text:
    L. C. Orrell, Defendant in Error, v. O. E. Snyder and W. O. Dicus Plaintiffs in Error.
    Gen. No. 17,242.
    1. Mechanic’s lien—where oxoner and contractor exchange work. Where a contractor signs a contract with the owner, a dentist, that he will take price of decorating in dental work, and the owner does not refuse to fulfil the agreement one who furnishes materials cannot obtain a money judgment against the owner under the Mechanic’s Lien Act, since he is presumed to have contracted with reference to the terms of the original contract.
    2. Mechanic’s lien—owner must owe contractor. One who furnishes material to a contractor must show that money was due from the owner to the contractor before he can obtain a money judgment under the Mechanic’s Lien Act.
    3. Judgment—partly erroneous. A judgment which is a unit, if erroneous as to one party, is erroneous as to all.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Ward, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 7, 1912.
    A. G. Dicus, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

W. O. Dicus, one of the defendants in the court below, has sued out this writ of error to reverse a judgment obtained by L. C. Orrell, plaintiff, against said Dicus and O. E-. Snyder jointly, for $61.75. It appears that Dicus is a dentist, and one of the owners óf a flat building. Snyder is a contractor and was a ‘‘ patient’ ’ of Dicus. Snyder proposed to Dicus to ‘ ‘ exchange work,” and on May 3, 1910, an arrangement was made between them by which Snyder was to do certain work on Dicus’ flats, and a paper was signed as follows: “May 3, 1910, I, the undersigned, agree to take the price of fixing up Dr. Dicus ’ flats in dental work. O. E. Snyder. ’ ’ Following this agreement, Snyder decorated and did some papering in Dicus ’ flats, and for that purpose he bought of the plaintiff, Orrell, for $61.75, some of the materials used. After serving notice on Dr. Dicus, Orrell brought suit against Snyder and Dicus jointly under the mechanic’s lien act, to recover the amount due for the material so purchased by Snyder. Upon the trial the court held that though Snyder had agreed to take his pay “in dental work,” yet such a contract was not binding on plaintiff, who furnished the materials, without express notice to him. The only question here involved is whether the plaintiff was entitled, upon the facts stated, to a money judgment against the owner in view of the terms of the original contract.

Section 21 of the Mechanic’s Lien Act of 1903 provides, in substance, that every person who shall furnish any materials for an original contractor shall have a lien, for the value of such materials, on the property in which such materials are used, and also, as against the contractor and his creditors, “on the money or other considerations due or to become due from the owner under the original contract.” Said section further provides that “in no case, except as hereinafter provided, shall the owner be compelled to pay a greater sum for or on account of the completion of such house, building or other improvements than the price or sum stipulated in said original contract or agreement.” The exceptions referred to in the quotation are not here involved. Section 24 provides that the party furnishing materials may serve a written notice upon the owner of the fact that something is due him, and section '28 provides that if the money claimed to be due be not paid within ten days after such notice is served, then he may sue the owner and contractor jointly to recover the amount due. Section 28 also contains the following language:

“All such judgments, where the lien is established, shall be against both jointly, but shall be enforced against the owner only to the extent that he is liable under his contract as by this act provided, and shall recite the date from which the lien thereof attached, according to the provisions of sections 1 to 20 of this act; but this shall not preclude a judgment against the contractor, personally, where the lien is defeated.”

It will be seen from these quotations that the statute recognized the fact that a contract such as was here made, may rightfully be made providing for the payment of the contract price in other considerations than money, and that the owner cannot be held liable beyond the terms' of his contract; and while it is true that a stipulation in a contract to pay in goods or services becomes, on default, a contract to pay that sum in money (Barstow v. McLachlan, 99 Ill. 641), yet there was no showing in this case of any default on the part of the owner. For aught that appears in this record, he has always been ready, willing and able to pay the value of the materials furnished in dental work, as stipulated in the contract. There is nothing-in the record to show that Dr. Dicus ever personally promised to pay the plaintiff for the materials purchased from him by Snyder, and it is, therefore, only by virtue of the Mechanic’s Lien Act that a judgment could be obtained by the plaintiff against Dicus. We are of the opinion, in view of the statutory provisions quoted, that if the plaintiff expected to hold the owner it was his duty before delivering the materials to ascertain the terms of the contract between the owner and Snyder; and so far as the owner is concerned, the plaintiff must therefore be presumed to have contracted with reference to the terms of the original contract. Before he would be entitled to a money judgment against the owner, it was necessary for bim to show that money was due from the owner to the original contractor. Hruby v. Vokoun, 57 Ill. App. 194; Marski v. Simmerling, 46 Ill. App. 531. In the absence of such proof, he was not entitled to a money judgment against Dr. Dicns, although entitled to such a judgment against Snyder. The judgment, being a unit, if erroneous as to one is erroneous as to all. Claflin v. Dunne, 129 Ill. 241.

For the reasons indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Benjamin Marcus, Defendant in Error, v. Nashville, Chattanooga & St. Louis Railway Company, Plaintiff in Error.
    Gen. No. 17,260.

      Railroads—when process cannot Be served on commercial agent. A person employed merely to solicit freight and passenger business for a foreign corporation, and having no power to sell any ticket or make any contract for the corporation, is not an agent upon whom process against the corporation may he served, where it has no other agent within the state nor any property except the office furniture of the solicitor.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed.
    Opinion filed November 7, 1912.
    Gregory, Poppenhusen & McNab, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

Defendant in error sued plaintiff in error to recover the value of a suit case and contents alleged to have been lost while defendant in error was a passenger on defendant’s train en route from Nashville, Tennessee, to St. Louis, Missouri. A summons was issued and returned served by delivering a copy of the summons, together with a copy of the statement of claim and affidavit attached thereto, to “ W. H. Wharton, Commercial Agent of said corporation, the president, secretary, superintendent, general agent or other officers of said corporation not being found in the City of Chicago.” Plaintiff in error filed its special appearance in the Municipal Court for the sole purpose of objecting to the jurisdiction of the court, and moved to quash the return of service of summons, filing at the same time the affidavit of W. H. Wharton in support of the motion. Such affidavit states, in substance, that plaintiff in error is a Tennessee corporation; that its principal office is at Nashville, Tennessee, with lines of railroad from Paducah and Hickman, Kentucky, to Atlanta, Georgia; that it is not doing business in Illinois, and none of its property is located therein, except some office furniture and fixtures in the commercial agent’s office in Chicago; that such commercial agent’s office is maintained solely for the purpose of soliciting freight and passenger traffic, and does not sell tickets or make contracts or rates for the transportation of freight or passengers over defendant’s railroad or any other road; that none of the officers or directors of the defendant company resides in Illinois, and that defendant has no agent or representative in Illinois other than the persons connected with the office of the commercial agent, and that none of such persons is authorized to sell tickets, make contracts or accept service of process on defendant’s behalf. No counter-affidavits were submitted, and the trial court found that the facts were as stated in said affidavit, but denied the motion to quash upon the ground that plaintiff in error was “doing business” in Chicago within the meaning of the law, and was, therefore, subject to the jurisdiction of the Municipal Court. Thereupon, on motion of plaintiff, a default and judgment for $72 and costs was entered against plaintiff in error.

Subsequent to the entry of judgment in the trial court, the identical proposition here involved was decided by the Supreme Court in the case of Booz v. Texas & P. R. Co., 250 Ill. 376, the facts of which, as shown by the opinion in that case, are almost exactly the same as in this case. It was there held that a person employed merely to solicit freight and passenger business for a foreign corporation, and having no power to sell any ticket or make any contract for the corporation, is not an agent upon whom process against the corporation may be served. Following that decision, it must be held that the trial court erred in refusing to quash the return and the subsequent proceedings were void for want of jurisdiction over the defendant.

The judgment is reversed.

Reversed.


text:
    Woodford Distilling Company, Defendant in Error, v. Remington Typewriter Company, Plaintiff in Error.
    Gen. No. 17,285.
    1. Sales—rights of purchaser where article is unsatisfactory. Where an article of personal property is sold with an express warranty and upon the understanding that it may he returned and the purchase price refunded if found unsuitable or unsatisfactory, the buyer has an election either to retain the article and sue for a breach of the warranty, or to return the article, if found unsatisfactory, in the manner provided 'by the contract, and sue for the purchase price.
    2. Sales—necessity of proving value in suit for breach of 'warranty. Where a typewriter is sold under a warranty with a right to return it and have the purchase price refunded if it proves unsuitable, if the buyer affirms the sale and sues for a breach of warranty, a judgment cannot be sustained if there is no evidence tending to prove the value of the machine as furnished.
    3. Sales—measure of damages for breach of warranty. Where a buyer of a typewriter, having certain rights, elects to affirm the sale and sues for a breach of warranty, the measure of damages, apart from any special damage, is the difference between the value of the machine as warranted and its actual value in its defective condition.
    4. Sales—when right to disaffirm is waived. Where a typewriter is sold under an agreement that it might he returned if unsuited to use in an accounting system, the right is waived by the continued and constant use of the same without offering to return it for six months after the buyer was aware of its defects and unsuitableness, and it is immaterial that the seller knew that attempts to adjust the machine did not satisfy the stenographer, where such defects were not considered of sufficient importance to cause the buyer to assign that as a reason for not keeping the machine after its use.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 7, 1912.
    Tinsman, Rankin & Neltnor, for plaintiff in error.
    Seitz, Bryan & Wilber, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

The plaintiff (defendant in error) recovered a judgment for $260 from the defendant (plaintiff in error) for damages sustained by an alleged breach of contract in the sale of a typewriter. The statement of claim filed in the Municipal Court says that

“Plaintiff’s claim is for money had and received by the defendant as the purchase price of a typewriter on the condition and understanding that said typewriter was to be suitable for the use and purpose of the plaintiff and * * * was to be a new typewriter free of imperfections; that said typewriter was paid for by the plaintiff before it had an opportunity to test said machine, and upon the distinct understanding that the plaintiff would not waive any of its rights by said payment; and the plaintiff asserts that said typewriter is a second-hand machine and is defective, and is not suitable for the purpose intended, and does not in any way comply with the warranty under [which] said machine was sold; by reason of which fact, the plaintiff has been damaged in the amount of $230.”

