text:
    Thomas P. Ayres, Appellee, v. The Graham Steamship Coal and Lumber Company, Appellant.
    Gen. Nos. 15,705, 15,714, 15,733.
    Consolidated for Hearing.
    1. Vendors and vendees—Hem of latter. The doctrine of a vendee’s lien must rest for its support upon the actual property involved in the contract in question.
    2. Attachments—propriety of equitable. Our courts neither recognize nor favor equitable attachments; and the granting of an injunction and the appointing of a receiver which operate by way of equitable attachment, will not be sustained.
    3. Receiverships—when failure to require bond erroneous. By statute a bond should be required of the party making the application before appointing a receiver. To appoint a receiver and provide for the bond to be given by the complainant at a later date is not a compliance with the statute.
    No. 15,705: Bill for injunction. Appeal irom the Superior Court of Cook County; the Hon. A. H. Chetlain, Judge, presiding.
    Heard in this court at the March term, 1909.
    Orders reversed.
    Opinion filed July 12, 1909.
    Nos. 15,714 and 15,733: Bills in chancery. Appeals from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the March term, 1909.
    Order reversed.
    Opinion filed July 12, 1909.
    Introductory. These three cases, consolidated for hearing, present for onr review two injunctional orders granted by a chancellor of the Superior Court on March 23, 1909, and March 26, 1909, respectively, and an order appointing the Chicago Title & Trust Company receiver of certain property of appellant, entered April 9, 1909.
    These orders are interlocutory in their nature and these appeals therefrom are prosecuted pursuant to section 123, chapter 110, E. S., title “Practice,” Hurd’s 1908 ed. Proceedings post-dating April 9, 1909, are brought to our attention by counsel for appellee and urged in argument to influence our decision, but with them we are not concerned. Our review is restricted to the proceedings had in the cause, from which these appeals are prosecuted, on and prior to April 9,1909.
    With the merits of the controversy appearing from the pleadings in this record, we do not intend, by anything we shall here set down, to pass judgment, nor do we desire to be understood therefrom as deciding any questions involved saving only the integrity of the injunctional orders and the order appointing a receiver, challenged in these appeals.
    Statement by the Court. Appellee filed his bill against appellant, in which he seeks to rescind a contract of date August 27, 1907, by which he agreed to purchase timber licenses of appellant embracing 110,-000 acres, more or less, of timber limits on Masset Inlet, Graham Island, in the Province of British Columbia, and to pay therefor five hundred and fifty thousand dollars. The ground for rescission is alleged to be fraudulent representation as to acreage and title to the timber licenses. Appellee, on August 1, 1907, paid ten thousand dollars on account of the purchase price, which, with subsequent payments, he seeks to recover back from appellant. This contract was preceded by an option agreement, dated June 22, 1907, between appellee and appellant and Daniel C. Buntin and E. B. Talmadge, which, together with an addenda thereto in the nature of a guarantee from one B. F. Graham, of date June 24, 1907, was on that date delivered to appellant. On August 8, 1907, Bun-tin and Talmadge assigned their interest in the option contract and guarantee contract of Graham to appellee. By the contract of August 27, 1909, appellee bound himself to pay the purchase price (excluding the ten thousand dollars cash payment), as follows: $15,000 September 15, 1907; $50,000 October 23, 1907, and the balance, $475,000, in six months from the contract date. The bill alleges that appellee made two additional payments, one of $5,000, September 27,1907, and one of $4,200, October 15, 1907, making the total of cash paid upon the contract of purchase $19,200; that on November 12, 1907, appellee first learned of the shortage in acreage from the report of “cruisers” sent out to estimate the amount of acreage; that thereupon appellee notified appellant of the shortage