text:
    David MacKenzie v. Grace MacKenzie.
    Gen. No. 13,690.
    1. Jurisdiction—when, to enforce decree for alimony, cannot be questioned. After replying to the merits, a respondent is entitled to raise the question of the jurisdiction of the court to enforce the payment of alimony.
    2. Separate maintenance—when bill for, sufficient. A hill for separate maintenance which does not follow the strict phraseology of the statute is sufficient if its allegations are in substantial accord with the provisions of such statute.
    3. Separate maintenance—propriety of, against non-resident. A bill for separate maintenance may be maintained against a nonresident when he is found and served with process in this state.
    4". Abatement—when propriety of overruling plea in, not subject to review. The action of the court in overruling a plea in abatement is not subject to review where no appeal is taken from the order overruling such a plea.
    5. Contempt—when commitment for, not too vague. Held, that a commitment for contempt for failure to pay alimony was not too vague in failing to provide opportunity for payment if desired to be made by the respondent.
    Separate maintenance. Appeal from the Circuit Court of Cook county; the Hon. Lookwood Honobe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed May 1, 1908.
    Rehearing denied May 15, 1908.

      Statement by the Court. This is an appeal from an order of the Circuit Court committing appellant for alleged contempt in failing to pay $1,690 alleged to be due for temporary alimony and solicitor’s fees to appellee by virtue of ..an order entered in said Circuit Court under a bill filed by appellee. Appellant was at the time of the filing of the bill, it is said, a resident and citizen of the State of Idaho.
    The bill filed by appellee alleges in substance:
    1. That she is a resident of Cook county, Illinois, and that she has been for more than one year immediately preceding the filing of the bill; that she and David MacKenzie were married November 16, 1897, at Hammond, Indiana, and lived together as husband and wife till September 8, ■ 1901 ;• that one child was bom, a son then (1904) six years of age; that on September 8, 1901, David MacKenzie, her husband, wilfully and without any reasonable cause therefor, deserted and absented himself from her and the said child at Chicago, Illinois, leaving her and the said child without any means of support whatsoever, and that such desertion had been continuous, wilful and without reasonable cause therefor since said September 8, 1901; that she was a faithful wife; that when her husband left her and their child in Chicago on September 8, 1901, he gave her ten cents, suggesting that that would be sufficient' for postage until he would send more; that he never wrote to her, never came baók to her and the child, nor contributed a cent toward their support after that, and that she had to work for a small salary in order to support herself and child.
    It is further stated upon information and belief that at the time he deserted her and their said child appellant had on deposit with the American Trust & Savings Bank of Chicago about $8,000 and with the Northern Trust Company of Chicago about $3,000, all of which he drew about the time of his leaving; that he has large interests in Idaho and other places, and that he is worth in the neighborhood of $100,000 over and above his liabilities.
    The prayer of the bill is that appellant may be sum moned, may be enjoined, be required to answer, etc., that the complainant may have the custody of the child, and that the defendant may be compelled to make proper and suitable provision for the separate maintenance and support of complainant and the child, and for general relief as the equities of the case may require.
    The bill is verified by complainant, complainant swearing that the same is true, except as to the things therein stated upon information and belief, and that as to such things she believes the bill to be true.
    On the same day, November 30, 1904, and with her bill of complaint, appellee filed her petition for ne exeat against appellant, and he was taken into custody December 1, 1904. On the same day appellant appeared and moved to quash the writ of ne exeat. The court denied the motion and appellant gave bond for $4,000.
    December 5,1904, appellant was ruled to show causo why he should not pay alimony, and answered the rule. To his formal answer to the rule appellant attached affidavits. While the answer by its terms limits appellant’s appearance, it also avers “that the defendant has a complete defense to any and all the allegations of said bill of complaint and is living and has been living since August, 1901, separate and apart from the complainant and for good and sufficient cause and with fault on her part and without fault on his part, as he will be able to show upon the trial of said cause.”
    The affidavits of appellant and of the other parties filed in his behalf refer to the merits, especially on the question of- alimony. Appellant in his affidavit states that he is worth not to exceed $10,000 over and above his just debts and liabilities; that he has no fixed income and has made no money since March, 1904, while all the time under heavy expenses, and that he has already been put to great expense and loss of time and money in hurriedly preparing for the trial of the alleged charge of abandonment preferred against him by his wife in the Criminal Court of Cook county, which was on the second day of December, 1904, dismissed, etc.
    December 22, 1904, the plea in abatement and the motion for alimony came on to be heard, and after arguments it was ordered that said defendant answer the bill of complaint herein within twenty days, and that the motion of defendant for leave to amend his said plea in abatement be denied, and it was ordered that the defendant, David MacKenzie, pay to the complainant or to her solicitor for her the sum of fifteen dollars per week, to begin on the twenty-second day of December, 1904, and continue on Thursday of each week thereafter in the like sum of fifteen dollars until the further order of the court.
    And it was further ordered that the said defendant pay to the complainant or to her solicitor for her the sum of one hundred dollars for and on account of her solicitor’s fees therein, said sum to be paid in thirty days.
    From the foregoing order MacKenzie did not appeal.
    January 12, 1905, appellant sought to avoid the obligation of his me exeat bond by habeas corpus proceedings, first, in the Circuit Court of Cook county and again in the United States Circuit Court for the Northern District of Illinois, from which by successive appeals he took the matter to the Supreme Court of the United States without success. Meanwhile pending-such appeals, proceedings in the Circuit Court of Cook county were suspended until November 19,1906.
    The cause having- been reopened in the state court on November 19th as aforesaid, appellee filed her affidavit in the Circuit Court of Cook county January 15, 1907, upon the filing of which an order of attachment for appellant was issued without notice and he was taken into custody and ruled to show cause why he should not be punished for contempt of court for failure to pay alimony and solicitor’s fees, as provided in the order of court of December 22, 1904.
    The contempt proceeding was placed upon the contested motion calendar and pending the hearing MacKenzie was released upon a day to day bond.
    On January 17, 1907, MacKenzie filed his answer to the rule of January 15, in which answer he again undertakes to limit his appearance in terms and denies the jurisdiction of the court, but goes nevertheless into the merits of the controversy respecting the payment of alimony. He says, among other things, that he admitted on December 1, 1904, that he was worth not to exceed $10,000 over and above his just debts and liabilities, but claims that since that time he has sustained a heavy loss in a recent fire at Goldfield, Nevada. He does not say, however, that he is worth less than $10,000.
    Appellee filed two affidavits in reply to appellant’s answer to the rule, setting forth, among other things, that appellant has been able to employ more than a half dozen lawyers in his fight against her; that he did not give or pay anything to her or the child from the time he left her until after proceedings were taken against him; that he has a double dwelling house at Goldfield, Nevada, which cost him about $10,000; that there is in two banks at Goldfield, Nevada, as she is informed and believes, about $60,000 subject to the check of appellant; that he has other money and property; with additional allegations to the same effect.
    After a full hearing appellant was adjudged February 15,1907, guilty of contempt of court and ordered committed to jail, said contempt, as the order recites, “consisting in the wilful and contumacious refusal of the said David MacKenzie to pay to the complainant, Grace MacKenzie, alimony and solicitor’s fees, as provided by the order of this court entered herein on December 22, 1904, and that the said defendant, David MacKenzie, remain so confined in said common jail of Cook county for a period of five months from and after this date, or until he be discharged according to law; provided always that the said defendant, David MacKenzie, shall at any time be immediately released from said jail and discharged from custody upon his complying with the order of this court by paying to the complainant, Grace MacKenzie, or to her solicitor of record, or the clerk of this court for her, the sum of $1,690 found by the court to be due her under the said order of December 22, 1904.”
    From that order the present appeal was taken.
    John M. Duffy, for appellant; John F. Geeting, of counsel.
    Habéis F. Williams, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

Appellant urges as ground for reversal that the bill of complaint is not sufficient to give the court jurisdiction; that the petition for ne exeat is open to the same objection; that under the separate maintenance statute the court has jurisdiction only where husband and wife are both residents either of the same county or of different counties of the state, and not where one is a resident of a different state; that appellant was privileged and exempt from arrest under civil process while in attendance as a party and a witness in this state and for a reasonable time in coming to and returning from the trial, and hence the service of the writ of ne exeat was illegal and void because secured, it is said, by fraud and issued without jurisdiction or proper showing; that the placita in this case is defective, the order of commitment vague and insufficient, and the affidavit for attachment also.

The objections to the jurisdiction, whether otherwise meritorious or not, cannot now be urged, in view of the fact that appellant answered the rule to show cause why he should not pay alimony, setting forth his defense, in part at least, on the merits. In support of his answer, he filed affidavits tending to1 show inability to pay the alimony, a matter having no bearing on the question of jurisdiction, although his answer purports to be made “under his special. and limited appearance,” and to show “that the court has no jurisdiction of the person of said defendant.” When he thus answered upon the merits, raising a disputed question of fact, he subjected himself to the consequences of a general appearance for all purposes. Dean v. Gerlach, 34 Ill. App. 233-234; Nichols v. The People, 165 Ill. 502-503; Porter v. City of Chicago, 176 Ill. 605-607; McChesney v. The People, 178 Ill. 542-548. “A special appearance must be for the purpose of urging jurisdictional questions only, and it must be confined to a denial of jurisdiction. An appearance for any other purpose than to question the jurisdiction of the court is general.” (Nichols v. The People, supra.)

