text:
    Frederick L. Gross, Defendant in Error, v. Saratoga European Hotel & Restaurant Company, Plaintiff in Error.
    Gen. No. 16,644.
    1. Innkeepers—who are guests. A weekly rate and a lengthy stay do not, in the absence of taking up a permanent abode at a hotel, take from a person the status of a “hotel guest.”
    2. Innkeepers—bailee may recover for articles lost. A guest of a hotel who had possession as bailee, gratuitous or otherwise, of articles that he properly entrusted to the hotel keeper, is entitled to maintain an action for their value.
    3. Innkeepers—bailee can recover entire value of lost articles. Where an innkeeper loses articles entrusted to his care by a guest, a bailee, the guest is not restricted to the recovery of the value of his special interest in the property, but can recover the whole value and will hold the amount' so recovered in excess of his own interest for the general owner.
    4. Innkeepers—limitation of liability. The liability of an innkeeper for a valise and contents entrusted to his care is not limited to fifty dollars, by the Act of 1909, for the protection of innkeepers, where the valise is lost through his negligence.
    5. Innkeepers—presumption of negligence in loss of goods. A presumption of negligence arises when luggage is handed by a guest to an authorized employee or agent of a hotel for custody and cannot be afterwards found or heard of.
    6. Evidence—owner may testify as to value of wearing apparel. In an action by a father against a hotel company for the loss of a valise containing wearing apparel and related articles belonging to his daughter, which he entrusted to the hotel for custody when he was a guest, the testimony of plaintiff and his daughter as to the value of the articles is not only competent evidence but is also the best evidence.
    Error to the Municipal Court of Chicago; the Hon. John H. Gtt.t.an, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.

      Adolph Marks, for plaintiff in error; Elijah N. Zoline, of counsel.
    Dunne, McKeever & Dunne, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The defendant in error was the plaintiff below. He recovered a judgment in the Municipal Court of Chicago, April 12, 1910, for $150 against the plaintiff in error, the Saratoga European Hotel & Restaurant Company, defendant below. The cause was tried without a jury. The claim was for the value of a suit case and of a handbag and of their respective contents, which were committed by the plaintiff to the care and custody of the defendant as an innkeeper.

It is not disputed that the plaintiff brought the bags and the contents sworn to and recovered for to the hotel, which is an inn under the common-law definition for the entertainment and accommodation of transient guests. Nor can it be reasonably denied that he had rightful possession and custody of all the contents, nor that it was a reasonable amount of luggage to bring to an inn where he was staying, nor that he entrusted the bags with their contents to a person in the employ of the defendant, held out to be a proper agent for the purpose of receiving the guests and their belongings. Nor is it disputed that the goods disappeared and were lost to the plaintiff from the moment he so entrusted them, and have never been returned to him, although he has demanded them from the defendant.

The common-law liability of the hotel keeper would seem to be plain, unless one of the two following defenses made by the defendant is good: First, that because, as it is claimed, plaintiff had negotiated a weekly rate for his room while proposing a stay of several weeks therein away from his home, which was in another city and state, he did not have the status and consequent rights of a “guest at an inn.” Second, that although the articles in the suit case which the plaintiff entrusted to the innkeeper were in his custody, care and control, the title to them did not rest in him but in his daughter.

As to the first of these defenses, we are cited by the plaintiff in error to Clifford v. Stafford, 145 Ill. App. 247. It is not necessary to discuss it or to attempt to distinguish it. This court is on record in Moon v. Yarian, 147 Ill. App. 383, as holding to the doctrine which we believe is the better and accepted one, that a weekly rate and a lengthy stay do not, in the absence of taking up a permanent abode at a hotel, take away from a person t]ie status of a “hotel guest.” This was the position taken by the Court of Appeals of New York also in an elaborate and well-reasoned opinion in Hancock v. Rand, 94 N. Y. 1, which mqy be considered as the leading case on the subject in the United States since the change in the manner of hotel keeping in modern days, which that opinion points out. It is immaterial therefore whether the rate made by the hotel to the plaintiff was a daily one, as the plaintiff testified, or a weekly one, as maintained by the defendant.

Nor does the second proposition of the defendant furnish an adequate defense. It is true that the plaintiff had possession as bailee of the articles in the suit case, the value of which was included in the verdict and judgment he obtained, and did not own them. But he had a right to their possession and entrusted them to the innkeeper. That was sufficient to impose on the innkeeper the liability to the plaintiff for their loss under the circumstances proven. Counsel have cited several cases in which courts have held that the bailor in such a case, not being a guest, could directly recover from the innkeeper the value of his property, and could not recover for property which did not belong to him, although lost simultaneously by the guest who was the bailee.

Citation of authority was hardly necessary to establish this position, but it has nothing to do with this case. There would be but one recovery allowed of course, but that the bailor could sue at his option instead of the bailee in such a case, does not show that if the bailor does not first sue-and recover, the bailee cannot rightfully recover for the property entrusted to him and by him in turn entrusted to the innkeeper. The reverse of this proposition indeed is the etablished law.

Actual ownership on the part of a guest of property brought by him to the inn and lost while infra hospitium is not essential. His qualified property or legal interest as bailee, gratuitous or otherwise, is sufficient to sustain the action. Kellogg v. Sweeney, 1 Lans. (N. Y.) 397; Chamberlain v. West, 37 Minn. 54; Eden v. Drey, 75 Ill. App. 102.

It is not necessary for us to decide in this case whether correlative to the obligation to answer for its loss the innkeeper had, either by the common law or statute, the right to a lien on the contents of the suit case in question here. It is not in issue. The suit case and contents are gone, undoubtedly stolen from the hotel when they were in the custody of the innkeeper. He is liable to his guest who brought them there. Farther than that we need not go except to answer the questions suggested by defendant, whether the proper rule of damages was applied and whether the evidence which was received to establish the damages was competent. We think the answer to both these questions must be in the affirmative.

The defendant contends that under the Act for the protection of Innkeepers, approved June 9, 1909, the liability of an innkeeper for a valise or traveling case and contents is limited to fifty dollars. The plaintiff in the case at bar was given more than that sum for the suit case and its contents. The damages for their loss were based on the testimony of the plaintiff’s daughter, who owned the contents, and who testified to their value.

But the act excepts from the limitation of damages a loss or injury occurring through the negligence of a hotel proprietor or his servants or employees in a hotel. A presumption of negligence, we think, arises when, as in this case, the luggage is handed to an authorized employee or agent of the hotel for custody and cannot be afterward found or heard of. Metcalf v. Hess, 14 Ill. 129; Eden v. Drey, 75 Ill. App. 102.

As to the damages, the plaintiff was not restricted to the value of his special interest in the property lost, but can recover the whole value and will hold the amount so recovered in excess of his own interest for the general owner. Littlefield v. Biddeford, 29 Maine 310; Woodman v. Nottingham, 49 N. H. 387; American & English Encyclopedia of Law, vol. 3, p. 762. (Bailments.)

As to that value, the testimony of the plaintiff himself and of his daughter was not only competent evidence, but on the whole, under the circumstances of this case and in consideration of the character of the property lost, the best evidence. The goods were largely wearing apparel or related articles. As this court says in Hebard v. Riegel, 67 Ill. App. 584, a woman is presumed to know the value “of her own belongings” of this kind, and as the same court said in Parmelee v. Raymond, 43 Ill. App. 609: “In the case of loss of personal wearing apparel the owner is entitled to recover its value to him, not what, as second hand or odd pieces, it would have sold for in the market.” To the same effect is the utterance of the Court of Appeals of New York in Fairfax v. New York Cent. R. Co., 73 N. Y. 167.