It appears from the evidence that early in October, 1908, one Hunter, a sales-agent of the Bemington Company, called at the plaintiff’s office in Chicago, and suggested to plaintiff’s bookkeeper certain changes in the methods of accounting or bookkeeping then in use by the plaintiff; that he told Bosenblatt, the plaintiff’s secretary and attorney# that a Bemington typewriter “would be a great advantage to the business of the Company and asked permission to put the machine in on trial;” that the desired permission was given and a Ño. 8 typewriting machine, with a “Wahl adder” attached, was placed in the plaintiff’s office; that on October 24, 1908, Hunter called again for the plaintiff’s order for the machine; Bosenblatt said that the Company “had not yet had an opportunity to find out whether the machine was entirely satisfactory, in fact the stenographer was at that time complaining about it; that tlie system of bookkeeping which he (Hunter) was working on for installation for the Company had not yet been completed and I (Bosenblatt) was not sure whether or not the machine would be useful for it;” that Hunter then said that “he guaranteed the machine would be satisfactory to the stenographer and useful in the system of bookkeeping,” and also said, according to the testimony of Bosenblatt and the stenographer, that “if the machine did not do what he said it would do, they would take the machine back;” (this part, however, was denied by Hunter); that thereupon an order was signed for a No. .8 Bemington typewriter with an adding attachment, containing these words: “for which we agree to pay the sum of $250, credit of $30 allowed for Bern. 6154466. Credit of $8.50 allowed old machine overhauled. According to verbal agreement regarding acctg. syst.” Bosenblatt testified that he wrote in the words ‘ ‘ according to verbal agreement,” but that the words “regarding acctg. syst.” were not in the order when he signed it. Hunter testified that he (Hunter) wrote the latter words in the order before it was signed; Following this order, Hunter called several times and the stenographer complained that the “machine did not work right;” that “the ribbon didn’t feed right;” that the spacing mechanism “jumped” at times; that “the type would stick,” and that “the machine worked harder than the old one.” Hunter sent around a repair man, or “adjuster,” who attended to these complaints. The stenographer testified, that “after the adjuster had been there, it would probably work a day or so, and then be off again,” and that this occurred every time it was adjusted.

Meantime, defendant’s collector called with a bill for the purchase price. Rosenblatt at first declined to pay, on the grounds that the machine was not working satisfactorily, and that the accounting system had not been installed; but on the assurance of the collector (as testified to by Rosenblatt) that the payment would be “without prejudice,” he paid the bill.

In January, 1909, the new bookkeeping system was in operation, and Rosenblatt testified that he then told Hunter that the machine “did not help any” and that the adding attachment was useless in the new system. Plaintiff did not, however, then or at any other time prior to July, 1909, ask defendant to take back the machine, but continued to use the machine daily, and all of each day, in the office.

In April, 1909, after several attempts on the part of defendant to adjust the machine to the satisfaction of the stenographer, defendant substituted another machine. This one “worked about the same way” and the stenographer told Hunter so, when he called after it had been used “ quite a while ’ ’—a month or two later.

On July 6, 1909, plaintiff wrote to defendant, asking it “to take the whole business back and give us a satisfactory machine, and for any balance that may be left over in our favor, we are willing to take a credit memorandum,” and saying further: “The machine itself is unsatisfactory, and among other things, you have furnished us with an old model of your machine; * * * the adding attachment is unsatisfactory and entirely unsuited to the nature of our business, contrary to the claims of your Mr. Hunter. * * * He guaranteed the whole business to give entire satisfaction and that we could return it at any time if not satisfactory. We acquainted him with our dissatisfaction, and he has been promising to call but has not come.” To this letter defendant replied, on July 12, 1909: • “We gave you the second machine in even exchange for the first one delivered to you, from the fact that we wanted you to be entirely satisfied. We now are prepared to have our adjuster place this machine in absolutely perfect shape for you. * * * We do not feel called upon to permit the return of a machine which we feel is doing everything we said it would do. ’ ’ A number of letters between the parties followed, in which plaintiff endeavored without success to induce defendant to substitute a new No. 11 visible typewriter for the second machine. On October 29, 1909, plaintiff wrote asking defendant to take away the machine and for the first time discontinued using the same. During the thirteen months prior to October 29, 1909, plaintiff used the machine daily, notwithstanding the claim that it was not working satisfactorily. Apparently no attention was paid to plaintiff’s complaints after July, 1909, further than to offer, on one occasion, to put in a new $100 machine in place of the second machine, which offer was declined by the plaintiff.

Prom the foregoing statement of facts, it will be seen that although- the plaintiff in July, 1909, claimed the right to require defendant to “take the whole business back” and give the plaintiff credit for the amount paid, and although this theory of the plaintiff’s rights is reiterated in the letter sent to defendant on October 29, 1909, yet when the suit was brought the plaintiff sued only for damages for a breach of an express warranty without asserting, in its statement of claim, any claim of right to return the machine. Prom a reading of the record of the trial, however, it appears that plaintiff’s counsel did not try the case upon the theory of an express warranty, but tried it upon the theory that the machine had never, in fact, been accepted by the plaintiff and that therefore it had a right to recover the amount paid, notwithstanding the facts that the full purchase price was paid in October, 1908, and that the plaintiff used the machine for over a year thereafter; while the defendant’s counsel evidently acted upon the assumption that the cause of action then on trial was one for damages for an alleged breach of a warranty of quality and fitness, as set forth in the statement of plaintiff’s claim on file, and defended entirely upon that theory. From an examination of the oral instructions of the court, it appears that both these theories of liability and the consequences thereof were placed before the jury, and the jury was left free to decide in favor of, or against, the plaintiff on either theory or on both together.

In the briefs of counsel filed in this court, counsel for plaintiff in error present arguments based upon the same theory of. the case as the one on which the case was tried by them on behalf of defendant in the court below. In reply to that theory, counsel for defendant in error now urge in this court, that there was not only an express warranty in the contract in question in this case, but was also a specific agreement authorizing the return of the machine and the repayment of the purchase price if not satisfactory to the plaintiff. The latter part of the agreement was not mentioned or referred to in any manner in the instructions given by the trial court, and so far as the record shows, the suit was neither brought nor tried upon the theory thus suggested. However, we thinlc the judgment is wrong on any theory. Where an article-of personal property is sold with an express warranty and upon the understanding that it may be returned and the purchase price refunded, if found unsuitable or unsatisfactory, the buyer has an election either to retain the article and sue for a breach of the warranty, or to return the article, if found unsatisfactory, in the manner provided by the contract, and sue for the purchase price. Kemp v. Freeman, 42 Ill. App. 500; Cook v. Lantz, 116 Ill. App. 472. If no time is fixed for such return, the option to return must be exercised within a reasonable time, or the right of return will be deemed waived. Pennell v. McAfferty, 84 Ill. 364. In such case, if the buyer brings suit for damages for a breach of the warranty the suit is, in effect, an election to affirm the sale and retain the property, for the reason that such an action will not lie until the sale is complete and the title has passed. English v. Hanford, 75 Hun 428; Stearns v. Drake, 24 R. I. 272. On the other hand, a return of the property, or offer to return the same, followed by a suit to recover the purchase price, amounts, in effect, to a rescission, or disaffirmance of the contract of sale.

If this case be considered as brought, or based, upon the theory that the buyer affirmed the sale, reserving, however, its right to recover damages, if any, for the alleged breach of warranty, as it might lawfully do (Underwood v. Wolf, 131 Ill. 425), the judgment cannot be sustained; for, while there was evidence tending to prove the warranty and its breach, there was no evidence tending to prove the actual value of the machine as furnished. The measure of damages in such case (apart from any claim of special damage) would be the difference between the value of the machine and attachments as warranted, and their actual value in their defective condition. Skinner v. Mulligan, 56 Ill. App. 47; Mayer v. Automobile Exchange, 125 Ill. App. 648. On this view of the case, there was no basis in the evidence upon which any damages for a breach of warranty could be ascertained or assessed by the jury.