In like manner, we are of opinion that appellant waived the objection now urged to the bill as a bill for separate maintenance under the statute. (R. S., chap. 68, secs. 22, 23.) He answered, disputing the claim for alimony and solicitor’s fees, on the merits. It is true, no doubt, that as a bill for separate maintenance it does not strictly follow the phraseology of the statute.and is not artistic in form; but it is nevertheless, we think, sufficient. While the bill does not in express terms state that appellee is, without her fault, living separate and apart from her husband, it does aver that appellant wilfully and without reasonable cause deserted her and their child at Chicago, State of Illinois, leaving them without means of support; that such desertion has been continuous, and that she and the child have since that time been living with appellee’s parents, averments which, in substance, comply with the requirements of the act in that respect.

It is further urged that proceedings under the separate maintenance act are required to he instituted ‘ ‘ in the county where the husband resides,” and that the courts of this state have therefore no jurisdiction over appellant, who does not reside in Illinois, but in the State of Idaho, as shown by appellant’s answer and plea in abatement and not disputed, and who did not “remove to another county in this state.” Section 22 of the act provides, however, that complainants under it “may have their remedy in equity,” and suits in equity, “if the defendant is a non-resident,” may be commenced “in any county.” (R. S., chap. 22, sec. 3.) If, however, under the bill in this case and the prayer for general relief, appellee would be entitled to a divorce, all room for question would be removed by sections 5 and 6 of chapter 40, R. S. There it is provided that “the process, practice and proceedings” under the divorce act “shall be the same as in other cases in chancery, ’ ’ except as otherwise provided. As to allowance of alimony in an action for separate maintenance it is sufficient to refer to People v. Cook County Circuit Court, 169 Ill. 201-213. We cannot concur, therefore, in appellant’s contention that as a non-resident of this state he is exempt from a suit for separate maintenance when found and served with process within the state. See also Atkins v. Borstler, 46 Mich. 552.

The objection that appellant was wrongfully arrested on the writ of ne exeat, in violation of his privilege and exemption as a witness and party to a pending suit which he had come into the state to attend, was, raised by plea in abatement. The plea was overruled by the Circuit Court and an order entered requiring defendant to pay alimony and solicitor’s fees. No appeal was prosecuted from that order, and the question of its propriety is not before us on the present appeal.

Objection is made that the order of commitment is vague and insufficient, since it is said the appellant could not leave the jail to find appellee if he concludes to make payment and purge himself from the contempt; that the order should provide a release from custody by payment to the sheriff or jailer or someone “whom the alleged contemnor is able to pay.” We are of opinion appellant will have no trouble in paying appellee, if he concludes to do so, before or after commitment .to jail.

We find no valid objection to the affidavit of attachment, nor to the jurisdiction of the court over the subject-matter and the parties. We are of opinion that the order of the Circuit Court complained of is warranted by the record, and that the latter is free from material error. The order will therefore be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    Benjamin J. Rosenthal et al. v. Board of Education of the City of Chicago.
    Gen. No. 13,985.
    1. Appeals and erbobs—right of complainant to complain of decree entered in his favor. Notwithstanding a decree may in some respects he satisfactory to a complaining party, if final and otherwise appealable, it may be made the subject of review at his instance if objection was made to it at the time of entry.
    2. Appeals and erbobs—when decree not final. A decree which sets aside an appraisement and enjoins the defendant from attempting to enforce it “until the further order or decree of this court” and which expressly reserves for future consideration “the matter of determining the fair and reasonable rental value of lot thirty-one for said ten years,” is not final and appealable.
    Bill for injunction, etc. Appeal from the Circuit Court of Cook sounty; the Hon. Thomas Q-. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Appeal dismissed.
    Opinion filed May 1, 1908.

      Statement by the Court. This is a motion by appellee to dismiss the appeal. Appellants filed a bill against appellee seeking to set aside an appraisement claimed to have been made under a lease and alleged supplemental lease made by appellee and set forth in the bill of complaint. It is not necessary for the determination of the present motion to consider the cause upon its merits. The substantial contentions made by the bill are that the appraisement was not properly and lawfully made, and that it is unreasonable and unjust. The prayer of the bill is “that the rent due and payable by your orators for said lot 31 for each and every one of the ten years commencing on May 8, 1905, and ending on May 8, 1915, may be declared by decree of this honorable court to be the sum of $9,900 and no more, and that the said Board of Education, its agents, attorneys and servants may by decree of this honorable court be restrained from attempting to collect from your orators any greater sum for rent than the aforesaid sum of $9,900 per annum during said period of ten years and from attempting or pretending in any manner to declare your orators’ said leases and possession of land aforesaid or any of your orators’ rights therein, forfeited, and from attempting to distrain upon your orators’ goods and chattels for any rent so as aforesaid by the said Board of Education pretended to be due,” from selling the building on said lot or interfering with complainants’ peaceable possession thereof, and for’general relief.
    The Circuit Court granted a preliminary injunction. Subsequently the cause, as the decree appealed from recites, “came on to be heard for final hearing on the bill of complaint,” the answer and replication thereto. The decree finds the equities with the complainants, that they are owners of the leasehold interest in lot 31 in controversy, that an appraisal should by the terms of the lease have been made within three months prior to May 8, 1905, for the purpose of determining the rental for the subsequent ten years, that the appraisers failed to perform their duty in that behalf and made an illegal appraisement not warranted by the leases; that by an appraisal of said lot made in 1895 the rental was fixed at $9,900 per year from May 8, 1895, to May 8, 1905; that while the leases required a new appraisement in 1905, none was lawfully made; that paragraph 8 of the supplemental lease provided, in case of failure to make an appraisement according to the terms of the lease at any required time, that the rent for the ensuing period of ten years “shall be the same as that paid or reserved as rent during the last preceding period of ten years;” that while complainants insist the rent for the ten years beginning May 8, 1905, should be the same as for the preceding period of ten years, the court finds such contention unwarranted, and that while complainants do not by specific prayer seek such relief, that under the prayer for general relief the court should decree such relief as the allegations of the bill and the evidence will justify, and should proceed to ascertain or determine the true cash value of said lot 31, exclusive of improvements, and to appraise the value of the lot or the rental value thereof for the ten years beginning May 8, 1905; that it appearing that by reason of sundry suits pending brought by sundry parties to set aside sundry appraisals under similar leases from the defendant, “that it is of great public importance and to the best interests of all parties to be affected thereby that a final and appealable decree be now ‘entered herein so that the proper construction and interpretation of said leases may be finally determined,” it is therefore ordered:
    (a) That the appraisal of lot 31 in controversy be set aside, that the defendant be enjoined from attempting to enforce it and from collecting “any sum of money for rent of lot 31 for the period from May 8, 1905, to May 8, 1915, in excess of $9,900 per year until the further order or decree of this court.”

      (b) That the- rental to be paid by complainants for said lot 31 for the ten years from May 8, 1905, until May 8, 1915, is not fixed by paragraph eighth of the supplemental lease in question and that the determination of the fair and reasonable rental value of said lot for said period of ten years “be reserved for the further consideration of this court until after the final disposition of the appeal hereinafter allowed.7 ’
    (c) That the costs be paid by defendant and that an appeal is granted to the complainant upon filing bond and certificate of evidence in thirty days.
    Donald L. Moebill and Maybe, Meyee & Austrian, for appellants.
    Frank Hamlin and Angus E. Shannon, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

Appellee moves to dismiss the appeal and assigns as grounds for the motion, first, that the decree of the Circuit Court appealed from is not a final decree; second, that the statutes provide for appeal only from final and not from interlocutory decrees; and third, that the decree was entered upon the motion and at the request of appellants. The last of these alleged grounds may be disregarded. The decree as entered is not such as the appellants prayed for and was objected to, although in some respects apparently not unsatisfactory to them. No reason appears why they could not appeal from a decree entered over their objections if such decree is final and appealable.

