As to the refused instruction (No. 8) we think it was properly refused. The instruction was to the effect that “every item and element of damages claimed by the plaintiff must be shown by a preponderance of the evidence in the case. ’ ’ That is not the law. In this case plaintiff was not required to prove “every item and element of damages claimed,” in order to recover upon such terms as were sustained by the proof.

Appellant contends that the court below erred in< permitting one of the appellee’s witnesses to express his opinion of the distance within which a car could be stopped, basing its contention upon the ground that he was not sufficiently qualified to express an expert opinion, and that the hypothetical question was not sufficiently accurate to permit the answer. Appellant also contends that the court erroneously permitted one of the appellee’s expert medical witnesses to testify as to tests he applied to ascertain appellee’s strength, etc. It is perhaps sufficient to say that after carefully considering the testimony in the light of these objections, we cannot sustain the contention of appellant in relation thereto. If any error was committed by admitting the testimony, it" was so inconsequential as to not constitute a reversible error.

Appellant strenuously contends that the verdict is against the manifest weight of the evidence. John Darvin, Patrick Egan, Joseph O’Brien, and Dr. Richardson himself, testified on behalf of appellee. Upon their testimony, the jury would have been justified in believing that the doctor was driving east on Thirty-seventh street, and, as he approached Wallace street, he looked both north and south and saw the car, which subsequently collided with his buggy, just north of Thirty-seventh street, going south at a very slow rate, and apparently coming to a stop, quite under the control of the motorman; that, at the time, the doctor was only about 15 or 20 feet from the south-bound track upon which the car was coming, and he started across the track; at about the same instant, the motorman negligently applied the power to the car, and it came forward with such speed that it struck the buggy at the rear or hind wheels with great force, and hurled it diagonally across the street, overturning and smashing it, and violently throwing the doctor out upon the street, where he fell upon his head with great violence, which fall, it is claimed, caused a rupture of blood vessels in the brain, and was followed by a stroke of paralysis. The doctor testified that the bell on the car was not rung, and several witnesses, not only those testifying for the plaintiff, but also some who were called for the defendant, testified that the car was going at a speed of from 10 to 12 miles an hour at the tipie it struck the buggy, and that, after the collision, the car ran about 60 feet and stopped, -with its rear platform a little south of the south curb line of Thirty-seventh street. There was also testimony to the effect that it had been raining the night before, and that the rails were in such condition that the car in question could not have been stopped in less than 100 feet, even if going at a rate of only 7 or 8 miles an hour. If this arid the other testimony given on behalf of the plaintiff were credited by the jury, they would have been justified in finding that the motorman was negligent in the manner in which he handled the car, and that the collision was a direct result of such negligence, and that Dr. Richardson was not guilty of contributory negligence.

On the other hand, Michael Blanchfield, the conductor, and Patrick Gleason, the motorman of the car in question, C. C. Crick, an employe of appellant, Christopher Foley, a policeman, Charles L. Morse, a dentist with an office at the corner of Wallace and Thirty-seventh streets, and John Boike, not an employe of appellant, but who was on the front platform of the car which collided with the buggy, testified on behalf of appellant, and gave their version of the occurrence, from which it would appear that, at a point from 60 to 90 feet north of the north curb line of Thirty-seventh street, a coal wagon was backed against the west curb of Wallace street, where it was being unloaded; that, in passing that coal wagon, the speed of the car was slackened to a very slow rate, after which it was increased by the motorman, though not exceeding 6 or 8 miles per hour; that, when the car was only about 15 feet north of Thirty-seventh street, the doctor’s horse was 40 or 50 feet west of Wallace street, going east at a moderate trot; that, as soon as the motorman saw that the doctor intended to cross in front of his car, he applied the brakes and reverse power, rang the bell, and brought the car to a stop within a few feet; that the doctor saw the approaching car about 60 feet north of Thirty-seventh street at a time when his horse was approximately 5 feet west of the outer or west line of Wallace street, after which he never looked toward the car nor increased the speed of his horse, but drove directly 50 or "60 feet and attempted to cross immediatedly in front of the car then in motion, under conditions which clearly rendered him guilty of contributory negligence; and," that the motorman was not negligent in any manner in operating the car.

We have carefully examined all the testimony of the various witnesses with respect to the manner in which" the accident occurred, and while it is, as so often happens in cases of this character, conflicting upon many points, we cannot say that the verdict is so manifestly against the weight of the evidence as to justify us in setting it aside upon that ground.

The evidence in the case is not clearly convincing; indeed, had the evidence, which was heard by the jury, been submitted to us sitting as jurors, we might have reached a different conclusion than was reached by it. However, that is not the test. It is our duty to sustain this verdict and judgment, unless we are of the opinion that the verdict is manifestly against the weight of the evidence, and we do not so find.

The judgment of the court below will, therefore, be affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jewell Belting Company, Appellant, v. Hamilton Rubber Manufacturing Company, Appellee.
    Gen. No. 16,871.
    Res judicata—effect of former opinion. The opinion of the appellate court upon a previous appeal is binding alike upon the parties to the cause and the appellate court on a subsequent appeal.
    Appeal from the Superior Court of Cook county; the Host. Robert W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed on remittitur.
    Opinion filed May 21, 1912.
    Rehearing denied June 4, 1912.
    Chilton P. Wilson, for appellant.
    Montgomery, Hart & Smith, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This case is before us on an appeal from a judgment of the Superior Court of Cook County, wherein the jury denied appellant’s claim against appellee and found in favor of appellee’s claim, or set-off, against appellant.

The controversy grows out of a contract between the parties, under which the Jewell Company was to purchase from the Hamilton Company certain belting. The contract provided that all belting furnished thereunder should be guaranteed to be perfect in material and manufacture, and “should it prove otherwise, it will be replaced” without expense to the Jewell Company. Under this contract a large quantity of belting was supplied to the Jewell Company, which it claimed was crooked and, therefore, imperfect and not merchantable. Representatives of the Hamilton Company, who were present when the alleged defect was discovered at the time the belting was being received and examined, are said to have conceded that the belting was imperfect, but instructed the Jewell Company to “go ahead and send it out,’’ stating that if this were done, the Hamilton Company “would stand back of the belt,” as it had been guaranteed. Thereupon the Jewell Company sent out the belting,—almost the entire quantity going to one customer-—the J. I. Case Threshing Machine Company, of Racine, Wisconsin, which company some time later claimed that the belting was so defective that it would not pay for it, and threatened suit against the Jewell Company for damages.

The written contract between the parties was made in February, 1900, and the belting in controversy was delivered during the spring and summer of that year, various payments being made from time to time on account thereof. During the summer, autumn, and winter following, the Jewell Company was insisting that the belting in question was not in conformity with the contract, and seeking a settlement with the Hamilton Company. These negotiations resulted in a contract for a settlement between the parties, dated February 21, 1901. Pursuant to the contract then made, the Jewell Company paid its -’■account in full, with the exception of $2,500, which sum it reserved, pending a final settlement with the Hamilton Company. Having failed to secure a .satisfactory settlement the Jewell Company brought suit against the Hamilton Company in the Superior Court of Cook County, to recover back $2,611.14, which it had paid on account of the belting. In June, 1904, a trial by the court without a jury resulted in a judgment in favor of the Hamilton Company for $2,500. This judgment was reversed by this court in May, 1905, and the cause remanded for a new trial. (Jewell Belting Company v. Hamilton Rubber Manufacturing Co., 121 Ill. App. 13.) The second trial was had before a jury in February, 1910, with the result above stated.

The previous decision of the Appellate Court contains a full statement of the facts, to which reference is hereby made. In its opinion the court also construed the letter, or contract, between the parties, dated February 21, 1901, and the law of the case as there declared, including the construction of the contract in question, is binding upon the parties and upon this court in the present consideration of the case.