Of course there is nothing conclusive in this testimony of the plaintiff and his daughter, but it was competent and relevant. The court had before it also the evidence adduced by the defendant of persons supposed to be experts in second-hand clothes, and made its decision, it is to be presumed, in view of it all. We shall not disturb it. We are not satisfied that the judgment is against the law and the evidence or that it resulted from substantial errors in the municipal court directly affecting the matters at issue between the parties, and it is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Bruno Rizzo, Defendant in Error, v. Catholic Order of Foresters, Plaintiff in Error.
    Gen. No. 16,686.
    1. Fraternal benefit societies—when not estopped to assert that. designation of beneficiary was ultra vires. Where a by-law of a fraternal benefit society restricts payment of benefits to cousins of the member, to cousins of the first degree, such society is not estopped by its description of a beneficiary in a certificate as a “cousin” from setting up the defense that its action in naming such person as a beneficiary was ultra vires if the word “cousin” is to be construed as meaning a blood relation further removed than a first cousin.
    2. Fraternal benefit sogtetles—power to limit payment to classes of blood relatives. Though the statute relating to fraternal benefit societies provides that payment of death certificates may be made to blood relations of the member, such societies may limit such payment with regard to cousins of members, to first cousins.
    3. Fraternal benefit societies—burden of proof as to whether beneficiary is one who can take. Where a by-law of a fraternal benefit society limits payment of death certificates as respects cousins of the member, to first cousins, in an action by a beneficiary named as a “cousin” of the member, the burden is on the society to prove that such person is not such a cousin as can take.
    4. Fraternal benefit societies—beneficiaries. One named as a beneficiary is shown not to be within the class permitted by a by-law providing that cousins further removed than the first degree cannot recover benefits where he states that the member told him ten years before that he was a first cousin, but also states that neither his father or mother was a brother or sister of the member’s father or mother, and such statement is not contradicted.

      Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and judgment here.
    Opinion filed December 30, 1912.
    Edmund S. Cummings, for plaintiff in error.
    William A. Jennings, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The Catholic Order of Foresters, a fraternal beneficiary society organized and existing under and by virtue of the laws of Illinois relating to such societies, is in this writ of error complaining of a judgment rendered against it by the Municipal Court of Chicago May 3, 1910, for $1,000 in favor of Bruno Bizzo, the plaintiff below and defendant in error here.

The basis of the judgment was a benefit certificate issued to one Francisco Covaleo, in which the Catholic Order of Foresters on certain conditions and stipulations bound itself to pay Domenico Covaleo, the son of Francisco Covaleo, $1,000, and Bruno Bizzo, the “cousin” of Francisco Covaleo, $1,000 “upon proof of the fact and cause of the death” of said Francisco Covaleo. The death of Francisco Covaleo was duly proven, but the plaintiff in error is now asserting that the defendant in error, Bruno Bizzo, is neither within the class designated by the statute of Illinois as possible legal beneficiaries of fraternal insurance of this nature, nor within the by-laws of the Catholic Order of Foresters in force during the time Francisco Covaléo was a member of the society.

The statute (Act of June 22, 1893, as amended May 11, 1901) in relation to the Organization and Management of Fraternal Beneficiary Societies, provides that “payment of death benefits shall only be paid to the families, heirs, blood relations, affianced husband or affianced wife, or to persons dependent upon the member.”

The by-laws attempt to restrict the class of “blood relations” to children, grandchildren, parents, brothers and sisters, grandparents, nieces and nephews, uncles and aunts, cousins in the first degree and next of Hn who would be the distributees of the personal estate of the member upon his death intestate.

The supreme court in Wallace v. Madden, 168 Ill. 356, decided that even the refusal of the Catholic Order of Foresters because of its by-laws to issue a certificate making a beneficiary a person designated by a member, when that person was within a class allowed by the statute, could not thwart the will of the member, and that the company was liable on his death to the beneficiary he named. This was on the express holdings that the classes of persons designated by the organic law of a benefit society as the persons who may become beneficiaries of its insurance, cannot be enlarged or restricted by the society or its members, and that statutes of the state under which a benefit society is organized become part of its organic law.

But in Murphy v. Nowak, 223 Ill. 301, the supreme court, without mentioning Wallace v. Madden, supra, placed its decision on the position that in determining the classes who can take as beneficiaries, the court will look alone to the certificate of organization and by-laws of a fraternal benefit society if they are narrower in their scope than the statute, and quoted to the same purport, Norwegian Old People’s Home Soc. v. Wilson, 176 Ill. 94.

Following as we understand it the later decision of the supreme court, this court held in Flannery v. Gleason, 133 Ill. App. 398, that a by-law of the Women’s Catholic Order of Foresters identical with the one here involved was a valid and effective restriction on the list of beneficiaries allowed by the statute, and that a second cousin, although a blood relation, was not a possible beneficiary.

We cannot uphold the judgment in . this case without departing from this decision, which we are not inclined to do. If we were wrong in Flannery v. Gleason, supra, in following the later rather than the earlier case in.the supreme court, that tribunal will correct us should this ease reach it.

We do not think that the society is estopped by its description of Eizzo as a “cousin” in its certificate from setting up the defense that it acted ultra vires in naming Eizzo as a beneficiary, if the word cousin is to be construed as meaning a blood relation further removed than a “cousin in the first degree.”

We agree with the defendant in error, however, that the burden of proof is upon the society to prove that the beneficiary was not within the permitted class of beneficiaries.

The society having come into court to repudiate its contract so far as Eizzo is concerned, whom it had described as “a cousin,” must, to be successful, prove that he was not a “cousin” who could take the benefit. If a second or further removed cousin was an allowable beneficiary, the society could not be said to have sustained the burden. But on the assumption that no cousin but a cousin in the first degree was an allowable beneficiary, we think it did.

To prove that Bruno Eizzo was not even a cousin in any degree or a “blood relation” of Francisco Covaleo, it introduced (besides the testimony of Eizzo himself, hereinafter discussed) the testimony of Natalo Cardomone. But his testimony amounted to nothing beyond a statement that although he knew Covaleo, Covaleo never spoke to him about any relationship with Eizzo.

The only other evidence offered was the testimony of Eizzo himself. He was called as a witness by the defendant, and in answer to the direct question asked him, “Was Covaleo your first cousin?” his answer was, “Covaleo told me ten years ago he wbs a first cousin.”

The defendant afterward moved to strike ont this testimony as incompetent. Whether he conld be heard to do so, and whether the court erred in denying the motion, it is not necessary for us, in our view of the case, to decide, for allowing this remark to stand as proof of a declaratory “statement of pedigree,” the question which gave rise to it, “Was Covaleo your first cousin?” was answered in the negative by the witness, when, replying to the further question, “Was the' father or mother of Covaleo a brother or sister of your father or mother ? ” he said, ‘1 They was not. ” We think that this positive statement was proof, in the absence of any contradiction, that Covaleo and Rizzo were not “cousins in the first degree,” and that it overcame and rendered insignificant the report of Covaleo ’s statement.

When, however, the defendant went further in the examination, we think it failed as well with Rizzo as with Cardomone in proving that Rizzo and Covaleo were not “blood relations” or “cousins” further removed than “the first degree.” The most that can be said is that the examination did not prove that they were, but this is immaterial.

On the ground, however, that it was proven that Rizzo was not a “cousin in the first degree,” we feel obliged to reverse this judgment and enter here a judgment of nil capiat and for costs against the plaintiff, the defendant in error here.

Reversed and judgment^ here.


text:
    Leibrandt Plumbing Company, Defendant in Error, v. Jacob Glos, Plaintiff in Error.
    Gen. No. 16,705.
    1. Contracts—when question for jury. Where the evidence is sharply conflicting whether defendant ordered plaintiff to “take care of” certain defective plumbing, the question is for the jury.
    2. Appeals and errors—harmless error. In an action for plumbing work performed, where defendant was asked on direct examination what he said to plaintiff about taking care of the plumbing, and answered that he did not tell plaintiff or anyone to take care of it but stated to plaintiff that he would go down to see what was necessary and that the agent was taking care of the building, such answer, though not entirely responsive, was improperly stricken, but the striking will not reverse where substantially the same matter was previously admitted.
    Error to the Municipal Court of Chicago; the Hon. Henby C. Beitler, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    John P. O’Connor, for plaintiff in error.
    Frederick A. Brown and William R. T. Ewen, Jr., for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is writ of error to reverse a judgment for $118.23 of'the Municipal Court of Chicago (in a fourth class case) in favor of the plaintiff below, the Leibrandt Plumbing Company, against the defendant below (plaintiff in error here), Jacob Glos.

The cause was tried before a jury in the municipal court and the judgment was rendered on a verdict for the amount stated.