We are of opinion, however, that this is not a final decree and that we are without jurisdiction to entertain the appeal. As appears from the preceding statement the decree sets aside the appraisement in controversy fixing the value of lot 31, enjoins the defendant from attempting to enforce it and from attempting to collect in any way from complainants any sum of money for rent of said lot 31 for the ten years succeeding May 8, 1905, “until the further order or decree of this court.” It is apparent from language of the decree that it was intended to be “final and appeal-able;” but we cannot concur in the ■ contention that a decree which by its terms remains in force only until the further order of the court which enters it, which leaves it open for that court to change it at any time and which expressly reserves for further consideration “the matter of determining the fair and reasonable rental value of lot 31 for said ten years,” is a final decree. The matters thus held subject to “further order of decree” of the court and reserved for further consideration embrace substantial matters of controversy. It was said in Farson v. Gorham, 117 Ill. 137-140, “the order that has been entered may be vacated by the Circuit Court in a final decree and hence no necessity exists for reviewing that order until the final decree is rendered in the cause. ’ ’ While substantial questions raised by. the bill and in part covered by the decree appealed from are still open for further disposition by the Circuit Court that decree must be regarded as interlocutory. As said in Schofield v. Thomas, 226 Ill. 631: “This court will not determine a case by piecemeal.” Whether the Circuit Court erroneously set aside the appraisement, found that the leases themselves do not fix the rental value for the ten years succeeding May 8, 1905, and reserved the matter of fixing said rental value until after the final disposition of the appeal, will not be considered by an appellate tribunal “until the case has finally been determined below and the whole record is properly presented for review.” The statute provides (chap. 110, see. 68) that* appeals and writs of error “may be taken from all final judgments, orders and decrees” except as specially provided. A judgment or decree is only final when it terminates the litigation between the parties on the merits of the case, so that when affirmed the court below has only to execute the judgment or decree it has already entered. C. & N. W. Ry. Co. v. City of Chicago, 148 Ill. 141-153. The decree under consideration is not of that character. The court has reserved and left undecided an ultimate question in controversy, viz., the amount of rent to be paid. What is said in Brodhead v. Minges, 198 Ill. 513 is, we think, in point. In Gray v. Ames, 220 Ill. 251-254, a final decree is defined to be “one which fully decides and finally disposes of the entire merits of the case.”

It is contended in behalf of appellants that the decree under consideration is final and appealable because, as is claimed, it sets aside an award, fixes the ultimate rights of the parties under their contract, determines the merits of the case and awards costs against the defendant. It is true the decree purports to set aside the alleged appraisement but it leaves the parties suspended thereafter, the defendant enjoined from collecting more than a certain sum as rental which is subject to the further order of court and the complainants protected to that extent by an injunction likéwise subject to such further order, while the whole matter of determining the rental to be paid during the ten years in question, the ultimate subject matter, as we have .said, of the whole contention, is expressly reserved for consideration until after the final disposition of the appeal. This is to bring the case up by piecemeal. Appellants ’ counsel refer us to Crouch v. First National Bank, 47 Ill. App. 574-575, in support of their contention that the present appeal should be entertained as an exception to the general rule that an appeal will not lie until the cause has been finally disposed of in the Circuit Court; and to Loughlin v. U. S. School Furniture Co., 118 Ill. App. 36-40. In the case last cited, it was said that “under the particular circumstances” of that case it would “be a great hardship upon appellant if not a denial of justice to him to dismiss the appeal,” and that “in all essential particulars this is a final decree.” No such exigency is shown to exist in the case at bar, and we are unable to discover any sound reason for regarding it as within any exception to the general rule imposed by" statute that appeals lie only from “final judgments, orders and decrees.” See Brodhead v. Minges, 198 Ill. 513-517. (R. S., chap. 110, sec. 68.) It is true, as said in Alison v. Drake, 145 Ill. 500-510, that “a final decree is not necessarily the last order in the case,” but it is also true as further said in the same cause that “when it finally fixes the rights of the parties, it is final and may be reviewed on appeal or writ of error.” Counsel argue that “if it shall be decided that the rent is determined and fixed by the terms of the lease and that the court has no right to substitute its own award for that of the appraisers, then there can be no question about the finality of the decree.” Whether so or not, it is equally clear that if not so decided the decree would not be final.

For reasons indicated the appeal must be dismissed.

Appeal dismissed.


author: Mr. Justice Smith

text:
    Bridget Kehoe, Appellee, v. Marshall Field & Company, Appellant.
    Gen. No. 13,916.
    1. Employer and employe—test of determining existence of relation of. The real tests of determining the existence of the relation of employer and employe are, to whose orders was the employe subject and where did the power to discharge repose.
    2. Respondeat superior—when doctrine of applies; when not. The responsibility of a master for the tortious act of his servant arises, grows out of, is measured by and begins and ends with his control over them. The negligent or wilful misconduct of the servant must not only be shown, but equally so that the act was within the scope of employment, before liability of the master is established.
    3. Agency—who not authorized to malee arrest upon behalf of principal. Doing general detective work does not impart authority to arrest persons charged or suspected of committing criminal acts or to assault them.
    Bakes, P. J., dissenting.
    Trespass on the case. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Chefobd, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of facts.
    Opinion filed May 1, 1908.
    Statement by the Court. The original declaration contains three counts,- two for false imprisonment and assault, and one for slander. The first count alleges that the defendant, appellant, on October 28,1901, maliciously and wantonly, with force and arms, assaulted the plaintiff, appellee, and then arid there seized and laid hold of the plaintiff, and with great force and violence pulled and dragged her about, and searched the person and'removed the clothing and property of the plaintiff, and accused the plaintiff of the crime of larceny; and forced her to go along divers public aisles, passageways and streets into a room, and there imprisoned the plaintiff and detained her, without any reasonable or probable cause, for the space of one hour, all of which was against the will of the plaintiff.
    The second count alleges that on October 28, 1901, the defendant maliciously and wantonly arrested the plaintiff, and then and there beat and bruised and ill-treated her, and then and there imprisoned her and kept and detained her in prison, without any reasonable or probable cause whatsoever, for a long time, to wit: for the space of one hour.
    The-third count sets up various alleged slanders.
    To this declaration the defendant pleaded the general issue.
    On May 28,1903, by leave of court, the plaintiff filed five additional counts to her declaration. The first additional count is the same, in substance, as the first original count. The second additional count alleges that the defendant made another assault upon the plaintiff, and hit, bruised and ill-treated her and kept and detained her in prison without any reasonable or probable cause for the space of one hour.
    The third additional count alleges an assault upon the plaintiff by the defendant.
    The fourth and fifth additional counts allege various slanders.
    To these additional counts the defendant pleaded the general issue. And to the fourth and fifth additional counts the defendant also pleaded the Statute of Limitations.
    The plaintiff demurred to the plea of the Statute of Limitations. The demurrer was overruled by the court and plaintiff elected to stand by her demurrer.
    On the trial the jury returned a verdict finding the defendant guilty, and assessing plaintiff’s damages at $5,000. The court overruled defendant’s motions for a new trial and in arrest of judgment, and entered judgment on the verdict.
    The evidence tends to show that the plaintiff, Bridget Kehoe, left her home in Chicago on October 28, 1901, and went to the store' of appellant, Marshall Field & Company, on State street in Chicago. She wore two capes, one a light silk cape, and the other a mackintosh cape which came down to her hips. She arrived at the store at about one o’clock in the afternoon and proceeded to the lace department in the basement. She there examined a piece of lace. She testified that her sight was dim and she could not see very well, that she put her hand under her cape to procure her spectacles, and put her spectacles on and examined the lace. She then put the lace down and left the counter. She then went about the store a little, and took an elevator to the rest room on the second floor. While there she went into the ladies’ toilet room' When she came out of the rest room she took an elevator to the first floor, went out of the store on Washington street and proceeded west on that street. When she reached a point about half a block from the store on the north side of Washington street, Cochrane, a private detective employed by the McGuire & White Detective Agency, and stationed by that agency at the store of appellant to do detective work, stepped up to her and asked her to give him the lace which she had, or return to the store and pay for it.
    Appellee thereupon threw up her hands and cried out: “He is trying to rob me,” and appealed to the crowd to assist her. A letter-carrier came up immediately and appellee appealed to him. He summoned McCarthy, a policeman, who stepped between appellee and Cochrane, and demanded of the latter who he was and what he was doing. Whereupon a conversation occurred between appellee, Cochrane and the policeman. The result of the conversation was that appellee agreed to return to the store, if the policeman would go with her. This the policeman agreed to do, and she returned to the store with the policeman, Cochrane walking in advance of them.
    When they arrived at the store of appellant,' they went to a small room on the first floor and appellee demanded to be searched. Cochrane procured a maid from the ladies’ waiting-room, Miss McNeil, who went to the room and appellee demanded of her that she be searched. Miss McNeil, now Mrs. Hartwig, closed the door of the room and searched appellee. This occupied five or six minutes. Mrs. Hartwig found no lace on appellee and left the room, and the policeman, who had remained in the store up to this time, went away. Appellee left the store shortly thereafter and went to see her son, who was employed about a block from the store. She then proceeded with her son to consult a lawyer, and later went to her home. This action for damages followed.
    Benson Landon, for appellant; William: S. Forrest, of counsel.
    Thomas E. Booney, Ferdinand Goss and Charles S. McNett, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

It is urged as a ground of reversal of the judgment that appellant did not bear such relationship to Cochrane, the detective, as makes it responsible for any of his acts, under the doctrine of respondeat superior.