and that he would not pay any more money upon the contract until an accurate survey had been made, etc., by competent engineers, and that nothing of the kind has been done; that negotiations for a settlement were made and continued until November, 1908, when the parties failed to come to any agreement; that appellant commenced against appellee two suits in the Superior Court of Cook county, in each of which it seeks to recover $100,000 of the consideration due by the terms of the contract of purchase. The bill prays that the contracts may be decreed to have been secured by misrepresentation and fraud on the part of appellant and ordered to be cancelled and delivered up; that appellant further decreed to pay appellee the aforesaid $19,200, with interest, and that appellant be permanently enjoined from prosecuting the two suits in the Superior Court, and for other relief.
    On March 23, 1909, appellee filed an amendment to his bill, in which he charged that the capital stock of the Graham Island Lumber Co. was divided into 3,000 shares of the face value of $100 each, and that appellant owned all of said shares except four, which were held by its officers and employes, and prayed for a lien upon all the shares of stock owned by appellant to secure the payment of all moneys which shall be decreed to be paid by it to appellee, and that on failure of appellant to pay such amount, that the stock be sold. On the same day appellee filed a supplemental bill, which inter alia charges that on June 30, 1908, appellant sold 1,500 shares of said stock to certain persons for the sum of $225,000, and that on December 30,1908, it sold 1,000 more of such shares to one Emmet Queen of Pittsburgh, and took in payment Queen’s notes aggregating $300,000, secured by a pledge of the stock sold, with power to sell the same on default of payment of the notes or any of them; that Queen has defaulted and appellant is about to sell the 1,000 shares of stock at public auction on the steps of the Federal Building in Chicago, at two o ’clock on the day the supplemental bill was filed; that the president of appellant is in Chicago to make the sale; that appellant, by its president, declares it will not repay to appellee any money received by it from him on said contracts; that appellant will take the proceeds of such sale out of the State, and will sell and dispose of the remaining 500 shares of stock and divide the same among its stockholders; that all of appellant’s assets remaining consist of the Queen indebtedness and securities and the 500 shares of Island Company stock still unsold; that unless a receiver is appointed, the assets of appellant will be taken without the jurisdiction of the court, and thereby the lien of appellee lost, as also all moneys which the court may decree to him; prays for the appointment of a receiver to take possession of the Queen notes and the 1,000 shares of stock held by appellant as collateral security, and also the remaining shares of stock held by appellant, and for an injunction restraining the disposition of the foregoing assets by appellant and from removing them beyond the state, etc. ,
    An injunetional order was entered and a receiver appointed as prayed, without notice, on the day the supplemental bill was filed. On the following day so much of the order as appointed a receiver was vacated. The injunction was not affected by this order. On March 26, 1909, the chancellor again enjoined appellant from disposing of, encumbering, charging, or removing from this state the Queen notes or the 1,000 shares of stock held as collateral thereto, and continued the motion for a receiver to April 9,1909, on which date, after a hearing, that motion was granted, and the Chicago Title «fe Trust Company appointed receiver of the Queen notes and stock covered by the injunetional order last recited, and appellant was required to deliver the notes and stock to said receiver. Appellee was ordered to give a bond in the penalty of $10,000, to be approved by the court, within four days of the entry of the order.
    Calhoun, Lyford & Sheean and John A. McKeown, for appellant.
    Buell & Abbey and William K. Lowrey, for appellee.
   Mr. Presiding Justice Holdom

