text:
    Emma Polzin, Executrix, et al., Defendants in Error, v. P. F. McCarthy, Plaintiff in Error.
    Gen. No. 15,190.

      Evidence—when as to general custom competent. Evidence of a general custom is competent to the effect that after a real estate agent authorized to collect rents has made a lease on behalf of the owner if his authority to collect rents is terminated he is entitled to a commission of two and one-half per cent, on the amount of rent for the unexpired term of such lease.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed January 24, 1911.
    Guerin, Gallagher & Barrett, for plaintiff in error.
    Chilton P. Wilson, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

William C. Polzin and others, defendants in error, brought suit in the Municipal Court of Chicago against Patrick F. McCarthy, plaintiff in error, and recovered a judgment on a directed verdict on one of the numerous items set out in the plaintiffs’ bill of particulars for $402.88.

It appears from the record that the defendants in error (hereinafter called plaintiffs) were the owners of a large flat building, called the Pomerania, containing twenty-six flats, seven stores and seven offices, and other buildings. Plaintiff in error (hereinafter called defendant) was a real estate and insurance agent. In September, 1895, an agreement between the plaintiffs and defendant was made whereby the plaintiffs employed the defendant as their agent to attend to the renting and collecting of the rents for three per centum commission, and the defendant was also to have the placing of insurance on the properties, receiving his commission for insurance from the insurance companies. No specific length of time for the continuance of the agency was mentioned. The defendant discharged the duties of his agency, renting and collecting the rents and placing the insurance. He rendered regular monthly statements of his business to the plaintiffs with checks to balance the statements.

On September 26, 1905, shortly after a new renting year began, and after the defendant had made leases for the next year, the plaintiffs wrote him a letter demanding the delivery to, the latter of all “monies, leases, insurance policies and papers belonging to the Pomerania and the estate of the Polzin Brothers,” and setting the date for the termination of the services of the defendant as agent for September 28, 1905.

On October 3,1905, the defendant sent to the plaintiffs a statement and check for $282.72 to balance the account, and notifying plaintiffs they could have the leases by calling for them or giving their representative an order on the defendant to turn them over to him.

The statement contained many items of debit and credit, and among them an item “To Comm, on unexpired leases $402.88.” At the trial no evidence was offered by the plaintiffs as to this item, but they simply claimed that it was wrongfully withheld by the defendant. The defendant endeavored to show a general custom and usage in the city of Chicago for more than twenty years prior to 1896, and at all times since then prevailing among real estate agents and generally by the owners of real estate to the effect that when an agreement was made between an owner and an agent by which it was provided that the agent should rent certain property and makes the collections thereon, but did not provide as to the period of time during which the agency was to continue, if after the agent had made leases of the property or parts thereof, the owner terminated the agency and so prevented the agent from collecting the rents on the unexpired leases, the agent should receive from the owner as compensation for the leases made and outstanding two and one-half per cent, upon the aggregate amount of the rent to fall due under the leases. The court sustained objections to questions asked the defendant as to the existence of such general custom and usage and what the custom was and finally sustained an objection to an offer of proof showing the existence of such custom as above stated. Having excluded the evidence offered by the defendant, the court directed a verdict for the above item of $402.88.

This ruling of the court was erroneous and the judgment of the court entered on the directed verdict must be reversed. The evidence was competent and should have been admitted. Steidtmann v. The Joseph Lay Co., 234 Ill. 84; Off v. J. B. Inderrieden Co., 74 Ill. App. 105.

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

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Mrs. Thomas Curran, Defendant in Error, v. Dr. McLaughlin Company, Plaintiff in Error.
    Gen. No. 15,197.

      Vebdicts—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will he set aside on review.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed.
    Opinion filed January 24, 1911.
    William Irwin, for plaintiff in error.
    Knight, Reid & Godman, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Mrs. Thomas Curran brought an action against the Dr. McLaughlin Company, plaintiff in error, hereinafter called the defendant, in the Municipal Court of Chicago for fraud and deceit alleged to have been practiced upon her in the sale to her of an electric belt for $40. The fraud and deceit relied on is that one Howe represented to the plaintiff that he was Dr. McLaughlin, and that the electric belt was one with a current sufficiently strong to effect a cure of constipation; and that the plaintiff believed the representations to be true and relied upon them and paid the defendant large sums of money for a belt which the defendant knew was worthless.

The plaintiff to sustain her cause testified that early in 1907, she called at the office of the defendant to purchase an electric belt. There one Howe introduced himself as Dr. McLaughlin. She told him that she was troubled with chronic constipation, and he said he could cure it with an electric belt inside of three months provided she used the belt according to directions every twenty-four hours during that time. Howe made no examination of her as a physician at that or any other time. She did not purchase a belt at this first visit. She returned to the office of the defendant early in September, 1907, and purchased a belt for $40, paying $15 cash, and $25 when the belt was delivered to her at Monroe, Wisconsin. The plaintiff says that she wore the belt four hours a night for three nights in succession, but she could not get electricity from the belt. The only sensation she felt was that of being cold. She never wore the belt again. On her re-cross examination she was asked: “Q. Did you not at that time ask if he was Dr. McLaughlin? A. I did on Thursday. Q. ' Did you not the first time you were there ? A. Yes. He said he was a doctor and stopped; he said he was not personally Dr. McLaughlin, he would call the doctor from the hotel.”

In addition to this testimony, the plaintiff introduced in evidence letters written to the plaintiff by the defendant dated respectively July 23, 1907, August 2, 1907, November 5,1907, and January 11,1908, and the part of the pamphlet of instructions relating to constipation, indigestion, torpid liver, kidney troubles and general weakness; and also the belt which was delivered to the plaintiff. No evidence was offered by .the plaintiff tending to show the belt offered in evidence was not an electric belt, or that it would not produce a cure if used according to directions given. The letter of November 5, 1907, introduced by the plaintiff was a letter of inquiry addressed to the ■ plaintiff by the defendant as to the results which the plaintiff had experienced from the use of the belt. Although according to her testimony she had long since ceased to use the belt when she received the letter, she made no reply to it; and made no complaint in regard to the belt whatever until the following January, which was two months after the receipt of the letter, and four months after she had ceased to use the belt.

The testimony on behalf of the defendant contradicts the plaintiff’s testimony as to the representations made by Howe that he was Dr. McLaughlin. It tends to show that the belt sold to the plaintiff was an electric belt of sufficient power to produce cures of ,the complaint that the plaintiff suffered from, and that belts of the character of the one sold to the plaintiff have brought cures and benefits to afflicted persons when used long enough and in the proper manner.

We are of the opinion from the evidence of the plaintiff that she did not call upon the defendant for medical advice. She knew her trouble and having heard of electric belts called to purchase one, and did not ask to be examined by Dr. McLaughlin or any other physician. In other words she did not submit herself as a patient to the defendant for medical advice and treatment and no such relation was thought of or proposed. In this respect the case is very different from Hedin v. Minneapolis M. & S. I., 35 L. R. A. 417, relied on by the plaintiff, and the doctrine in that case has no application here.

In our opinion the plaintiff’s evidence fails to make out a case of fraud and deceit; and considering all the evidence we think the great weight is in favor of the defendant and against the verdict of the jury.

The judgment is therefore reversed with a finding of'fact.

Reversed.


text:
    The Fidelity & Deposit Company of Maryland, Plaintiff in Error, v. Peter F. Young, Defendant in Error.
    Gen. No. 15,225.
    1. Negotiable instruments—what not promissory note. A contract providing for the payment of an indefinite sum of money is not a promissory note, negotiable or non-negotiable.
    2. Suretyship—what does not authorize writing of contract of guaranty over signature. If an instrument, not a promissory note negotiable or non-negotiable, has a signature on the back thereof, the holder of such instrument has no right to write a contract of guaranty above such signature.
    3: Statute oe Frauds—loftat not toriting sufficient to satisfy. A signature upon the back of an instrument not a promissory note negotiable or non-negotiable, is not such a writing as will support a parol contract of guaranty.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 24, 1911.
    Peckham, Packard, ApMadoc & Walsh, for plaintiff in error.
    Clarence T. Morse, for defendant in error; Cyrus L. Garnett, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff below, plaintiff in error here, brought suit in the Municipal Court of Chicago against the defendant, defendant in error here, on the following instrument :

‘' $500.00/100 Chicago, Feby. 19, 1906.
Eight months after date, for value received, I promise to pay to the order of W. E. Brown the sum of Five Hundred Dollars at 3052 Lakeside Building, with interest at 6 per cent per annum, and taxes.
M. B. Early.
Endorsed:
Peter F. Young,
W. E. Brown.”