The only direct testimony in the case as to the relationship of Cochrane to appellant and his authority from appellant is that of Cochrane. His testimony shows that he was employed and paid by the McGuire & White Detective Agency, and not by appellant, and that his duties were “to do general detective work.” He received his instructions as to his duties in the store of appellant from McGuire of the detective agency, to whom he reported. He never received any salary or wages from appellant or any of its officers, nor did he at any time receive any directions or instructions from appellant.

Neither party to this action offered any evidence on the trial of the contract between appellant and the McGuire &' White Detective Agency. The court is left to the inferences which may properly be drawn from the testimony of Cochrane and the facts in evidence to determine whether Cochrane was subject to appellant’s orders and control, and was liable to be discharged by it for disobedience of orders or misconduct. These are the real tests, according to the authorities, by which to determine whether Cochrane was acting as the servant of appellant. Wood on Master and Servant, secs. 281, 317; Wadsworth Howland Co. v. Foster, 50 Ill. App. 513, affirmed in 168 Ill. 514.

In Pioneer Construction Co. v. Hansen, 176 Ill. 100, it is said, at page 108: “He is the master who has the choice, control and direction of the servants-. The master remains liable to strangers for the negligence of his servants, unless he abandons their control to the hirer. Control of servants does not exist unless the hirer has the right to discharge them and employ others in their places. The doctrine of respondeat superior is applicable where the person sought to be charged has the right to control the action of the person committing the injury. It follows that the right to control the negligent servant is the test by which it is to be determined whether the relation of master and servant exists; and, inasmuch as the right to control involves the power to discharge, the relation of master and servant will not exist unless the power to discharge exists. (Shearman & Redfield on Negligence, p. 892, sec. 12; Erie v. Caulkins, 85 Pa. St. 247.) ” See also Condon v. Schoenfield, 214 Ill. 226.

< e np}le responsibility of a master for the tortious acts of his servants arises, grows out of, is measured by and begins and ends with his control over them. (McGuire v. Grant, 25 N. J. L. 356.) ” Crudup v. Schreiner, 98 Ill. App. 337, 340. As said in Penny v. N. Y. Cent. R. R. Co., 53 N. Y. Supp. 1043, 1045: “The negligent or wilful misconduct of the servant must not only be shown, but equally so that the act was within the scope of employment, before liability of the master is established.”

Applying these tests to the proof in this case, we think liability is not established. We cannot infer from the testimony of Cochrane that he was employed by appellant or that he was controlled and directed by it. We find no ground for inference in the evidence that the McGuire & White Agency had abandoned the control of Cochrane to appellant, or that appellant had any power to discharge him. We are compelled to hold, therefore, that the evidence fails to establish the relation of master and servant between appellant and Cochrane, and that the former is not liable for the latter’s act.

But if Cochrane was in some sense the servant of appellant so that the doctrine of respondeat superior is applicable, we find no basis in the evidence for the inference that his acts, as testified to by appellee, were within the scope of his employment. What Cochrane did is not evidence that he was authorized to do it by appellant. His testimony to the effect that he was directed “to do general detective work” does not prove that he was authorized to assault appellee in the manner and with the force described by her. Doing general detective work does not impart authority to arrest persons charged or suspected of committing criminal acts, or to assault them. Penny v. N. Y. Cent. R. R. Co., supra. “The doctrine of respondeat superior applies only to acts performed by an agent within the scope of his employment.” Pinkerton v. Gilbert, 22 Ill. App. 568.

Appellant’s contention on the evidence in the case is that the verdict is supported only by the testimony of the plaintiff, and that she is contradicted by several witnesses in essential particulars; and there being no elements of probability to turn the scale in favor of appellee, the verdict is against the weight of the evidence, and should be set aside.

It appears from the evidence that Cochrane and Clausen, the latter being at that time in the employ of appellant as a sales clerk, but at the time of the trial was in no way connected with appellant, each acting independently of the other, observed the movements of appellee at the lace counter. They saw her take a piece of lace off the counter and conceal it under her cape and walk away, and that they followed her to the rest room on the second floor. When she came out of the rest room they followed her to the street. When appellee was about midway between State and Dearborn streets, on the north side of Washington street, Cochrane accosted her. At this point there is a radical conflict in the evidence as to what occurred. Appellee testified that Cochrane grabbed her on the shoulder in such a way as to inflict serious injury thereto, and demanded that she go with him to appellant’s store; that he pounded her on the breast with his fingers, in the presence of the policeman; that she returned with a policeman and Cochrane to appellant’s store and was there searched and then permitted to go.

We are of opinion, however, from a consideration of the evidence, that appellee was not assaulted on the street, and that she was not arrested at any time, as testified by her; that she returned to appellant ’s store willingly, either at her own suggestion or at the suggestion of the policeman who at her request agreed to accompany her, and that upon this arrangement between her and the policeman, appellee went back to the store for the purpose' of being searched, in order to clear herself of any suspicion that she had the lace, and that the search that took place at the store was made pursuant to such agreement.

The testimony of appellee is in some respects improbable and unreasonable. As given on the trial before us it differs in essential particulars from her testimony on a former trial, and it is contradicted in essential particulars by the other witnesses, who appear to be disinterested, and who give more reasonable accounts of what actually transpired. We think the verdict and judgment should be reversed, as against the decisive weight of the evidence.

The judgment is reversed, with a finding of fact.

Reversed, with finding of fact.

Mr. Presiding Justice Baker dissenting.


text:
    Martin Emerich Outfitting Company v. Siegel, Cooper & Company.
    Gen. No. 13,928.
    1. Landlord and tenant—when contract does not create relation of. Held, that the contract involved in this case, did not create the relation of landlord and tenant between the parties, but was a mere agreement creating a business arrangement for the benefit of both parties.
    2. Contracts—when termination results from change of conditions. Held, that the contract in this case, which provided for the conduct by one party of a furniture business in a part of the space occupied at the time by the other in conducting a department store, did not contemplate its continuance in the event of the voluntary change of location by the owner of such department store or by the destruction of the space provided for by the contract and that such contract was terminated by the destruction by fire of such space without the fault or negligence of such owner.
    Assumpsit. Error to the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed May 1, 1908.
    Statement fey the Court. This writ of error is prosecuted to reverse a judgment entered in the Circuit Court in favor of Siegel, Cooper & Company, defendant in error, defendant below (hereinafter called defendant), and against the Martin Bmerich Outfitting Company, plaintiff in error and plaintiff below (hereinafter called plaintiff), on a directed verdict entered at the close of the evidence for the plaintiff.
    The action was assumpsit to recover damages for breach of a written contract. The contract sued on is set out in the first count of the declaration, in words and figures following, to wit:
    “Memorandum of agreement entered into this twelfth day of July, 1890, by and between Siegel, Cooper & Co., a corporation, party of the first part, and the Martin Bmerich Outfitting Co., a corporation, party of the second part.
    Whereas, said Martin Emerich Outfitting Co. is desirous of offering for sale in the premises of party of the first part in the following described space, viz., the entire third floor of the buildings known as 211, 213 and 215 State street, and the south 25 feet front of the third floor of the main building, corner State and Adams Sts., being 25x80 feet more or less, a full line of furniture, mattresses, springs and all articles strictly appertaining to such a business, and said party of the first part is willing to grant the use of said space to said party of the second part on certain terms and conditions. Now, it is hereby stipulated and agreed by and between said parties “that the terms, conditions, stipulations and agreements between them for the purpose aforesaid shall be as follows:

      Said party of the first part agrees to set apart for the use of said party of the second part the space hereinabove mentioned, viz., the entire third floor of the buildings known as 211, 213 and 215 State St., and a space not exceeding 25x80 feet on the third floor of the main building on the southeast corner of State and Adams Sts., Chicago, Illinois, for the sale, by the said party of the second part, of furniture, mattresses, springs, and such articles strictly appertaining to such furniture business, but not to include .draperies, mirrors, pictures or picture-frames, brackets, statuary, lamps or any article now carried in our upholstery, carpet, picture, frame, crockery or house furnishing departments. And said party of the second part agrees to use said space for said purpose aforesaid; to keep said space in like clean and in good condition as other parts of the buildings at all times during the life of this agreement; to carry at all times a first-class stock of furniture, and to sell same for cash, and at as low a price as same quality will be sold by any other merchant or dealer in the same line within a radius of two miles, but said second party shall not, at any time, be compelled to sell any article below cost price; to conduct their business in a business-like manner; employ such help only and continue such in their employ as may be satisfactory to said party of the first part, which such help must comply with, conform and be subject to the rules and regulations governing the general employes of said party of the first part; discharge for cause at request of said party of the first part, any help or employee who may be obnoxious or distasteful to said party of the first part, or who may be guilty of any infraction or violation of its rules and regulations; enter into no contracts or incur any liabilities of any kind in the name of the party of the first part; not to erect or put up any signs or make any display that may be obnoxious or distasteful to said party of the first part; report at the office of the party of the first part each and every business day the gross daily sales made in said department; to keep a book or books in which all the transactions of the said furniture department shall be kept, which said books shall always be open to inspection of said party of the first part; to bear and pay for all costs, charges and expenses of every kind, name or nature caused or created by said furniture department; to furnish a cashier who will receive all moneys for sales made in said furniture department, which such moneys are to be turned over to said party of the first part at the close of each and every business day. A settlement between the parties of the first and second part shall be made on each Tuesday of each and every week, at which time the party of the first part shall turn over to the party of the second part all moneys received from the sales of said furniture department during the preceding week, less deductions for exchanges, refunds and all expenses due from the. department at the time of settlement, at which time a statement of such receipts, refunds and expenses shall be rendered; said party of the second part further agrees at his expense to furnish such wagons and horses as are needed in the delivery and handling of the goods sold in said furniture department; such wagons to be of uniform color and bear the name of Siegel, Cooper & Co. Furniture Department in like lettering as now used on all the delivery wagons of the said party of the first part; to deliver promptly and free of charge within the city limits all furniture sold in the department ; to advertise the department in the daily papers under and over the name of Siegel, Cooper & Co., to the extent of not less than five thousand dollars during the first year of this agreement, and a like amount or more during each year thereafter, during the life of this agreement. All advertisements to be submitted to, and be approved by the party of the first part before being published in the newspapers, said advertising to be paid with advertising bills of said party of the first part and charged to said party of the second part, at same rate as paid by said party of the first part; to pay said Siegel, Cooper & Co. for the use of said space during the continuance of this agreement on the first day of each and every month, beginning with September 1st, 1890, the sum of $500 per month; should the gross sales in the said furniture department after 1891 for any year beginning with September 1, 1891, exceed in amount the sum of $75,-000 during any year, then it is mutually stipulated and agreed that the party of the second part shall pay over to-said party of the first part, in addition to the monthly rental hereinbefore stipulated to be paid for said year, 5 per cent, of the amount of sales in excess over the amount of seventy-five thousand dollars ($75,000) sales, which said percentage shall be paid to said party of the first part at the end of such fiscal year. Said party of the second part further agrees to purchase from the party of the first part all the furniture and all articles appertaining to the furniture department now in the premises of the said party of the first part, at such prices as may be mutually agreed upon. It is mutually stipulated and agreed that in no event or contingency shall a customer be referred to some other place of business in which said party of the second part is in any manner interested; to procure any article not on hand or in stock or suitable to said customer. In case the article sought for by the customer is not on hand in the premises, such article shall, if possible, be procured for said purchaser; but should said article be carried in stock at any other store or place of business of said party of the second part or in which he is interested in any manner, and a sale effected, said sale shall be credited to the furniture department in the premises of the party of the first part. It is furthermore stipulated and agreed that in case of death, or dissolution of the said party of the second part, said party of the first part shall have the right and power to cancel this agreement at its option on giving 30 days notice to the legal representative of the second party of its such intent to cancel said agreement. Said Siegel, Cooper & Co. hereby agree at their own cost and expense to furnish to said party of the second part in connection with said space aforesaid, the like heat, light and elevator service as is furnished by it in the regular course of business to its other departments in its business. It is furthermore mutually agreed that this agreement shall continue in force for five years from the first day of September 1890 with the right, power and privilege on the part of the party of the first part to cancel this agreement and retake possession of said space aforesaid at any time at its option, whenever said party of the second part in the opinion of said party of the first part shall fail to fulfill, live up to, carry out, or abide by any of the agreements, stipulations and covenants hereinabove set forth and agreed by said party of the second part. But this contract shall not be cancelled nor possession of said premises taken by said party of the first part, until after written notice shall have been given to said party of the second part by said party of the first part in what manner the agreements, stipulations or covenants have been violated in order to enable said party of the second part to rectify any act of omission or commission in or connected with said furniture department business. A failure after such written notice to immediately rectify such act of omission or commission, or a wilful repetition of such or similar acts, whereby the intent and spirit of this agreement is violated, either by said party of the second part or his employees, shall authorize the cancellation of this agreement at the option of said party of the first part, without giving such notice to rectify any act of omission or commission, upon giving said party of the second part or his legal representatives 30 days notice of its intent to cancel this agreement. It is further understood and agreed that this instrument and each provision therein, shall be construed liberally and in a fair and equitable spirit, in order to further the interests of each party of this agreement, and the privileges of said second party to conduct said furniture department shall be exclusive of any other like department in said premises.
    “For the faithful performance of this agreement, said parties hereto affix to duplicate copies hereof their hands and seals at Chicago, Illinois, this 12th day of July, 1890.
    Siegel, Cooper & Co.
    Per F. N. Cooper, V. P.
    (Seal) Martin Emerioh Outfitting Co.
    Witness: Per Martin Emerich, Pres.
    Jam:es Brennan.”

      The declaration as amended alleged the performance by the plaintiff of the contract on its part up to the time the defendant refused to allow the plaintiff to occupy the space described in the agreement. It avers the refusal of the defendant to allow plaintiff to occupy the said space, and also the refusal of defendant to allow plaintiff to occupy space in the buildings to which defendant removed and in which it carried on its business as a department store, after the destruction by fire of a portion of the premises occupied by defendant at the time of the execution of the written agreement.
    To the original and amended declarations the defendant pleaded the general issue, also the Statute of Limitations of ten years to the first count and the Statute of Limitations of five years to the second count. The defendant also pleaded to-each count that plaintiff entered into occupation of the space mentioned in the contract set out in said counts, and received and enjoyed the privileges, rights and benefits of said contract until August 3, 1891, on which day, before the commencement of the business hours of said day, the store and said premises of defendant, of which the space then being occupied by plaintiff was a part and parcel, were, without fault or negligence of the defendant, so utterly destroyed and consumed by fire that they were thereby rendered utterly untenantable, uninhabitable and incapable of being repaired or rendered tenantable during a portion of the period covered in said agreement, and the defendant did not at any time after said fire use or occupy said premises or any part thereof in the transaction of its said business.
    The evidence produced on the trial showed the making of the contract, that the parties entered upon the performance thereof and continued to perform fully until August 3, 1891, when the premises were destroyed by fire. Defendant thereupon moved its business to other quarters on Wabash avenue and Adams street, Chicago, but refused to let plaintiff continue the furniture department, either in the old place or the new store, claiming the contract was terminated by the fire.
    Shortly after making the contract, by oral agreement of the parties, about one-half of the space described in the contract was given up, and in lieu thereof plaintiff was given and used other space in an adjoining building, connected by doors, thus increasing the space, and the fixed charge to be paid by plaintiff to defendant was increased from $500 per month, the amount named in the contract, to $615 per month.
    Plaintiff introduced evidence showing it had expended large amounts 'of money for advertising, for the purchase of wagons and horses for the delivery of goods, the amount of stock it kept, the gross sales of the department up to the time of the fire, the cost of the goods, the expenses and the net profits.
    Newman, Northrtjp, Levinson & Becker and Arthur B. Schaffner, for plaintiff in error.
    Augustus Binswanger, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The pivotal question presented by the record and in the briefs and arguments of counsel for decision is, whether the destruction of the premises of the defendant by fire on August 3, 1891, without the fault or negligence of the defendant, the said premises being thereby rendered untenantable, uninhabitable and incapable of being repaired, and in consequence thereof ‘ the defendant did not at any time after the1 fire use or occupy said premises or any part thereof for the transaction of its business, terminated the contract between the parties and absolved the defendant from further obligation or liability to the plaintiff.

The contract sued on is for the use of certain space in the building named therein to conduct a furniture business, nominally in the name of the defendant, in connection with the business of the defendant then carried on, for a period of five years from September 1, 1890. It contains certain regulations for the use of the space, the kind of stock which the plaintiff was to carry, the employment of help, the reporting of sales, and other details which are not important to be now considered, except in so far as they throw light upon the general purpose and character of the contract. The defendant agreed to set apart the space described in the contract for the use of the plaintiff, to make weekly settlements for the moneys received from sales of furniture, after deducting the expenses of the department, and to furnish heat and elevator service. For the space and service the plaintiff agreed to pay a fixed sum and in addition thereto five per cent, of the excess of its sales over seventy-five thousand dollars per annum.

While the contract has some of the elements of a lease and much of its phraseology is of the character usually found in contracts of lease, we are of the opinion that it does not create the relation of landlord and tenant between the parties; but, as said in Dickinson v. Hart, 142 N. Y. 183: “The agreement created a business arrangement for the benefit of both parties.”