delivered the.opinion of the court.

Two separate and distinct transactions are here involved, neither of which is even remotely related to the other. Appellee seeks to rescind contracts relating to his purchase from appellant of certain timber licenses on the ground of misrepresentation and fraud, and to have such contracts cancelled and all money paid on account of the purchase price, with interest, decreed paid back to appellee. This is one transaction. The other is a sale by appellant to one Emmet Queen of 1,000 shares of Island Company stock for $300,000, .the taking of seven notes of Queen for the purchase price, with a retention of the stock sold as collateral security for payment of such purchase price. We take it from the argument of appellee that the injunction and receiver are intended to be adjuncts to the enforcement of a vendee’s lien, which, under the facts averred by appellee, arise in his favor upon the Queen indebtedness and security to appellant. But, as we understand, the doctrine of a vendee’s lien must rest for its support upon the actual property involved in the contract sought to be avoided. As applied to the case in hand, such lien of appellee would attach to the timber licenses the subject-matter of the contract between the parties, and to nothing else. To such subject-matter is the lien of the vendee restricted. Such is the trend of all the authorities cited by appellee, and none in this state is in conflict. It therefore follows that neither the injunction nor the receivership can be sustained on the theory that appellee has a vendee’s lien on the Queen stock and notes, or any interest in or claim to them. As this court s&id in Lemker v. Kalberlah, 105 Ill. App. 445, “While it is true that the appointment of a receiver pendente lite is a matter of discretion, it is not a matter of arbitrary discretion. Facts must exist and be made to appear to the court warranting exercise of the power and justifying taking into its possession the property in controversy. It is essential that the complainant should show * * * either a clear legal right in himself to the property in controversy, or that he has some lien upon it, or that it constitutes a special fund out of which he is entitled to the satisfaction of his demand.” As said in Leeds v. Ill. State, etc., 122 Ill. App. 650, “It does not appear from the allegations of the bill that the complainants have any interest whatever in the subject matter of the litigation.”

Appellee having no interest in the property, committed to the custody of the receiver, the only other theory upon which the action of the chancellor, in making the orders appealed from, can be sustained, is, that by reason of the non-residence of appellant and the fact that aside from the Queen securities it has no property subject to execution in this jurisdiction, therefore appellee has the right to the remedy granted by the injunctional and receivership orders, which in their essence, operate as an equitable attachment preserving the assets ordered into the hands of the receiver appointed, so that the same may be subjected to the payment of any money decree which shall be thereafter adjudged against appellant. But the difficulty of this situation lies in the fact that our courts neither recognize nor favor equitable attachments. Such has been the uniform attitude of our courts. In Dewey v. Eckert, 62 Ill. 218, the court say: “Our law does not recognize equitable attachments. Bigelow et al. v. Andress et al., 31 Ill. 323. This proceeding would virtually be one if it could be sustained as to the lands involved.” These remarks are of equal force and application to the condition confronting us and are decisive against appellee’s right to maintain a legal status in this case, which operates as an equitable attachment against the property of appellant. Detroit v. Ledwidge, 162 Ill. 305.

Mr. Justice Caton made these observations in Manchester v. McKee, 9 Ill. 511: “I may here remark upon a novel proceeding attempted to be introduced by this bill, and that is, that for the purpose of obtaining satisfaction of all of the notes mentioned in the bill (but upon which no judgment had been obtained at law), the party prays for an equitable attachment to be levied upon the premises upon which the mortgage had been foreclosed. * * * But, for this proceeding, I can find no authority in the former' practice of the courts of equity, or in the provisions of our statute.”

It was reversible error, even had it been otherwise permissible, to appoint a receiver, to make such order by fixing the bond of appellee and ordering it to be approved by the court within four days of the entry of the order. The statute governing this practice is contained in section 1, title “Receivers’ Session Laws, 1903,” which reads “that before any receiver shall be appointed, the party making the application shall give bond to the adverse party in such penalty as the court or judge may order, and with security to be approved by the court or judge, conditioned to pay * * * provided that bond need not be required when for good cause shown and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.” As this court said in Watson v. Cudney, 144 Ill. App. 624, 629, “To entitle appellee to the appointment of a receiver, he must as a sine qua non to the enforcement of that right, give the bond required by the statute, unless it is the opinion of the court that a receiver ought to be appointed without bond, and then the court’s opinion must affirmatively appear in the order making the appointment. The statutory requirement in this regard cannot be dispensed with. It was evidently enacted for the purpose of making liable the moving party in a receivership proceeding, for such damages as might result from the improvidence of his act in bringing about a receivership where none should have been asked.”

Courts are without power to appoint receivers without first requiring a complainant to give a bond, provided by section 1, supra, unless the necessity of giving bond is dispensed with in the order of appointment.