Briefly state, the contention of appellant now is that the belting delivered to it was found to be crooked and unmerchantable, and, therefore, not in comformity with the contract between it and the Hamilton Company, and that, accordingly, it had the right tó reject the belting, and, in fact, did so; that upon an inspection of the belting, the representatives of appellee practically conceded that it was defective, but still desired appellant to send it out and dispose of it; that in doing so, it acted solely as the representative of appellee, and that at no time did it accept the belting or treat it as its own; that not having accepted the belting, the title never passed to it, and, accordingly, it never was indebted to the Hamilton Company for it, and was, therefore, entitled to recover back the money which it had paid on account of the belting.

On.the other hand, appellee’s position is that, while it strenuously insists that the belting was not defective, yet even if it were so, appellant accepted and disposed of it, and is liable to the Hamilton Company therefor, subjects to any claim it might have by way of damages it had suffered on account of the belting not being up to the requirements of the contract.

The alleged defect of which appellant complains was that the belting, when unrolled, curved to one side, and could not be made to lie straight. Only a relatively small portion of the belting was inspected and found to be thus crooked, or curved, and the testimony as to.the extent to which it curved, tended to show a curve from about two feet to eight or ten feet in a hundred feet of length, and appellee insists that the evidence sustained its contention that the alleged defect was entirely unimportant and did not seriously, if at all, effect the utility or merchantability of the belting.

We have carefully examined the testimony adduced at the last trial, and have also carefully considered the contract between the parties of February 21, 1901, and we are of' the opinion that appellant’s contention, that it did not accept the belting, and was, therefore, entitled to recover back the money which it had paid on account thereof, cannot be sustained.

It appears that the Case Company returned a small portion of the belting in question to the Jewell Company, and this company sent it back to the Hamilton Company, and received credit for the full amount thus returned; and it also appears that, during the months, during which there was a controversy between appellant and appellee over the matter, appellant was making payments to appellee from time to time, but was insisting that the belting was not up to sample, but was defective. Indeed, appellant, in its brief, where contending that appellee knew the belting was crooked, says that ‘1 portions of the belting from time to time were returned by appellant to appellee, and appellee indicated a disposition to receive it all back.”

The conduct of the parties and the written agreement of Februáry 21, 1901, seem to us entirely inconsistent with appellant’s contention that it did not accept the belting in question, and that all it did in the premises was at the instance of, and was for the benefit of, appellee. In the first place, there was a guarantee in the written contract between the parties that all belting furnished under it should be perfect in material and manufacture, and if it proved otherwise it was to be “replaced” without expense. If, in fact, the belting when received, was found to be defective, appellant might have declined to accept it and would have been entitled, under the contract, to have such belting “replaced;” or, under the conditions shown, it might elect to accept the belting, use or dispose of it to the best advantage possible, and upon settling for it with appellee, appellant would be entitled to an off-set, rebate, or “allowance,” as the parties phrased it in their settlement contract, of such an amount as would indemnify it for any damage it sustained in consequence. That the latter course was the one adopted, seems to us clear. The language of the contract, dated February 21, 1901, indicates not only that the Case Company was making claim against the Jewell Company “for allowances,” but it is specifically stated that, at the time of the final settlement between appellant and appellee, there should be taken up further “the allowance that you (appellee) shall make on such belting.” It is impossible to believe that the Jewell Company would have continued to make payments from time to time, upon the belting it was receiving and about which it was complaining, until it had actually paid over $2,600 before the date of this contract of settlement, and then retain $2,500 of the remaining amount owed by it, if, as a matter of fact, it had not accepted the belting at all, and was, for that reason, in no way indebted therefor. No reason appears why it should continue paying from time to time for merchandise, which it had not accepted, and which, therefore, did not belong to it.

From the record before us, it appears that appellant received over 40,000 feet of the belting complained of, nearly all of which it disposed of to the Case Company; of this a small amount (aggregating less than 600 feet), was returned by the Case Company to the Jewell Company, and by the Jewell Company to the Hamilton Company, who duly credited appellant’s account therefor. What was done with the remainder of the belting,—the extent to which it was damaged by the alleged crookedness or curving said to be apparent in the portions examined, if at all, and the consequent damage which the Jewell Company suffered by reason thereof,—the record before -us does not disclose. Mr. Davis, manager for appellant, testified that he sent out the belting in anticipation that it would render satisfactory service, but nowhere does the record show what service the belting did render, or was capable of rendering, or what was its actual value.

In construing the settlement agreement of February 21, 1901, the Appellate Court said:

“It is impliedly admitted by the agreement that $2,500 of the purchase price of the belting had not been paid by appellant, and it was agreed that appellant would reserve that amount, pending which reservation it was to use its utmost endeavors to settle with the Case Company, and, if it should succeed in making a settlement with that company, it was to report to appellee and then the parties were to take up the question of what allowance appellee should make to appellant. There is no provision in the agreement as to what should be done in the event that appellant should not succeed in its efforts -to procure a settlement; but both parties evidently acted upon the hypothesis that a settlement between appellant and the Case Company might be made, and we do not think the agreement can be understood as meaning that, if such settlement should be found impossible, appellant would be bound to abandon its claim for damages. The agreement is, in effect, that negotiations between the parties should be suspended pending appellant’s efforts to settle with the Case Company. The evidence is that the appellant found it impossible to settle with that company; that the company not only refused to settle, but threatened to sue appellant. After it was demonstrated that no settlement could be made with the Case Company, appellant could rightfully sue for the damages ivhich it claimed, or appellee for the unpaid balance of the purchase price of the belting. Practically, both parties have so construed the agreement—appellant, by suing for damages, and appellee, by pleading a set-off, which is a cross-action for the unpaid balance of the price of the belting. ’ ’

The cause was remanded for a further trial in conformity with the views thus expressed. Appellant then had the opportunity of showing the extent to which it had suffered damage by reason of the alleged defects in the belting which it had received. A careful inspection of the record convinces u.s that appellant failed, to furnish the jury with any sufficient data upon which the jury could base a verdict in its favor. Appellant is claiming that the goods were defective. Even this is contested, and upon that question the evidence is conflicting, but, if it be grantéd, appellant could not retain the goods without paying for them. If they were defective, and did not meet with the conditions of the warranty, the Jewell Company had its remedy,—it could either have insisted upon the goods being “replaced,” or, under the circumstances shown in this record, used them and then in an action brought against it by the Hamilton Company to recover for the belting, it could recoup its damages.

Appellant complains of some of the instructions, and also of certain rulings of the court with respect to the admission of evidence; but we do not find any reversible error in relation thereto. In the view we take of the. case, and our conclusion that no other verdict except one for appellee for some amount could have been rendered by the jury upon the evidence, the alleged errors in the instructions complained of are unimportant. Nor do we find any substantial error in the court’s ruling upon the evidence. Appellant’s contention here is,—as it was apparently in the court below,—that its acts in the premises did not constitute an acceptance of the belting in question, and that the title to the property continued in the Hamilton Company, but this contention we are unable to sustain.

We think, however, the verdict of the jury is too large. The amount claimed by the Hamilton Company was $2,497.70, and the verdict was for $3,613.98, thus showing that the jury must' have included oin its verdict interest upon the amount of the claim. We do not find any authority in law for the including of interest upon the claim down to the date of judgment, but a judgment bears interest. This judgment was entered March 12, 1910, and, with interest, the amount owing on the 12th of this month would be $2,768.28. If the appellee will remit $845.70 within five days, the judgment will be affirmed; otherwise, it will be reversed and the cause remanded for a new trial.