The contract contemplates a particular space in the building or buildings named and no other space in any other building or buildings. It contains no provisions for the termination of the agreement in case of the destruction of the building by fire or other agency, or for any other cause except the failure of the plaintiff to comply with its terms. There is no language in the contract which relates to or contemplates the furnishing of any other space in another building. No intent or purpose can be gathered from the writing itself that it was to apply to any space in any other building than that named. On the other hand it bound the defendant to furnish the space and carry on business in the building named during the period specified; and it bound the plaintiff to conduct its business in the space named for the specified period. It is not contemplated even that the defendant might remove its business to any other place, for business reasons. The right so to do is not reserved in the contract, nor would plaintiff, in our opinion, be bound to follow defendant to any other place which it might select and determine to occupy, and carry on the department of the plaintiff there in connection with the business of the defendant. To hold that the plaintiff was so obligated by the agreement in question would amount to writing into the contract as made substantial and important provisions which were not only not expressed in the contract as made, but were not in the minds of the parties when the contract was framed and executed.

In placing this construction on the contract we are not unmindful of the following provision of the agreement: 1 ‘ This instrument and each provision therein, shall be construed liberally and in a fair and equitable spirit, in order to further the interests of each party of this agreement.” This provision, we understand, applies to the agreement and each provision therein, but does not apply to anything outside of the four corners of the instrument.

It is contended on behalf of plaintiff that the agreement was for the purpose of carrying on a particular kind of business in the defendant’s establishment, as a branch or department business, and in no wise dependent upon the particular locality in which the defendant carried on that business. And upon the removal of that business, whether by the voluntary act of the defendant, or by the destruction of the building in which the business was carried on, the plaintiff had the right under the contract to conduct the furniture department of the defendant’s business, and could have been held liable upon the agreement for failure so to do.

We find no such broad and general purpose expressed in the contract. The language used in the instrument is so simple and clear that it cannot be said to be in the least contradictory, obscure or ambiguous. Our attention is not called to any such provisions, sentence or clauses in the instrument. Nor is our attention called to any particular word, phrase or expression in the contract from which any such broad intent or purpose is manifested or even suggested. Putting ourselves as far as possible in the place of the parties when their minds met upon the terms of this agreement, and from a consideration of the circumstances surrounding .them, and the objects which they had in view, and reading the terms of the agreement in the light of all these circumstances and conditions, we cannot discover that the parties intended to provide for the conduct of the furniture department of defendant’s business by the plaintiff npon any or every voluntary removal thereof to any place which might be selected by defendant for the prosecution of its business; nor can we discover from the instrument that the contingency of the destruction of the defendant’s place of business, as shown by the evidence, was intended to be provided for in any manner. Reasons readily appear for making provision in such a contract for such contingencies. On the other hand, cogent reasons suggest themselves for not attempting to extend the contract so as to cover the contingency which actually occurred, or that of voluntary removal from the premises described. Differences as to the time of removal and place to which such removal should be made, the allotment of space, the service which should be rendered under unknown and special conditions, might give rise to endless controversies between the parties. The difficulties in the way of framing just and equitable provisions for the unknown contingencies and situations which might thus arise would prevent prudent men from committing themselves to such uncertainties in a large business enterprise. Doubtless, the parties to the agreement, if they at any time during the preliminary negotiations which led up to the agreement thought of the desirability of providing for these unexpected contingencies within the brief period covered by the contract, never brought it up for mutual consideration for the purpose of embodying them in the contract; or, if they were so considered, the difficulties of providing therefor, in a contract which was to be binding on both parties alike, led to the entire abandonment of the idea, for the contract when considered in detail and as an entirety, is significantly silent upon that subject, containing no word or expression indicating any such intent or purpose.

In view of these considerations, it is apparent, we think, that there is no warrant in the contract for the construction sought to be placed thereon by counsel for plaintiff. In our opinion, the contract is based upon the contract of the business in the particular space in the building described therein, and in no other place; and that the tender by the defendant of space and service in the building in which it did business after the fire would not be a substantial performance of the contract on its part in law. Whether the contract could be substantially performed or not, in that way, was not, in our opinion, a question of fact which should have been submitted to the jury.

The next question for consideration then is, what effect, if any, the destruction of the building shown by plaintiff’s evidence had upon the contract.

In 2 Chitty on Contracts (11 Am. Ed.) 1076, the author says: “But in contracts from the nature of which it is apparent that the parties contracted on the basis of continual existence of a given person or thing, a condition is implied that if the performance becomes impossible from the perishing of the person or thing, that shall excuse' such performance.”

The learned author cites Taylor v. Caldwell, 3 Best & Smith, 826, in support of the doctrine stated by Mm. In that case a contract was involved for the giving of concerts in a certain music hall which was destroyed by fire accidentally. It was held that both parties were thereby excused from the performance of the contract, because the general rule requiring absolute performance “is only applicable where the contract is positive and absolute and not subject to any condition, express or implied.” In that case it was further held that: “Where from the nature of the contract it appears that the parties must from the beginning have known that it could not be fulfilled unless, when the time for the fulfillment arrived, some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continMng existence as the foundation of what was to be done, then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the tMng without the default of the contractor.”

This doctrine has been enunciated and approved in Walker v. Tucker, 70 Ill. 527; Siegel, Cooper & Co. v. Eaton & Prince Co., 165 id. 550; Huyett & Smith v. Chicago Edison Co., 167 id. 233; and Smith v. Preston, 170 id. 179. It is sustained by numerous authorities in other jurisdictions, some of which are, Wells v. Calnan, 107 Mass. 514; Dexter v. Norton, 47 N. Y. 62; and Shear v. Wright, 60 Mich. 159.

In our opinion, the destruction of the building rendered a substantial performance of the contract impossible, and excused its further performance.

It thus appears that the evidence produced by the plaintiff with all the inferences proper to be drawn therefrom did not fairly tend to prove the cause of action set out in the declaration, and the court, therefore, properly directed a verdict.

The judgment is affirmed.

Affirmed.


text:
    David McComb, Appellee, v. Esther McComb, Appellant.
    Gen. No. 13,965.

      Delivery—when presumptions wilt aid. Where a voluntary settlement of property rights is made between husband and wife upon the eve of a contemplated desertion, the delivery of a deed of property included in such settlement will be deemed absolute.
    Divorce. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed in part and affirmed in part.
    Opinion filed May 1, 1908.
    Francis E. Croarkin, for appellant.
    Jambs B. Dbvitt, for appellee; Egbert W. Dunn, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The original bill in this case was filed by appellee, David McComb, against appellant, charging desertion, and that the complainant executed and delivered to appellant a warranty deed of lot three and the south thirty feet of lot two in block thirty-seven in the subdivision known as Eogers Park, and other property, in trust for the complainant, upon the express agreement on the part of appellant that the deed was not to be recorded or used by her and the property conveyed was not to be hers in fact unless the complainant should not survive the illness with which he was then afflicted, and in case the complainant recovered the deed was to be returned to the complainant and can-celled and rendered null and void. The bill prays for a divorce and a reconveyance of the property.

Esther McComb answered the bill denying the desertion, and that the deed was made in trust to her upon the agreement set out in the bill. The answer sets up various acts of cruelty by appellee to appellant, and that in October, 1902, appellee deserted and abandoned appellant; it also averred that said deed was executed and delivered to her unconditionally August 30, 1902, and that appellee stated to her at the time the said deed was delivered to her that he was going to leave her and that he had not treated her properly, and that the property so conveyed to her would partly pay her for the time she had lost and the money she had advanced on his account, and that it was the best he could do -for her; also stating that he would keep the other property which he had formerly owned, and the bank account for himself.

Appellant filed a cross-bill charging extreme and repeated cruelty and desertion, and prayed for a divorce and for alimony and solicitor’s fees. Appellee answered the cross-bill denying the charges. Replications were filed, and after hearing the court entered a decree dismissing the original bill for want of equity, and granting a divorce to appellant on her cross-bill on the ground of desertion. The decree makes certain findings as to the ownership of certain real estate therein described and decrees as to the separate ownership thereof, and that appellant take certain lots in lieu of any dower, and further that appellant make conveyance of lot three and the south thirty feet of lot two, of block thirty-seven of Rogers Park, in section thirty-one, township forty-one north, range fourteen east of the third principal meridian, to appellee, free and clear from all dower or other rights or interest of appellant.

No cross errors are assigned upon the record, and appellee insists in argument that the decree should be affirmed. Appellant, on the other hand, insists that the evidence warranted a decree in favor of appellant, on the ground of extreme and repeated cruelty. While it may be conceded that there is evidence in the record tending to sustain the averments of the cross-bill as to the cruelty therein charged, we do not think appellant has any substantial' ground of complaint because the divorce is granted upon the ground of desertion alone. She prayed for a divorce from, appellee and the decree gives her a divorce, on one of the grounds alleged in the cross-bill and shown by the evidence. The decree should not be disturbed, in our opinion, on this ground.

It is urged that the part of the decree which orders appellant to convey to appellee said lot three and the south thirty feet of lot two of block thirty-seven of Rogers Park subdivision, is erroneous on the ground that the evidence does not support the decree in this particular.