On the other hand, if the case be considered as brought upon the theory of a disaffirmance or rescission of the contract of sale, the result must be the same in our opinion; for we think it is clear that the right of the plaintiff to return the machine (assuming it had that right by the terms of the contract) was waived by the continued and constant use of the same, without offering to return it, for at least six months after plaintiff was fully aware of all the facts regarding its defects in operation and its unsuitableness in connection with the accounting system. While there is evidence that the attempts of defendant to repair, or “adjust” the machine, did not satisfy the stenographer, and that defendant was so informed, it clearly appears from the evidence that the alleged defects were not considered by the plaintiff of sufficient importance to cause it to assign that as a reason for not wanting to keep the machine, until July 6, 1909—after it had used the machine daily for over nine months following the time when it was first placed in its office for trial and eight months after plaintiff had paid for the machine. The same considerations, in our opinion, apply to the theory that the machine was never accepted by tiie plaintiff.

For the reasons indicated, the judgment of the Municipal Court will be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Minnie Tucker, Plaintiff in Error, v. Frederick S. Tucker, Defendant in Error.
    Gen. No. 17,327.
    Appeals and ebbobs—size of type in abstracts. A writ of error will be dismissed where both the abstracts and the briefs of the appellant are printed in smaller type than is required for abstracts by a rule of the appellate court.
    Error to the Superior Court of Cook county; the Hon. Geobob A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Writ of error dismissed.
    Opinion filed November 7, 1912.

      Clyde O. Garmibe, for plaintiff in error.
    William A. Adams, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error was sued out to reverse a decree in which the Superior Court dismissed both the complainant’s bill for separate maintenance and the defendant’s cross-bill for divorce. Both the abstracts and briefs of plaintiff in error filed in this court are printed in smaller type than is required for abstracts by rule 19 of the Rules of Practice of this court. Experience has shown that the small pica type with leaded lines required by the rule mentioned is as small as can be safely used without injury to the eyesight, when the constant daily study of briefs and abstracts such as the volume of work in this court demands, is considered. We must insist upon a strict observance of this rule, as a matter of ordinary self-protection.

For this reason the writ of error will be dismissed.

Writ of error dismissed.


text:
    William Lake, Defendant in Error, v. William C. Koutsogianis, Plaintiff in Error.
    Gen. No. 17,341.
    1. Brokers—when judgment not against weight of evidence. Where plaintiff testifies that he was to buy property as cheap as he could and defendant testifies that it was to be bought for a certain price, and there are no corroboratory facts and circumstances, a judgment for compensation will not be disturbed as against the manifest weight of the evidence.
    2. Brokers—that broker had no license cannot be first urged on appeal. In an action on a special contract to recover compensation for buying property for another, it cannot be first urged on appeal that plaintiff did not have a real estate broker’s license.
    3. Brokers—when license not required. In the absence of proof that a plaintiff is engaged in the business of buying and selling real estate for others on commission, he is not prevented from recovering compensation on a special contract merely by the fact that he has no license as a real estate broker.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    Ralph F. Stern, for plaintiff in error.
    D. W. Parker, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

Plaintiff sued defendant upon a verbal contract to pay $100 for services to be rendered in connection with the purchase by defendant of certain real estate in Chicago. Defendant did not dispute the fact that services were rendered by the plaintiff, but claimed his compensation was contingent upon conditions that were not fulfilled. Upon a hearing before the court without a jury, plaintiff testified in his own behalf, and defendant and his brother testified for the defendant. These were the only witnesses. The court found for the plaintiff and entered judgment for $100.

Two points only are raised by plaintiff in error: first, that the finding and judgment are against the weight of the evidence, and second, that the plaintiff did not prove that he had a license as a real estate broker at the time of the contract in question.

As to the first of these contentions, the evidence was conflicting as to the precise terms of the contract. The plaintiff testified that defendant asked him to get the property as cheap as he could, and promised to pay him $100 for his services. Defendant’s evidence was to the effect that he agreed to give the plaintiff $100 if plaintiff could buy the property for a specified sum of money, and that plaintiff did not succeed in his efforts to accomplish that result. Defendant and his brother bought the property for a larger sum than the amount so specified. There were no corroborating facts or circumstances. In this state of the record, it is apparent that the trial judge was in a much better position than we are to determine which of the witnesses was the more credible. We have carefully examined the bill of exceptions and the arguments of counsel upon this point, and we are unable to say, from anything that appears therein, that the finding of the trial court was manifestly against the weight of the evidence.

As to the second contention, it does not appear from the record that the point was raised in the court below, or that any ordinance pertaining to that subject was offered in evidence. Furthermore, it has been held that in the absence of proof that a plaintiff is engaged in the business of buying and selling real estate for others on commission, he is not prevented from recovering on a special contract merely by the fact that he has no license as a real estate broker. O’Neill v. Sinclair, 153 Ill. 525.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    Ira McCartney, Defendant in Error, v. Wisconsin Dairy Farms Company, Plaintiff in Error.
    Gen. No. 17,154.
    1. Sales—when inferior goods as a compliance with order is for the jury. Where it appears that it is the custom for dealers to order "current receipt” eggs, which is understood by the trade to mean all grades of eggs just as they are receired from the farmers, the purchaser taking his chance as to the proportion of inferior grades, it is for the jury to determine whether an order for “good No. 1 current receipt fresh eggs” was complied with in shipping eggs, some of which were of poorer grades.
    2. Trial—when court should net malee statement as to what the facts may he. It is improper for a trial court in the hearing of a jury to make any statement as to what the facts may be or to com•ment upon any fact appearing in evidence, and such a remark, if prejudicial, may be sufficient ground for reversal.
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    H. J. Rosenberg, for plaintiff in error.
    J. Homer Sullivan, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The plaintiff, McCartney, having brought suit against the Wisconsin Dairy Farms Company, defendant, for a balance due on a shipment of eggs, upon a trial by a jury recovered a judgment for the full amount of his claim.

The first error urged as a ground for reversal is that the verdict of the jury is contrary to the weight of the evidence. The defense was that the eggs shipped were not up to the quality specified in the order. The order specified “good No. 1. current receipt fresh eggs,” and it is claimed that the evidence shows that a considerable portion of the eggs shipped was of an inferior grade to that ordered.

By the uninformed eggs are ordinarily divided into two classes, that is, good eggs and bad eggs; but we are told by the evidence herein that among those engaged in the business many grades of eggs are recognized; that an egg, like man, in its time plays many-parts, its acts being seven stages. At first they are called “extras,” then “No. 1,” and then “dirties,” then “checks,” and then “spots.” The sixth stage shifts into “leakers.” The last stage of all that ends this “strange eventful history” is “rots,” but probably not “sans taste, sans everything.”

At times it is the custom for dealers to order what are called “current receipt” eggs, which is understood by the trade to mean all grades of eggs just as they are received from the farmers, the purchaser taking his chances as to the proportion of inferior grades there may he in the lot. In view of this evidence it was fo.r the jury to determine whether the order for “good No. 1 current receipt fresh eggs” was complied with in shipping eggs of which some were of poorer grades. The jury evidently held with the theory of the plaintiff, that the kind of eggs specified in the order referred to no particular grade of eggs, but was made up of all grades. We cannot say that the verdict of the jury is incorrect in this particular.

The other error urged is that remarks prejudicial to defendant were made by the trial court in the presence of the jury. It is improper for a trial court in the hearing of a jury to make any statement as to what the facts may be, or to comment upon any fact appearing in evidence, and such remarks may be sufficient ground for a reversal. However, in the case before us the remark made by the court, in our opinion, could not have had any prejudicial effect with the jury upon the defendant’s case, and, therefore, we shall decline to reverse on that ground.

We discern no reason to disturb the judgment, and it will be affirmed.

Affirmed.


text:
    John W. Barr, Jr., Trustee, Defendant in Error, v. The Florentine Alabaster Company, Plaintiff in Error.
    Gen. No. 17,181.
    1. Appeals and errors—when identity of person will he presumed. Where a lessor signed a lease with one name and assigned it, using another name, if there is no certificate by the trial court that the statement of facts, under the practice in the Municipal Court of Chicago, contains all the evidence heard by him, the Apellate Court will presume that evidence was presented establishing the identity of person of the assignor.

      2. Appeals and errors—failure to argue is waiver of point. Where nothing is said by a lessee in its brief and argument touching an alleged failure of elevator service, the point will he deemed waived.
    3. Costs—requisites of motion for bond. A motion for plaintiff to file a cost bond upon the ground of nonresidence must be based upon something appearing before the court, by affidavit or otherwise, from which the trial court can determine the fact as to the residence of the plaintiff.
    4. Landlord and tenant—assignee of lessor may sue in own name. The act relating to landlord and tenant, section 14, authorizes an assignee of a lessor to sue for rent in his own name. °

    5. Landlord and tenant—provisions for heating and use of premises construed together. The provisions of a lease that a lessor agrees “to furnish steam heat when and where necessary” and that the premises are “to be occupied for an office and salesroom and for no other purpose whatever,” are to be construed together, and in an action for rent it is no defense by a lessee engaged in manufacturing statuary that because of a failure to supply sufficient heat to dry the statuary it was compelled to furnish its own heat.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    Morton G. Smith, for plaintiff in error.
    Vail & Vette, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a writ of error sued out to review the action of the Municipal Court in denying the motion of the Florentine Alabaster Co., plaintiff in error, to vacate a judgment entered by confession on a certain lease for the rent of the premises therein described. The lease was between Mary J. Ferguson and Jennie M. Grainger, as lessors, and plaintiff in error, as lessee. Through inadvertence Jennie M. Grainger signed the lease as Jennie M. Cook, which was her name before she was married. Subsequently the lessors deeded the premises and assigned the lease to John W. Barr, Jr., Trustee, defendant in error here.