The claim of the plaintiff was for plumbing work and materials furnished by the plaintiff to the defendant in a building belonging to the defendant at Thirtieth Street and Armour Avenue in Chicago.

The evidence for the plaintiff tends to show that a city plumbing inspector in May and June made three inspections of the plumbing in the building and found it defective, and that he notified the owner, Glos; that after the third inspection he was ordered to go to the building and turn off the water; that he thereupon went to the building and then to the office of the Leibrandt Plumbing Company, whom he knew had formerly done plumbing work for Glos, and informed the responsible parties in that office of the contemplated action; that after a conversation over the telephone between the secretary and treasurer of the company and Grlos, Mr. Leibrandt, the president of the company, took np the receiver and conversed with Grlos, whose voice he knew and recognized, and that Grlos after he had been informed of the situation and the leaky condition of the plumbing told him directly and definitely “to take care of it;” that thereupon the Leibrandt Company did what was necessary, and only what was necessary, to put the plumbing in good order, and that the amount recovered was a reasonable and customary charge for the labor and materials expended ; that thereafter when the work was practically entirely done, G-los said to the secretary and treasurer of the plaintiff company, who went to his office to collect another bill, “Call your men off. I won’t stand no more,” and afterward complained to him, not that the work had been done without orders from him, but that the bill was too high.

The defendant testified that he did not give any order to have the work done; that he had a conversation with some person in the Leibrandt Company office, but merely told him that he (Grlos) would go to the building and see if anything was necessary to be done, and if there was, would come over and see the company, and that afterwards when Marshall, the secretary and -treasurer of the company, came to his (Grlos’) office and told him they were working on the building that he repudiated any liability and said that as be had not ordered the work, he would not pay the bills.

In this conflict of evidence, it was for the jury to decide. We see no reason for setting aside their decision.

The defendant argues that Liebrandt’s cross-examination corroborates the testimony of Grlos, but this we do not think is established by the record. Mr. Leibrandt testified indeed that Grlos said that he would try to get down and see the building, and if he did get down there would see the company. But he did not retract the statement that he was ordered to take care of the defective plumbing, but on the contrary reiterated it.

Complaint is made that an answer given by Mr. Glos on his direct examination to the leading question, “What did you say, if anything, to Mr. Leibrandt about tailing care of it?” as follows:

“I didn’t tell him anything about taking care of it. I told him I was going down to see if there was anything necessary to be done. I didn’t tell anybody to take care of it. The agent was the one taking care of the building,” was stricken out at the request of plaintiff’s counsel and against the objection of the defendants. We do not see the necessity of striking this answer out, although it was not in its entirety responsive. But to strike it out under the circumstances was not reversible error or very material. The witness had previously undertaken twice, without objection, to give his version of the only conversation he had over the telephone with the Leibrandt office, and_ declared that his statement was that “he would go down and look at the building, and if there was anything necessary to be done, he would come over and see them,” and had also without objection testified that he had not, in that conversation, said, “Take care of it.” He had also testified that he had on the first time that it was brought to his attention that the work had been going on, repudiated any liability for it, because he had not ordered it.

We think that his denial of any order by him for the labor or materials recovered for was explicitly before the jury, and that the striking out of the answer in question had no effect on the verdict.

Not every erroneous ruling on evidence is a ground for reversal.

We are not satisfied that the judgment is against the law and the evidence, or that it resulted from substantial errors in the municipal court directly affecting the matters at issue between the parties, and it is affirmed. Affirmed.


text:
    Ed. Tahedl, Defendant in Error, v. Woodford Distilling Company, Plaintiff in Error.
    Gen. No. 16,723.
    1. Trover—description of property demanded in replevin writ. Where action was begun as replevin in the municipal court and on return of the bailiff that he could not find the property was prosecuted in trover, the defendant cannot object that the writ improperly described the property as “warehouse receipts’’ when it knew what was called for and referred to the property by that name.
    2. Trover—property evidenced by warehouse receipts. In trover for the conversion of warehouse receipts, the conversion being established and the property evidenced by such receipts having been destroyed by fire while in possession of defendant, plaintiff is entitled to a judgment for its value.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    Seitz, Bryan & Wilber, for plaintiff in error.
    Parker & Hogan for defendant in error; George G. King, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error to the Municipal Court of Chicago, sued out from this court to reverse a judgment in trover for $276.55, rendered by the said municipal court against the Woodford Distilling Company, the defendant below and the plaintiff in error here, in favor of Ed. Tahedl, the plaintiff below and defendant in error here. The suit was begun in replevin, but on the refusal of the defendants to turn over to the bailiff of the municipal court the property described in the writ of replevin, and the return of the bailiff on the said writ to that effect and that he was unable to find the said property in the City of Chicago, it was prosecuted in trover and resulted in the findmgs of the court, which tried the case without a jury, that the defendant was guilty, that the right to the possession of the property was in the plaintiff, and in the assessment of the plaintiff’s damages at two hundred and seventy-six dollars and fifty-five cents.

It is only the last of these findings which can be made the subject of any substantial question. The property sought to be replevied, and for which the judgment in trover was given, was described in the writ of replevin as “Three warehouse receipts of the Woodford Distilling Company, being warehouse receipts Nos. 68103 D, 60335 and 68102 D.”

The defendant maintains that as it developed in evidence that the three papers which the plaintiff referred to as warehouse receipts were not technically and legally speaking “warehouse receipts,” but mere contracts, and as the bailiffs return merely showed inability to secure property described as “warehouse receipts,” there was no foundation for a judgment in trover for the tortious conversion of these papers.

There is no merit in this contention. The evidence shows that the defendant itself calls the documents in question “warehouse receipts.” It is not necessary for us to decide whether they were or were not. The defendant was specifically informed by the writ of the nature of the plaintiff’s case and knew exactly what the writ called for.

As the Supreme Court of Pennsylvania said in a case where a similar point was made:

“Certainty to a common intent is all that is required, and in this case the record would support a plea in bar to another suit with a different description.” Taylor v. Morgan, 3 Watts, 333.

The documents in question, with the exception of differing numbers and descriptions of the warehouse stamps, are practically identical. One will serve as an example of the three. It ran:

“THE WOODFORD DISTILLING COMPANY.
“No. 68103D.
“United States Bonded Warehouse, Distillery No. 9, 7th Dist. Ky., located in Midway, Woodford County, Ky, Deceived and has on storage the following described five barrels Pennsylvania Club whiskey for our account and which we hold subject to the order of Ed Tahedl, St. Paul.
Deliverable as agreed only on return of this certificate properly endorsed and on payment of the purchase price hereof at our main office and government, state and county taxes and storage at the rate of five cents per barrel per month from inspection. Loss or damage by the elements, leakage, shrinkage or transportation at purchaser’s risk. The whiskey named herein is insured for invoice amount against loss by fire. This certificate which may be voided if altered, is subject to the provisions of the order slip in the possession of the Woodford Distilling Company; the holder of this certificate in accepting it, agrees to its conditions and to pay all money, taxes and charges due hereon.
“The Woodford Distilling Co.,
“By I. Orschel, Prest.
“Gauged by United States.
“Gauger, J. J. Parrish.
“Endorsements: Not until this certificate (no duplicate to be recognized) has been actually presented or delivéred to us properly endorsed, will any portion of the whiskey represented by it be delivered or shipped.
“Address all communications in regard to the within described whiskey to
“The Woodeord Distilling Co.,
“Main Office 34 River St., Chicago.”

That these documents belonged to the plaintiff and were tortiously converted by the defendant, is plain.

There was a fire which destroyed the whiskey described in the documents, and the Woodford Distilling Company requested the plaintiff to send to it these certificates for use in making adjustments with him. This the plaintiff did, but when he afterward demanded them the company refused to give them up, on the ground that the whiskey itself was destroyed. It did not, however, deny that it was liable for the whiskey or its equivalent under the contract made by the certificates and order slips signed by Ed. Tahedl as purchaser, which the company retained and which apparently show fulfilment of the condition of payment of purchase price.