From a careful examination of the evidence in the record, we are of the opinion that the contention of appellee in his pleadings and his testimony that the deed of August 30, 1902, by which the Rogers Park property above described was conveyed to appellant, was made and delivered to appellant in trust for appellee, and upon the express agreement stated in the original bill of complaint, is not sustained by the evidence. On the other hand, we think the deed was made and the property therein described was conveyed absolutely and free of any conditions to appellant as stated in appellant’s answer to the original bill. At the time appellee executed and delivered the deed appellee intended to desert appellant; and he at that time thought that by conveying to her the pieces of property described in the deed he was making an equitable division of their property, to the purchase of which they had both contributed. The evidence shows that when they were married appellant had a home fully paid for which they occupied most of the eight years in which they lived together as husband and wife. It appears that by keeping boarders and doing other work appellant earned a considerable amount of money which was used in making payments on appellee’s property which had been purchased but not fully paid for at the time of their marriage. In addition to furnishing a home to live in, it is claimed, and the evidence tends to show, appellant contributed upwards of one thousand dollars to the general fund which was used in paying off appellee’s indebtedness existing at the time of their marriage, and incurred by him for the purchase of vacant property. When the conveyance in question was made, appellee retained other real estate and the money he had in bank, and he had this money and property when he left appellant in October, 1902.

The conveyance of the property described in the deed of August 30, 1902, was, we think, under the circumstances appearing in evidence, in the nature of a voluntary settlement made by appellee for the benefit of his wife when he intended to leave and desert her, and all the presumption in such cases as to delivery of the deed must be indulged. Shields v. Bush, 189 Ill. 543, and cases there cited. The settlement of this property upon appellant w;as voluntarily made and is binding upon appellee. We see in the record no reason, therefore, for the provision of the decree requiring appellant to convey the Rogers Park property to appellee.

Another ground for holding this provision of the decree erroneous appears in the pleadings and the decree itself. The decree dismisses the original bill of appellee for want of equity. When the decree was entered there was no pleading -upon which to found or base this part of the decree.

That part of the decree ordering and decreeing that appellant convey to appellee lot three and the south thirty feet of lot two of block thirty-seven of Rogers Park in section thirty-one, township forty-one north range fourteen east of the third principal meridian, in Cook county, State of Illinois, is reversed, set aside and held for naught, and the remainder of the decree is in all respects affirmed. ■ Appellee is to pay all costs.

Reversed in part and affirmed in part.


text:
    Jennie Moreland, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 13,973.
    Contributory negligence—when one seeking to cross street car tracks guilty of, as matter of law. The attempt of a person to 'cross street car tracks in front of an approaching car, in disregard of all ordinary precautions against known danger, is contributory negligence as a matter of law.
    Action in ease for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of fact.
    Opinion filed May 1, 1908.
    Rehearing denied May 12, 1908.
    Statement by the Court. Appellee, as administratrix of the estate of Charles D. Moreland, deceased, recovered a judgment in the Superior Court against appellant for damages for negligently causing the death of said deceased on May 3, 1905.
    Plaintiff’s intestate was driving a team of horses attached to a bakery wagon belonging to Kohlsaat & Company on Wabash avenue between Twelfth and Thirteenth streets in the city of Chicago. While crossing the tracks of appellant’s street car line on Wabash avenue an electric car going north struck the rear end of the wagon in which the deceased was riding, throw- ‘ ing it over, and the deceased received an injury from which he died within a few minutes.
    The declaration contained three counts, and averred careless and negligent operation of the street car; and averred that the deceased left him surviving as his sole heir and next of kin his wife, the appellee.
    At the close of the evidence on the part of the plaintiff, and again at the close of all- the evidence in the case, appellant moved the court to instruct the jury to find the defendant not guilty, and offered an instruction in writing to that effect, but the trial court overruled the motions and refused the instructions.

      William J. Hyres, Fearklir B. Htjssey and Watsor J. Ferry, for appellant.
    Johr A. Bloomirgstor, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The undisputed evidence is that the accident occurred between six and seven o’clock in the morning; that one of appellant’s cars was going north in Wabash avenue between Thirteenth and Twelfth streets at the usual rate of speed, eight or ten miles an hour; that there was a bakery wagon with two horses attached standing, facing north, on the east side of Wabash avenue, in front of a restaurant, and the driver, deceased, was inside the restaurant; that as the car approached, the deceased came out of the restaurant, got into the wagon, swung his horses around to the southwest, and attempted to drive his team across the street car tracks in a diagonal direction, in front of the approaching car. The car struck the rear end of the wagon, raising it up on two wheels, and as it was drawn along by the horses it fell over on its side. The deceased was not thrown out of the wagon, but after it was tipped over he emerged from it, and there was a wedge-shaped piece of glass in his neck under the angle of the jaw. He went to his horses’ heads and seized them by the bits, and after holding them for a few moments sank to the pavement.

gome of the witnesses testified that while he was holding the team a bystander, whom none of the witnesses knew, approached and drew the piece of glass from his neck, and that the blood spurted out in a stream. Other witnesses testified that the bystander did not remove the glass until after deceased had sunk to the pavement and been carried to the curbstone. All agree that death occurred shortly after the removal of the piece of glass. The piece of glass severed or cut the jugular vein.

It is urged on behalf of appellant that the record is barren of evidence that the collision by the car with the wagon was the proximate cause of the death of the deceased; that, on the contrary, the evidence shows that his death was the result of the removal from his neck by a bystander of the piece of glass. The contention is that an independent agency intervened, aggravating the physical injury, and that the party originally at fault is not responsible for the additional injurious effects caused thereby.

In our opinion, this contention has too slight a foundation in the evidence to merit serious consideration. We cannot interfere with the verdict of the jury on that ground.

The serious question upon which the case turns, in our opinion, is the question of contributory negligence.

The great preponderance of the evidence shows that the car was traveling at a rate of speed of from eight to ten miles an hour, and the bell was being sounded continuously from the time the car left Thirteenth street. This is testified to by ten witnesses called by appellant. One only of the five witnesses who testified on behalf of appellee stated that the bell was not sounded so as to give the deceased notice of the approach of the car. That witness testified that the bell was sounded when the car was fifteen feet from the wagon.

There is a controversy in the evidence in respect to the distance the car was from the wagon at the time deceased got into the wagon and started to turn the team across the railway track. The witnesses called by appellee estimate this distance at from sixty to one hundred feet. The testimony of appellant’s witnesses shows that the car was only forty or fifty feet distant from the deceased when he started up his team and attempted to cross the track diagonally toward the southwest, in front of the approaching car, which was in full view. The testimony for appellee showed that the deceased came out of the restaurant, and, crossing the sidewalk in a hurry, jumped into the wagon and turned Ms horses around to the southwest and started to cross the railway tracks without taking any notice of the approaching car; and when the horses went over the east rail of the track the car was about twenty-five feet or perhaps over a car length from them.

From an examination and an analysis of all the evidence we think it appears that all the witnesses to the accident are practically in accord to the effect that the car was traveling at the usual rate of speed between street intersections and was in full view of the deceased when he came out of the restaurant; that the deceased passed rapidly across the sidewalk and jumped into his wagon and suddenly swung Ms team around to the southwest and attempted to cross the track upon which the car was traveling when it was so near that the injury must be attributed to the negligence of the deceased. “The law does not permit one in such a place to drive in the path of a moving car, relying upon those in charge of the car to stop it and protect him from injury. ’ ’ Chicago Union T. Co. v. Jacobson, 217 Ill. 404, 408. From the evidence the situation appears to have been such that if deceased attempted to drive across the street car track when he started his team in motion, he must have known that a collision would be inevitable unless the car was stopped. The attempt of deceased to cross the track in front of the car, in disregard of all ordinary precautions against known danger, must be held, we think, to be contributory negligence which will prevent any recovery. Chicago Union T. Co. v. Jacobson, supra; Beidler v. Branshaw, 200 Ill. 425; Lee v. Chicago City Ry. Co., 127 Ill. App. 510; I. C. R. R. Co. v. Batson, 81 id. 142.

The judgment is reversed, with a finding of fact.

Reversed, with finding of fact.

Mr. Presiding Justice Baker dissenting.


text:
    The People, for use of William Brunt Pottery Company, Appellee, v. Ellen Barrett, Administratrix, et al., Appellants.
    Gen. No. 13,982.
    False return—what may be included by way of damages in action for. In an action upon the official bond of a sheriff for making a false return, the costs taxed in a chancery suit which resulted in the setting aside of the judgment predicated upon such false return, may properly be included in the damages awarded, notwithstanding no effort appears to have been made to collect the same from the defendant in the judgment fraudulently obtained; likewise, items of expense incurred in following such chancery cause upon appeal may be included.
    Action of debt. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed May 1, 1908.
    Seymour Edgerton, for appellants.
    William J. Pringle and Edwin Terwilliger, Jr., for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action of debt was commenced in the Municipal Court of Chicago for the use of the William Brunt Pottery Company, an Ohio corporation, against Ellen Barrett, as administratrix of the estate of Thomas E. Barrett, deceased, late sheriff of Cook county, Illinois, and the sureties on his official bond as such sheriff, to recover damages for an alleged false return of a summons. The case was tried before the court without a jury, and resulted in a finding and judgment against the defendants for $1,118.83. This appeal followed, to reverse the judgment.