The assignment to Barr is questioned upon the ground that the lease was from Jennie M. Cook, while the assignment to him rank from Jennie M. Grainger. There being no certificate by the trial court that the statement of facts contains all the evidence heard by him, this court will presume that evidence was presented upon the hearing that Jennie M. Cook and Jennie M. Grainger were one and the same person. That this is a fact does not appear to be disputed.

" The point that the assignee had no right to sue in his own name is answered by reference to Section 14, Chapter 80, Landlord and Tenant, Hurd’s Illinois Statutes ; also see Barnes v. Northern Trust Co., 169 Ill. 112.

The defendant below filed two affidavits in support of its motion to vacate the judgment, wherein it was claimed that the defendant had suffered damages by reason of the failure of the landlord to furnish steam heat and proper elevator service.

Nothing is said by plaintiff in error in its brief and argument touching the alleged failure of elevator service.

The provision in the lease concerning steam heat is: “Said first parties agree to furnish steam heat when and where necessary; ’ ’ and it is alleged in the affidavit that the lessee was engaged in the business of manufacturing statuary, and that it was necessary to dry the statuary with heat, and that because of the failure of the landlord to furnish sufficient heat for drying purposes the tenant was compelled to buy stoves and coal and furnish its own heat.

By the terms of the lease the premises were “to be occupied for an office and sales room and for no other nurpose whatever.” It follows, therefore, that the obligation to furnish steam heat “when and where necessary” must be construed with reference to the purpose for which the premises were to be used under the lease; that is, that the landlord was obliged to'furnish steam heat only for an office and sales room, and not for the purpose of supplying a drying kiln for the statuary in process of manufacture.

The assertion is made that plaintiff was a nonresident, and that therefore the court should have granted the motion made by the defendant for the plaintiff to file a cost bond. We find nothing in the record to support the assertion that plaintiff was a nonresident. A motion for plaintiff to file a cost bond upon the ground of nonresidence must be based upon something appearing before the court, by affidavit or otherwise, from which the trial court can determine the fact as to residence of the plaintiff.

We find no abuse of discretion in the action of the trial court in denying the motion to vacate the judgment, and therefore it will be affirmed.

Affirmed.


text:
    Augustus D. Juilliard et al., copartners as A. D. Juilliard & Co., Defendants in Error, v. Jacob Friedman, trading as J. Friedman & Co., Plaintiff in Error.
    Gen. No. 17,197.

      Sales—when fact of order cannot be established by ‘memorándum. On an issue whether goods had been ordered, the fact of the transaction cannot be established by memoranda produced by a salesman which were made by him subsequent to the alleged transaction between him and the purchaser and not in the presence of the purchaser.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 7, 1912.
    Julius N. Heldman and Simon La Grow, for plaintiff in error.
    Edward J. Queeny, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

A. D. Juilliard & Co., hereinafter called plaintiffs, brought suit against Jacob Friedman, hereinafter called defendant, for “goods sold defendant on January 4, 1910, at his special instance and request and shipped on or about said date,” and.recovered a judgment for $288.87, the price which plaintiffs claim defendant agreed to pay for the goods.

It was claimed in defense that the defendant had not ordered the goods, and apparently the truth of this claim was the only issue on the trial. The evidence shows that upon receipt of the goods the defendant returned them to plaintiffs, who retained them.

Complaint is made of the instructions of the court and of rulings on the evidence, but we do not comment thereon, as the judgment must be reversed and the cause remanded for the following reason: The salesman of plaintiffs, having testified that he had taken the order in question and to the circumstances of the transaction, was asked: “Have you any books or memorandum upholding your statement on that point?” Thereupon the witness produced certain memoranda which were made by him subsequent to the alleged transaction between him and the defendant, and not in the presence of the defendant. The court permitted this memoranda to go to the jury for the purpose of establishing the fact of the transaction. This was reversible error. Such memorandum may be used to refresh the recollection of the witness, and the opposite party is entitled to cross-examine the witness thereon for the purpose of showing that it could not properly refresh the memory of the witness, but it cannot be used for the purpose of establishing the facts therein contained. Wigmore on Evidence, vol. 1, sec. 763, and cases there cited.

No question is raised as to the amount plaintiff may be entitled to recover, if anything, where the goods are returned by the defendant and retained by the plaintiff.

Reversed and remanded.


text:
    Binner-Wells Company, Plaintiff in Error, v. J. P. Smith Shoe Company, Defendant in Error.
    Gen. No 17,226.
    1. Sales—when goods not ordered must be returned,. When parties have been dealing together and goods not ordered are received, they must be returned within a reasonable time, and what is a reasonable time is to be determined by the trial court or jury in view of all the circumstances.
    2. Sales—what is not unreasonable delay in returning goods. Where a buyer during a controversy over the allowance of a bill discount first becomes aware that additional goods not ordered were received, and not being able to arrive at an agreement as to the controversy, declines, after suit brought but before trial, to accept the goods, the mere fact that constructive possession of the goods was retained during the controversy is not of itself a failure to return them in a reasonable time.
    Error to the Municipal Court of Chicago; the Hon. Geobqe B. Watkins, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    Parker & Hagan, for plaintiff in error.
    Edward J. Sandberg, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This .is a case where two corporations have indulged in expensive litigation, because of a dispute over a difference between them of $13.74, arising from a transaction involving over $600.

The Binner-Wells Company, a corporation, herein after called plaintiff, on July 11, 1910, received from the J. P. Smith Shoe Company, a corporation, hereinafter called defendant, a written order for “three hundred thousand (300,000) six page folders,” to be delivered “by August 1st, 1910, for the price of Six Hundred and Twenty-one Dollars ($621.00), terms 2 percent. 10 days.” When the folders were made they were sent to defendant’s place of business, but without being unloaded or examined they were, under instructions from the defendant, delivered to a certain printing house to receive printing matter thereon. On August 26th a statement or bill was sent to defendant, which contained these items: “300 M Folders as per contract . . $621.00,” and “33 M additional . . $66.00,” or a total bill for $687.00. On September 17th defendant, after deducting 2 per cent, discount sent its check for $673.26 as payment of the amount of the bill. This was returned by plaintiff with a letter saying that the 2 per cent, discount was given for a ten-day payment. Defendant again tendered the check, with a letter giving its reasons why the discount should be allowed. Several letters passed between the parties, which indicate an increasing degree of irritation on both sides, and on October 13th plaintiff brought suit. Upon the trial it appeared that Mr. Smith, who had represented the defendant in the negotiations for the contract, was out of the city at the time of this dispute, and the cashier for defendant testified that he knew nothing of the additional 33,000' folders until about September 27th; that no printing was done on these additional folders, and that they were returned to plaintiff, “the first batch about October 25th, the last about November 25th,” both dates being prior to the date of the trial. The case was tried by the court, which found the plaintiff was not entitled to recover for the additional folders, and that defendant was not entitled to the allowance of the 2 per cent, discount. Judgment against the defendant was entered for $621, the contract price of the 300,000 folders ordered.

We are of the opinion that the conclusions of the trial court were right. The finding as to the allowance of the discount is not questioned by counsel for the defendant. The additional 33,000 folders were not ordered by defendant, and it can hardly be questioned that it could have refused to receive them without incurring any obligation to pay for them. It was, however, obliged to return them within a reasonable time, and what is a reasonable time is to be determined by the trial court or a jury in view of all the circumstances. Doane v. Dunham, 65 Ill. 512. It was during the controversy between the parties over what amount should be paid that defendant first knew of the additional folders. It may be that if plaintiff had acquiesced in defendant’s request for the allowance of discount, defendant would have consented to accept the additional folders. Not being able to arrive at an agreement with plaintiff, it concluded to decline to accept them. We cannot say that the mere fact that defendant retained constructive possession of the folders during the controversy is of itself a failure to return them within a reasonable time. They may have been retained in the hope that the matters in dispute would be amicably settled.

In view of all the circumstances surrounding the transaction, we can see no reason to conclude that the finding of the trial court in this regard is manifestly against the weight of the evidence, and we shall therefore not disturb the judgment, which will be affirmed.

Affirmed.


text:
    City of Chicago, Defendant in Error, v. Bertrand L. Weber, Plaintiff in Error.
    Gen. No. 17,248.
    Disobderly conduct—what constitutes. One making a speech on the public streets of Chicago with verbal but not written permission from the police. captain of the district should not be found guilty of violating section 1454 of the city ordinances relating to disorderly conduct.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 7, 1912.

      C. Stuart Beattie, for plaintiff in error.
    James S. McInerney, for defendant in error; Edwin J. Baber, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff in error, Bertrand L. Weber, is seeking in this court the reversal of a judgment of the Municipal Court finding him guilty of disorderly conduct and fining him one dollar. In the briefs of counsel we are asked to consider and pass upon many things, which are called “constitutional rights” and principles “that ought not to be surrendered,” etc., which, as we view the matter, are not involved herein.