In regard to the execution and delivery of the instrument, the plaintiff’s agent, Arnold, testified that in February, 1906, he accepted the instrument, together with $500 cash, from Brown as collateral security for a court bond of $500. The only conversation that Arnold had with Young, the defendant, in regard to the instrument, prior to the taking of it by the plaintiff, according to Arnold’s testimony, was over the telephone. Arnold called up Young and asked him if he had signed it, and Young replied in the affirmative.

The defendant, Young, was called by the plaintiff for cross-examination under the statute, and testified that one Brown and one Majors asked him to endorse the instrument, telling him they wanted to use it in connection with the giving of a bond, and stating that there was no liability on the bond; that the bonding company knew this, but had a rule requiring security to be given for bonds; that there would be no liability on the instrument if witness wrote his name so close to the top that such words as “I hereby guarantee the payment of this note” could not be written above it; that the witness thereupon did as requested, and that he never talked with Arnold about the note until shortly before the suit was commenced.

The record shows that the plaintiff offered in evidence, over the objection of the defendant, another transaction between the same parties had in September, 1905, in which a similar instrument was given and endorsed by Young and Brown; and in that transaction it appeared that Brown and Arnold went to Young’s office and Arnold asked Young if he endorsed the note, saying that he proposed taking it as collateral security from Brown in addition to some cash; and that Young replied, “If Mr. Early don’t pay the note I will.”

It further appears that when the note or instrument given in September, 1905, matured, it was given up or surrendered to Brown and the instrument sued on was taken as collateral security on an additional bond for $500 issued to Mrs. Majors.

It is conceded in plaintiff in error’s brief that the instrument in question is a non-negotiable note, because it contains the words “and taxes,” which rendered the amount due on the note uncertain. It is also stated in the same brief that the plaintiff does not seek to recover against Young on the ground that it is a bona fide holder of a negotiable instrument. “The plaintiff seeks to recover on the parol' contract made by Young to pay the note if Early did not.” In other words, counsel for plaintiff concedes that in order to recover it must prove parol guaranty of the instrument by Young. We find no such proof in the record. The only evidence tending to show such a guaranty was the words spoken by Young, “If Mr. Early don’t pay the note I will.” But the undisputed fact in the record is, that these words were spoken of an instrument dated in September, 1905, not in suit. There is no evidence in the record showing a guaranty of the instrument in. question, and therefore the plaintiff cannot recover on that ground.

The instrument in question, however, is not a promissory note, either negotiable or non-negotiable. Smith v. Myers, 207 Ill. 126. It is a mere contract to pay money, a mere chose in action. There is no implied authority to write a contract of guaranty above the signature of a third person appearing upon the back of such an instrument. Smith v. Myers, supra. A parol guaranty would have been within the Statute of Frauds, as there was no memorandum of the promise signed by the party to be charged, shown by the evidence. Young’s signature on the back of the instrument is not a sufficient memorandum in writing to satisfy the Statute of Frauds and allow a recovery on a parol contract of guaranty. The cases cited in behalf of plaintiff in error apply to endorsements on promissory notes negotiable or non-negotiable. Such a signature upon the back of such notes, which are within the rules of the law-merchant, has a fixed and determined legal import which carries with it the implication of a certain contract, and the holder is authorized to write over the signature the contract implied by law. Hence the Statute of Frauds has no application to such instruments. Daniels on Neg. Instruments, sec. 567.

The judgment of the trial court is correct and is affirmed.

Affirmed.


text:
    John Zembedes, Defendant in Error, v. Louis Katsekas, Plaintiff in Error.
    Gen. No. 15,232.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 24, 1911.
    William J. King, for plaintiff in error.
    Whitman & Horner, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

An action was brought by the defendant in error, John Zembedes, hereinafter called plaintiff, against the plaintiff in error, Louis Katsekas, hereinafter called defendant, to recover the sum of $348, which the plaintiff claimed he had deposited with the defendant for safe keeping.

The case was tried by the court without a jury, and at the conclusion of the trial a finding and judgment in favor of the plaintiff was entered for the sum of $348.

The only ground urged for a reversal of the judgment is that the finding and judgment are manifestly against the clear weight of the evidence. We have carefully considered the evidence, and the printed and oral arguments of counsel. The evidence on the main questions of fact is conflicting particularly the testimony of the parties to the case. There is evidence tending to corroborate the testimony of each of the parties. We do not think it would subserve any useful purpose to indulge in a discussion in detail of the evidence, most of which was given through interpreters, and is unsatisfactory as it appears in the record. We ■ are of the opinion that we cannot say from the record that the finding and judgment of the court below are manifestly against the weight of the evidence. The judgment is therefore affirmed.

'Affirmed.


text:
    W. L. Connon, Plaintiff in Error, v. Florence M. Spofford, Defendant in Error.
    Gen. No. 15,368.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Error to the Municipal Court of Chicago; the Hon. H. H. Kerr, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 24, 1911.
    M. L. Thackaberry, for plaintiff in error.
    Robert J. Slater, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff in error, W. L. Connon, brought an action in the Municipal Court of Chicago against the defendant in error, Florence M. Spofford, to recover damages alleged to have been caused by the defendant in error by running her automobile into the horse and buggy of the plaintiff and injuring his horse. The cause was tried before the court without a jury, and the defendant had judgment.

No questions of law are involved. The sole question before us is one of fact, namely: was the defendant in the action guilty of negligence which caused the injury to plaintiff’s property?

We have carefully read and considered the evidence, and the arguments of counsel, and we are unable to say that the finding and judgment of the trial court is manifestly against the weight of the evidence. In our opinion the preponderance of the evidence sustains the judgment.

The judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Mack

text:
    The London Guarantee & Accident Company, Appellee, v. American Cereal Company, Appellant.
    Gen. No. 15,159.
    1. Insurance—casualty policy construed. Held, under the terms of the policy in question in this case, that it only covered such loss as an owner might sustain despite his having let the contract for erection to an independent contractor, either because, though not liable, he may nevertheless be made a party to an action, or because the circumstances of the accident might be such as to create a liability of an owner as well as of the independent contractor.
    2. Estoppel—what essential to establish. In order to establish an estoppel at law, a showing of damage must be made.
    3. Evidence—when testimony of deceased witness competent. The testimony of a deceased witness is competent in a subsequent action although the parties to the two actions are not the same if the issues are the same and the party against whom the evidence is offered had by representation the opportunity for cross-examination.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 3, 1911.
    Jones, Addington & Ames, for appellant.
    F. J. Canty and R. J. Folonie, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

Defendant for a premium of $50 caused plaintiff to issue to it a casualty indemnity contract “against loss arising solely from his contingent liability as General Contractor or owner, from common law or any statute, for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered by any person or persons during the construction of the building described in the schedule hereinafter given, and resulting from the negligence of any Contractor or Sub-contractor engaged in the construction of said building, subject to the following Special and General Agreements, which are to be construed as co-ordinate, as conditions.”

The policy contained under the title of Special Agreements the following clause:

“B. If the assured is the owner of the building mentioned in schedule, it agrees that all the work of constructing the same is to be done by contract, at the risk of the Contractor or Contractors, and that the Assured has not and will not, by contract or otherwise, voluntarily assume any liability for loss on account of bodily injuries suffered by any person or persons by reason of the negligence of any Contractor or Sabcontractor. If the Assured is the general contractor for said building, it is agreed that he will, until the expiry of this policy, carry insurance in this Company-under its Employer’s Liability and Public Liabilities forms, covering loss from liability for injuries resulting from his own negligence; and that he has not and will not, by contract or otherwise, voluntarily assume any liability for loss on account of bodily injuries suffered by any person or persons by reason of the negligence of any sub-contractor.”

The mill was constructed but in the course of construction an accident occurred to a stranger both to the defendant and to the contractor in charge of the erection of the mill, A. H. Connor & Company. That accident resulted in death and was followed by an action instituted in Iowa, originally against the City of Cedar Rapids, finally against the American Cereal Company and A. H. Connor & Company. This action resulted in several trials and in as many appeals, in the last of which the Supreme Court of Iowa directed a new trial as against this defendant. Immediately upon this defendant being made a party defendant to the action in question, it notified this plaintiff to defend against it. Plaintiff assumed such defense and took full charge and control of the litigation upon the part of the Cereal Company, until just prior to the argument of the motion for a new trial in the second trial of such action, when it notified the Cereal Company that it was not liable on account of such action, either for any damages which might be awarded or for the expenses and cost of defense. Notwithstanding the protest of the Cereal Company, the Accident Company withdrew from the defense of such action and from that time on in nowise participated therein. The Cereal Company proceeded with an appeal from the judgment which was rendered against it, and reversed such judgment. Thereupon this action was brought to recover the cbsts and expenses incurred in the defense based upon the alleged fraud of defendant in representing' that the work was being done through the agency solely of an “independent contractor” whereas, in fact, it employed its own servants and agents to that end.