While it would seem that the injunctional order of March 26, 1909, was intended to supersede that of March 23, 1909, yet it did not do so, and while they are not in conflict, yet as they still cumber the record, it is our duty to remove each of them therefrom.

For the errors indicated the injunctional orders of March 23 and 26, 1909, and the order of April 9, 1909, appointing the Chicago Title & Trust Company receiver, are each reversed, and orders reversing the injunctional order will be entered in cases Gen. No. 15705 and 15714, and an order reversing the order appointing a receiver will be- entered in case Gen. No. 15733.

Orders reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    Augustus Donnelly, Appellee, v. George W. Walsh et al., Appellants.
    Gen. No. 15,699.

      Injunctions—when temporary erroneous. It is improper to grant a temporary injunction if it does not appear from the bill filed that any inference can be drawn of impending danger necessitating a temporary injunction to avert.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed with directions.
    Opinion filed July 12, 1909.
    Helmer, Moulton & Whitman and Benson Landon, for appellants.

      Victor M. Harding and Spencer L. Adams, for appellee
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Appellants appeal from an interlocutory order of the Circuit Court denying their motion to dissolve an injunction and continuing said injunction in force.

We gather from the averments of the bill that the appellant corporation was chartered under the laws of this state January 13, 1892, to deal in teas, coffees, spices, baking powders, extracts and grocery specialties, with a capital stock of 300 shares of the par value of $100 each; that its principal place of business is in Chicago; that since its organization it has done a profitable business and paid large dividends upon its stock to its stockholders; that its assets and resources are several times in excess of the par value of all its stock; that on February 9, 1909, when the bill was filed, all its stock was issued and held by the following persons

as follows:

George W. Walsh......................151 shares
Augustus Donnelly .................. 60
Harriet L. Swift........................ 40
John L. Baker............................ 38
Alva H. Adams.......................... 9
Harry H. Walsh........................ 1 “
Walter Sheppard .................... 1

that appellee became possessed of his sixty shares about January, 1902, since which time he has received the dividends thereon declared by the company; that originally the board of directors consisted of three persons, but that at the January, 1909, meeting the number was increased to five, and at that meeting George W. Walsh, Walter Sheppard, Harry F. Walsh, Alva H. Adams and John L. Baker were elected directors; that after the organization of the newly elected board, the salaries of the officers were fixed by it, that of Walsh as president being placed at $8,000 a year; that Walsh took no part and did not vote on the motion fixing his salary, and that prior to that time Walsh’s salary as president was .$4,000 and less. It is alleged that such salary is excessive and exorbitant; that the previous salary of $4,000 was more than Walsh’s services were worth; that he had no increase in his duties; that the earnings of the company did not warrant the increase, but rather called for a diminution of salary, owing, it is said, to Walsh’s misapplication of the funds of the company. An ultra vires act is alleged, which has since been eliminated from the cause by a modification of the injunetional order, and may therefore be disregarded. So far as the present status of the case is concerned, the relief prayed is an accounting between Walsh and the company, a rescinding of the action increasing the number of the members of the board of directors from three to five, that the court call a stockholders’ meeting to elect a new board of directors of three members, that the new board be directed to declare a dividend upon the stock of the company and pay it to the stockholders, that the payment of increased salary to Walsh may be declared to be exorbitant, unreasonable and illegal, that the same be ordered refunded to the company, and that the further payment of such increased salary may be enjoined temporarily and permanently; that a receiver be appointed to take charge of the company and its assets and to carry on its business, etc., until the further order of the court.