In a letter which, we think, despite defendant’s argument to the contrary, was competent evidence of an admission of the fact, it asserted the value of the whiskey for which it was liable to be $276.55, for the equivalent of which in whiskey it offered to settle with the plaintiff. Why the plaintiff did not accept this is not for us to inquire, any more than it is for us to ask why the defendant, when this offer was declined and the return of the certificates demanded by the plaintiff, did not acquiesce and thus prevent what to us seems a wholly unnecessary lawsuit.' We can only deal with the fact that both parties seemed to prefer litigation to settlement.

The fact that the defendant was guilty of conversion of these documents being determined, it only remained for the court to assess the damages, which it placed at the admitted value of the whiskey.

The defendant argues that if it be assumed that the defendant was guilty of conversion, all that it converted was the evidence of a contract, and that “to hold that the conversion of the evidence of a contract enables the party aggrieved to sue in trover for all the rights which he would be entitled to under the contract involves an absurdity,” and that such cases as seem' to hold the contrary are cases, of negotiable instruments, in which it has always been the rule that prim,a facie the value of the document is the value expressed on its face.

This is plausible, but, under the law as laid down in Illinois, unsound.

In Hayes v. Massachusetts Mut. Life Ins. Co., 125 Ill. 626, 635, the rule is applied to a life insurance policy which was certainly not a negotiable instrument, but the mere evidence of a contract; and we are obliged to recognize that the case at bar, in which the certificates expressly say the whiskey mentioned in them is deliverable only “on return of the certificate properly endorsed,” furnishes stronger reason for its application than the Hayes case.

In Wisconsin the rule has been applied to the conversion of a savings bank book, and the value of the deposits evidenced made the measure of damages. Wegner v. Second Ward Sav. Bank, 76 Wis. 242.

The value represented by the certificate has been admitted by the defendant to be the amount of the judgment and its allowance as the measure of damages under the rule applied in Hayes v. Massachusetts Mut. Life Ins. Co., supra, has at least the advantage of rendering unnecessary and impossible further action on the “contract,” and thus tends to the final disposition of the controversy.

The judgment of the municipal court is affirmed.

Affirmed.


text:
    E. H. Irwin, Trading as E. H. Irwin & Co., Defendant in Error, v. W. J. Kelly and Horace Train, Trading as Kelly & Train, Plaintiff in Error.
    Gen. No. 16,756.
    1. Damages—failure to deliver coal. Where plaintiff who had an order for coal from one of his customers contracted with defendants for delivery to the customer, part to he shipped immediately and remainder as quickly as possible, and defendants delay the order for several months so that the customer is entitled to and does cancel the order, defendants are liable to plaintiff for the difference between the contract price with them and the price to the customer.
    2. Contracts—shortage of ears not excuse for failure to perform. In an action for damage from defendants’ failure to deliver coal contracted for, it is not a legal excuse that there was a shortage of cars or that the price at which defendants could get the coal was too high.
    3. Sales—distinction between sales and brokerage transaction. Where plaintiff who has an order for coal from one of his customers enters into a contract with defendants for delivery to the customer, there is a sale and not a brokerage transaction, and the fact that plaintiff made defendants/ his agents to collect the selling price does not alter the transaction.
    4. Practice—not error to dispose of motion for new trial without argument. Where the cause has been fully tried by the court without a jury, it is within his legal discretion to dispose of a motion for new trial at once although requested to hear argument
    Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    Eastman, Eastman & White, for plaintiff in error.
    Harry A. Daugherty, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The judgment attacked by this writ of error is for $116.29. It was entered by the Municipal Court of Chicago, June 18, 1910, in favor of the plaintiff below (the defendant in error here), E. H. Irwin, against the defendants below, W. J. Kelly and Horace Train (who are the plaintiffs in error here), who did business under the firm name of Kelly & Train. The trial below was by the court without a jury.

The plaintiff, who did business under the name of E. H. Irwin & Co., was a dealer in coal in Chicago, buying and selling coal as an independent dealer. His dealings, however, were frequently of the following nature. Receiving orders for coal at such prices as he could secure, he would buy at a less price from other dealers and order the coal shipped directly by such other dealers to his customers. His payments to the concerns from whom he bought would be delayed until he received the purchase price from his customers, when he would remit to the shippers the price which he had agreed to pay them, retaining the remainder as his profit.

In the transactions which led to this suit, however, a different course was pursued, resulting from an agreement between the parties. Irwin received orders from the firm of Elijah & Winne in Palo, Iowa, for 22 carloads of Hocking rescreened three-inch coal. This coal he ordered from the defendants by three orders (verbal and written) of December 16, 20 and 23, 1909, respectively. The letter of E. H. Irwin & Co. to Kelly & Train of December 20, 1909, relating to six of these 22 carloads shows the arrangement or agreement originally proposed about them all. It ran:

“Confirming conversation this morning, please enter our order for six more open cars of the Hocking rescreened three-inch lump coal at $1.50 per ton f. o. b. cars at mines, to be consigned to Elijah & Winne, Palo, Iowa, via the C., R. I & P. Ry. from Chicago, to be all shipped this week and if possible at the rate of one or two cars a day. Please give us car numbers promptly as possible.
“We hereby agree and promise to pay you for this coal just as fast as we collect for it, and that the money received from coal shipped by you on our orders shall not "be applied to the payment of any other accounts, but just as soon as we receive checks in payment we will send you our checks, retaining our profit only.”

But the following letter of Kelly & Train to E. H. Irwin, written four days later (December 24th) shows how this arrangement was changed:

‘ ‘ Confirming conversation in our office today, in consideration of your allowing us to invoice our coal shipments on your orders and collect for same, we hereby agree to remit you your profit or commission as soon as settlements are received from the customers, and further agree not to follow up any of your customers, and if they ask us for prices we will quote them at prices allowing you at least ten cents per ton commission and fifteen cents per ton when you so advise, and on all such orders will also remit your profit as soon as settlement is received.
“Cars 9481-16213-26547 and 26804, which you have already invoiced to Elijah and Winne and Sunderland Bros. Co. respectively, you may collect for and remit us when you receive settlement from the parties.
“Tours truly,
“Kelly & Train,
“Per H. C. Train.
“We hereby accept and will fill your orders of Dec. 16th to 6 cars to Palo, Iowa, and 6 cars, Dec. 18th to Palo, Iowa, and Dec. 22d, 10 cars to Palo, Iowa, all for Elijah and Winne and all to be Hocking re-screened three-inch coal at $1.50 f. o. b. cars mines to you.
“Kelly & Train.”

Four of the cars which the plaintiff ordered the defendant to ship to Elijah & Winne were duly shipped. The remaining eighteen were never shipped.

After two months and a half, during which time there were repeated inquiries and demands by the plaintiff of the defendants that they should fill the orders and ship the remaining eighteen cars to Elijah & Winne, and excuses by the defendants that there was a car shortage and that therefore they could not afford to pay the price demanded by those who had such coal on hand, the plaintiff on March 4,1910, wrote the defendants complaining of the nonfulfilment of the orders, and adding:

“Our commission on the four cars you shipped is $19.23, of which you have paid us $10, and on the basis of 40 tons average weight per car our commission on the remaining 18 cars amounts to $106.85, making a total due us for commission on these sales of $126.08, or a balance due of $116.08, and we shall look to you for payment of same.”

This seems to have led to immediate correspondence between the defendants and Elijah & Winne, for on March 7th, Elijah & Winne wrote to the defendants :

“Answering your favor of the fifth instant, we will not be able to handle the Hocking of which you speak, owing to the lateness of the season. You will please cancel all orders we may have with you at present.”

Shortly afterward the plaintiff brought this suit.

In view of the fact that the order of the plaintiff to the- defendants of December 16, 1909, for six cars specified “Immediate shipment,” that of December 20th for six cars directed that they be all shipped “this week and if possible at the rate of one or two cars a day,” and'that of December 23d for ten cars required “shipment as quickly as possible,” we think that the consignees, Elijah & Winne, were within their rights in canceling the orders and refusing to receive the coal at that late date, and that it follows that the failure to consummate the sale and receive the purchase price from the consignees being the fault of the defendants solely, it did not relieve them from liability to the plaintiffs for the difference between the contract price to them and the price to Elijah & Winne. To hold otherwise would be to allow the defendants the benefit of their own wrong.