The facts are undisputed. Weber was making a speech upon the public streets of Chicago; he was approached by a police officer who inquired if he had a written permit for his meeting; Weber replied that he had no written permit, but had received verbal permission from the police captain of the district. Thereupon the officer arrested him and lodged a complaint against him, charging him with violating section 1454 of the city ordinances, commonly known as the disorderly conduct section. The court found Weber guilty of violating this section of the ordinances. It is claimed by the plaintiff in error that the conduct of Weber does not fall within any of the provisions of section 1454, concerning disorderly conduct. It appears to be the fact that Weber did have verbal permission for his meeting, so that his misconduct, if any there was, occurred solely in his failure to have this permission in writing, and such failure is not covered by any of the provisions of section 1454 aforesaid.

The reply of the City is that Weber was guilty of violating section 2128 of the city ordinances, with special reference to that portion of the section which provides that “No parade or procession shall be allowed upon any street or public way in the city, nor shall any open air meeting be held upon any ground abutting any street or public way in the city, until a permit, in writing, therefor shall first be obtained from the Police Department. ’ ’

As to the assertion that Weber was guilty of violating this section of the ordinance, we express no opinion; but he is not charged with violating this section, and the finding of the court does not refer to it. From the facts before us it is apparent that Weber should not have been found guilty of the particular charge made against him.

The judgment will be reversed and the cause remanded :

Reversed and remanded.


text:
    Frank Gorney, by Wojciech Gorney, his next friend, Defendant in Error, v. Piotr Szvnkiewicz and Mrs. Piotr Szynkiewicz, Defendants. Mrs. Piotr Szynkiewicz, Plaintiff in Error.
    Gen. No. 17,263.
    1. Evidence—excluded where question is for jury. In an action for injuries alleged to hare been received when a stairway placed against a wall by the landlord fell on plaintiff, it is not error to exclude testimony as to whether prior to the accident, it seemed likely to fall, since whether the landlord should have known of that probability is for the jury from all the circumstances.
    2. Negligence—maintenance of premises. A finding that defendant did not exercise reasonable care to maintain steps in a reasonably secure position, and that it might reasonably have been expected that they would fall if jostled, is warranted where they were placed against a wall, in a nearly perpendicular position without being secured, though there was evidence that cinders were placed around the bottom.
    3. Negligence—sufficiency of evidence. A verdict for plaintiff is not against the manifest weight of evidence where two relatives of plaintiff testify that steps placed in a passageway by defendant’s husband with her knowledge fell upon him, and defendant and two relatives testify that plaintiff was injured while playing some distance away.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Max Eberbcaedt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    Johnson & Belasco, for plaintiffs in error.
    Francis X. Busch and Frank A. Rockhold, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, obtained a judgment against the plaintiff in error, hereinafter called defendant, for the sum of $250 on account of personal injuries sustained by plaintiff, who was a child six years of age at the time of the accident.

The defendant, Mrs. Szynkiewicz, owned a building at 1324 Rawson street, Chicago, occupied by tenants, including the parents of the child which was injured. The parents lived on the second floor in the rear. Previous to September, 1909, a wooden sidewalk was on the street in front of the premises, and leading from this wooden sidewalk was a stairway of five or six steps, leading downward, four feet wide and five to six feet long, to a gangway on the west side of the building about forty-five feet long. The east side of this passage was the wall of defendant’s building; the west side was the wall of another building. This passageway was used in common by the tenants, their families, visitors, etc., as a common passageway. In September, 1909, the wooden sidewalk was torn up and replaced with a cement sidewalk. The stairway leading into the passageway was removed and placed in the passageway against the wall of defendant’s building. This was done by defendant’s husband, and with the know!edge of the defendant herself. It remained there in that condition up to the time of the accident, which was on November 13,1909, and during this time people continued to use the passageway, reaching the sidewalk by a cinder embankment. It is claimed by the plaintiff .that while the child, Frank Gorney, was passing through the passageway the steps fell upon him and broke his arm.

Defendant urges* in this court that the judgment must be reversed, first in that the court erred in refusing to permit a witness for the defendant to testify as to how the stairway appeared previous to the accident, with reference to whether o.r not it was likely to fall. We have examined the authorities cited by defendant’s counsel in support of this point, but find no authority holding that such opinion evidence is proper. The cases cited only go to the extent of holding that a landlord should use ordinary care and diligence in keeping his demised premises in a condition of reasonable safety. Whether or not the landlord should have known of the probability of the steps falling while in the condition in which they were placed was for the jury to determine from all the circumstances in evidence, and is a matter upon which the opinion of witnesses would be incompetent. There was no error in the ruling of the trial court in this regard.

It is further urged that the mere falling of the stairway, without proof that previous to its falling the stairway was in an unsafe and dangerous condition and likely to fall, was not sufficient to make out a case against defendant, and that the court should have directed the jury to bring in a verdict of not guilty. The evidence shows that the steps were standing straight, or very nearly so, up against the side of the house; that the upper end was close to the wall and the lower end “a little way from the wall.” It is obvious that the steps must have been placed in very nearly a perpendicular manner; otherwise they would have blocked the passageway. Furthermore, they were not fastened or secured in any way. While there is some evidence concerning cinders being placed around the bottom, yet from all the circumstances we think the jury was fully justified in finding that the defendant did not exercise reasonable care to place and maintain these steps in a reasonably secure position to prevent their falling, and that in view of their position, leaning as they did against the wall, it might reasonably have been expected that they would fall if jostled by any passerby.

It is also urged that the verdict of the jury is contrary to the weight of the evidence. There was a sharp conflict in the testimony as to just how the accident happened. The child was accompanied by an older sister, who testified that the steps fell on her brother and knocked him down, and that Mr. Szynkiewicz took the steps off of him. This is corroborated by the testimony of the child’s mother that she heard him cry, opened the window and looked out and saw Szynkiewicz pick up the steps from the boy and stand them along the side of the wall of the building. Opposed to this is the testimony of Mr. and Mrs. Szynkiewicz and their fourteen year old son. They say that the Gorney boy was playing with a little wagon and that in some manner the wagon tripped him up and he fell on top of it, and that this happened a considerable distance away from the steps, and that the steps did not fall at all. In this condition of the evidence we are disposed to leave the question of the credibility of the witnesses to the jury, which saw them and was better able than is this court to determine which should be believed. We are not able to say that the jury in giving greater weight to the testimony of plaintiff’s witnesses reached a conclusion manifestly against the weight of the evidence.

Complaint is made of instructions given by the court to the jury, but an examination of the instructions complained of and of the entire instruction shows that the particular matters objected to were cured by other instructions given, so that taken as a whole the instruction of the court fairly and adequately informed the jury as to the law applicable to the facts in the case.

It is also urged that no negligence was shown, but what we have heretofore said disposes of this claim.

Taking the record as a whole, we discern no reason to disturb the verdict of the jury, and finding no reversible error in the rulings of the court or in instructions, the judgment will be affirmed.

Affirmed.


text:
    John T. Backman, Defendant in Error, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Plaintiff in Error.
    Gen. No. 17,288.
    Stipulation of fact—as to freight charges. Where parties stipulate that charges assessed by a carrier and paid by plaintiff were based upon a tariff in effect at the time the shipment moved and ” which was filed and approved by the Interstate Commerce Commission, it is fair and reasonable to construe such statement to mean that the charges were in accordance with the schedule.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed on remittitur.
    Opinion filed November 7, 1912.
    Glennon, Cary, Walker & Howe, for plaintiff in error; L. J. Hackney, of counsel.
    Edward R. Litzinger, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff purchased for $101.65 a ticket from the agent of defendant at Findlay, Ohio, for the transportation of a special baggage car containing trained animals from Findlay to La Crosse, Wisconsin. From Chicago the car was to be hauled by the Chicago, Milwaukee & St. Paul Railway Company, but upon its arrival in Chicago the St. Paul road refused to haul the same as baggage, because of its rule then in force that such a shipment as this was must go by freight or express. Plaintiff thereupon paid to the St. Paul road the charge for such freight, amounting to $160.39, and incurred the additional expense of $19.89 by reason of the delay in moving the car in Chicago, and brought suit against the defendant to recover these amounts.

Defendant claims that its agent was in error as to the rules and scheduled rates of the St. Paul road covering this class of shipments; that the tariff schedule of the St. Paul road, filed and approved by the Interstate Commerce Commission, must control, and that the defendant is liable only for the portion of the sum paid it by plaintiff which was for transportation on the St. Paul road, which portion is $67.75.

The case was tried by the court upon a stipulation of facts and certain documentary evidence, and after hearing judgment was entered for the full amount claimed by the plaintiff, viz., $180.28.

Counsel for defendant say in their brief: “The only question presented by the records is this: Where a rate different from the regular published interstate commerce rate was agreed upon by the agent of the defendant and the plaintiff from Findlay, Ohio, to La Crosse, Wis., and the regular published interstate commerce rate was demanded and collected at destination, can the excess between the regular published rate and the contract price be recovered by the plaintiff 1” Apparently there is no conflict upon this proposition between opposing counsel, for the attorney for the plaintiff in his brief says: “There can be no question but that if the Interstate Commerce Commission rules and regulations covered the shipment of the defendant in error, then if a mistake in the charge had been made, the correct amout could be charged upon a discovery of the error.” The only question, therefore, before this court seems to be the construction of section eight of the stipulation as to the facts, which section is as follows :

“Eighth:—That the charges assessed by the Chicago, Milwaukee and St. Paul Railway Company amounting to $160.39, and paid by the plaintiff to said Chicago, Milwaukee and St. Paul Railway were based upon tariff I. C. C.-A-7890, C. M. & St. P.-G. F. D.— No. 47000, the freight tariff in .effect at the time the shipment moved, and which was filed and approved by the Interstate Commerce Commission.”