All of the witnesses, except one, who knew of the terms and conditions of the contract between the Cereal Company and Connor & Company had died prior to the trial of this cause. The plaintiff herein relied for proof of the contract on testimony given by the witnesses at the trials of the action in Iowa, who have since died.

The contentions of the appellant upon this record are:

First. That even though A. H. Connor & Company were not independent contractors within the meaning of the law and the policy in question, yet that such policy was broad enough to cover and assure the American Cereal Company from the casualty which resulted.

Second. That the depositions of the deceased witnesses given in the action in Iowa hereinbefore referred to, were incompetent in this action as against the American Cereal Company.

Third. That A. H. Connor & Company were independent contractors.

1st. It is conceded by appellant that without clause B, the policy would not protect defendant against claims, unless Connor & Company had been independent contractors. It is contended, however, that the last part of clause B, forbidding the assured to assume liability for a loss suffered by any person, has reference to such assumption after an accident, because the word “suffered” is in the past tense.

We cannot assent to this argument. The language of the policy clearly shows that it covers only the loss which an owner might sustain despite his letting the contract to an independent contractor, either because, though not liable, he may nevertheless be made a party to an action, or because the circumstances of the accident might be such as create a liability of an owner as well as of the independent contractor.

No estoppel can arise in this case against appellee, because, on notification of the injury, it stated that it would protect defendant’s interests. If as it alleges, it was fraudulently induced to undertake the defense, it had a clear legal right to withdraw when it discovered the fraud; in any event, the prerequisite to a claim or defense based on estoppel, a showing that damages have been suffered by this defendant, either because the Guaranty Company undertook the defense, or because it withdrew from the case, is utterly lacking.

2nd. The second contention of appellant presents an interesting question in the law of evidence,— whether the testimony of a deceased witness given at the trial in Iowa in a suit brought by the administrator of the man who was injured against the present defendant is admissible in this action.

It is not, and under the authorities it could not be contended that the oral testimony of a witness brought forward by a party in a trial is to be deemed an admission by such party of the truth of all facts testified to by such witness so as to make it competent evidence in any subsequent proceeding by any third party as against the party presenting the witness.

But it is contended that under the same exception to the hearsay evidence rule, which permits the testimony of a deceased witness given at one trial to be introduced on a second trial between the same parties on the same issues, the evidence in this case is competent.

As Mr. Wigmore points out in his invaluable work, 2 Wigmore on Evidence, secs. 1386-7 and 8, the parties and the issues need be only substantially the same; the essential thing is that the party against whom the testimony is now offered should either have presented it himself or have had the opportunity of cross examining in respect to it at the former trial, and that the issues now raised should have been included in the issues raised in the former case.

The plaintiff in the Iowa case contended that Connor & Company were not independent contractors; the Cereal Company through the Guaranty Company, which though not a party to that case, nevertheless because of its contingent liability and obligation to defend under a possible state of the facts, was actually in charge of the defense, contended that Connor & Company were independent contractors. In any subsequent proceeding between the parties to that case or between one of the parties and any one standing in privity to the other party, the testimony of a deceased witness bearing on this issue would therefore be admissible.

But the present proceeding is not between the then plaintiff and either the Cereal Company or one clearly privy in interest to it, the Guaranty Company; it is between the then defendant, the Cereal Company, and the Guaranty Company; between a party to that record and one privy in interest, not to its opponent, but to it.

Does the rule apply under such circumstances?

If in this case, the Guaranty Company had refused, after notice, to defend the damage suit on the ground that Connor & Company were not independent contractors, and the Cereal Company, after a final victory therein on a finding by the jury that Connor & Company were independent contractors, had sued the Guaranty Company on the bond for its expenses incurred in defending the suit, the judgment rendered in the damage case would be conclusive, and the pleadings, verdict and testimony would be admissible for the purpose of showing that the very issue therein involved and determined was the question sought to be litigated anew; that is whether or not Connor & Company were independent contractors. Washington Gas Co. v. District of Col., 161 U. S. 316. And conversely, if, despite a judgment against the Cereal Company on this issue in such a damage suit, it had sued the Guaranty Company for indemnity, that judgment would be conclusive against it in its suit against the Guaranty Company. Tool Company v. Casualty Company, 161 Fed. R. 709.

If, as these cases hold, both parties would be bound by the judgment, even though the Guaranty Company had declined on notice to undertake the defense, a fortiori, they would be bound thereby if, as in the present case, the Guaranty Company did undertake the defense.

, But there never was a final determination or any final judgment on the issue as to whether Connor & Company were independent contractors, in the Iowa courts, because the Supreme Court of Iowa,' while affirming’ the verdict of not guilty as to Connor & Company, reversed the verdict of guilty as to the Cereal Company and remanded the cause.

The exact question before us therefore, is not whether a judgment against the Cereal Company based on a finding that Connor & Company were not independent contractors, would enable plaintiff to recover in this case; but whether testimony of deceased witnesses introduced on that issue in the Iowa trials can be used on the same issue in this proceeding, for the purpose of establishing the facts necessary to sustain the present plaintiff’s case.

In the absence of fraud on the part of the Guaranty Company in the conduct of the defense in Iowa—and there is no evidence or charge thereof—both the Guaranty Company, and the Cereal Company through the Guaranty Company acting for it, had full opportunity to sift the testimony of the now deceased witnesses in those trials, to examine and, if they appeared hostile, to cross-examine their own witnesses as well as those of their opponent. The fact that under the terms of the policy the Cereal Company agreed not to “interfere * * * in any legal proceeding without the consent of the Company previously given in writing,” does not make it any the less the real party to the Iowa litigation or permit it now to urge, in the absence of a charge of fraud or bad faith by the Guaranty Company, that it did not actually, through its agents and attorneys, fully participate in the Iowa trials with full opportunity for examination and cross-examination of witnesses. It is true that at that time the Guaranty Company and the Cereal Company were not in a position adverse to one another; the exception, however, to the hearsay evidence rule, which permits the testimony of a deceased witness to be read at a later trial, while ordinarily applied only in controversies between the same adverse parties or their privies, is based, not on the fact of their adverse positions, but on the fact that it was given in a legal proceeding to which they were both party or privy and in which both had full opportunity to sift the truth of the witnesses’ statements. Moreover, such testimony, unlike a judgment, is not conclusive and binding on the parties; it has only the same force that the same testimony given again by the same witnesses, if living, would have. In District of Columbia v. Washington Gas Company, 20 D. C. 39, the court held such evidence admissible. At p. 51 it said: “We think that such evidence is admissible in what is called ‘an action over’ on the ground that having received notice of the trial of the original action, and having had the opportunity to take part in that defense and to cross-examine the witnesses, he is not a stranger to such former action. When the law has afforded to such a party the same opportunities and guaranties for securing the truth which it affords to a party to the record, it regards him as having in that respect the status of a party. Mr. Greenleaf, whose' explanation of the principle was commended by the Supreme Court in Lovejoy v. Murray, 3 Wallace 18, describes him as a party in the larger sense. Of course it is not necessary that there should have been an actual cross-examination if the opportunity was afforded. * * * The subject-matter of the former evidence was common to the District and itself, and their opportunities for truth and guaranties against mistake or falsehood were the same. We think that every condition was satisfied which should make the evidence of the deceased witness at the former trial competent evidence against the defendant in the ‘action over.’ ” See also Morehouse v. Morehouse, 17 Abb. (N. C.) 407.

The Supreme Court of the TI. S. on appeal affirmed the decision of the lower court in the Gas Co. case (swpra) on the. ground that the judgment against the District was conclusive upon the Gas Co. in the action over. It held, however, without citation of authority, and solely upon the general principle of res inter alios acta, that while the testimony of a deceased witness in the suit against the District could be introduced for Gie purpose of proving what the issues were that had therein been determined, nevertheless under the principle of res inter alios acta, it could not be admitted as proof of the truth of the facts testified to. In view of its ultimate conclusions, however, it held the error of the lower court to be immaterial. Whatever may be our opinion on this proposition as applied to the facts in that case, we cannot hold that the conclusions of the Supreme Court are applicable to the present case. An important difference, in view of the reason given by the Supreme Court, is found in this, that the Guaranty Company did, on notice, participate in the Iowa trials, whereas the Gas Co. refused to participate in the suit against the District of Columbia.

If, then, for the reasons and on the authorities hereinabove stated, a judgment for or against one holding an indemnity "bond, based on the testimony of a now deceased witness, would be conclusive either as against or in favor of a party liable over, to whom due notice of the first action had been given, so far as the issues raised in the later proceeding are shown to have been determined in the earlier one, we are of the opinion that testimony given in the first suit is, after the witness’ death, properly admissible in the second suit to prove the truth of the facts testified to, at least ydien both the claimant and the party liable over actually participated in and had full opportunity of examination and cross-examination in the original action.