That there was a shortage of cars or that the price at the mines or elsewhere for which the defendants could buy the coal, furnished them no legal excuse. No such exception was made when they undertook to fill the orders. To allow such an excuse as valid would be to abrogate the sale. That the transaction between the plaintiff and defendants was a sale and not a brokerage transaction we think clear. Neither the use of the words “or commission” as the alternative of “profit” in the letter of the defendants to the plaintiff of December 24th, nor the further use of the word “commission” in that letter and in that of the plaintiff to the defendants of March 4,1910, alters the actual nature of the transaction, which was a sale by the defendants to the plaintiff of certain coal which the plaintiff ordered shipped to his customers. The plaintiff’s interest in the sale sprang from the “profits”—the difference between his buying and his selling price. Nor does the fact that he in effect, apparently for their security, made the defendants his agents to collect the selling price, alter the nature of the transaction.

As this is our view, we need not discuss the defense made that the contract was between the plaintiff and the defendants invalid and unenforceable because the plaintiff had no license from the city to do a brokerage business.

Complaint is made that the court refused to set down for hearing a motion for a new trial made by the defendant after the finding of the issues for the plaintiff, but “overruled the same immediately without argument,” although “requested to hear argument.”

The cause was fully tried by the judge without a jury, and the view of the law and facts propounded by the defendants fairly laid before him in that trial. He was not obliged by the law to try it twice or to hear it argued twice. It was entirely within his legal discretion to dispose of the motion made by the defendant at once. There was nothing “pro forma” in that action. There was no dispute made about the amount due on the assumption the defendants were liable at all.

The judgment of the municipal court is affirmed.

Affirmed.


text:
    Edward E. Wilson, Defendant in Error, v. James E. White, Plaintiff in Error.
    Gen. No. 16,779.
    1. Appeals and ebbobs—when instructions presumed correct. Instructions must be presumed to be correct where no complaint is made of them and they are not preserved in the record.
    2. Bills and notes—illegality of consideration. In an action on a note claimed to have been given in a business arrangement contemplating the making of usurious loans and the doing of a loan brokerage business without a license in violation of an ordinance, held, under conflicting evidence, that the note was given in settlement of an account between the parties and that there was ample consideration from legitimate transactions.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottbell, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed December 30, 1912.
    S. A. T. Watkins, for plaintiff in error.
    Albert B. George, for defendant in error.
   Mr. Justice Brown

delivered, the opinion of the court.

Although propositions of law have been discussed in the arguments in this cause, there are none which we consider properly before us. The instruments sued on were a promissory note for $350, dated November 24, 1899, and a contract or agreement dated January 22, 1905, but evidently so dated by mistake for January 22, 1904. This last instrument provided in consideration of a certain quitclaim of real estate by the plaintiff that the defendant should pay the plaintiff seventy-five dollars in cash and give the plaintiff another promissory note for ninety dollars. On the promissory note sued on sixty-five dollars was paid by the defendant to the plaintiff at various times, leaving $285 of the principal and the interest at six per cent per annum due. When this suit was brought in March, 1910, the note had been running more than ten years, and was more than nine years overdue. On the agreement or contract the seventy-five dollars in cash had been paid, but the note for ninety dollars had not been given, and damage's measured by this amount were also claimed by the plaintiff. The cause was submitted to a jury under instructions from the court, which must be presumed to be correct as no complaint is made of them nor are they even preserved for us in the record.

The assignments of error in this court allege the admission of improper evidence on the part of the plaintiff, but nothing of this nature is pointed out in the brief and argument of the plaintiff in error—and examination of the record shows very few rulings of any sort on evidence. Such as appear were plainly correct or adverse to the defendant in error.

The jury found a verdict on which judgment was afterward entered for $546.31—an amount within the-sum due upon the two instruments sued on if they are given effect.

The complaint of the plaintiff in error is therefore solely based on the position that this verdict is against the law and the evidence in that the note and agreement were both shown to be invalid as springing from business arrangements between the plaintiff and defendant to do an illegal business,—illegal because it contemplated the making of usurious loans by plaintiff to third parties, and illegal because it contemplated also the violation by both parties of a city ordinance against the doing of a loan brokerage business without a license.

This seems to be a different position from that taken by the defendant in the court below, where he maintained that the note was given without consideration as an accommodation to the plaintiff. But he made out neither defense. The facts shown were that as the result of previous - business transactions the plaintiff claimed the defendant owed him money; that two years after these transactions were over, in November, 1894, the defendant and plaintiff met for the purpose of settling their accounts; that they came to a settlement and agreed that White owed Wilson $350; that White made the note sued on for that amount, due in one year after date with interest at six per cent, until paid; that there was ample consideration for this note in legitimate transactions between the parties; that July 18, 1901, White paid Wilson forty dollars on account of the note, on July 25, 1901, ten dollars, and in 1904 at some time fifteen dollars, but has. paid no more, although-he seems to have made an unsuccessful effort to raise money to do so. The instrument containing. the agreement to give the ninety dollar note was also given for a valid consideration, and there appears to us nothing illegal in it.

We do not think any defense was successfully made to the case presented by the production of the note and contract and proof of default in them, and the judgment of the municipal court is affirmed.

Affirmed.