Affirmed on remittitur.


text:
    American Credit Indemnity Company of New York, Appellee, v. A. S. Yamer, Appellant.
    Gen. No. 16,860.
    1. Municipal court—“practice” as used in act construed. Construing the municipal court act in the light of its manifest purpose and scope the term “practice” is to he regarded as general and as including within it the term “pleadings.”

      2. Municipal court—validity of rules changing pleadings in first class cases. A rule of the munieipal court which provides that the pleadings in cases of first class shall be like those prescribed for cases of the 4th class is valid.
    3. Assumpsit—what not defense to action for money advanced. If the money sued for was actually advanced by the corporation plaintiff, and retained by the defendant, the fact that it may have been loaned for the purpose of deceiving the public and the insurance departments of various states constitutes no defense.
    4. Corporations—when defense of ultra vires unavailing. A party who has received a loan of money from a corporation and has had the benefit of such loan will not be permitted' to interpose the defense that the loan was ultra vires the corporation in an action brought to recover the money so loaned.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 191.0.
    Affirmed.
    Opinion filed May 21, 1912.
    Rehearing denied June 4, 1912.
    Gregory, Poppenhusen & McNab, for appellant; S. S. Gregory and G. T. Hellmuth, of counsel.
    Bull & Johnson, for appellee; Arthur S. Lytton ; of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

In June, 1910, appellee, the American Credit Indemnity Company of New York, a corporation, brought a suit of the first class in the Municipal Court of Chicago against appellant, A. S. Yamer, in assumpsit to recover certain moneys loaned and advanced by appellee to appellant. The statement of claim was “for money loaned and advanced by plaintiff to defendant at the times and in the amounts hereinafter stated, to-wit:

Sept. 10, 1907 .............................$ 983.61

Sept. 10, 1907 .....,....................... 16.39

Oct. 8,1907 ............................... 1,000.00

Interest agreed by both parties as due to Dec. 31, 1907 ................................ 25.00

$2,025.00

together with interest thereon at the rate of 6% per annum from February 10, 1908,” accompanied by an affidavit. The court below entered judgment for $2,226, which is conceded to be the amount received by Yamer from appellee, with interest.

Yamer filed his written objections to proceeding in the cause, “except by the same forms of pleadings, as near as may be, in use in similar cases in the Circuit Court,” and moved to strike the plaintiff’s statement of claim from the files.- The objection and motion were both overruled. At the time the appellee filed its verified statement of claim, it filed also a declaration in assumpsit, consisting of the common counts, duly verified. Upon motion of appellant, Yamer, that appellee be compelled to elect upon which it would proceed, the Municipal Court held that the declaration was improperly filed and ordered it stricken from the files; whereupon appellant, Yamer, filed an affidavit of merits, and afterwards an amended one. Upon motion of appellee, the two affidavits of merits were stricken from the files, and he was given leave to file another instanter, but he elected to stand upon his affidavits theretofore filed, whereupon the court entered judgment against him.

Appellant seeks a reversal of the judgment upon the following grounds: (1) that the Municipal Court erred in proceeding in the causé, except by the same form of pleadings, as near as may be, in use in similar cases in the Circuit Court; (2) the court erred in striking the affidavits of defense from the files; and, (3) that the court erred in rendering judgment against him.

In our consideration of the case, we are assuming, because it is conceded, that Bule 14 of the Municipal Court provides that pleadings in cases of the first class shall be the same a.s in cases of the fourth class, and also that Bule 15 of that court provides that, in lieu of the declaration, plaintiff shall file a statement of claim. Appellant contends that the court below committed error in proceeding under these rules, because he claims that Section 3 of the Municipal Court Act governs the proceedings in first class cases and that section expressly provides that in all cases of the first and second classes, the issues shall be made up “by the same forms of pleadings, as near as may be, in use in similar cases in the Circuit Courts.”

Bules 14 and 15, above referred to, are evidently based upon Section 20 and 28 of the Municipal Court Act. Section 20 provides that, “the judges of the Municipal Court shall have power to adopt, in addition to, or in lieu of, the provisions herein continued, prescribing the practice in said Municipal Court, or of any portion or portions of said provisions, such rules regulating the practice in said courts as they may deem necessary or expedient for the proper administration of justice therein: Provided, however, that no such rule or rules so adopted shall be inconsistent with those expressly provided for by this Act.”

Paragraph 9 of Section 28 provides: “The judges of said Municipal Court may, b.y rules adopted in the manner prescribed by this act, provide that the practice in cases of the first class shall be the same as in this act provided for cases of the fourth class.”

This provision was inserted in the Municipal Court Act by amendment of 1907, and Section 3 of the original Act must be considered as modified thereby.

Appellant insists, however, that these provisions of Sections 20 and 28, relate only to changes in “Practice,” and that Rules 14 and 15, adopted pursuant thereto, go beyond changing the “Practice,” and change the “Pleadings.”

Construing the Municipal Court Act in the light of its manifest purpose and scope, w'e regard the term “practice” therein used as a general term, and as including within it the “pleadings.” Indeed, our Supreme Court has recently held that the meaning of the word “practice” in the Act is so broad that it includes rules of evidence. City of Chicago v. Williams, 254 Ill. 360.

We are of the opinion that under the authority of Sections 20 and 28 of the Municipal Court Act, supra, the judges of that court are authorized to change the pleading in first class cases, because, in terms, these sections expressly exempt eases of the fourth and fifth classes from requiring any form of “pleadings” other than statements of claim, and authorize the court to make the practice (which, we think, includes pleadings), in first class cases, conform to that already expressly prescribed for fourth and fifth class cases.

In defining the word “practice,” our Supreme Court, in Fleishman v. Walker, 91 Ill. 318, said: “The mode and order of procedure in obtaining compensation for any injury by action or suit in the legally established courts from the inception of such suit until it ends in final determination of the court of last resort is all comprehended in the term ‘practice.’ ” Substantially the same meaning is ascribed to the word “practice” by Bouvier, and in Rapalje’s and Lawrence’s law dictionary.

The second ground upon which appellant seeks a reversal is the alleged error of the court in striking from the files defendant’s affidavits of defense. Appellee’s claim was for money loaned and advanced by plaintiff to defendant, and it is necessary to examine the affidavits submitted on behalf of appellant, to determine whether they present a defense to this claim. These affidavits allege that in September, 1907, one Phelan, being then president of appellee company, desired to obtain a loan of about $1,000 ; that his account with the company was already overdrawn over $30,000, and that he could not borrow any more from it; that affiant was then an agent for the company, and was not indebted to it; that Phelan requested affiant to procure from the company the sum of $1,000 as an advance on commissions to be earned by affiant, which should be charged to him on the books of the company but which should really be for a loan to Phelan, and which Phelan agreed to pay; that this arrangement was made for the purpose of deceiving the public and representatives of the insurance departments of the various states in which the company was doing business; that as affiant had been an agent for the company for more than sixteen years, and had known Phelan well during that period, he consented to and did, on September 10, 1907, obtain from the appellee company $1,000 under the circumstances detailed, of which amount he turned o.ver to Phelan $983.61, ond retained but $16.39 for his own use; that, about October 8, 1907, there was a similar transaction by which affiant obtained an additional $1,000 from the appellee company, of which he sent to Phelan his check for $983.61;.that the facts in relation to the transactions were known to the treasurer and to the vice president and secretary of the company, and to the others connected with the company, and assented to and approved by and participated in by them; that about December 30, 1907, at the request of one Treat., then vice president and secretary of the company, affiant gave his check for $2,025 to the treasurer of the company, so that affiant’s account on the books of the company could be balanced before returns were made to the insurance department of the state of New York; that upon the margin of the check there was written, ‘ ‘ Hold until February 10, 1908;” that it was then agreed that this check should never be collected, but should ultimately be cancelled and returned to the affiant; that the bonks of the company were balanced, showing this debit of $2,025; that, though, affiant remained with the company until January 14, 1910, he was not called upon to pay a dollar on account of its claim until about May 20, 1909, at which time it was understood that Phelan was to leave the company, which he did in August, 1909, though the matter of payment was not pressed upon the affiant until March, 1910; that affiant believes that if the Company had insisted, before it was determined that Phelan was to retire, that affiant should pay this indebtedness, he could have induced Phelan to pay it and protect affiant; that while in the employ of the company, and after having given the check in question, the company paid him over $11,000 for commissions earned by him; that he frequently asked for the return of his check, but the company still retained it, and claims to be entitled to payment thereof; that the fact that Phelan did.thus overdraw his account and secure advances from agents for his own benefit was referred to in a report of an examination of the company made public in 1909.