3rd. Without detailing the evidence, including that of the deceased witnesses, we are of the opinion that neither under Illinois nor under Iowa law were Connor & Company independent contractors.

Affirmed.


author: Mr. Justice Baldwin

text:
    Arthur Dare, Defendant in Error, v. Chicago Horseman Newspaper Company, Plaintiff in Error.
    Gen. No. 15,191.
    New trial—lohen newly discovered evidence ground for. Newly discovered evidence which would have a strong tendency to affect the result of the suit, is ground for a new trial.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed February 3, 1911.
    Scott, Bancroft & Stephens, for plaintiff in error.
    Wyeth, Clark & Zollars, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Defendant in error recovered a judgment for $679.13 in the Municipal Court for damages for breach of contract of employment for six months at $125 per month. The employment of the plaintiff was conceded, but it was contended that he fraudulently misrepresented his qualifications for the position, and that his discharge for incompetency was lawful.

Plaintiff in error was publishing a newspaper, and advertised to procure a competent editorial writer for that kind of work. As evidence of his qualifications for the position, defendant in error submitted, in his own handwriting, two- articles, which were of such merit as to be largely influential in securing his employment. After two weeks of service he was .discharged for alleged incompetency, and paid $42.44 for the time he had been employed.

After the verdict, plaintiff in error endeavored to secure a new trial, based upon affidavits strongly tending to show that the two articles submitted in the handwriting of the defendant in error as his own, and which were largely influential in securing his employment, were not, in fact, the product of his own brain, but were copied very largely from The New York Herald.

Since the matter referred to in the affidavits would, if proven, have a strong tendency to affect the result of the suit, we think the court below should have granted a new trial upon the showing made, and the judgment is, therefore, reversed, and the cause remanded for another trial.

Reversed and remanded.


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    William H. Swanson, Appellant, v. The James L. Lederer and George B. Levee Amusement Company, Appellee.
    Gen. No. 15,201.

      Contracts—when equity will not enforce. Where there Is a lack of mutuality in remedy courts of equity will aid neither of the parties in the enforcement of the contract, but will leave them to their remedy at law.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed February 3, 1911.
    Statement by the Court. This is an appeal from a decree of the Superior Court of Cook county, dissolving an injunction and dismissing appellant’s bill for want of equity.
    The bill, as amended, was based upon a contract between appellant and appellee, in which it was agreed that appellant should operate a moving picture show at 1071 Lincoln avenue, Chicago, appellee to light the theatre premises and to furnish electric current to run the moving picture show,—to keep the place clean, and maintain a doorkeeper at the theatre.

      Appellant was to continue the moving picture show business, turning over the proceeds therefrom daily to appellee, who was in turn to pay appellant, for performance of the contract, a sum equal to fifty per cent of the gross receipts. The written contract provided that it should be in force from May 18, 1908, up to and including September 30, 1908, and that “should both parties ’ ’ be desirous of continuing the agreement after its expiration it might be extended by either party giving to the other two weeks’ notice before the expiration of the agreement.
    Appellant claimed to be conducting a profitable business, and alleged that in August he had notified appellee that he desired to continue the business at that place for another year. The bill further alleged that in contemplation of so continuing the business, appellant had incurred large expense in and about the business, over and above any expense contemplated by the terms of the contract, and he alleged that he was equitably entitled to an extension of his contract.
    The bill further alleged that appellee refused to grant an extension of the contract, and expected to prevent appellant from continuing the business after its expiration.
    Upon the filing of the bill the court issued an injunction, restraining appellee from interfering with appellant in the conduct of the business at the premises mentioned, until the further order of the court, upon filing a bond in the sum of $2,500.
    About three weeks later, upon motion of appellee, the court dissolved the injunction and dismissed the bill for want of equity, from which order or decree, appellant prayed an appeal to this court.
    Douglas C. Gregg, for appellant.
    Mayer, Meyer & Austrian, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The amended bill did not disclose any cause of action entitling appellant to an injunction. The contract between the parties did not give to either the right to extend the agreement unless both parties desired it, and the parties could have extended the contract if they mutually agreed to do so, as well without as with this permissive clause in it.

While the bill is not strictly one asking, in terms, specific performance, yet if the injunction prayed for were granted, it would practically amount to compelling specific performance. It is clear that courts of equity would be powerless to enforce this contract against appellee by injunction, and the law of this State is that where there is a lack of mutuality in remedy courts of equity will aid neither of the parties in the enforcement of the contract, but will leave them to their remedy at law. Ulrey v. Keith, 237 Ill. 284.

The decree of the court below dissolving the injunction and dismissing the bill was proper.

Affirmed.


text:
    John A. Tolman & Company, Defendant in Error, v. William Shuflitowski et al., Plaintiffs in Error.
    Gen. No. 15,209.

      Contracts—cannot be varied. The terms of a written instrument cannot be varied by parol evidence.
    Error to the Municipal Court of Chicago; the Hon. J. W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed February 3, 1911.
    Brady, Barnum & Rutledge, for plaintiff in error.

      Albert Kocourek, for defendant in error; E. M. Ashcraft, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

In this ease defendant in error recovered a judgment for $581.67, in the Municipal Court, upon an instructed verdict.

Defendant in error, Tolman & Company, a wholesale grocer in Chicago, had made a contract in writing with Shuflitowski, by which he was to sell goods for it, and his compensation was to be based upon a percentage of the profits of his sales. The company, however, made advances to him pursuant to the terms of the contract, he having furnished a bond to repay all indebtedness to the company. Shuflitowski worked for the company several months, during which he received advances in substantial amounts, and aggregating about $200 per month, and, as his sales were less than anticipated, it appeared that he was overpaid several hundred dollars, to recover which this suit was brought upon his bond.

The last paragraph in the written contract provided that upon the full performance by him of the terms and the conditions of the contract, and if the gross profits on Ms sales would average $400 per month, from the time he commenced work, the company would pay him $200 a month for his services; but if the gross profits were, on an average, less than that per month, he should receive a proportionately less salary; while if they were greater, on an average, each month, he should receive a proportionately greater salary.

Plaintiffs in error claimed that this paragraph was not a part of the actual contract between Shuflitowski and the company. They contended that, at the date of the execution of the written contract, there was a parol agreement made between ShuflitowsM and the company, by which he was to be paid $200 a month, absolutely, and without reference to the volume of his sales; that the provision in the contract was stated by Mr. Tolman to be merely a rule of the house; and, further, that after the contract was signed, Shuflitowski stated that there were things in it which he did not fully understand, and that it was not according to his verbal agreement, whereupon Mr. Tolman again told him that the contract had nothing to do with him, but was simply a rule of the house, which every employe was required to sign.

Statements of the account between the company and Shuflitowski, showing the charges and credits, were rendered to him from time to time, and he saw that, according to these statements, he was getting! deeper in debt to the company, so he terminated his employment.

The court below instructed the jury to find for the plaintiff, thus holding against the contentions of plaintiffs in error, and in this we think the court was right. It seems to us clear, from all the testimony, that Shuflitowski did work under the written contract, though, possibly, he may have misapprehended the binding effect of its last paragraph. Under the circumstances, therefore, to allow the contentions of plaintiffs in error would be to permit the terms of a written instrument to be varied by parol, and this is hot permissible.

The judgment is affirmed.

Affirmed.


text:
    George P. Bent, Plaintiff in Error, v. Emma Furnald, Defendant in Error.
    Gen. No. 15,214.
    1. Sales—when purchaser entitled to rescind. A sale represented by a written contract which provides that the vendor shall not be bound by any agreement, terms or condition other than those contained therein, may be rescinded if the sale is effected and induced through the false representations of the vendor as to matters of fact.
    2. Municipal Court—when instructions cannot he complained of. Instructions given by a judge of the Municipal Court, if not objected to before the jury retires, cannot thereafter be complained of.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed February 3, 1911.
    Statement by the Court. Plaintiff in error, a piano manufacturer in Chicago, brought suit in the Municipal Court to recover upon a contract for the sale of a piano, upon which $30 had been paid toward the purchase price of $350. Defendant in error claimed that the piano was represented to and purchased by her as a new piano, instead of a second-hand one, as it appears to be, and she, therefore, claimed the right to rescind the sale, and recover back the money which she had paid.
    The written contract between the parties expressly recites that plaintiff in error was not to be bound by any agreement, promise or condition, other than those contained in it. It identified the piano purchased, by style and number, which it was agreed should be paid for in monthly installments of $10 (after the first payment of $25), until the whole purchase price, with interest at 6%, was paid, and title was to remain in the vendor until payment of the entire amount.
    At the trial below defendant in error was allowed (over objection) to introduce evidence tending to show that, when, she went to purchase a piano, the representative of plaintiff in error informed her that the piano in question was a new one, and that she supposed she was getting a new one, and w;ould not have purchased the piano except in that belief. It was conceded by plaintiff in error that the piano had been slightly used, and was in fact second-hand, and plaintiff in error contended that his representative so informed defendant in error at the time she was inspecting it, which was.a day or two prior to the date of the contract.
    Plaintiff in error contends here that the parties were bound by the written contract, and that evidence as to representations, claimed to have been made a day or two previously, was inadmissible. He also attacks the instructions given by the judge below, as being conflicting, and as not correctly stating the law,
    Gardner, Stern & Anderson, for plaintiff in error.
    Maurice C. Lange, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

The written contract between the parties was apparently prepared by plaintiff in error, and was evi-, dently intended to prevent the purchaser from setting up any claim in opposition to its express terms. It is strongly urged that, in admitting testimony about any preliminary conversation or bargaining, the court violated the long established rule that parol testimony cannot be admitted in evidence to vary the terms of a written contract. Plaintiff in error also contends that, even if evidence upon that point were admissible, yet, by its strong preponderance in favor of the plaintiff in error it shows there was no imposition or fraud practiced.