text:
    Charles J. Bour, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    Gen. No. 17,332.
    1. Appeals and ebbobs—academic question will not be determined. Where, after hearing on motion to dissolve on the face of the hill, a judge by an oral decision dissolves a temporary injunction and dismisses the bill, no relief but an injunction being sought, the question whether on the expiration of the term of the judge a succeeding judge could enter the order nunc pro tunc is academic.
    2. Judgments—entry after expiration of term of judge. Where a judge by an oral decision dissolves a temporary injunction and dismisses the bill, on a motion before a succeeding judge to enter the order nunc pro tunc, after the expiration of the term of the judge, the minutes of the former judge are the best evidence to establish the fact that a judgment was rendered.
    3. Equity—relief from breach of contract. Where the damages for a breach of contract are incomputable even approximately, they are irreparable and equity will interfere, and where with the difficulty of computation there is joined insolvency, and perhaps where the insolvency without the uncertainty exists, equity may decree relief to prevent a failure of justice.
    4. Injunctions—difficulty in computing damage for breach of contract. On a breach of contract the mere difficulty of computation of damages as distinguished from the impossibility of such computation, the difficulty being unmingled with some other element making legal relief inadequate, will not warrant the use of an injunctive process, to enforce the keeping of the contract.
    5. Injunctions—when adequate remedy at law for breach of contract. Where a railroad company wrongfully terminates a contract granting to a person for a certain period the sole and exclusive right to place advertisements in its passenger cars, damages from the loss of future profits that would “doubtless” amount to a certain .sum, from liability on unexpired advertising contracts, from liability to pay commissions to agents obtaining contracts, and from the removal or rendering useless of the fixtures in the cars, are susceptible of proof in an action at law, and the termination of the contract will not be enjoined.
    6. Injunctions—negative covenant not to engage in advertising business. Where a railroad company wrongfully terminates a contract granting for a certain period a sole and exclusive right to place advertisements in its passenger cars, the negative covenant implied in the grant will not be enforced by enjoining the company from allowing advertising except as placed by complainant in its cars.
    Error to the Superior Court of Cook county; the Hon. William Fenimobe Coopeb, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed December 30, 1912.
    Statement by the Court. The plaintiff in error in this case, the complainant below, filed his verified bill in the Superior Court of Cook County, August 10, 1911, making the following allegations: ,
    January 1, 1909, the Illinois Central Bailroad, as party of the first part, executed a written memorandum of contract with Charles J. Bour as party of the second part, whereby the railroad in consideration of covenants and payments therein named, purported to grant to Bour, for a period of five years from January 1, 1909, “the sole and exclusive right to place advertisements in each and every of the suburban passenger cars, so called, of the party of the first part that now or hereafter may be used in its suburban trains running between Chicago and Flossmoor, between Chicago and South Chicago, between Chicago and Blue Island, and between Chicago and Addison and intermediate stations.”
    Further provisions of this contract are that the railroad will, so far as it legally can, carry Bour and employees not to exceed five in number when engaged in this advertising business and advertising material in reasonable quantities, free of charge. Bour agrees that he will pay at the office of the treasurer of the railroad:
    “In payments to be made monthly on this 15th day of each and every month during the continuance of this agreement (the first payment to be made February 15, 1909) fifty per cent. (50%) of the gross amount received by him from advertisements placed in the said suburban cars; provided that the amount paid for any month during the continuance of this agreement shall not be less than one thousand dollars ($1,000), whether or not the said sum of one thousand dollars shall be less or more than fifty per cent. (50%) of the gross amount received by the party of the second part from the advertising business in the said suburban cars; that quarterly, that is, in the months of April, July, October and January in each year settlements shall be made for the preceding three months, and at the time of such settlements the party of the second part will immediately pay over to the party of the first part such amount as fifty per cent (50%) of his gross receipts from the said advertising business for the preceding three months shall exceed the amount of the monthly payments of one thousand dollars each herein provided to be paid. Provided, however, that in the event it should be ascertained that fifty per cent of the total amount of the gross receipts from the said advertising business should be less than the said one thousand dollars per month, the party of the second part shall not be entitled to any refund or rebate, it being expressly agreed that in no event shall the revenue of the party of the first part under this agreement be less than one thousand dollars per month.”
    Books of account are to be kept by Bour, subject to the inspection of officials of the railroad. The persons, property and .material carried under the contract are to be so carried at the risk of the second party.
    “All advertisements and the size, form, style and location thereof shall at all times be subject to the supervision and approval of the President of the party of the first part or such other officer as it may select, and any advertisements of an objectionable character after being placed in any of such passenger cars shall at once be removed by the party of the second part if such President or such other officer shall so request. The advertisements so to be placed in said cars shall be attached thereto under the directions and supervision of the superintendent of machinery of the party of the first part or such other officer as it may select. ’ ’
    On the expiration of the right granted by the contract, whether at the end of the five years “or upon any sooner termination thereof, as hereinafter provided,” the party of the first part shall remove all his advertising matter and leave the cars in their former condition.
    “The party of the second part shall not assign or transfer this agreement nor sublet any rights under it, without the written consent of the party of the first part. Any privilege so sublet by the party of the second part shall be sublet in such manner as to yield to the party of the first part no less than fifty per cent of the gross amount derived therefrom by the party to whom such privilege may be sublet. ’ ’ #*#*&***#
    “It is further mutually understood and agreed by and between the parties hereto, that if either party hereto shall fail to keep and perform all and singular the several agreements herein contained and every part thereof, or to make any payment herein provided to be made, then the other party may terminate this agreement by giving thirty days’ notice in writing of its or his intention so to terminate the same, and the said agreement and the rights hereinabove granted at the time mentioned in said notice shall cease, anything herein to the contrary notwithstanding, and upon the determination of this agreement, or at the end of the period first above mentioned, if the party of the second part shall neglect or refuse to remove immediately all advertisements, advertising devices and materials from the said cars, the same may be removed at once by the party of the first part at the expense of the party of the second part.”
    This contract was the renewal of contracts previously entered into between the Eailroad Company and Bour. The first of said contracts, which were all substantially identical with the one in question except as to dates and amounts, ran from January 1, 1889, to December 31, 1893; the second from January 1, 1894, to December 31, 1898; the third from January 1, 1899, to December 31,1903; the fourth from January 1,1904, to December 31,1908. These were followed by the one first above described. Under these prior four contracts Bour had paid to the Illinois Central Eailroad Company $224,296 “as rental for advertising spaces occupied by him in said suburban passenger cars.”
    From January 1, 1909, to the time of filing the bill Bour carried on the business of advertising in the cars of the Eailroad Company under the contract of January 1, 1909, and during that time paid to the Eailroad Company “as the rental for the said spaces he .has occupied in said cars under said contract” the sum of $21,939.91 for the period from January 1, 1909, to July 1, 1910, and for the month of July, 1910, he owed or would owe said company under said contract the sum of $1,000 or more.
    For the purposes of said advertising business it was necessary for Bour to hire, and he did hire, offices in Chicago, and he laid out $5,000 in purchasing materials and equipments, etc., for the successful conduct of said business.
    There are about 175 of said suburban passenger cars in service and about fifty spaces for advertisements in each of said cars, aggregating about 8,750 spaces for advertisements, all of which at the time of filing the bill were taken or occupied by the advertisements of various persons, and Bour had paid divers persons about $3,000 in soliciting the various advertisements displayed in said cars. All the various persons whose advertisements are thus in the cars have contracts with Bour which stipulate the amount they agree to pay Bour therefor, and the length of time Bour agrees to keep the advertisements in said cars. The time thus specified varies from a few months to one or more years. Many of said contracts would not expire until a year or more after the date of filing the bill.
    Bour during all the 21% years preceding the filing of the bill, created said business of advertising in the said suburban cars and built up the same from nothing so that the receipts therefrom amount to more than $30,000 yearly. Said Railroad Company received no revenue whatever from said source prior to January 1, 1889. Since that time it has received from Bour under said contracts about $246,235.97, and the receipts are increasing every year. Bour’s net monthly receipts from said business after paying the railroad and all expenses are from $1,000 to $1,250 per month, and he believes that during the remainder of the period covered by his contract they will be much more.
    In building up and developing the business Bour has necessarily expended large amounts of time, energy, labor and money, and has created for himself a standing reputation and good will among the advertising public of great value to himself.
    Bour has at all times and in every respect faithfully performed all the terms of the existing contract, and the Railroad Company has frequently expressed itself as satisfied with the manner in which he has conducted the business and never indicated anything to the contrary, but notwithstanding, “without any right, iustification or provocation whatever” it “on to-wit, June 13, 1910, notified” Bour “that it had determined to terminate and that hy said notice it did terminate said contract on and after thirty days from the date of receipt of said notice by him, to-wit, thirty days from and after said thirteenth day of June, A. D. 1910,” and stated to Bour that it had “fully decided and determined to at once cancel and terminate or to wholly ignore and disregard said contract” of January 1, 1909, and to hereafter conduct said advertising business itself or to have it done by some person other than Bour from and after the thirteenth of July, 1910, and would not thereafter permit Bour to act under said contract.
    The bill further represents that if the contract question should be thus terminated, the complainant Bour would lose the money he had invested and paid out in the business and the profits he might otherwise] make for the three years and a half following, and become liable in damages to parties who had contracts with him for advertising space in the cars; that he was surprised at the notice of termination given him and called on the vice-president of the company, who signed the notice, and expressed his surprise; that the said vice president did not deny that the complainant had always done all that he had agreed to do by the terms of the contract; that the complainant protested that the company had no right to ignore or attempt to cancel or terminate said contract, and that thereafter there was discussion of the matter at several interviews between complainant and the said vice president, in which the complainant was led to believe that the company would abandon its determination to cancel, terminate or ignore said contract, but on the ninth day of August, 1910, the complainant was finally and definitely notified that it would, after that date, ignore said contract as before set forth, and would thereafter itself conduct the advertising business in said suburban passenger cars, or cause or permit the same to be carried on by parties other than the complainant, either by contract with such parties or otherwise.
    The bill contains prayers for injunctions pendente lite and permanent restraining the Railroad Company from cancelling or terminating or attempting to cancel or terminate said contract of January 1, 1909, or from ignoring, violating or disregarding said contract or attempting to do so, and from removing or attempting to remove from said suburban passenger cars any of the complainant’s property or equipments used in said advertising business, and from attempting to prevent the complainant from enjoying all the rights, benefits and profits granted to Mm by the contract, and “from itself carrying on or attempting to carry on said advertising business or using said advertising spaces so leased” to the complainant in said suburban cars, and from employing or contracting with any party or parties other than the complainant to carry on said advertising business or permitting any such party or parties to place advertisements in said suburban cars during the unexpired term of said contract of January 1, 1909.
    As an argument therefor the bill contains this paragraph :
    “Tour orator further represents that unless this Honorable Court grants its writ of injunction as hereinafter prayed, your orator will sustain very great pecuniary loss and damages, for which an action at law can afford him no adequate remedy; that while his monthly net profits from said advertising business during the next three years and five months (that being the remaining and unexpired period covered by said existing contract) will doubtless amount to between twelve and fifteen hundred dollars, it would be impos-' sible for a court of law to justly and accurately measure and determine the amount of such probable future profits and consequent damages to your orator if he is deprived thereof by said Railroad Company as it threatens and intends to do as aforesaid, and the same is true qf the damages he will or may have to pay to divers parties with whom he has contracts as aforesaid for placing their advertisements in said cars for various unexpired periods, and the same is also true as to commissions your orator has paid and is legally liable to pay for the obtaining of the various and numerous unexpired advertising contracts he now has; neither could a court of law correctly or justly estimate your orator’s damages if said Company appropriates or bears out and removes from its said cars as it threatens to do your orator’s said fixtures and equipments in said cars contained, which will be of no value if removed from said cars, and will be rendered useless for advertising purposes or for any other purpose, and your orator avers that in these and various other ways he will suffer and sustain great and irreparable damage and injury if said Illinois Central Railroad Company is not restrained as hereinafter prayed for. ’ ’
    On this bill and an affidavit of the complainant in support thereof an injunction until the further order of the court as prayed was issued on August 10, 1910, without notice.
    August 17, 1910, the Railroad Company entered its appearance in said cause, and gave notice of a motion to dissolve the injunction. August 23rd, on leave given by the court to do so, without prejudice to the injunction, the complainant amended his bill by adding allegations :
    That it had been for years the custom of railroad companies operating a suburban service about Chicago to permit advertisements to be displayed in its cars, and that street railroads did the same without having broader powers than the defendant Railroad Company; that such a custom was general in the United States; that passengers in the suburban trains of the defendant desired the information afforded by such advertisements, and that “such advertisements in the said cars of the defendant are not only a source of revenue to the defendant enabling it more adequately to perforin its duty as a common carrier without increasing its charge for the transportation of goods and passengers, but also are a source of information and interest to the passengers upon the suburban cars of said defendant Railway Company, and tend to add to the convenience and information and to satisfy the curiosity and interests of such passengers.”
    Also: That the defendant company on August 5, 1910, by circular letter notified various persons with whom the complainant had entered into contracts for advertising, that the contract of the Railroad Company with the complainant had been canceled, and asked the direct patronage of the said advertisers, wherefore the complainant believes and charges the fact to be that the defendant is attempting wrongfully to appropriate to its own use and advantage the work done and the benefit of the moneys expended by the complainant in working up said advertising business.
    August 23 and 24, 1910, the motion to dissolve the injunction was argued by counsel for the respective parties before Judge Chetlain in the superior court. Briefs were also filed with him. He took the case under advisement.
    On December 3, 1910, Judge Chetlain, whose term of office was about to expire, in open court announced his conclusion in the said cause, that the injunction should be dissolved. The complainant by his solicitor was represented in the court room at the time. The defendant was not.
    It appears from the record filed in this court on f.Iiis writ of error, that there is a difference in the recollection of the judge and minute clerk on the one ■hand, and of the complainant on the other, of what thereafter occurred at said session of the court; but on January 16,1911, a motion made by the defendant was heard before Judge Cooper in ' said superior court (Judge Chetlain’s term having expired) that the clerk of said court should be ordered to spread of record
      mmc pro tunc an order alleged to have been made by Judge Chetlain on December 3, 1910. On the hearing of said motion Judge Cooper found that Judge Chetlain on said December 3d rendered a decision on said motion for the dissolution of said injunction, and that by oral decision he rendered dissolved said injunction and .made and entered his decision in the minute book used by him as judge of the court. Judge Cooper thereupon entered the 'following order:
    “On motion of the solicitor for defendant the Clerk of this Court is hereby ordered upon the hearing of the evidence and the inspection of the minutes of Judge Chetlain in said cause to enter of record as of date of December 3, 1910, the following order.