A temporary injunction was granted as prayed. The company and Walsh filed their joint and several answer to the bill, denying those matters charged attacking the legality or bona fides of the actions of the company and Walsh, the particulars of which, in the view we take of the injunetional order, are not important to our decision. To this answer appellee filed the usual replication. Appellants thereupon moved to dissolve the preliminary injunction, which motion was heard by the chancellor upon the pleadings and several affidavits supporting the facts .alleged in the hill and averred in the answer. The court eliminated the matter enjoined, claimed to be an ultra vires action of the company, and continued the injunction in force as to Walsh and the company, and denied appellants’ motion to dissolve. From the order denying appellants’ motion to dissolve, and continuing the injunction in force as modified, appellants prosecute this appeal, in conformity with section 123, chapter 120, R. S., title “Practice.”

We express no opinion upon the merits of the controversy between the parties, raised by the pleadings, or the right to maintain the bill or to obtain the relief by that bill sought. We confine our opinion solely to the right of appellee, under the averments of his bill, to the preliminary injunction prayed and granted, and to the question of whether the chancellor erred in not dissolving the injunction when moved to do so by appellants.

The preliminary injunction having been improvidently granted, it is plain that the chancellor erred in not allowing the motion of appellants to dissolve.

There is nothing charged in the bill against appellants—conceding for the purpose of our decision the truth of its every material averment—from which any inference can be drawn of impending damage to appellee or his interests in the company, necessitating a temporary injunction to avert. It is not necessary to consider the question of irreparable injury, for it is clear from the facts averred in the bill that no injunction is needed as a corrective of the wrongs alleged, or to the conservation of the rights and interests of appellee, averred to be jeopardized by such wrongs. Unless it can be seen from the averments of the bill, that some injury to the rights of appellee is liable to intervene without the arresting power of an injunctional order, then none should be issued, and if granted, should, on motion made, be dissolved.

We find, from the averments of fact in the bill, a corporation doing a prosperous business of some years duration, with ample capital and. resources to continue that business successfully, with assets and property of value several times the multiple of its capital stock. The company, its affairs and business, are in the hands of the defendant Walsh as president, under whose care and effort, that business has increased from its beginning. Except for the challenged increase of salary to Walsh, no misapplication of the resources or property of the company is charged, the original charge of an ultra vires act being out of the case. The business of the company is in active operation, being conducted apparently along the same lines and with the same methods theretofore characteristic of the business management of the company. While the extent of Walsh’s financial resources does not appear from the bill, still it does appear from that document that he owns a majority of the stock of the company, which, we judge from the bill, is not worth less than $30,000, making him able financially to respond to any decree which may order him to repay to the company any of the $4,000 a year added to his salary at the last annual meeting of the board, which he may have received. If it shall finally be adjudged that Walsh is not entitled to receive any of the increased salary voted, the company ánd appellee will be amply protected by a decree annulling that action of the board of directors, and directing Walsh to refund to the company whatever part of such increased salary he may be found to have improperly received. Such relief would be in accord with the prayer of the bill. We cannot see that the injunctional order preserves to appellee any right or gives him any legal advantage that he would not possess without it, or that he cannot obtain upon a final hearing.

We think the rule applicable here is fairly stated in section 10 High on Injunctions (ed. 4) thus: “Where the plaintiff will suffer no immediate injury from the act complained of, and the injury, if any, is of such a nature that it can be as easily remedied upon final hearing, a preliminary injunction is properly denied.” Hagerty v. Lee, 45 N. J. Eq. 255; 22 C. Y. C., 762.

For the foregoing reasons the order denying appellants’ motion to dissolve the injunction and continuing the injunction in force is reversed, with directions to the Circuit Court to dissolve the injunction as moved by appellants.

Reversed with directions.


author: Mr. Justice Chytraus

text:
    Agnes B. Garner, Appellee, v. Chicago Consolidated Traction Company et al., Appellants.
    Gen. No. 14,577.
    1. Negligence—when doctrine res ipsa loquitur applies. Held, that an occurrence which consisted in the sudden blazing out of flame from the controller of a trolley car was of an unusual and unexpected character and such as to bring into application the doctrine res ipsa loquitur.