The important question to be decided is whether the evidence is admissible. If not, then clearly the judgment was wrong. Would plaintiff have bought the piano at all, except that it was represented to her as a new one, and her reliance upon that representation? According to the testimony, she would not. While she was allowed to inspect it, it is improbable that she could have told by a most careful inspection whether or not it was new. The newness or age of an article may be a very important factor in its sale, entirely aside from its actual value for service. Whether an article be new or second-hand as a matter of sentiment alone, and entirely apart from its intrinsic value, may absolutely determine the question as to whether the proposed purchaser would wish it at any price.

The general rule is, of course, that parol testimony is not admissible to vary the terms of a written instrument ; but where, as in this case, it is charged that the representations it made, establish fraud, it is otherwise. Therefore, in this case, we think that evidence tending to establish a fraudulent representation that the piano was new, when in fact it was second-hand, is admissible, notwithstanding the written contract, and if such representations were made, they would entitle the purchaser to rescind. Williston on Sales, sec. 215.

If the' instructions complained of were conflicting and erroneous, objection should have been made at the time and before the jury retired, in order to give the judge an opportunity to correct them, if he so desired. It is too late to urge their correctness here.

As to the letters of defendant in error, written to plaintiff in error after the date of the contract, which were admitted in evidence over objection, they are essentially cumulative, and we do not think their admission constituted reversible error.

Affirmed.


text:
    George J. Cooke Company, Defendant in Error, v. Peter Fitman et al., Plaintiffs in Error.
    Gen. No. 15,222.
    Municipal Court—when judgment not disturbed. If substantial justice has been done by a judgment of the Municipal Court, it will not be disturbed on review.
    Error to the Municipal Court of Chicago; the Hon. Adblor J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed February 3, 1911.
    John C. King, Simon T. Sutton and James D. Power, for plaintiffs in error.
    No appearance by defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

This writ of error brings before us for review a judgment rendered by the Municipal Court in favor of the defendant in error for $125, for the alleged conversion of certain saloon fixtures.

It appears that plaintiffs in error were „ conducting a saloon in Chicago, and, desiring to take beer from the defendant in error, they induced it to purchase for $125, from another brewing company, whose beer they had theretofore been selling, the fixtures in question, which were on the saloon premises. After continuing in this business relation for about six months, plaintiffs in error ceased buying beer from the Cooke Company, and the other brewing company resumed supplying the saloon, the ownership of which had passed into other hands. After unsuccessfully attempting to get plaintiffs in error to turn over to it the fixtures, the Cooke Company sued for their value.

The case was tried by a jury, and, while the evidence is not entirely clear, we think it appears that substantial justice has been done, and we do not see that the action of the court below was erroneous.

Affirmed.


text:
    Rose Malloy, Defendant in Error, v. Chicago Telephone Company, Plaintiff in Error.
    Gen. No. 15,205.
    1. Instructions—when as to punitive damages will reverse. An instruction which without warrant authorizes the allowance of punitive damages is ground for reversal.
    2. Instructions—predicated upon evidence. Instructions properly to be given must be predicated upon some evidence in the case.
    3. Instructions—when modification after retirement ineffectual. Modifying instructions to the jury after retirement is ineffective to cure error in the original instructions if it is apparent from the time intervening between the giving of the modification and the rendering of the verdict that the modification had not been considered by the jury.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed February 3, 1911.
    Holt, Wheeler & Sidley, for plaintiff in error.
    P. A. Hines and F. J. Karasek, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

In an action for personal injuries brought by Bose Malloy, defendant in error, against the Chicago Telephone Company, plaintiff in error, the plaintiff recovered a judgment for $500 and coste. In the bill of particulars it is claimed that on July 27,1907, the employes of the Telephone Company trespassed on the premises of the plaintiff’s husband, and, through their negligence and carelessness, assaulted, beat, kicked and struck the plaintiff and knocked her down, with resulting bodily injuries.

The evidence showed no wanton or wilful or malicious violence exercised against the plaintiff by the employes of the Telephone Company, and that whatever violence or injuries she suffered was the result of her own aggression in crowding herself into two holes which the telephone employes were digging, and in pressing herself between the workmen and a fence while they were digging the holes.

There is no foundation for punitive damages in the bill of particulars or the evidence. The court, however, instructed the jury that if they believed from a preponderance of the evidence that the employes of the defendant acted in a wanton and wilful manner in their treatment of the plaintiff, they had the right, in addition to. the actual damages, to give her smart money or punitive damages; and that in doing so the jury had the right to take into consideration the position of plaintiff in society and the pecuniary standing and ability of the defendant.

Having been thus instructed the jury retired at the hour of ten o’clock in the morning to consider their verdict. At the hour of 11:15 in the morning the court directed the jury to be brought into court, and further instructed them to the effect that he had sent for them in order to modify or change an instruction which he had given them upon the subject of punitive damages. The court then instructed the jury as follows: “If you find that the plaintiff is not entitled under the evidence and the instructions of the court to punitive damages, then it will not be necessary for you to consider this instruction which I am about to give you now; but if you shall find under the evidence and the instructions of the court that the plaintiff is entitled to punitive damages in addition to the actual damages which she may have sustained, if any, you are to disregard that part of the instruction of the court which told you that you might in that event take into consideration the financial standing or position of the defendant and the social position of the plaintiff, for the reason that upon further reflection I ain not able to recall that any evidence was introduced upon that subject, namely, as to the position or standing of the plaintiff and as to the financial condition or standing of the defendant.” Thereupon the jury again retired, and, as the record shows, in about the time necessary to reach the jury room and return therefrom, came into the court and rendered the verdict. It is manifest, therefore, from the record, that the jury had arrived at their verdict when the court sent for them, and did not reconsider the case after the court modified its instruction. Undoubtedly the verdict includes punitive damages, and it was arrived at under the original instruction. The instruction as originally given wag misleading and erroneous, and as modified it was likewise misleading and erroneous, because it had no basis in the evidence.

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

Reversed and remanded.


text:
    People of the State of Illinois, Defendant in Error, v. Edward L. Klute, Plaintiff in Error.
    Gen. No. 15,223.

      Evidence—when rulings will not reverse. The rejection of competent and the undue restriction of cross-examination will not reverse in the absence of harm resulting.
    Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed February 3, 1911.
    Stedman & Soelke, for plaintiff in error.
    John E. W. Wayman and John L. Hopkins, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

It is urged as a ground of reversal of the judgment that the court erred in overruling the motion of plaintiff in error to quash the information, which charges him with unlawfully keeping a house of ill fame, and also, keeping a common disorderly house, to the encouragement of idleness, drinking, and other misbehavior, contrary to the statute. In our opinion the information is sufficient and the motion to quash was properly overruled.

We think the evidence admitted to sustain the prosecution was competent under the information, which charges the defendant with two distinct offenses.

In our opinion the trial court erred in refusing to allow Mrs. Klute to testify as to the number of rooms used in connection with the saloon and hotel, and their occupants at the time in question, in substantiation of what she told Wilson and Rogers, according to their testimony, to the effect that all of the rooms were occupied on the occasion in question. Her statement, however, was not controverted by the prosecution, and the error was unimportant and not reversible.

We think the court erred also in improperly restricting the cross-examination of Miss Williams in one or more particulars, but the rulings of the court worked no harm to the plaintiff in error.

We cannot say that the verdict of the jury is not sustained by the evidence, or that it is against the manifest weight of the evidence.

The judgment is affirmed.

■Affirmed.


text:
    Leon A. Wolters, Defendant in Error, v. Henry B. Mason et al., Plaintiffs in Error.
    Gen. No. 15,227.