The tariff schedule referred to in this section was not introduced in evidence, and it is argued by the plaintiff that therefore there was no evidence before the court that the charge made by the St. Paul road, and which was based upon this tariff schedule, was correct. We think the fair and reasonable construction of this section of the statement of fact is as if it read that the charges by the St. Paul road were in accordance with the tariff schedule filed and approved by the Interstate Commerce Commission. It is conceded that the rate fixed in the tariff schedule should control as the correct rate, and a stipulation that the charge of $160.39 assessed by the St. Paúl road was based upon that schedule must be held to mean that the tariff schedule authorized the charge of that amount.

A liability is admitted by defendant in its affidavit of merits “for the sum of $67.50, which is the Chicago, Milwaukee & St. Paul Railway Company’s proportion of rate from Findlay, Ohio, to La Crosse, Wis., had the shipment moved to destination under the rate quoted by the agent of the defendant at Findlay, Ohio.”

It is also stipulated that “plaintiff was compelled to expend $19.89 on account of the delay caused in Chicago through defendant’s failure to move the car from Chicago on time.” From these admissions it is clear that plaintiff is entitled to judgment for these amounts, which total $87.39. If, therefore, plaintiff will, within ten days from the filing of this opinion, enter a remittitur of $92.89, the judgment herein will be affirmed; otherwise the judgment is reversed and the cause remanded.

Affirmed upon remittitur; otherwise reversed and remanded.

Remittitur filed and judgment affirmed November 18, 1912.


text:
    Louisa B. Jackson, Defendant in Error, v. Dominico Mulzer et al., Plaintiffs in Error.
    Gen. No. 17,303.
    1. Forcible detainer—against party who has no title. Where children of intestate, who were deprived of title hy sale under decree of prohate court, refuse to surrender possession after notice in writing by one who secures title from the purchaser by foreclosure proceedings, such owner may proceed against them in a forcible detainer action.
    2. Jurisdiction—decree presumed to he regular. On collateral attack, the decree of a court of general jurisdiction will be presumed to be regular as to jurisdiction of both persons and subject-matter.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 7, 1912.
    Rehearing denied November 21, 1912.
    Willis H. Hutson and Don P. Pennywitt, for plaintiffs in error; Charles S. Frank and Don P. Pennywitt, of counsel.
    Lackner, Butz & Miller, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

We are asked to reverse a judgment obtained by Louisa B. Jackson against plaintiffs in error in a forcible detainer suit tried by the court upon a stipulation of facts, certain exhibits and evidence.

The undisputed facts are as follows: On the 31st day of August, 1889, Jacob Cygan, or Zigan, being the owner of the premises in question, departed this life intestate, seized of said premises, and left him surviving as his only heirs at law and next of kin Dominico Cygan, his widow, and Bose Cygan and Clara Cygan, his only children. On or about April 21, 1891, one Albert Cygan was appointed administrator de bonis non of the estate of Jacob Cygan, deceased, by the Probate Court of Cook County, and as such administrator filed a petition in said court to sell said real estate to pay debts, making parties to said petition, among others, the said children, Bose Cygan and Clara Cygan; that all of the parties to said suit, including said children, were duly served with process issued in said suit, and a guardian ad litem was appointed for said Bose and Clara Cygan,- and an answer filed by said guardian ad litem in the matter of said petition to sell, and that on the 24th day of September, 1891, a decree was entered by the Probate Court in the matter of said petition to sell, ordering the sale of said premises to pay debts, subject to two certain incumbrances and to the dower rights of the widow and to the homestead rights of the widow and children; that in pursuance of said decree said premises were sold on the 14th day of November, 1891, to Dominico Mulzer for eight hundred dollars, subject as aforesaid, said sale having been first duly advertised in accordance with law and said decree, and which said sale was duly reported to said Probate Court and approved by it. Albert Cygan, as administrator de bonis non, executed and delivered to said Dominico Mulzer his certain administrator’s deed, conveying said premises to her, which said deed was dated December 29, 1891, and recorded April 30, 1892. Thereafter the said Dominico Mulzer (being the same person as Dominico Cygan) and Ferdinand Mulzer, her then husband, executed their note, secured by their trust deed on said premises, duly releasing and waiving all homestead rights, of which said note the defendant in error became the owner, and which said trust deed was thereafter foreclosed as against said Dominico Mulzer, Ferdinand Mulzer and the trustee named in said trust deed. The time for redemption from the foreclosure decree having expired, a master’s deed was issued to the defendant in error, conveying to her the premises in question, and was duly filed for record in the recorder’s office of Cook County, Illinois. At the time of the filing of the petition to sell the said real estate to pay debts, and at the date of the sale thereof the premises were worth more than one thousand dollars ($1,000). The plaintiffs in error, Clara and Bose Cygan, arrived at the age of twenty-one years prior to the date of demand for possession, and prior to the date of the service thereof. At the date of the service of said demand for possession (November 21, 19101) the plaintiffs in error were in possession of the premises in question, being the upper floor of the building and premises known as No. 969 Milwaukee avenue, situated on lot fourteen, in block thirteen, in Ellston Addition to Chicago.

Counsel for plaintiff in error contend that clause 6 of section 2 of the forcible detainer act has no application to Clara and Bose Cygan because they were not parties to the foreclosure proceeding. This clause provides that “when lands or tenements have been # * * sold undér the judgment or decree of any court in this state. * * * and the * * * party to such judgment or decree * # * refuses or neglects to surrender possession thereof after a demand in writing by the person entitled thereto, or his agent,’’ the party entitled to such possession may bring an action in forcible entry and detainer. It is apparent that Clara and Bose Cygan not being parties defendant in the foreclosure proceeding, the plaintiff was not entitled to proceed against them in forcible detainer because of the sale in the foreclosure proceeding, and plaintiff does not claim to have so proceeded. It is also apparent that the- sale by which they were divested of title was the sale under the decree entered by the Probate Court ordering the premises sold to pay debts. It therefore follows that the premises, having been sold under the decree of the Probate Court, and there being a refusal to surrender possession thereof after demand in writing by the person entitled thereto, the parties in possession can be proceeded against in a forcible detainer action. As to plaintiffs in error Clara and Rose Cygan, the foreclosure proceedings showed that the defendant in error, by means thereof, had stepped into the shoes of the original purchaser at said Probate Court sale, while as to Dominico and Ferdinand Mulzer, the foreclosure proceedings themselves constituted the means by which they were divested of their interest in the property, and under which the defendant in error became entitled to the possession thereof.

It is next contended that it does not appear from the record that the Probate Court had jurisdiction of the subject matter in which the decree was entered for the sale of the premises to pay debts, and that the sale was irregular. It is the well settled law that in a- collateral attack the decree of a court of general jurisdiction will be presumed to be regular; that it had jurisdiction both of the persons and the subject-matter and proceeded in the due exercise of that jurisdiction. Swearengen v. Gulick, 67 Ill. 208; Wenner v. Thornton, 98 Ill. 156; People v. Medart, 166 Ill. 348.

We have considered other points suggested, but do not regard them as important.

The judgment will be affirmed.

Affirmed.


text:
    Edward Levy, Defendant in Error, v. C. O. F. Burkstrom, Plaintiff in Error.
    Gen. No. 17,333.

      Trial—propositions of law must he marked. Where, within proper time and with leave of court, several propositions of law are handed to the court, to he held as the law of the case, by virtue of the Practice Act (R. S., c. 110, § 61), it is mandatory upon the court to indicate his disposition thereof by writing thereon, and he cannot decline to consider or mark them.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 7, 1912.
    Rehearing denied and opinion modified November 21, 1912.
    Otto G. Ryden, for plaintiff in error.
    Sabath, Levinson & Stafford, for defendant in error ; Leo W. Hoffman, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Confession of judgment on a lease having been entered against Burkstrom, the plaintiff in error, upon motion leave to defend was granted to defendant, execution was stayed and hearing was had before the trial judge in the Municipal Court, who found for Levy, the defendant in error.

Various rulings of the court upon the admissibility of evidence are cited as error, and complaint is made concerning the conduct of the court during the trial. We do not cojnment upon these points, as there must be another trial in which these things complained of may not occur.

Within proper time and with leave of court, several propositions of law were handed to the court, to be held as the law of the case. The court retained them for a few days, and then declined to consider them or to mark them “refused” or “held,” saying, “they are not propositions of law.” Counsel for plaintiff in error requested the court to mark the propositions submitted, but the court refused to do so.

Section 61 of the Practice Act, chapter 110, Illinois Statutes, provides that “Upon a trial by the court either party may, within such time as the court may require, submit to the court written propositions to be held as law in the decision of the case, upon which the court shall write ‘’refused’ or ‘held,’ as'he shall be of opinion is the law, or modify the same, to which either party may except as to other opinions of the court.”

We see no escape from the conclusion that it is mandatory upon the trial court to indicate his disposition of the submitted propositions of law by writing thereon. Such was the ruling in Mann v. Learned, 195 Ill. 502, and in Western Valve Co. v. Wells, 127 Ill. App. 655.