The other affidavit of merits was to the effect that the plaintiff company is a corporation organized under the laws of the state of New York for the sole purpose of furnishing credit insurance and with only the powers and rights contemplated by the laws of New York to be exercised by companies organized for such a purpose.

Upon these affidavits appellant contends, (1) that the contracts were void because contrary to public policy; (2) that the loans were ultra vires, and (3) that appellee’s delay in presenting the check put it out of defendant’s power to recoup the money from Phelan, and it could not recover in this action because of its laches.

We do not think any of these contentions can be sustained. It is not only not denied, but it affirmatively appears from the affidavits in question that appellant did obtain from the appellee company the money in question, and that demand had been made upon him for repayment and such repayment refused. The money which he thus procured, and which at the time of the suit, he still held or had disposed of, as he saw fit, was in equity and good conscience the property of the company, and we have no doubt that the company was entitled to recover it upon the theory of an implied promise to repay.

We do not see that appellee company violated any public policy in advancing to Tamer, its agent, this money. From the affidavits it appears that Tamer took the risk which was involved in procuring advances from the company to himself, with the arrangement between him and Phelan, by which Phelan was to receive from affiant the larger part of the loan and should repay it, so that affiant should not be called upon to pay; and the allegation in the affidavit that this arrangement was made between Phelan and affiant for the purpose of deceiving the public and the representatives of the insurance departments, cannot affect the liability of Tamer to repay the money which was advanced to him by the company. Nor would it make any difference even if the fradulent arrangement incidentally operated to deceive the insurance commissioners and the public authorities. Appellant cannot, on that account, retain money which he concedes was advanced to him by the company. The case of Lime Bock Bank v. Hewett, 50 Me. 267, cited by appellant in support of his contention, is not an authority upon the points involved. In that case the bank sued the maker of a note, which was given without consideration and with the express understanding by the officers of the bank that it should be used only for the purpose of deceiving the bank examiners. The distinction between that case and the one at bar is very apparent.

Upon the contention that the transaction is ultra vires, it is our view that appellant cannot avail himself of that defense. “A corporation cannot avail itself of the defense of ultra vires, when the contract has been in good faith fully performed by the other party, and the corporation has had the full benefit of the performance of the contract. * * * The same rule holds eo converso. If the other party has had the benefit of the contract fully performed by the corporation, he will not be heard to object that the contract and performance were not within the legitimate powers of the corporation. ” Darst v. Gale, 83 Ill. 136; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Kadish v. Garden City Equitable Loan and Building Association, 151 Ill. 531; 29 Am. & Eng. Ency. of Law, 50 and 51. In Leslie v. Lorillard, 110 N. Y. 519, it is said that, “the rule, however, is well settled that the plea of ultra vires should not prevail when it would not advance justice, but, on the contrary, would accomplish legal wrong.” And as was said in Brown v. Mortgage Company, 110 Ill. 235, “to allow the plea of ultra vires here would be to work a wrong,—it would be contrary to natural right and justice, which is never admissible.” (Citing Darst v. Gale, 83 Ill. 136.)

Where a contract has been fully executed on one side and nothing remains to be done under it but the payment of money by the other, which is' nothing more than the law implies against the defendant, the plaintiff may declare suit on the original contract, or, generally, in indebitatus assumpsit, at his election. Lane v. Adams, 19 Ill. 167; Foster v. McKeown, 192 Ill. 339; Sands v. Potter, 165 Ill. 397; Shepard v. Mills, 173 Ill. 223.

Finally, appellant urges that by its delay in presenting the check in question, appellee company put it out. of Yamer’s power to recoup the money from Phelan; therefore, the laches of the company will prevent a recovery. This contention cannot be sustained. It clearly appears from Yamer’s affidavits that the check was not given in payment of the indebtedness. This precludes him from relying upon such authorities as indicate that when a note, bill of exchange, or check has been given in payment of a debt, it must be returned or tendered before a recovery can be had upon the original indebtedness. Appellant was bound to know that he was liable to the company to repay the money which it. advanced to him, and if he expected to rely upon Phelan’s promise to protect him against this liability, he should have required Phelan to secure him.

In our opinion, the affidavits do not present a defense, and the judgment of the court below was proper, and should be affirmed.

Judgment affirmed.


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    Chesapeake and Ohio Railway Company et al., Plaintiffs in Error, v. Solomon T. Fish, Defendant in Error.
    Gen. No. 16,562.
    1. Statute of limitations—what not new cause Of- action. A mere change of parties plaintiff does not, of itself, change the cause of action.
    2. Statute of limitations—when involuntary non-suit suffered. Held, in. this case, that the plaintiff had suffered an involuntary non-suit in a previous action which had been brought by it upon the same cause of action and that the action of the supreme court upon a review of the^ original action was such as to foreclose the question as to the identity of the causes of action.
    3. Pleading—when plea in abatement defective. A plea in abatement setting up a non-joinder is bad if it fails to give plaintiff a better writ.
    4. Assumpsit—when plea insufficient to bar action. If a special plea does not confess or avoid and does not deny the allegations of liability, it is insufficient to bar an action.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed May 21, 1912.

      Victor A. Remy and Leslie A. Needham, for plaintiffs in error; Curtis H. Remy, of counsel.
    Newman, Northrup, Levinson & Becker, for defendant in error; Marcus B. Hart and Chester E. Cleveland, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This writ of error brings before us a judgment of the Municipal Court of Chicago, entered upon the written pleadings in the cause, and challenges the correctness of the judgment of the court below in overruling plaintiffs’ demurrer to the defendant’s second rejoinder, and in overruling plaintiffs’ demurrer to the defendant’s seventh and eighth pleas, and entering judgment against plaintiffs for costs.

For a proper understanding of the points involved, it should be further stated that plaintiffs in the court below commenced an action against the defendant in error August 14, 1908. The declaration alleged that the defendant became indebted to the plaintiffs, doing business as The Kanawha Despatch, in the sum of $3,000 for money had and received for plaintiffs’ use, and for money expended for defendant’s use, and for forbearance to sue, etc. To this declaration, defendant filed eight pleas: (1) the general issue; (2 and 3) the statute of limitations; (4, 5 and 6) nul tiel corporation; (7) that it was ultra vires for plaintiffs to do business as “The Kanawha Despatch,” and, therefore, they cannot maintain the action; and (8) nonjoinder of parties plaintiff.

Issues were joined on all except the second, third, seventh and eighth of these pleas. To the seventh and eighth, plaintiff filed special demurrers, which the Municipal Court overruled; to the second and third (statute of limitations), plaintiffs replied that in March, 1899, and within five years after the accruing of their action, plaintiffs commenced a suit in the Superior Court of Cook County to recover the sum claimed; that involuntary non-suit had been entered against the plaintiffs in the case, whereupon they commenced this action within a year.