      Evidence—when as to value of professional services improper. If the question put to an expert as to the value of professional services did not recite all of the services rendered, the answer is improperly admitted over objection if such expert did not hear such testimony as to what services were rendered.
    Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed February 3, 1911.
    Mason Brothers, for plaintiffs in error.
    Wyeth, Clark & Zollars, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Defendant in error Wolters brought suit against plaintiffs in error, alleging breach of contract of employment in a certain litigation, and for monies said to have been collected for the defendant in error by the plaintiffs in error and converted to their own use, and for money had and received by them for defendant in error, and not accounted for.

The errors assigned and argued are erroneous rulings on evidence, erroneous instructions, and that the judgment is against the clear weight of the evidence.

We are of the opinion that the court erred in excluding the testimony of the plaintiff below on his cross-examination upon the subject of the inconvenience occasioned to him by reason of the non-payment of the Mangier rent, in connection with the affidavit of the witness filed in the Mangier case.

Evidence as to services rendered by the defendants below up to the time of their discharge was proper under the issues, and it was error to exclude testimony of services rendered after December 2, 1907.

The testimony of the witness Bates as an expert on the value of professional services was improperly admitted. The objection to the question propounded to the witness should have been sustained, for the reason that it did not recite in substance all the services testified to by defendant Mason. Bates did not hear all the testimony and did not have personal knowledge of all the services rendered. Louisville, N. A. & C. Ry. Co. v. Shires, 108 Ill. 617; Schneider v. Manning, 121 id. 376; Pyle v. Pyle, 158 id. 289. We think the ruling of the court permitting Bates to answer the question tended to produce injustice and was reversible error.

Inasmuch as there must be a new trial, we refrain from passing upon the weight of the evidence.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    John D. Casey, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,374.
    1. Evidence—what not proper cross-examination. A question not relating to any matter inquired of upon direct is improper upon cross-examination.
    2. Evidence—when as to custom incompetent. Evidence of any other than a general custom is incompetent in an action for death caused by wrongful act.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed February 3, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. Appellant, Chicago City-Railway Company, prosecutes this appeal to reverse a judgment recovered against it in the Superior Court of Cook county in favor of appellee for allegéd negligence, causing the death of Horace Tessier.
    The material facts appearing from the record are that on July 15, 1907, appellee’s intestate was in the employ of the Chicago Telephone Company as helper to one of its branch exchange telephone switch-board installers. That company was then engaged, and had been for three or four days previously, in transferring all the lines of the appellant’s switchboard at 2020 State street to the First National Bank Building. Appellee’s intestate was engaged in this work when he was injured.
    In the power house where some of the work was, being done, appellant, maintained and operated a heavy iron crane on tracks about thirty feet from the floor. This crane was fifty feet in length, extending entirely across the building, and was operated on tracks along each wall. The rails were seven inches from the wall on either side of the building.
    The crane was mounted on two wheels at each end, and was propelled along the tracks east and west by electric motors located on the crane. It was operated from a cab on the crane in which the operator rode. The crane was nsed for moving heavy machines and other heavy articles.
    The telephone lines undergoing change were brought into this power house of appellant in an iron pipe or conduit fastened to the north wall of the building between the rail upon which the north end of the crane ran and the wall. There was an opening in the pipe or conduit for use in splicing, making connections and stringing wires. This opening was nearly above the desk of appellant’s foreman in charge of the house.
    The telephone employes, including deceased, had been at work about the power house since July 12, 1907; and it is claimed by the plaintiff that on Saturday and Monday forenoon, they had been at work on the crane tracks and were known and observed to be there at the opening in the conduit at their work by Broderick, appellant’s switchboard operator or foreman. Defendant claims, on the other hand, that there is no evidence showing that Broderick, or any of the defendant’s employes, knew that deceased was on the track. When working they sat astride the rail on the north wall. On Saturday before the accident Broderick directed deceased and his fellow workman Boland to reach the conduit by climbing over the crane and crawling along the track to the opening in the pipe.
    On Monday morning, the. day of the accident, Frank J. Motis, then in charge of the men working for the Chicago Telephone Company, appeared at the power house of appellant and had a conversation with Broderick, appellant’s foreman or operator in charge, regarding the work then being, done upon the crane track. As to the terms of the conversation Motis and Broderick do not agree, but they do agree that Broderick was notified that work was to be done upon the crane track by the telephone men; and Motis was given permission to send Ms men there to work. Motis then ordered his men to work on the crane track, and they worked there during the forenoon. When they returned in the afternoon they found the crane in use by some structural iron workers. Gross, the superintendent of the telephone work, testified that he had a talk with Broderick about the telephone work on the crane track and was given permission to send men there to work and to use the crane as soon as the iron workers were through with it. This is denied by Broderick. About three o’clock in the afternoon the plaintiff’s intestate was ordered to go upon the crane track to work. He obeyed and was there at work until a little after four o ’clock, when the accident happened. Dnuring this hour or more Gross, in the presence and hearing of Broderick, shouted orders to him from a point about six feet from Broderick’s desk. Plaintiff’s intestate was astride the track at the opening of the conduit, and while in that position the crane was run upon him without warning.
    Edward C. Higgins and Watson J. Ferry, for appellant.
    Elmer & Cohen, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Four grounds are urged for the reversal of the judgment. First, that the verdict as to appellant is not justified by the evidence; second, the verdict is against the manifest weight of the evidence; third, errors in the admission of improper, and the exclusion of proper evidence; and, fourth, the verdict is excessive.

In support of the first ground it is urged that the record is barren of any proof of the cause of the . death of Tessier or any evidence that it was caused by any of the acts of negligence alleged against appellant. We cannot concur in this proposition. We think that there is direct and positive evidence in the record showing that the deceased was struck by the heavy crane while in such position that fatal injuries would naturally follow; and that the injuries caused by the crane produced' his death as a direct result, was a legitimate conclusion from the evidence.

Upon a careful review of the evidence we cannot say that the verdict is against the manifest weight of the evidence. The testimony is conflicting upon the question whether Broderick had knowledge or notice of the fact that Tessier was at work on the crane track, or might be there, before and at the time the crane was moved. It was a question for the jury, and we perceive no good reason for disturbing their verdict.

H. M. Webber, a claim agent for the Chicago Telephone Company, was called by the plaintiff, and testified as abstracted that he had been served with a subpoena to bring in the contracts or records showing installation, if any, of work at the power house in question for the Chicago City Bailway Company. He was thereupon asked on cross-examination by counsel for appellant the following question:

“Q. Have you as representative, claim agent of the Chicago Telephone Company, made any arrangement or settlement with Elmer & Cohen, the attorneys for the plaintiff ? ’ ’

. The court sustained an objection to the question. The ruling was not erroneous. It was not proper cross-examination, the subject not haying been referred to in the direct examination of the witness.

In the direct examination of appellant’s switchboard operator, Broderick, he was asked:

“Q. What was the custom and practice in regard, if any, in regard to giving you notice whenever anybody had to go upon the crane?” The court sustained an objection to the question, and we think properly. The question does not call fór a general .custom. Tessier was not injured on the crane. No offer was made nor was there any attempt to show that Tessier or his fellow workman had been informed of any custom which was a rule of conduct for men engaged temporarily in such work as the telephone employes were doing. The question whether there was any requirement by appellant or by the switch operator, as to when persons should or should not, or could or could not, go upon the crane or crane tracks, was not proper in the absence of any communication thereof to the plaintiff’s intestate or his foreman. The cases holding general customs of doing business in railroad yards by rail-, road men, of which other railroad men were presumed to have knowledge, are admissible, are not applicable in this case. -The parties here involved were acting under special and temporary circumstances, with reference to which there could not be a known general custom, in the nature of things.

We think the verdict was for a liberal amount, but we cannot say that it was so excessive in amount as to indicate that the jury were improperly influenced in awarding the damages, or that we should interfere with the verdict and judgment on that ground.