If counsellor the defendant in error are correct in their contention that these propositions of law are without merit and should have been refused (upon which we express no opinion), then it was the duty of the trial court to mark them “refused.” In Rockhill v. Congress Hotel Co., 237 Ill. 98, cited by defendant in error, it should be noted that it appears from the opinion that all propositions of law were marked either “held” or “refused,” and the court held that those marked “refused” were properly so marked, not being propositions of law. That is not the question before us.

We would enter a judgment upon the merits of this controversy, except that the condition of the record before us makes this impossible.

For the reason indicated the order of the trial court is reversed and the cause remanded.

Reversed and remanded.


text:
    Marguerite Springer, Executrix, Plaintiff in Error, v. The Campbell Company, Defendant in Error.
    Gen. No. 17,349.
    1. Landlord and tenant—when tenant not obligated to pay increased rent. A lease obligating a lessor to furnish electric current provided that on a stoppage for more than a certain number of hours the defendant lessee could obtain current at the landlord’s expense, and in this respect was different from the leases of other tenants. The tenants had a meeting to demand better service at which defendant was spokesman. The. power totally failed,' and the lessor agreed to take current from an electric company if the tenants would pay an increased rental. Defendant agreed provided a satisfactory contract could be drawn up, and a contract was drawn up which the defendant refused to sign, and it obtained power from an electric company. Held, in an action for increased rental, that a contract to pay such rental was not made nor was there a new leasing at such rental.
    2. Frauds, statute of—when agreement by tenant is within. An oral agreement by a tenant to-pay an increased rent extending nearly five years is barred by the statute of frauds.
    3. Dismissal and nonsuit—when motion for nonsuit comes too late. Where at the close of a plaintiff’s case of the fourth class in the Municipal Court of Chicago defendant moves for a judgment and the court says, “I think I will sustain the motion, what have you to say,” and then plaintiff moves for “nonsuit,” the right to a nonsuit is governed by the Municipal Court Act, Section 30, and not the Practice Act, Section 70; the motion is not made before the court has stated its findings and it will be denied.
    Brror to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge; presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 7, 1912.
    N. A. Beck, for plaintiff in error.
    Dunn & Hayes, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Warren Springer, hereinafter called plaintiff, brought suit against the Campbell Company, a corporation, hereinafter called defendant, and upon a trial bv the court judgment was rendered in favor of the defendant, and plaintiff brings this case before us for review.

The defendant was a tenant in a building belonging to the plaintiff, under a written lease beginning May 1, 1909, and ending April 30, 1915. This lease provided, among other things, that plaintiff, the landlord, was to furnish electric current for the operation of defendant’s machinery, defendant being engaged in the printing business. By a “rider” attached to the lease it was provided that a stoppage of electric current for fifty hours (for repairs, etc.) in each year was to be allowed to the landlord, and after the fifty hours were consumed then the liability of the landlord to the tenant was to be limited to the amount paid by the tenant to the Commonwealth Edison Company or “drainage canal” for electric current used during any stoppage of the supply from the landlord. It further provided that the tenant should maintain connection with the Commonwealth Company, and that all claims for payment of current thus used were to be made monthly and deducted from the following month’s rent. The lease in this respect was different from the leases of the other tenants of the building, the defendant being the only tenant having a separate connection with the Commonwealth Company.

In May, 1910, the power service became so poor that the tenants held a meeting, at which a representative of the plaintiff was present. A witness testifies that the president of the defendant company “was apparently the spokesman of the meeting.” At this meeting the tenants insisted upon better service in many particulars, and among other things urged that as the electric plant in the building was unfit, the landlord should make an arrangement to take current from the Commonwealth Company. Pending these negotiations the engine in the building broke down and the tenants were left without power, except as to the defendant, which obtained power through its. separate connection with the Commonwealth Company. As the result of the negotiations above referred to, the landlord agreed to make a connection for the building with the Commonwealth Company if the “parties in interest would pay him an amount equal to ten per cent, of the rent which they respectively were then paying, in addition to said rent.” It was agreed that a contract in writing to this effect should be drawn.

The attitude of the defendant towards this agreement appears from the testimony of Mr. Byden, the representative of the landlord at the meeting, who testified on behalf of the plaintiff. He says: “Mr. Campbell (the president of defendant) said he would pay the ten per cent, providing a satisfactory contract could be drawn up, and providing Springer would give them the power; and, so far as the terms of the contract were concerned, why, he would sign any contract which Mr. Dunn and I could agpee on.” Mr. Dunn was one of the attorneys for the defendant company, and Mr. Byden was an attorney for the landlord.

A contract was subsequently drawn up, but not signed by the defendant, which refused to sign it. The landlord installed his connection with the Commonwealth Company, but defendant was not served with power through that connection, but continued for some months thereafter to get its power through its own separate connection with the Commonwealth Company, paying its bills for power direct to this company and deducting the same from the monthly rental, as provided in the “rider” to the lease. Some months after (the exact time does not appear) the landlord began to serve defendant with power through his connection with the Commonwealth Company. The power bills in evidence, paid by the defendant and credited to it by the plaintiff on account of rent, indicate that this change took place in September, 1910. On October 14, 1910, plaintiff brought suit against defendant for the ten per cent, addition to the rent reserved in the lease, and by an amended statement of claim filed November 25th set forth that his claim was “for the sum of $156.05, said amount being equal to ten per cent, of the monthly rent of $295 per month, paid by the defendant to the plaintiff from May 23, 1910, to November 1, 1910.” Upon hearing of the case the trial court found for the defendant.

The theory urged by plaintiff’s counsel is that the evidence shows an independent contract between plaintiff and defendant, whereby defendant was obligated to pay the additional ten per cent, per month. It is at once apparent that this cannot be supported by the evidence. The defendant never entered into any agreement. At most there was a promise by it to enter into an agreement “providing a satisfactory contract could be drawn up.” That this condition was never accomplished is evidenced by the fact that defendant refused to sign the contract subsequently submitted for that purpose. We can discern no very good reason in this particular why defendant should have signed this new contract, for by its lease it could obtain adequate power from the Commonwealth Company whether the plaintiff installed a connection for the entire building or not. What we have said applies also to the suggestion that if there were no independent contract then this court should hold that there was a new leasing, under which the defendant is bound to pay the increased rental. The error in both theories is in assuming a new agreement between the parties. The fact that the president of the defendant company was the spokesman at the meeting of the tenants held in May, for the purpose of demanding better service, and at which the matter of the 'payment of the ten per cent, was tentatively discussed, cannot be held to amount to an obligation of the defendant. The record shows that at this meeting the “spokesman” demanded concessions from the landlord in which the defendant was in no way concerned. It further may be said that even should the evidence indicate an oral agreement between the parties, it was an agreement extending nearly five years, and therefore barred by the statute of frauds. We hold the trial court was right in finding for the defendant.

It is earnestly urged that in any event there must be a reversal on the ground that the plaintiff was denied the right of taking a nonsuit. At the conclusion of plaintiff’s case the defendant moved for judgment for the defendant upon the evidence introduced by plaintiff, and thereupon the following occurred:

The Court: I think I will sustain the motion, what have you to say?
(Argument by counsel.)
“Mr. Beck: I make a motion for non-suit.
“The Court: I was afraid you would do that, so I started out by saying that I would find against you. The motion for non-suit is denied.”

Both counsel herein have discussed this point upon the theory that section 70 of the Practice Act controls, and the cases cited have to do with this section. However, as we view the matter, this statute is not applicable herein, but rather section 30 of the Municipal Court Act, the latter part of which section provides that “Every person desirous of suffering a non-suit on trial shall be barred therefrom unless he, do so before the jury retire from the bar, or before the court, in case the trial is by the court without a jury, states its finding.” This is a case of the fourth class in the Municipal Court, and the section last referred to has to do with every suit at law other than a case of the second, third or fifth class. The question therefore is, did plaintiff’s counsel move for a non-suit before the court had stated its finding? Inspection of the record and' of the above quotation from the abstract discloses that plaintiff did not move for a non-suit until after the court had stated its finding. Under the provisions of the statute referred to, this motion was made too late.

There being no reversible error in the ruling and finding of the trial court, the judgment will be affirmed. Affirmed.


author: Mr. Presiding Justice Clark

text:
    Lue E. Dewey, Executrix, Appellant, v. Chicago Railways Company, Appellee.
    Gen. No. 16,436.
    1. Street railways—when negligence is for the jury. A bicyclist, riding slowly, in crossing a street car track at a street crossing first saw an electric car when it was half a block away, and when it was within about twenty-two feet from him his wheel wavered and he was struck. The car was going at such a rate of speed that it ran one hundred feet after the accident and no bell was rung or any warning given. Held, the question of whether defendant was negligent was for the jury.
    2. Street railways—when failure to stop, look or listen is not contributory negligence. The mere failure of a person approaching a street car track to stop, look and listen does not constitute contributory negligence as a matter of law.
    3. Street railways-—when act in perilous position is not contributory negligence. Where a bicyclist crossing a street car track is struck by an electric car, the fact that when the car was twenty-two feet away, instead of going forward in the imminence of the danger his wheel wavered, is not of itself proof of contributory negligence.
    4. Street railways—when bicyclist is not guilty of contributory negligence. A bicyclist was going slowly in crossing a street car track at a street crossing and when he was in a position to first see the car a half a block away his angle of vision was such that he might have been deceived as to the speed of the car and as to whether or not he could safely cross. The car was going at a rapid rate of speed and when within twenty-two feet the bicyclist’s wheel wavered and he was struck. Held, the bicyclist was not guilty of contributory negligence as a matter of law.
    5. Appeals and errors-—remand must be had when error in granting peremptory instruction. Where the Appellate Court finds that a peremptory instruction has been improperly granted in a personal injury case, it must reverse the judgment and remand the cause, even though, if the ease had gone to the jury and the plaintiff had recovered judgment, the court would have set it aside as being against the weight of evidence.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1912.
    Rehearing denied November 26, 1912.