To this replication, defendant filed three rejoinders, and issue was joined upon the first and third, and a demurrer filed to the second. The second rejoinder averred thát the plaintiffs in the action in the Superior Court “being merely Kanawha Despatch,” recovered a judgment which was reversed by the Appellate Court; that later the Supreme Court reversed the judgment of the Appellate Court in part, and remanded the cause with directions that leave be given to amend by making the real parties in interest plaintiffs ; ‘1 that on April 18,1906, an amendment was made in the Superior Court by which the same parties, who are plaintiffs in this cause in this court were made plaintiffs in that.” The rejoinder then admits that plaintiffs suffered the involuntary non-suit mentioned in their replication.

Plaintiffs’ demurrer to this rejoinder, raised the question whether this action is barred by the statute of limitations, under the following facts disclosed by the pleadings: That in 1899, and within five years of the accruing of the action, suit was brought in the name of the Kanawha Despatch, against the defendant to recover on the same cause of action as is counted on in this case; that a judgment was recovered, which was reversed without remanding by the Appellate Court in Fish v. Kanawha Despatch, 118 Ill. App. 284; that later the Supreme Court reversed the judgment of the Appellate Court and remanded with leave to amend the pleadings, by making the real parties in interest plaintiffs; that pursuant to this order, in April, 1906, present plaintiffs were made parties to this suit in the Superior Court. As this action was commenced within a year fropi what was adpiitted to be an involuntary non-suit the question raised is whether or not the amendment made in the Superior Court, by making the real parties in interest, plaintiffs, introduced a new cause of action. The lower court held that it did, and overruled plaintiff’s demurrer to the second rejoinder. Plaintiffs elected to stand by their demurrers, and the Municipal Court, accordingly, dismissed the action and entered judgment in favor of defendant.

Plaintiffs in error contend that the court below erred in overruling their demurrer to the second rejoinder to the replication, because:

(A) The amendment made in the Superior Court ease, since it consisted solely of the substitution of parties plaintiff, did not amount to the institution of a new cause of action, but was merely a continuation of the cause commenced in 1899, and, therefore, the amendment related back to that date:

(B) The precise question of whether the Statute of Limitations would be available as a plea to the amended declaration, and, consequently, whether it constituted a defense to this present action, was decided in Kanawha Despatch v. Fish, 219 Ill. 236, adversely to defendant’s contentions and contrary to the Municipal Court’s ruling.

Plaintiffs contend that the court below erred in overruling its demurrer to the seventh plea, because the plea

(A) Fails to confess the causes of action alleged in the declaration;

(B) Alleges no facts justifying the conclusion that it-was ultra vires plaintiffs to do business as Kanawha Despatch;

(C) Affords, in no event, a defense, because the contract here sued on is not the alleged ultra vires agreement, but one implied by the law itself.

Plaintiffs in error also contend tliat the court below erred in overruling their demurrer to the eighth plea, because:

(A) A plea of nonjoinder of plaintiffs in bar amounts to the general issue;

(B) The plea fails to confess plaintiffs’ cause of action;

(C) The plea does not show that anyone other than plaintiffs has any interest in this proceeding.

We regard the statement of counsel for defendant in error, in their brief and argument, as conceding that the Municipal Court erred in overruling plaintiffs’ demurrer to their seventh plea, and we shall, therefore, consider only the other two propositions involved, viz:

(A) Whether the action is barred by the statute of limitations, as alleged in the second and third pleas:

(B) Whether the Municipal Court erred in overruling the demurrer to the eighth plea.

As to the first of these, (A) we think it clear that the amendment in question, made in the Superior Court by the direction of the Supreme Court, in which the plaintiffs in error were substituted as parties plaintiff, did not constitute the beginning of a new cause of action, but was merely a continuation of the same cause of action theretofore, and in 1899, commenced, and that, therefore, the amendment related back to the time of the beginning of the suit.

A mere change of parties plaintiff does not, of itself, change the cause of action. Thomas v. Fame Insurance Co., 108 Ill. 91, 100; United States Ins. Co. v. Ludwig, 108 Ill. 514, 518, 519; McCall v. Lee, 120 Ill. 261, 265, 266.

Section 24 of the Practice Act provides:

“At any time before final judgment in a civil suit amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, changing the form of action, and in any manner, either of form or substance, in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defense. The adjudication of the court allowing an amendment shall be conclusive evidence of the identity of the action.”

In construing this section the Supreme Court, in Thomas v. Fame Ins. Co., supra, said:

“In furtherance of the intention of the legislature a very broad and liberal construction has been given to this section. It was evidently the intention of the legislature in adopting this provision, that no amendment after the commencement of the suit and before final judgment, resulting in a change or substitution of parties to the action or in a change of the form of the action, should be deemed a change of the action itself. Sidway v. Marshall, 83 Ill. 438; Teutonia Life Ins. Co. v. Mueller, 77 id. 22; Dickson v. Chicago, Burlington and Quincy R. R. Co., 81 id. 215; Challenor v. Niles, 78 id. 78. The only limitation upon the right thus conferred is, that amendments are to be allowed ‘on such terms as are just and reasonable,’ and ‘to enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant make a legal defense. ’ ”

In United States Ins. Co. v. Ludwig, supra, the Supreme Court, in referring to its previous decision in Teutonia Ins. Co. v. Mueller, 77 Ill. 22, said:

“As was there said, under the liberal provisions of this statute any amendment in civil actions, either in form or in substance, is permissible, that tends to the furtherance of justice. The amendment allowed in the case being considered, as well as the amendment in the case cited, was simply to substitute the real party having the right to sue, as plaintiff. Clearly that was within the discretion of the court, to enable the parties ‘to sustain the action for the claim for which it was intended to be brought. ’ Substituting the party having the legal right to sue for the claim for which the action was brought, instead of another party improperly named as plaintiff, is in no sense commencing a new action against defendant. So far as the defendant is concerned, this suit or action was commenced against it at the time of the issuing and the service of the summons.”

Moreover, we think the action of the Supreme Court in Kanawha Despatch v. Fish, 219 Ill. 236, 241, is conclusive against this contention of the defendant in error. It follows, therefore, that in our opinion the demurrer to the second rejoinder of the defendant in error, invoking the statute of limitations, should have been sustained.

Considering now (B),—whether the Municipal Court erred in overruling the demurrer to the eighth plea of the defendant in error, we observe that the declaration alleged that defendant in error, on March 17, 1894, “became indebted to” the plaintiffs, “then doing business in the name and as the Kanawha Despatch,” in the sum of $3,000, “for money paid out and expended by the plaintiffs for the use of the defendant, at his request,” and “for the like sum of other money received by defendant for the use of plaintiffs,” etc. The plea in question avers,—(1) that the causes of action mentioned in the declaration are the same; to wit, to recover a sum of money plaintiffs claim the Kanawha Despatch paid defendant by mistake on February 28, 1894; (2) that at the time of the supposed payment and ever since, the Chesapeake & Ohio Railway Company was a Virginia corporation; the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, an Ohio corporation, and the Illinois Central R. R. Company, an Illinois corporation; that all of said corporations being organized for the purpose of operating railroads; that at the time of the supposed payment and ever since, “the said plaintiffs were engaged jointly with certain other corporations organized for the purpose of operating railroads and steamboats, to-wit: Southern Railway, Atlantic Coast Line, the Ohio Central Line, Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, Louisville" & Nashville Railroad Company, Old Dominion Steamship Company, Merchants & Miners Transportation Company, and Clyde Steamship Lines, under the name and style of ‘The Kanawha Despatch’; that said supposed payment, if made at all, was made to the defendant by said ‘The Kanawha Despatch’, as an association composed not only of the plaintiffs but also of said other corporations above named; and" that the said plaintiffs cannot maintain said action in their own name without joining with themselves as plaintiffs, said other corporations.” This plea concludes with a verification and prayer for judgment. Without discussing at length the points raised in the briefs of plaintiffs in error and of defendant in error respectively, against and in favor of the sufficiency of this plea, to each of which we have given careful consideration, it is our opinion that this plea is insufficient, both in substance and in form. The defense sought to be set up in this plea should have been made by a plea in abatement,—but it is conceded that the plea was filed too late to be entitled to be effective as a plea in abatement. It is defective as a plea in abatement, because it fails to show by what persons or corporations the money referred to in the plea was paid to defendants in error, and who, therefore, should, be joined as plaintiffs; it, therefore, fails to give a better writ. We regard it also insufficient as a plea in bar, for it does not. deny that the money, averred in. the declaration to have been paid to or for the use of defendant in error, was, in fact, paid by plaintiffs, either b^ themselves, personally, or through the channel or agency of the so-called “Kanawha Despatch.”