      “The injunction heretofore entered in this case is dissolved.”

    On January 21, 1911, there was presented to Judge Cooper a draft of a proposed order that as of the court’s own motion there should be added to the nunc pro tunc order above described the words “Bill dismissed for want of jurisdiction. Appeal prayed and allowed,” which request the court denied.
    On January 25, 1911, Judge Cooper on motion of defendant’s solicitors entered a decree reciting that the cause had theretofore been considered upon the bill of complaint and on the motion of defendant to dissolve the temporary injunction, theretofore issued for want of equity appearing on the face of the bill; that said motion to dissolve the injunction had been allowed, and that no relief other than an injunction had been prayed by said bill, and ordering that the bill be dismissed.
    To reverse this decree and the order dissolving the injunction the present writ of error has been prosecuted, the plaintiff in error assigning for error not only the dissolution of the injunction and the dismissal of the complainant’s bill, but in various forms of words attacking the actions of Judge Cooper in hearing evidence as to the proceedings of Judge Chetlain on Decomber 3, 1911, in considering the minutes of Judge Chetlain as to said proceedings, and in ordering an entry of the order dissolving the injunction nunc pro tunc as of December 3, 1910.
    West & Eckhart, for plaintiff in error.
    John G. Drennan, for defendant in error; Walter S. Horton and Blewett Lee, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This cause has been argued before us very elaborately both orally and in printed briefs. A wealth of authority has been cited on both sides of the controversy, the nature of which is fully shown by the detailed statement which we have prefixed to this opinion.

We have considered all of the points made by counsel and the citations by which they support them, but we do not think that a discussion of them all, or even of most of them, would be useful.

Thus, the question as to the propriety of Judge Cooper’s action in entering the order dissolving the injunction nunc pro tunc, following it by an order dismissing the bill, is to our mind academic.

The cause was fully heard by the superior court on a motion to dissolve on the face of the bill the temporary injunction granted without notice. The motion, which set forth, specific reasons for its allowance, was equivalent to a general and special demurrer to the bill. No relief but an injunction was asked. The superior court, after hearing, found and announced its decision on the questions involved and entered an order dissolving the injunction. Following this, it dismissed the bill, which was the proper and logical sequence of the dissolution of the injunction. The question before us, we conceive, is not whether the same judge of the superior court entered the order who heard the argument on and first announced his decision on the motion, nor whether the judge who dismissed the hill should have entered the order dissolving the injunction nunc pro tunc or as on the actual date of its entry; but whether the order dismissing the bill was justifiable.

This in another form is merely the single question of the sufficiency of the case shown by the face of the bill to warrant the issuance of an injunction. If that was sufficient, the injunction should not have been dissolved nor the bill dismissed. If it was not sufficient, the action of the superior court was proper in both the dissolution and dismissal, irrespective of whether the testimony of Judge Chetlain and his minute clerk and the evidence of Judge Chetlain’s own minutes (the best possible evidence by which to make an amendment of the record. Howell v. Morlan, 78 Ill. 162; Grand Pacific Hotel Co. v. Pinkerton, 118 Ill. App. 89), were sufficient in themselves to warrant Judge Cooper’s action in entering the order of dissolution nunc pro tunc.

Nor do we think that a discussion of the position of the defendant company that its contract with the complainant was ultra vires and void, would be more useful.

If we were prepared to accede to it, it would indeed involve the disposition of the cause before us. We are not so prepared, however, and as the view that we take of the cause leads to an affirmance of the action of the court below in dismissing the bill, anything that we might say in negativing this particular contention of the defendant would necessarily be merely obiter dictum. If the defense is valid, and the Bail-road Company was not at liberty, under its corporate powers, to advertise in its cars, or if it were, was not at liberty to delegate to another for compensation the power it had itself, that defense remains to be made, if it becomes necessary and desirable, before another tribunal, on which our views on a question which we did not decide in this cause would not be binding.

For the purposes of this case, therefore, we shall assume, as contended by the plaintiff in error, that the contract of January 1, 1909, was a valid and binding contract, and that under its terms the defendant was wholly without right or justification in breaking it.

The further contention of the plaintiff in error, however, that he is entitled to a remedy in equity by injunction, we cannot sustain. It is based primarily on the theory that the remedy at law by a suit for damages for a breach of this contract would not be adequate.

To establish this it is urged that the damages at law could not be accurately computed, or, by the usual rules of evidence, ascertained with reasonable certainty.

It is upon our opinion on this contention that we rest our judgment.