The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Baker

text:
    Charles J. Bour, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 17,305.
    1. Injunctions—jurisdiction of Appellate Oourt to continue in force. The Appellate Court upon its organization acquired the same authority as had been conferred upon the Supreme Court to continue in force injunctions issued by the lower court.
    2. Injunctions—construction of statute with respect to when appeal shall not continue, in force. The provision that, “no appeal from a decree dissolving an injunction shall have the effect to continue in force the injunction unless the appeal is prayed at the entering of the decree,” is not limited to a case where the order is made by the court which dissolved the injunction, but applies as well to a case where an application for such an order is made to the Appellate Court. In the one case the provision is, that the appeal shall not have such effect, “unless the appeal is prayed at the entering of such decree, and the court allowing the same shall so order;” in the other, the language following such provision is, “or unless the party praying the appeal shall within ten days after the appeal is allowed,” apply, etc. The appeal mentioned in the provision last quoted refers to and means the appeal mentioned in the preceding clause, the appeal, “prayed at the entering of the decree.” The praying of an appeal, “at the entering of the decree,” is, by the provisions of the section, made a condition precedent to the right of the complainant to apply to the Appellate Court for an order, “directing that the appeal shall have the effect to continue such injunction in force.”
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. W. F. Cooper, Judge, presiding.
    Heard in this court at the October term, 1910.
    Motion denied.
    Opinion filed February 14, 1911.
    Statement by the Court. August 10, 1910, complainant Bour filed a bill in the Superior Court for an injunction against the defendant, the Illinois Central Bailroad Co. The injunction prayed for was the only relief sought by the bill, and a temporary injunction was ordered and issued in accordance with the prayer of the bill. The defendant moved to dissolve the injunction for want of equity appearing on the face of the bill. The motion to dissolve was argued before Judge Chetlain of the Superior Court and taken under advisement. Judge Chetlain’s term of office expired December 3, 1910. January 16, 1911, Judge Cooper of the Superior Court entered, on notice to complainant, this order:
    “On motion of solicitor for defendant the clerk of this court is hereby ordered, upon the hearing of the evidence and the inspection of the minutes of Judge Chetlain in said cause, to enter of record of the date of December 3rd, A. D. 1910, the following order: ‘The injunction heretofore entered in this case is dissolved.’ ”
    January 25, 1911, he entered this order:
    “This day again come the parties by their respective solicitors and it appearing to the court that this cause has heretofore been considered upon the bill of complaint and a motion of the defendant to dissolve the temporary injunction heretofore issued herein for want of equity appearing upon the face of the bill and the motion to dissolve said injunction having heretofore been allowed and no relief having been prayed for in and by said bill, other than an injunction as therein prayed, now on motion of complainant’s solicitors it is ordered, adjudged and decreed that the said bill be and the same hereby is dismissed and thereupon complainant prays an appeal from the order dissolving said injunction and-from the order of January 16th, 1911, directing the clerk to spread of record nunc pro tuno as of December 3rd, 1910, an order dissolving said injunction and from the order dismissing his said bill and an appeal is allowed to the Appellate Court in and for the First District of Illinois upon a filing a bond in the sum of two hundred fifty dollars within thirty days.”
    The same day complainant filed his appeal bond and the next day filed in this court a transcript of the record, moved for an order to continue in force the injunction, and an order was entered extending the time for procuring such order.
    West & Eckhart, for appellant.
    John G. Drennan, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Section 21, chapter 69 R. S.-is as follows: “No appeal from a decree dissolving an injunction shall have the effect to continue in force the injunction unless the appeal is prayed at the entering of such decree, and the court allowing the same shall so order, or unless the party praying the appeal shall, within ten days after the appeal is allowed, procure from the Supreme Court, if in session, or a judge thereof if in vacation, an order directing that the appeal shall have the effect to continue such injunction in force; and no such order shall be granted except for a good cause appearing in the record, nor when the bill is dismissed by the complainant. The Supreme Court, or a judge thereof, may for good cause extend the time for procuring such order.”

The contention of appellee that the bill was dismissed by the complainant is not sustained by the record. It was dismissed by the court on the motion of complainant for the reasons stated in the order of dismissal.

Neither is the contention that this court has no authority to make an order to continue in force an injunction tenable. Appeals in such cases are now taken to this court and this court has the same power to make such an order that the Supreme Court had before this court was created.

The order or decree dissolving the injunction was entered January 16th “of the date of December 3, 1910.” Assuming that for the purposes of an appeal the order is to be regarded as entered January 16th, the complainant did not pray an appeal at the entering of such order or decree, but waited until January 25th, then moved for the dismissal of the bill, and on its dismissal prayed an appeal from the order or decree dissolving the injunction entered January 16th and from the decree dismissing the bill entered January 25th, which was allowed and perfected.

The provision that, “no appeal from a decree dissolving an injunction shall have the effect to continue in force the injunction unless the appeal is prayed at the entering of the decree,” is not limited to a case where the order is made by the court which dissolved the injunction, but applies as well to a case where an application for such an order is made to this court. In the one case the provision is, that the appeal shall not have such effect, “unless the appeal is prayed at the entering of such decree, and the court allowing the same shall so order;” in the other, the language following such provision is, ‘ ‘ or unless the party praying the appeal shall within ten days after the appeal is allowed,” apply, etc. The appeal mentioned in the provision last quoted refers to and means the appeal mentioned in the preceding clause, the appeal, “prayed at the entering of the decree.” The praying of an appeal, “at the entering of the decree,” is, by the provisions of the section, made a condition precedent to the right of the complainant to apply to this court for an order, “directing that the appeal shall have the effect to continue such injunction in force.”

The intention of the legislature, expressed in the Act, is to limit the time within which such an order may be made to ten days from the entering of the order or decree dissolving the injunction. To hold that a complainant may omit to pray an appeal, “at the entering of the order or decree,” dissolving the injunction and move for and obtain a decree dismissing the bill afterward, and then, by praying an appeal from such decree and from the order or decree dissolving the injunction, secure the right to apply to this court within ten days after such dismissal and appeal, for an order to continue the injunction in force, would be to extend the time within which a complainant may procure such order beyond ten days from the dissolution of the injunction by the number of days that elapsed between the dissolution of the injunction and the dismissal of the bill.

We fliiulr that the failure of the complainant to pray for an appeal from the order or decree dissolving the injunction “at the entering of such decree” deprives Trim of the right to procure from this court an order that the appeal shall have the effect to continue the injunction in force, and his motion that such order he now made will therefore he denied.

Motion denied.


text:
    John D. Casey, Administrator, Appellee, v. The Peter Schoenhofen Brewing Company, Appellant.
    Gen. No. 15,503.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed February 16, 1911.
    Lackner, Butz & Miller, for appellant.
    Daniel L. Cruice and A. S. Langille, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff’s intestate, a boy six years old, was run over by a beer wagon of the defendant and so injured that he died. He left parents, brothers and sisters. In an action by his administrator, under the statute, in which the declaration alleged that the death of the deceased was caused by the negligence of the defendant, by the servants in charge of the team and wagon, plaintiff had judgment for $2,000, and the defendant appealed.

The wagon of the defendant, drawn by a pair of mules, was going east in Thirt'-enth street. The plaintiff’s intestate started across the street from the south side to the north, came in contact with one of the mules, was knocked down and the wagon ran over him.

The testimony is conflicting. That for the plaintiff tended to show that the mules were being driven at a rapid and dangerous rate of speed, and that the deceased was in view of the driver for a sufficient length of time before the accident to have enabled the driver to avoid coming in collision with the deceased. That for the defendant tended to show that the mules were going at a slow trot; that on the south side of the street was a pile of lumber four or five feet high, extending out from the curb; that the deceased ran out from behind the pile of lumber, on the side farthest from the wagon, and that it was impossible, after the deceased came in view of the driver, for the latter to stop his team or turn to one side in time to avoid the accident.

We think that on the evidence the question whether the driver of defendant’s team was guilty of the negligence alleged in the declaration, was a question for the jury, and that their finding, implied by their verdict, that he was negligent cannot be said to be so manifestly against the evidence as to warrant or justify a reversal of the judgment.

Complaint is made of two instructions given for the plaintiff, on the ground that each contains assumptions of fact. We do not think that either of said instructions can be held to contain any assumption of fact.

We perceive nothing in the conduct of plaintiff’s counsel on the trial so manifestly improper and prejudicial to the defendant as to require a reversal of the judgment.

The record is, in our opinion, free from reversible error, and the judgment is affirmed.

'Affirmed.


text:
    Catherine C. Caspers, Administratrix, Appellee, v. Anglo-American Provision Company, Appellant.
    Gen. No. 15,509.
    1. Obdinances—“permit” construed. The word “permit” as used in the ordinance in question in this case which pertained to horses running at large, held, to import at least acquiescence, passivity, or abstaining from preventive action.
    2. Negligence—with respect to horses at large. Held, that the evidence did not establish negligence in either failing to hitch a horse or in failing to keep a gate closed in consequence of which the horse ran at large.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons,
    Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed February 16, 1911.
    Rehearing denied March 2, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Frank M. Cox and R. J. Fellingham, for appellant.
    Thomas G. Vent, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff’s intestate was struck by a horse and wagon of the defendant and so injured that he died, leaving a widow and children. In an action under the statute on the alleged ground that the death of the deceased was caused by the negligence of the defendant, plaintiff had judgment for $5,325, and the defendant appealed. As to the material evidentiary facts of the case there is no controversy. The defendant had in the Union Stock Yards a large manufacturing plant. On the south side of this plant was a roadway, and south of the roadway were railroad tracks; North of and fronting on the roadway was a yard of defendant 100 feet square, in which were two loading platforms, from which products were loaded into defendant’s wagons. Switch tracks led from the railroad tracks into the yard through a gate of two leaves. Through this gate defendant’s teams also passed in entering or leaving the yard. The roadway ran west a block from the yard and thence north to defendant’s stables.