For the reasons given, the judgment of the Municipal Court is reversed, and the cause remanded to that court.

Reversed and remanded.


text:
    Sampson W. Moon, Defendant, in Error, v. Charles E. Roberts, Plaintiff in Error.
    Gen. No. 16,337.

      Evidence—when mechanical demonstration improper. It is improper for the court to permit a mechanical demonstration, but such error is harmless where the cause is tried before the court without a jury.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and judgment here.
    Opinion filed May 21, 1912.
    William Sherman Hay, for plaintiff in error.
    David Jetzinger and Howard E. Leach, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Plaintiff in error, Charles E. Roberts, seeks a reversal of a judgment for $1313.67, entered against him December 18, 1910, in the Municipal Court of Chicago, in favor of defendant in error, Sampson W. Moon, for use of Charles Heddon. Though three separate suits had been brought, they were consolidated into the one in which the judgment was entered. The trial was had before the court, without a jury.

It appears from the record that the parties had business relations, under three separate written contracts between them, dated February 25, 1907, July 17, 1907, and July 17, 1908, respectively, upon the last of which these suits were founded.

Moon was the inventor of an electric vibrator,—a machine for giving mechanical massage,—and Roberts was an extensive manufacturer of long experience and large means. It is evident from the contracts, all of which were offered in evidence, that Moon desired to avail himself of the capital and business experience which Roberts is shown to have possessed, and, on the other hand, that Roberts desired to secure an interest in the manufacture and sale of an electric vibrator. After the first contract between the parties had been carried out, the second was entered into, and, under it, Roberts assumed more control over the invention and business than was provided for in the first. During the period covered by the second contract, a large number of vibrators were manufactured in Roberts’ shop, which were extensively advertised in pamphlets issued under the direction of Moon and an advertising agent for Roberts, in which it was claimed that the use of this particular vibrator would cure a long list of diseases and ailments. During the year it was found necessary to make many structural changes in the machine, ■ among which were some to strengthen it, others to make it less noisy, and still others to lessen the cost of construction. During the entire period covered by the last contract, Moon was working in Roberts’ shop, and Roberts, together with his son, Owen, who acted as manager of the business, and who was shown to be a skilled mechanical engineer, were there also practically every day. There is some controversy as to the extent to which the machine was deficient in operating, and as to some representations made concerning it by Moon.

Under the contract sued upon, Moon released Roberts from all liability for past royalties, and, in turn, Roberts agreed that-Moon should be retained as manager of the Vibrator Company for one year, from July 17, 1908, its date, at a salary of $50 per week, and, in addition, that he should receive $50 per month as an advance payment on license fees to become due to him in the future. This contract, like those which preceded it, is inartificially drawn and somewhat obscure, but we think that so much of it as we have stated, is clear. On March 6, 1909, Owen Roberts informed Moon that his father had decided to discontinúe the business, and, accordingly, Moon was no longer employed by Roberts. Up to that time, pursuant to the contract, Moon’s salary had been paid, and he had received various advances. From the statement of claims filed in the three suits, it appears that it is sought to recover for his salary at $50 per week from March 6, 1909, to July 16, 1909, and for $50 per month, as an advance payment on license fees to become due to him in the future, for the year beginning July 17, 1908, and ending July 16, 1909, less such deductions, if any, as were properly chargeable against these sums.

It appeared that, during the period covered by the contract, Moon had been paid in four separate items, sums aggregating $236.23, which was to be credited upon the amount of his claim, as was also $500, which by his own testimony, “was to apply on future royalties which should accrue after the expiration of the contract of 1908.” Plaintiff in error complains that Moon’s invention was not what it was represented to. be, and that he was entitled to offset, against Moon’s claim, the business losses he had sustained in trying to perfect the invention, which, he had been led to believe by Moon’s statements to him, had already been perfected.

We have carefully gone over the evidence, which was submitted to the court below, and do not find that any such misrepresentations were made by Moon as justifies Roberts’ claim of a set-off. It is urged by plaintiff in error that the contracts were prepared by an attorney for Moon and executed by him (Roberts), without submitting them to his own attorney, and he complains that some of their features impose unjust conditions upon him; but there is no showing that justifies any intimation that Moon acted in bad faith with respect to these contracts, or that Roberts was overreached. On the contrary, his large business experience, and his high standing as a man and a manufacturer, clearly put him upon at least an equal footing with Moon, in entering into these contracts.

Plaintiff in error complains that the court below erred in not admitting the testimony of Dr. Eberhart, a witness called on behalf of the plaintiff in error, and also in permitting the defendant in error, Moon, at the time of the trial, to make a physical demonstration of the vibrating machine to the judge. We think the testimony of Dr. Eberhart was properly excluded, and while the demonstration made by defendant in error, Moon, was objectionable, yet, its admission, under the circumstances, was unimportant, and it did not constitute reversible error. The hearing was before a court without a jury, and even if the demonstration might have been harmful before a jury, we do not think it could have had any injurious effect upon the court.

The court below saw the witnesses and observed their manner of. testifying, and we think the judgment is fully authorized by the testimony, except that it fails to credit plaintiff in error, Roberts, with the $500 advance to apply on royalties, which, according to the testimony of the plaintiff himself should accrue after the expiration of the contract sued upon. As no such royalties ever did accrue, the amount should be credited.

From the testimony it appears that plaintiff was entitled to recover upon the basis of nineteen weeks at $50 per week, and twelve months' at $50 per month, making a total of $1,550, upon which should be credited the sums of $236.23 and $500, both shown by plaintiff’s evidence. We have carefully examined the contract upon which suit is brought, and the testimony of the plaintiff, and are of the opinion that this deduction should be made. The judgment, therefore, should have been entered for $813.77. Because of the error indicated, the judgment of the court below will be reversed, and judgment entered here for $813.77. As no interest is allowed to defendant in error, the costs will follow the judgment against plaintiff in error.

Judgment reversed and judgment here upon a finding for $813.77.


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    In the matter of the Voluntary Assignment of the Calumet State Bank to Melville C. Eames, assignee, Appellant, v. Kate Becker, Appellee.
    Gen. No. 17,486.
    Appeals and errors—when order of county court interlocutory. If the assets of an estate are under the control of the county court, the orders made therein from time to time are merely interlocutory and subject to adjustment by the entry of the final orddr, and the assignee is not entitled to appeal from an order of such court setting aside a previous order directing a distribution of assets.
    Appeal from the County Court of Cook county; the Hon. Lewis Binaker, Judge, presiding. Heard in the Branch Appellate Court at • the March term, 1911.
    Dismissed.
    Opinion filed May 21, 1912.
    Be-hearing denied June 4, 1912.
    Charles C. Arnold and Joseph P. Eames, for appellant.
    Joseph F. Grossman and Charles R. Napier, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Appellee seeks a dismissal of this appeal upon the ground that the order appealed from is not an appealable one.