First, it is to be noted that mere difficulty in computing damages is not a ground for the interference of equity. As Mr. Justice Miller, speaking for the Supreme Court of the United States, said in Texas & P. R. Co. v. Marshall, 136 U. S. 393 (in which the computation of damages for the breach of the contract sued for was indubitably far more difficult than in the case at bar, and in which, nevertheless, the plaintiff was relegated to its action at law):

“Though there may not be any rule by which these damages can be estimated with precision, this is not a conclusive objection against a resort to a court of law, for it is very well known that in all judicial proceedings for injuries inflicted by one party on another, whether arising out of tort, or out of contract, the relief given by way of damages is never the exact sum which compensates for the injury done, but with all the rules which have been adopted for the measurement of damages, the relief is only approximately perfect. ’ ’

Our own supreme court has said in Carlson v. Koerner, 226 Ill. 15 (p. 21):

11 To show that damages are merely speculative'is not sufficient to give a court of equity jurisdiction. They may be approximated in an action at law as well as in chancery.”

When the damages are incomputable even approximately, they may be called irreparable, and equity will interfere, and where with the difficulty of computation there is joined insolvency, perhaps in some cases where the insolvency without the uncertainty exists, courts of chancery may decree relief to prevent a failure of justice.

The Supreme Court of Rhode Island in The American Electrical Works v. Varley Duplex Marget Co., 26 R. I. 295, has gone as far as any tribunal of a state where the distinctions between law and chancery proceedings and remedies are preserved, in upholding, on the ground of the necessary uncertainty in the estimation of damages, an injunction against the breach of a contract.

But in that case the court asserts its belief that the breach of the contract, under the circumstances alleged would tend to destroy the business reputation of the complainant. We cannot see such an element of possibly irreparable and inestimable injury in the case at bar, and we do not think, after an examination of all the many cases cited by the plaintiff in error, that justification can be found for holding that the mere difficulty of computation of damage, as distinguished from the impossibility of such computation, the difficulty being unmingled with some other element making legal relief inadequate, warrants the use of an injunctive process to enforce the keeping of contracts.

But we are disposed to go further in this case. We cannot see the great and insuperable difficulties in the approximate computation of damages in this case which seems so apparent to the plaintiff in error. We have quoted at length in the statement prefixed to this opinion the paragraph of the complainant’s bill, in which he sets forth his argument in this behalf— an argument which his counsel have repeated in the discussion of the cause before us.

The first specific statement of that paragraph is that his monthly net profits would therefore “doubtless” amount to between twelve and fifteen hundred dollars, but that a court of law could not estimate them. Undoubtedly there would be difficulty, but no insuperable one. Future profits lost by breach of contract may be recovered in a proper case, and no more difficulty exists in this case in estimating them than existed in cases where they have been recovered. If they would “doubtless” have been a certain sum, they must be capable of proof with “reasonable certainty.” Chapman v. Kirby, 49 Ill. 211; Cleveland, C., C. & St. L. R. Co. v. Wood, 189 Ill. 352.

The next elements of damage asserted to be inestimable are the amounts for which complainant may become liable to persons with whom he has subcontracts which will be broken.

Computations quite as difficult as these could be are the daily accompaniments of the assessment of damages for breaches of contract in courts of law. So," too, with “commissions,” which the complainant “has paid and is legally liable to pay for the obtaining of the various and numerous unexpired advertising contracts he now has.”

The further statement that a court of law cannot correctly estimate the damages for the conversion or destruction or rendering useless of fixtures and equipment belonging to the complainant, is not even plausible.

On the ground alone that the complainant has an adequate remedy at law, we should hold that the injunction in this case was properly dissolved and the bill dismissed.

But this view may well be fortified by a correlative proposition. Not only do we think that the remedy at law is adequate and complete, but it seems to us that the remedy in equity is inadequate and incomplete.

It is undoubtedly true, as contended by the complainant, that there are cases where threatened breaches of contract will be and have been enjoined, where breaches of negative covenants in contracts have been enjoined, and where such negative covenants or stipulations have been inferred from exclusive grants. So, too, it may be conceded that there are cases in which it has been authoritatively held that a court of equity will interfere by injunction where it would not decree a specific performance.

But no one of these cases is, in our opinion, like that at bar, and it would be a needless labor to discuss and distinguish them. In the case at bar, the plaintiff in error contends that even though specific performance could not be compelled, he is entitled to the relief which would be given him by obliging .the defendant to lose the benefit of the breach of the contract. He admits that the temporary injunction which was granted went further than this, and his counsel still say that such an injunction restraining any breach of the contract is warranted by the authorities.

But in the event that this court, they say, is of a different opinion, they will be satisfied with an injunction merely enforcing the negative covenant implied in the grant of “a sole and exclusive right to place advertisements in suburban passenger cars of the defendants. ’ ’

It seems very clear to us that to go farther than this would be to make a mandatory injunction to enforce a contract in a case where no specific performance could, under any theory, be decreed, and that this, under the facts of this case, is plainly inadmissible. We are forced to the conclusion in which we think we are justified by the arguments of counsel before us, that the real insistence of plaintiff in error is on the modified form of the injunction that counsel has indicated as satisfactory.

But in the case of such relief only, it rests with the defendant itself to render it utterly nugatory to the complainant. It has only to allow no advertisements in its cars to take from the complainant any advantage of the relief granted,—save as it might gratify him to see the Railroad Company forego a possible item of income. He relies, probably, on the self interest of the company to bring about, in such a case, a renewal of the contract relations with himself; but it seems to us illogical and unreasonable to allege the difficulty of assessing damages at law as a reason for resorting to equity, if equity can only give a remedy which furnishes compulsorily no damages or compensation at all, and no enforcement of the broken contract, but only a morally coercive' pressure which may lead to juster dealing. The order of the superior court dissolving the injunction and the decree dismissing the bill are affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    Joe Hantman, Defendant in Error, v. Jacob Metcoff, Plaintiff in Error.
    Gen. No. 17,347.
    Municipal courts—judgment. Where within thirty days a Judgment in the municipal court is set aside and another judgment entered for less, nune pro tune as of the date of the former judgment, it is* not error, since there are no terms in the municipal court and such procedure is authorized under the Municipal Court Act, § 21.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 9, 1913.
    Carroll A. Teller, for plaintiff in error.
    Levy & Levy, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Defendant in error commenced a fourth class suit in the Municipal Court of Chicago against plaintiff in error to recover the value of certain material furnished and labor performed, claiming that $170.15 was due him. Plaintiff in error filed a claim of set-off. On January 25, 1911, the case was tried before the court without a jury, resulting in a finding in favor of defendant in error for the sum of $78.61, upon which finding the court entered judgment against plaintiff in error. On February 18, 1911, on motion of plaintiff in error, the court set aside said judgment and entered a finding in favor of defendant in error for the sum of $63.61, upon which finding the court entered judgment for said amount and costs “nunc pro tunc as of the 25th day of January, A. D. 1911.”

It is claimed that the court erred in entering said judgment nunc pro tunc as of January 25, 1911. The former judgment was set aside and the judgment complained of entered within thirty days from the date of the entry of the former judgment. On February 18, the judgment of January 25th remained in the breast of the court and the court then had power to amend that judgment or set it aside on its own motion or for good cause shown, as justice and the right of the case would seem to require. Krieger v. Krieger, 221 Ill. 479, 484. In the circuit court, jurisdiction of the parties and the subject-matter of the litigation is retained until the end of the term at which judgment is entered, and the judgment does not become final or pass beyond the control of the court until the expiration of the term. By section 21 of the Municipal Court Act it is provided that “there shall be no stated terms of the municipal court,” and that “every judgment, order or decree of said court final in its nature shall be subject to be vacated, set aside or modified in the same manner and to the same extent as a judgment, order or decree of a circuit court during the term at which the same was rendered in such circuit court, provided a motion to vacate, set aside or modify the same be entered in said municipal court within thirty days after the entry of such judgment, order or decree.” In the present case the record discloses that the judgment of January 25th was set aside on motion of plaintiff in error. He cannot here complain of the fact that the court entered the present judgment nunc fro tunc. That judgment was for fifteen dollars less than the former judgment and for aught that appears in this record substantial justice has been done. The judgment is affirmed

d-ffirmed.