Williams, a driver of defendant, was on the day of the accident driving a draft horse eight or nine years old, weighing 1,350 pounds, hitched to a wagon. The half hour from noon to 12:30 was allowed for dinner. When the noon whistle blew the wagon was backed up to a loading platform in the yard and Williams proceeded to feed his horse. He took the bit out of the horse’s mouth, buckled a nose-bag containing oats over his head and fastened the bridle to his head with the bit out of his mouth. The horse was quiet, gentle, not afraid of cars or engines, had been driven in and about the Stock Yards two years, had never run away nor shown any disposition to run away. Williams had driven him six weeks, had never hitched him while eating and did not on this day. Williams ate his dinner at the yard master’s office, twenty-five feet from the horse. When the whistle blew at 12:30 he went to the horse to put his bridle on. He took off the nose-bag, took the bit to put it in the horse’s mouth, the horse reared up, pulled the bridle off, and Williams caught him by the nose. He held on to him for some time, the horse trying to get away, until the horse came near to a platform, and Williams, seeing that he was in danger of being hurt, let go of him. One leaf of the gate was open, and the horse ran out of the yard through the gate, turned west and ran west and then north to his stable, still hitched to the wagon. Deceased was a car repairer in the service of the defendant, and was going to his work. He was on the roadway, a short distance west from the gate, and without fault on his part was struck by the horse, knocked down, fun over by the wagon, and thereby sustained the injuries which caused his death.

The first count of the declaration sets out the following ordinance of the city of Chicago: “No person having the charge, custody or control thereof, shall permit any horse, mule, ass, ox, cow, goat, pig or other like animal to go loose or at large in any of the public ways in the city under a penalty of not more than $10 for every such offense,” and alleges that the defendant negligently suffered said horse hitched to a wagon to go at large on a highway in said city, whereby, etc. Conceding that the roadway in question was a “public way” within the meaning of the ordinance, we do not think that on the evidence in this case it can be held that the defendant permitted the horse “to go loose or at large’’ on such ‘‘public way.’’ The word ‘ ‘permit’’ as used in the ordinance imports at least acquiescence, passivity, abstaining from preventive action. Here there is no evidence tending to show acquiescence, passivity or abstaining from preventive action on the part of the defendant, but the evidence clearly shows that the driver of the horse did all in his power to prevent him from going on the “public way.”

It is further alleged in the declaration and contended by appellee here, that the failure to hitch the horse, the failure to keep the gate leading into the yard closed, were each acts of negligence, and also that the defendant negligently suffered said horse to escape from its control and go on said public way. The horse was harnessed and hitched to a wagon, was gentle, quiet, accustomed to stand without hitching, and we do not think it was an act of negligence to fail to hitch him, under the circumstances shown by the evidence. Again, if the failure to hitch the horse could be held to be an act of negligence, that act did not cause or contribute to the escape of the horse from the yard. The driver had returned to the horse and begun to put the bit in his mouth before the horse attempted-to run away.

It was not, in our opinion, an act of negligence, under the circumstances shown by the evidence, to have the gate leading to the yard open.

To entitle the plaintiff to recover in this case there must be evidence from which the jury might properly find that the death'of plaintiff’s intestate was caused by “wrongful act, neglect or default” of the defendant. Our conclusion on a careful examination of the evidence in the record is, that there is no evidence from which the jury might properly find that the death of plaintiff’s intestate was caused by the “wrongful act neglect, or default” of the defendant, and the judgment will therefore be reversed.

Reversed.


text:
    In re Johnson Express Company, Insolvent, Louis P. Daniel, Assignee, Appellee, v. First National Bank of Englewood, Appellant.
    Gen. No. 15,514.

      Pledges—what covered by collateral note. A collateral note specific as to a particular obligation but general as to all obligations due from the maker of the pledge, covers obligations of the pledgor in the hands of or held by the pledgee at the time of its delivery.
    Appeal from the County Court of Cook county; the Hon. Lewis Riistakeb, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and remanded with directions.
    Opinion filed February 16, 1911.
    Statement by the Court. The Johnson Express Company made and delivered to the appellant bank its promissory note for $20,000, payable to the bank, dated September 13, 1905, and executed a trust deed of that date conveying to Nicholas, trustee, certain real estate to secure the payment of said note which was recorded October 4, 1905. The Express Company made and delivered to the bank its promissory note of the same date for $10,000, and delivered the note for $20,-000 to the bank as collateral security for said note. The Express Company made and delivered to Schuyler Stratton a series of notes amounting to $2,000, dated September 1, 1906. September 27, 1906, Johnson, the president of the Express Company, wrote Nicholas, the vice-president of the bank, as follows: “This will introduce to you Mr. Schuyler Stratton, formerly part owner of the James Express Company, which we have recently purchased, and who holds part of our notes.” On receiving this letter the bank bought said notes of9 Stratton and a few days later Nicholas told Johnson that the bank had bought said notes. September 13, 1907, the note for $10,000 dated September 13, 1905, was surrendered to the Express Company and the Company gave to the bank a new note of that date for $15,000, payable to the bank. The terms of this note are stated in the opinion. October 22, 1907, the Express Company made a voluntary assignment for the benefit of creditors to Louis P. Daniel, assignee. October 25,1907, the County Court entered an order directing the assignee to sell at public auction the real estate described in the trust deed of September 13,1905, subject to the approval of the court and subject to the ]ien of said trust deed deposited with the appellant bank as collateral security for an alleged indebtedness to said bank in the sum of $16,830.41. Pursuant to said order the assignee sold said property to Ward and Bryant, the sale was confirmed, and afterwards the Illinois Express Company became the owner of said real estate. March 10, 1908, the assignee filed in the County Court a petition setting up the facts above stated, alleging that the bank was not entitled to a lien for the full sum of $16,830.41, but that its lien was at least $1,299 less than said sum; that said sum of $16,-830.41 was due from the Illinois Express Company, and that out of said sum petitioner as assignee was entitled to at least $1,299. This $1,299 was the amount remaining due on the Stratton note purchased by the bank in September, 1907. The County Court ordered that the Illinois Express Company pay the sum of $16,830.41, less any payments that may have been made on account of said sum since November 4,1907, as follows:

      “1. To the First National Bank of Englewood, $15,531.41 (less payments on account thereof, as aforesaid), with interest that may have accrued thereon under the terms and conditions of the notes and documents offered in evidence by said bank.
    “2. To Louis P. Daniel, assignee, petitioner herein, cas a part of said insolvent’s estate, the sum of $1,299.”
    From this order the bank prosecutes this appeal.
    William A. Doyle, for appellant.
    Lamborn & Guernsey and M. F. Cure, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The note of the Express Company of September 13, 1905, was surrendered to the maker when the new note of September 13, 1907, was given to the bank. The $20,000 note secured by trust deed was then in the possession of the bank and it could be pledged by the Express Company to the bank for one or many debts, liabilities or engagements, without a redelivery. The contract of pledge is express, and its provisions are contained in the note of September 13, 1907, and the' right of the parties depend on the contract of pledge thus made. The note of September 13, 1907, recites that the Express Company had deposited with the bank the note for $20,000 as collateral security for the payment of said note, “and for the payment of other liability or liabilities * * * of the undersigned (the maker) * * * to said payee.” It gives the bank the power to sell the collateral and to apply the proceeds thereof “to the payment of this note and other obligations above mentioned.” When the new collateral note was given the bank was and for nearly a year had been the owner of the Stratton notes, and the Express Company, through its president, knew that the bank was the owner of said notes. They were clearly liabilities of the Express Company, the maker of the collateral note to the bank, the payee. We think that the contract of pledge and the facts and circumstances surrounding the transaction show that the Express Company intended to pledge the $20,000 note as security for the amount due to the bank from the Express Company on the Stratton notes as well as for the amount due to the bank from the Express Company on dealings between the bank and the Express Company. We think that the case of Gillet v. Bank of America, 160 N. Y. 549, relied on by appellee, is to be distinguished from this case on the facts. In that case the bank after the pledge purchased a dishonored note of the pledgor, and it was held that such purchase was not a transaction in the ordinary course of the business of the bank and the bank was not entitled to retain the pledged property for the purpose of applying it on the note so purchased. In this case the bank was the holder of the Stratton notes when the $20,000 note was pledged to it by the Express Company. We think the County Court erred in ordering that $1,299, or any other sum, be paid to the assignee of the Express Company.

The order of the County Court will be reversed and the cause remanded with directions to enter an order or decree in accordance with the views herein expressed.

Reversed and remanded with directions.