It appears appellant, Melville C. Barnes, was assignee of an estate pending in the County Court of Cook County, under the general insolvency laws of the State of Illinois. In the course of the administration of the estate, he procured the entry of an order on the 5th of December, 1902,' which showed that he then had on hand as such assignee several thousand dollars, and declared a dividend in the estate, to creditors, of 17%, and allowed the assignee to retain $1,000 for his own services and to pay $3,000 to his attorneys. On the 17th of the same month, the County Court entered an order allowing Kate Becker to file her petition, álleging that on May 1, 1902, she became a tenant of a building belonging to the estate-, under a lease from appellant as assignee, and that, owing to his negligence in failing to keep" the building in repair, she was injured. Subsequently the County Court entered an order allowing her to bring suit against the assignee in the Circuit Court of Cook County for the injuries complained of. This suit resulted in a judgment for $2,000 in her favor on July 11, 1908. On the 29th of October, 1909, the County Court entered an order in the matter of the insolvent estate, allowing her claim for $2,139.15, being the amount of the judgment with costs.

Subsequently, upon leave given, she filed objections and exceptions to the petition filed by the assignee in December, 1902, which, on the 3rd of December, 1910, the court sustained, and entered an order vacating and setting aside the previous orgLer of distribution entered on the 5th of December, 1902. The order further recited that sufficient funds of said estate came into the hands of assignee to pay all costs of administration and all preferred claims allowed, including that of appellee, and also, that after notice to assignee of the existence of the claim of the said Kate Becker, and while sufficient estate funds were in bis hands to pay all costs of administration, etc., said assignee procured the court to make the order of distribution of December 5,1902, without notice to her, and thereafter, made such distribution, leaving her claim unpaid. The court thereupon decreed that the order of distribution of December 5, 1902, in so far as it affected the rights of Kate Becker in the matter of payment of her claim as allowed, be vacated and set aside, and that assignee pay out of the funds heretofore in his hands as assignee, the amount of appellee’s claim. From this order appellant took an appeal to this Court.

We think the motion to dismiss the appeal must be sustained. Appellant was an officer' of the County Court. The assets of the estate were under the control of that court, and the orders made therein from time to time were merely interlocutory, and subject to adjustment upon the entry of the final order. This is not an appeal from an order directly affecting bis compensation, nor refusing to allow items in his account as assignee. The claim of appellee.for a judgment procured against appellant, as assignee, for the negligence in the administration of the estate, constituted an element of the costs of administration, and, as such, was a preferred claim, and entitled to payment before distribution of the assets, of the estate to its general creditors. As assignee in the County Court proceedings, appellant had the entire title to the estate, and it was his duty to administer it under the direction of that court, and, obey its orders with respect to the distribution of such assets as might come into his hands, as such assignee.

Appellant suggests that the judgment against hirn, entered in the Circuit Court, and subsequently allowed in the County Court proceeding, was erroneous in that it a personal judgment, and awarded execution against him. It is sufficient to say that if the Circuit Court judgment was erroneous, he had his remedy by a direct appeal therefrom. In Clark, Assignee, v. Burke, et al., 62 Ill. App. 252, cited by appellant as an authority against allowing this motion, it appears that there was no showing that assignee had ever, in any way, received any sum from which the distributed amount directed by the court could be paid, and the case is, therefore, not in point.

The motion to dismiss the appeal must be allowed.

Appeal dismissed.


author: Mr. Justice Clark

text:
    Walter Wendling, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,935.
    1. Pleading—what not denied 5y general issue. Ownership averred in a declaration in an action for personal injuries is not put in issue by a plea of the general issue.
    2. Contributory negligence—what not as a matter of law. Standing upon the platform or step of a traetion ear when it is in motion is not prima facie evidence of negligence.
    Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding, Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 21, 1912.
    B. F. Richolson and C. Le Roy Brown, for appellant; Leonard A. Busby, of counsel.
    Adler & Lederer, for appellee; Francis Adams, Jr., of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

The appellee, who was the plaintiff in the court below, recovered a judgment against the Chicago City Railway Company, appellant, in the sum of $2,000 for personal injuries sustained on October 8, 1907, caused, as alleged, by the negligence of the Railway Company, between five and six o’clock p. m, on the day in question.

Appellee at the time of the accident was sixteen years of age. He got upon the front step of the platform of a car of the Railway Company which was southbound, at the northwest corner of Twelfth and Clark streets in the city of Chicago. Clark street runs north and south, and Twelfth street east and west.' At Twelfth street there is a viaduct which extends for a number of blocks. A portion of Clark street is elevated in order to enable the street cars to pass over the viaduct. At the south fine of Twelfth street the tracks on Clark street are on an incline extending south five or six hundred feet. At the time of the accident there were five .iron poles along the decline west of the west or southbound tracks. The poles were located at the edge of the sidewalk. The testimony is not harmonious as to the distance between the poles and the outer edge of the west track, the distance being variously estimated by the witnesses from one foot to two and one-half feet. The car appears to have been crowded, although there is conflict in the testimony as to whether or not there was room for one to stand in the ear; but it appears uncontradicted that the back platform was crowded and that there were also people upon the front platform. Appellee stood on the step of the front platform, as heretofore stated, there being two others with him. He appears to have taken hold with his left hand of the handle of the body of the car and to have faced the car. There was some testimony to the effect that he had hold of this handle with both hands. As the ear was going down the south decline the appellee was struck by a pole and thrown from the car and injured. The appellee testified that the car was going rapidly and in such a way that it “swung out” once or twice, and that he “swung out” with it.

The testimony on behalf of the appellant, from witnesses who were passengers in the car, is to the effect that the car did not swing, but that appellee threw himself backwards just before reaching the pole in question.

The points relied upon by appellant for a reversal of the judgment gre, that the verdict was against the manifest weight of the evidence as to the negligence of the appellant; second, that by the undisputed evidence the appellee was guilty of contributory negligence ; third, that the court erred in the giving of improper, and the refusal to give proper, instructions to the jury.

The question of the relative rights and duties of a carrier and passenger, under the circumstances shown to have existed in the case under consideration, is no longer a matter of doubt. In Math v. Chicago City R’y Co., 243 Ill. 114, it is said:

“The foot-board is not furnished for ordinary use in riding on cars, but it is universally known that there are times when street cars are so crowded with passengers that some are compelled to ride on the foot-board or not reach their business or homes at all. Such conditions furnish an excuse for standing on a foot-board, so that there is no rule of law that standing in such a place constitutes, in itself, negligence on the part óf a passenger. North Chicago Street Railroad Co. v. Polkey, 203 Ill. 225. If the circumstances are such that standing on the foot-board is an act of carelessness on the part of a passenger, or there is a failure to exercise such care as persons of ordinary prudence would exercise in the same position, there can be no recovery. Hewes v. Chicago & Eastern Illinois Railroad Co., 217 Ill. 500. The fact that a street car is crowded so that a passenger must stand on the foot-board if he rides at all does not render the foot-board a safe place to ride any more than if the car were empty. The defendant having accepted Rietzl as a passenger on the foot-board became bound to exercise toward him the high degree of care required of carriers of passengers, and the more dangerous the position of a passenger, if it is assented to by the carrier, the greater precaution the carrier is bound to observe. At the same time the law imposes on the passenger the duty of observing for his own safety the degree of care that a person of ordinary prudence would observe while riding on a foot-board, and it is obvious that the attention of the passenger to the surroundings and precautions to avoid danger would be greater than when occupying a seat in a place of comparative safety. The attention and circumspection to avoid injury required of both parties is to be measured by the situation of the passenger and the dangers connected therewith. ’’

The negligence charged in the declaration was that appellant allowed the poles to be in close proximity to the tracks, and so close that the swinging and swaying of a car of the size and construction of the one on which appellee was riding would tend to throw a passenger who was on the step of the car against the poles. It was also charged that the appellant negligently operated the car in question, and it is claimed by the appellee that both charges are sustained by the evidence. The second charge, namely, that the car was improperly managed, it is alleged by the appellee, is proved by the fact that the car was allowed to attain a higher rate of speed than was proper under the circumstances; that this rate of speed resulted in the swaying of the car, the necessary consequence of which was to cause the appellee, standing where he was, to sway outward from the car, thus causing him to strike against the pole. Suggestion was made in the argument by counsel for the appellant that there was no proof that the poles belonged to the appellant. The declaration charged that the defendant was the owner. No special plea was interposed. Ownership must therefore be assumed. Brunhild v. Chicago Union Traction Co., 239 Ill. 621, and cases cited.