      Charles B. Elder and Robert D. Elder, for appellant; Charles B. Elder, of counsel.
    John A. Rose and Frank L. Kriete, for appellee; W. W. Gurley and John R. Guilliams, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the appellant, as executrix under the will of Frank J. Dewey, deceased, against the appellee for damages on account of its alleged wrongful act in causing the death of the deceased. The accident happened at the crossing of Western avenue and Warren avenue, in the city of Chicago. On Western avenue the appellee maintains a double-track street railroad. From the record it would seem that the plaintiff was proceeding along Warren avenue in a westerly direction upon a bicycle, sitting erect, facing forward and riding slowly on the north side of the street but near the center of the street. As he crossed Western avenue, and after his front wheel had gotten over the first rail of the north-bound track, a car approached at a high rate of speed. It reached a point about twenty-two feet from him, when he appeared to hesitate, his front wheel wavering and turning first to the north and then toward the car. The deceased was struck and carried or thrown to a place between the tracks near the north side of Warren avenue. The car passed on and, it would appear, ran about 100 feet before stopping. At the close of plaintiff’s case the court, on motion of the defendant (appellee) directed the jury to. find a verdict for the defendant.

The only question in the case is whether or not it should have been submitted to the jury. There is no longer any question as to the law which should govern. If it appears clearly from the record that the defendant is not guilty of negligence and that reasonable minds could come to no other conclusion, then the instruction was proper; or, if it does not appear from the evidence that the deceased was in the exercise of ordinary care, and the proof is such that reasonable minds could come to no other conclusion than that he was not in the exercise of such care, then the instruction is proper.

Appellant insists that negligence of the defendant is established, that the car approached the crossing at an excessive rate of speed, that it was not under proper control, that no warning was given by the ringing of a bell, or otherwise, of its approach, and that the motorman could have seen the danger in which the deceased was, and was guilty of negligence in not stopping the car.

There is no proof in the case as to the speed at which the car was running, excepting that it was said by one or more of the witnesses to be running “very fast.” There is evidence, however, that the car ran nearly 100 feet after striking the deceased, and we think this tended to show that the speed was excessive. There is also evidence that no bell was rung or other warning given. This evidence necessarily was of a negative character. Witnesses who testified that they were in a position to hear gave evidence that they did not hear any bell or other warning. Without considering the other elements which might have to do with the question of negligence on the part of the appellee, we state it as our opinion that reasonable minds might fairly disagree upon the proposition, and that therefore it cannot be said that the appellee was not guilty of negligence as a matter of law. We think it was a question in the first instance to be determined by the jury. It seems more likely that the trial court from the evidence was of the opinion that the appellant was guilty of contributory negligence as a matter of law, and that the direction to the jury to find for the defendant was based upon the latter proposition.

The mere failure of a person approaching a track to stop, look or listen does not constitute contributory negligence as a matter of law. Whatever may have been the earlier holdings in this and other states, later decisions leave no room for doubt in respect to the matter. Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104; Winn v. Cleveland C., C. & St. L. R. Co., 239 Ill. 132.

We are cited by the appellee to cases in this and other appellate courts. In many of them the question decided was not that the plaintiff or the decedent was guilty of contributory negligence as a matter of law, but rather as a matter of fact. In the appellee’s brief the following quotation is taken from the case of Cotter v. Chicago City Ry. Co., 141 Ill. App. 101:

“If by the exercise of ordinary care on his part, plaintiff could have seen the approach of defendant’s car as his own car came near the track on which that car was coming, then the law made it his duty to see that car, and if he failed in such duty, his failure would bar a recovery.”

Counsel, however, omitted from their quotation the next paragraph of the opinion:

“The failure of plaintiff to look to the north after he started his car forward to see if the car which he saw coming towards the track on which his car was before he started his car, while not in law negligence per se, was negligence in fact.”

There is a marked distinction between the power of the trial court to direct a verdict, and the power of an appellate court to reverse the case without remanding. It is held in Supple v. Agnew, 202 Ill. 351, that the Appellate Court has power, under the Practice Act, to reverse the judgment of the lower court without remanding the cause, upon the ground that the weight of the evidence did not authorize the verdict, and that this is too well settled by former decisions to be longer a matter of controversy. Fitzsimmons v. Cassell, 98 Ill. 332; Hawk v. Chicago, B. & N. R. Co., 147 Ill. 399; Borg v. Chicago, R. I. & P. R. Co., 162 Ill. 348. Many cases are cited also by appellee from the Supreme Court of the state, but in most instances the question in the case was as to instructions.

In Lee v. Chicago City Ry. Co., 127 Ill. App. 510, a jury was instructed in the Superior Court of Cook county to find the defendant not guilty. Reference to the statement discloses that the plaintiff was driving westwardly on Polk street in Chicago, approaching Clark street, with an empty wagon; that when the front of his wagon, where he was sitting, reached the east line of Clark street, he looked north and south and saw a car about 250 or 275 feet away coming towards him from the north; that he “made no effort to stop his team or to hurry up,” but kept on “straight across the tracks without again looking at the car or making the slightest effort to find out how near the car had gotten to him; never saw the car again.” The court said:

“This is not a mere attempt to cross in front of a car, as in cases cited by appellant’s attorney. It was an attempt to cross in utter and conceded disregard of ordinary precautions against known danger.”

We are referred to the recent case of Healy v. Chicago City Ry. Co., 163 Ill. App. 293, heard in the “C” Branch of this court. We do not regard the case in point. In the opinion it is said: “The location of this collision was not at the intersection of streets crossing each other, where the appellant and all others have equal rights to the use of the streets, but was at a point where appellant had a paramount right to the use of so much of the street as was covered by its tracks. ’ ’

It is impossible to say from the record in the case before us just when the decedent became aware or should have become aware of the car. It is not like the Lee case, supra, where the plaintiff testified that when he saw the car it was 250 or more feet away.

Among recent cases decided by the Supreme Court of the state, where the action of the trial court in refusing to direct a verdict because of alleged contributory negligence of the plaintiff or the deceased, was approved, are Chicago City Ry. Co. v. Nelson, 215 Ill. 436; Chicago & J. Elec. Ry. Co. v. Wanic, 230 Ill. 530; Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104; Chicago Union Traction Co. v. O’Donnell, 211 Ill. 351.

In Chicago & J. Elec. Ry. Co. v. Wanic, supra, the court says:

“The question of contributory negligence is ordinarily one of fact for the jury, and only becomes one of law where the undisputed evidence establishes that the injury resulted from the negligence of the injured party. If there may he a difference of opinion on the question, so that reasonable minds will arrive at different conclusions, then it is a question of fact for the jury.”

It is argued by the appellee that the contributory negligence of the deceased is clearly established by the fact that when the car was twenty-two feet away from him if he had gone forward a few feet he would have escaped injury, but that instead of doing so he hesitated, “his front wheel wavering, turning first towards the north and then towards the car, and then perhaps straight ahead.” It is easily supposable that the deceased, in crossing the track, lost or partially lost his balance, and in endeavoring to regain it turned the wheel first toward the north and then towards the south. This of itself would not be proof of negligence contributing to the accident. It has been held that “persons under imminency of peril may not be required to exercise all the presence of mind and care ‘of a prudent, careful man,’ with impending danger. The law makes allowance, and leaves the circumstances to the jury to find if the party acted rashly and under an undue apprehension of the danger.” Galena & C. U. R. Co. v. Yarwood, 17 Ill. 509. And again, “Where a plaintiff is suddenly placed in a position of peril without sufficient time to consider all the circumstances, the law does not require of him the same degree of care and caution, as it requires of a person who has ample opportunity for the full exercise of his judgment and reasoning faculties. Especially is this so, where the peril has been caused by the fault of the defendant.” Dunham Towing & Wrecking Co. v. Dandelin, 143 Ill. 409.

The evidence tended to show that the car was going at a rapid rate of speed immediately before and at the time of the collision. And it further shows that the plaintiff was going slowly, and that when he was in a position to first see the car his angle of vision was such that he might well be deceived as to the speed of the car, and as to whether or not he could safely cross in front of the car. The car when it came within his sight was about a half block away and if it had been going at a moderate rate and under control, as he had a right to assume, he might have crossed tn« track in safety.

Our conclusion is that in this ease the decedent cannot be said to have been guilty of contributory negligence as a matter of law. If the testimony of the defendant had been taken, and thereafter a verdict rendered in favor of the plaintiff, it might be that the court would have been obliged to grant a new trial on the ground that the verdict was against the weight of the evidence.

The judgment will be reversed and the cause remanded.

Reversed and remanded.