The evidence shows that a summons was issued out of the office of the clerk of the Circuit Court of Cook county in the case of GfWynne M. Temby v. The William Brunt Pottery Company on August 29, 1903, and delivered on the same day to the sheriff for service. The return indorsed thereon, which is alleged to be false, is as follows:

“Served this writ on the within named William Brunt Pottery Company, a corporation, by delivering a copy thereof to Courtland A. Saunders, agent of said corporation, this 29th day of August, 1903. The President of said corporation not found in my county.

Thos. E. Barrett, Sheriff,

By F. W. Bewersdorf, Deputy.”

It appears from the evidence that Saunders, who was a personal friend of Temby, the plaintiff in that suit, had been engaged since 1901 in selling crockery ware manufactured by the William Brunt Pottery Company on commission. His territory included Texas, Oklahoma, Indian Territory and Kansas. In August, 1903, Saunders was in East Liverpool, Ohio, the place of the home office of the company. From there he came to Chicago on August 28, 1903, and called on Temby. On the afternoon of that day Temby took Saunders to the office of his attorney in the ¡Reaper block, Chicago, where arrangements were made for the commencement of Temby’s suit and the service of summons therein upon Saunders as the agent of the pottery company. Temby and Saunders were asked to come to the attorney’s office the next morning. This they did. Saunders, not being willing to go to the sheriff’s office, waited with Temby in the entrance of the ¡Reaper Block, while the attorney went to the court house, commenced the suit and returned with the deputy sheriff and served the summons on Saunders as the agent of the William Brunt Pottery Company. Saunders, in response to a question addressed to him by the deputy sheriff, said that he was an agent of the William Brunt Pottery Company, but refused to accept the copy of the summons, and the deputy sheriff placed it on Saunders’ shoulder and left; and after-wards indorsed the return above set forth on the summons. These are the facts testified to by two witnesses. Saunders stated in Ms evidence that when he was at the attorney’s office on the afternoon of August 28 nothing was said to him about the Temby suit, and that he did not go to the attorney’s office the following mormng; but that he met the attorney and the deputy on the street, and was there served with a copy of the summons, which he refused to accept, and that he told the attorney he had no authority to accept service.

The evidence shows that on the service so made a judgment by default for $1,859.75 against the William Brunt Pottery Company in favor of Temby was obtained on September 29, 1903. Garnishment proceedings were afterwards commenced on tMs judgment, and through a letter written by one of the garnishees the William Brunt Pottery Company first learned of the Temby suit and the judgment therein.

The pottery company filed a bill in eqrnty to set aside the judgment thus obtained and obtained a decree finding and adjudging that the return of the summons was false; that it was not indebted to Temby in any manner whatsoever and that the judgment be annulled and held for naught. The sheriff was a party defendant in the suit and the decree. The judgment below is for the expenses of appellee in conducting that proceeding.

In our opinion the evidence shows satisfactorily that the return of the sheriff to the writ of summons in the suit of Temby v. William Brunt Pottery Company was false in fact. The reasons for this conclusion given in Temby v. William Brunt Pottery Co., 127 Ill. App. 441, when that case was before us, apply to the record now before us and need not be repeated. We find no reason in the record to disturb the judgment of the court below on that issue.

Among the items included in the damages assessed is one of $212.85, costs taxed in the chancery suit. The decree in that case provided that Temby should pay these costs to the complainant therein, the William Brunt Pottery Company. It is now contended that this item was improperly included in the judgment, for the reason that no effort is shown by the evidence to collect these costs from Temby; and even if the evidence showed an execution against him and a return thereof unsatisfied, appellee would not be entitled to recover such taxed costs in this action.

In our opinion, these costs were the direct and proximate result of the false return, which made it necessary for the pottery company to institute the proceedings in equity to set aside the judgment illegally obtained thereby. Appellants’ objections to the allowance of these costs, and the items of expense in this court on appeal in that case, are not well founded and cannot be sustained.

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

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    Chicago Die & Electric Company, Defendant in Error, v. R. E. Nathan, Plaintiff in Error.
    Gen. No. 13,849.

      Partnership—what does not establish relation of. A joint interest in a special project, limited in character as well as time, does not constitute a partnership.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed May 18, 1908.
    Simon La Droit, for plaintiff in error.
    G-bidley, Culver & King, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The determination of the liability of defendant for the indebtedness set forth in the bill of particulars depends upon the fact of whether at the time the goods were ordered defendant was a partner of J. C. Feldman, his co-defendant, who, however, not being served with process, is not before the court.

A trial before the Municipal Court and a jury resulted in a verdict and judgment for $573.05 against the defendant. A new trial having been denied, this court made the writ of error sued out to operate as a supersedeas, and the record of the trial in the Municipal Court is before us for review.

The relations of Feldman and Nathan, as shown by the evidence, were restricted to the following dealings.

Feldman in 1906 invented a new kind of a “cigar price tag,” and being without funds to exploit his invention, applied to Nathan for assistance. Nathan acquired by purchase a one-half interest in the invention by advancing Feldman money with which to procure his invention to be patented and to have manufactured 25,000 of the tags. Under the agreement then made, the tags, when manufactured, were to be delivered to Nathan and sold under his direction, the proceeds to be applied to the payment of the money expended in procuring the patent and the making of dies and cuts and the manufacture of the tags. Feldman was to assist in marketing the 25,000 tags, and whatever money remained, if any, after Nathan was reimbursed for the expenditures above mentioned, was to be divided equally between Feldman and Nathan. Nathan sold the tags under the name of “Cigar Price Tag Co.” The patent expenses and the cost of the 25,000 tags were paid for by Nathan, according to the understanding. The plaintiff manufactured the 25,000 tags and was paid by Nathan with checks of the Chicago Brush Co., a business concern of which he was a member.

The indebtedness sought to be recovered was contracted by Feldman subsequent to the foregoing transaction. There is no evidence connecting Feldman with the latter order at all. The tags lastly ordered were delivered to Feldman and bills made out and sent to him. With these last ordered tags Nathan had no concern. After plaintiff had unsuccessfully pressed Feldman for payment, it took his note for the whole amount, and not until1 after the maturity of this note and the failure of all efforts of plaintiff to collect the debt from Feldman did it make any claim that Nathan was obligated for payment of the debt as a partner of Feldman in the transaction. Plaintiff used the deposition of Nathan in support of his case, and is consequently bound by it. Nothing in the record overcomes Nathan’s statements as to the nature of his dealings with Feldman and their limitation, but on the contrary every material fact is consistent with Nathan’s testimony. The verdict of the jury is manifestly contrary to the probative force of the evidence and the judgment rendered thereon erroneous.

The fact that Feldman and Nathan were jointly interested in the letters patent covering the tag is of no significance as affecting the question of partnership. They may each act independently of the other in exploiting the patented article, and no liability will result from one to the other or to third parties by so doing, in the absence of any express agreement of partnership to the contrary. Fraser v. Grates, 118 Ill. 99; Manufacturing Co. v. Wire Fence Co., 109 ibid. 71.

Persons may be interested in a joint enterprise without necessarily becoming partners. A joint interest in a special project, limited in character as well as time, does not constitute a partnership. Special agreements for particular adventures and joint undertakings do not make a partnership. This rule has received apt illustration by Chancellor Kent in his Commentaries, vol. 3, p. 33. He says: “A person may be allowed in special cases to receive a part of the profits of a business without becoming a legal or responsible partner. ’ ’ A share of profits may be received as an equivalent for rent. A clerk may receive an agreed portion of profits in lieu of a fixed salary for services rendered. A factor a percentage of sales as compensation. A seaman may take a share of the profits of a whaling expedition by agreement, in lieu of wages. In none of these, or similar cases, will the responsibilities of partners flow from such special agreements. Collyer on Partnerships, 14; Story on Partnership, sec. 32; Parker v. Fergus, 43 Ill. 437.

Neither Feldman nor Nathan at any time made any representation that they were partners, and as to a statement made by Feldman to third parties, out of the presence of Nathan, that they were partners, such statement, if made, would not be admissible against Nathan, to charge him with the liability of a partner. Lacking proof of partnership, the statements of Feldman made to others were inadmissible as evidence tending to charge Nathan as a partner with Feldman. Smith v. Hulet, 65 Ill. 495.

The joint account dealings between Feldman and Nathan, are, so far as plaintiff’s rights are involved, restricted to the first order for 25,000 tags, the liability for which it is admitted Nathan discharged in full.

The evidence does not develop that there was any holding out in any manner, to plaintiff or any one else, by Nathan, that he was a partner of Feldman.

Defendant Nathan’s motion to instruct the jury to return a verdict in his favor should have been granted, as the proofs failed to establish any liability in Nathan for the debt sought to be enforced against him.

The judgment of the Municipal Court is reversed.

Reversed.