There was sharp conflict in the testimony as to the rate of speed at which the car was running. One of the witnesses for appellee placed it at ten miles an hour, and others described it as “running fast.” Whether the speed at which the car was running was so fast as to make it the basis of a charge of negligence, in view of the crowded condition of the car, the proximity of the tracks to the poles, etc., was a question within the particular province of the jury to determine. It is true several witnesses for the appellant testified that the car was running slowly, smoothly, and without any swaying or swinging. These witnesses for the most part were in the car, and it is possible that they would not notice the swaying to the extent that one might who was standing upon the platform. We have carefully considered all the evidence adduced at the trial, and are unable to say that the determination of the jury in regard to the question, as shown by the verdict, was against the manifest weight of the evidence. Nor, in our opinion, would we be justified in reversing the case on the ground that the appellee was shown to have been guilty of contributory negligence. Standing upon the platform or step of a car when in motion is not prima facie evidence of negligence. Chicago & Alton Ry. Co., v. Fisher, 141 Ill. 614. Math v. Chicago City Railway Co., supra. If appellee voluntarily swung out from the car he doubtless would be guilty of contributory negligence. The jury, however, under, as we believe, suitable instructions, has found to the contrary, and we cannot say that the result reached is so manifestly against the weight of the evidence as to warrant a reversal of the judgment.

The third point urged upon us by the appellant is that the court erred in the giving of improper and in 'the refusal to give proper instructions. We have read with care the charge of the court, which consisted of five instructions tendered by the appellee and sixteen as tendered by the appellant, and are of the opinion that on the whole the instructions were proper and that they correctly advised the jury as to the law of the case. We think that the instructions tendered by the appellant and not given were, in so far as they were proper, incorporated in the instructions as given.

As we find no error in the record, the judgment will be affirmed.

Affirmed.


text:
    Louis Lepman, Defendant in Error, v. Employers Liability Assurance Corporation, Ltd., of London, Plaintiff in Error.
    Gen. No. 16,899.
    1. Insurance—“collision” construed. Held, that the word “collision” as used in a policy covering an automobile was not to be com fined to a ease where both of the colliding objects were in motion.
    2. Measure op damages—in action upon insurance policy. Held, that under the terms of the policy in question in this ease, which covered an automobile, that the measure of damages was the actual cost of repairing the automobile which had been injured by the collision.
    3. Instructions—predicated upon evidence. An instruction is properly refused which would suggest to the jury that they might indulge in conjecture in order to determine a question material to the issue.
    4. Municipal court—when written instructions properly refused.
      In the Municipal Court written instructions offered need not be ¿iven where the judge decides to charge the jury orally.
    Error to the Municipal Court of Chicago; .the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 21, 1912.
    John Clark Baker, for plaintiff in error.
    Frank Schoenfeld, for defendant in error.
   Mr. Justice Clark

delivered the opinion of ihe court.

Recovery was had in this case upon a policy of insurance upon an automobile, issued by the plaintiff in error to the defendant in error.' The policy contained the following clause:

“B. ‘Against loss from damage to any of the automobiles enumerated and described herein, resulting from the collisions of said automobiles with any other automobile, vehicle or object, excluding (1) damage or loss to tires (unless the total damage caused by the collision exceeds the sum of $200), (2) consequential damages, (3) loss or damage by fire, (4) damage resulting from collisions due wholly or in part to up-sets, (5) loss or damage unless the total damage caused by the collision exceeds $15.’ ”

The claim of the defendant in error, hereinafter called the owner, is that the automobile was injured by a collision with a “brick, stone or other solid substance.” A large part of the argument submitted by the plaintiff in error is with reference to the meaning to be given to the word “collision.” Its contention is that in order to constitute, a collision, both objects must be in motion. Several marine insurance cases are cited, which apparently hold such to be the meaning of the word as used in the policies then respectively before the court for consideration.

As policies of insurance are known to be prepared by the insurer, the universal rule is to interpret them, where there is doubt, in a way most favorable to the insured. Forest City Ins. Co. v. Hardesty, 182 Ill. 39; Terwilliger v. Masonic Assn., 197 Ill. 9. The language of the policy, it will be noticed, is “with any other automobile, vehicle or object.” If it had been the understanding of the insurer that its liability would be limited to those cases where there was a striking of the automobile and a moving object, the word “moving” would doubtless have been placed before the word “object.”

In marine insurance cases it has many times been held that when one vessel is struck by another there is a “collision,” in the sense in which that term is used in policies, although the vessel which is struck is anchored or tied to a dock. London Assurance v. Companhia De Moagens Do Barreiro, 167 U. S. 149; Burnham v. China M. Ins. Co., 189 Mass. 100.

In our opinion the words “collision with” as used in the policy should be construed as meaning “striking against.” South Chicago City Railway Company v. Kinnare, 216 Ill. 451.

The owner, in the case before us, showed the amount of damages by proving the cost of the repairs to the machine, and that the repairs were reasonably worth the amount of the charge. The assurance corporation, plaintiff in error, insists that this was not the proper method of proving the damages under the policy. The policy provides: “The Corporation shall not in any event be liable under this provision for more than * A * the actual cost of the suitable repair of the property injured.” In our opinion this language indicates that the contemplation of the parties was that the measure of damages should be the actual cost of repair, and we think the trial court properly permitted damages to be shown as they were. At the suggestion of counsel for plaintiff in error, a long account of labor and material furnished in the repairs was submitted without any testimony being taken in regard to the same. This was done while a witness for the owner was on the stand, apparently ready to testify as to the different items. He was not cross-examined, but reliance was placed upon the objection heretofore referred to.

The plaintiff in error insists that two new tires were supplied, although only one was shown to have been damaged. We do not find that this point was specifically raised in the court below, and it is apparent that the injuries to the automobile were so great that in all probability two tires were required.

The court charged the jury orally. Prior thereto plaintiff in error tendered the following instruction, which was refused.

“The plaintiff’s case is that the automobile struck a brick and that that caused the automobile to upset. If there is no evidence from which you can say that the automobile actually struck the brick, you must find the issues for the defendant; or if you are in doubt and unable to say whether the upset was due to the ear striking a brick or to a sudden turn given the steering gear by the chauffeur or to some unknown cause, you must find the issues for the defendant.”

We think that the court was justified in not including this instruction in its charge, for the reason that the latter part of it would suggest to the jury that they might indulge in conjecture as to whether or not the accident was caused by a sudden turn given the steering gear by the chauffeur, or was due to some unknown cause. There was no proof that the chauffeur gave a sudden turn to the steering gear, and as the instruction sought to direct a verdict it was improper. Pardridge v. Cutler, 168 Ill. 504. The first part of the instruction we think was fully covered by the oral charge of the court. It has been held that when, in the Municipal Court, the court decides to charge the jury orally, written instructions offered need not be given. Morton v. Pusey, 237 Ill. 26.

Complaint is made that the verdict is against the preponderance of the evidence. We have carefully read the testimony and proofs as shown in the abstract of record, and are unable to say that such is the case.

As we find no error in the record, the judgment will be affirmed.

Affirmed.