    2. Negligence—effect of doctrine res ipsa loquitur. Whenever the doctrine res ipsa loquitur is in play it must be kept continuously in mind that such doctrine merely raises a presumption which presumption yields readily to evidence.
    3. Negligence—rule as to rebuttal of presumptive, where doctrine res ipsa loquitur applies. The burden upon the defendants when plaintiff has made a case which entitles him to the application of the res ipsa loquitur doctrine, is not satisfactorily to account for the occurrence, but merely to rebut the inference that he has failed to use due care.
    Bakes, J., dissenting.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed June 15, 1909.
    Statement by the Court. Appellee brought an action on the case against appellants for damages for personal injuries sustained by reason of defendants’, appellants’, negligence. A trial by jury resulted in a verdict for $3,500. Upon a remittitur of $1,500 the trial judge rendered judgment upon the verdict. Defendants are prosecuting this appeal from that judgment. Among other things they contend there is no evidence of negligence on their part.
    On August 31, 1905, defendants were operating certain street car trolley lines in the city of Chicago. Among these was one known as the Evanston line and, about 2:30 o ’clock in the afternoon of that day, plaintiff was a passenger on that line upon an open car running north on Evanston avenue to Devon avenue and on Devon avenue across Southport avenue. The car was operated through what is known as the K-ll type of controller, controlling two fifty horsepower motors which were under the car. The car had either a platform or vestibule in front. Both platform and vestibule are spoken of in the record, but no description of the car is furnished which enables us to determine which is correct. We shall, however, assume it was a platform. The controller stood in the front part, of the platform and beside it, to the right, stood the motorman. Over the motorman’s head and attached to the roof was an automatic circuit breaker which served to protect the motors against excessive currents of electricity and which broke the current automatically if the controller was “worked up too fast.” At about Southport avenue, the controller suddenly blazed out or shot out flames. The occurrence is spoken of by some of the witnesses as an explosion. The flame from the controller shot out a foot or two into the front platform or vestibule of the car. One of plaintiff’s witnesses, O’Neill, on his cross-examination, said the blaze was almost instantaneous. There was a flash, he said, and then it was all over. Another witness, a policeman, who stood beside the controller, to the left, testified that, ‘1 There was a gush of flames came out of the controller box” which “simply singed my clothes.” He could not tell how far out it extended. He said: “It was not a big flame; it was simply a gush of flame came out there.” The passengers in the car, a number of whom were women and children, seem to have become panic stricken and rushed off the car pellmell. Some fell down and others stepped or fell upon them. Plaintiff claims to have been injured in the scramble of the passengers while getting off.
    John A. Rose and Frank L. Kriete, for appellants; W. W. Gurley, of counsel.
    Jacob C. LeBosky, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

We are of opinion that the occurrence here involved was of such nature that it affords prima facie evidence of negligence on the part of defendants. The res ipsa loquitur doctrine is applicable. The sudden blazing out of the flame from the controller was an unusual and unexpected event and out of the ordinary run of things. The controller, in connection with which the casualty happened, was an appliance or a thing in the exclusive possession and control of, and exclusively managed by, the defendants. Between the defendants and the plaintiff there was a contractual relation, relevant in this connection. So far as one can see, who does not possess special knowledge concerning electrical appliances, the casualty was an unusual event and one which should not have happened if those having the 'control and management of the appliance in question had in no respect failed to use proper care. Therefore, the occurrence, conditions and circumstances, taken together, raised a presumption of negligence against the defendants. The presumption is one of fact, that is, an inference as to the existence of a fact drawn from the existence of some other fact. (Bouvier.) The inference here drawn, upon proof of the occurrence, conditions and circumstances, was that the defendants had failed to exercise the care demanded, by the law. After that proof had been made it became necessary for the defendants to introduce evidence which, when taken in connection with the evidence of the occurrence, conditions and circumstances, would overcome the inference that the defendants had failed to exercise dne and ordinary care. Hart v. Washington Park Club, 157 Ill. 9; North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486; Barnes v. Danville St. Ry. Co., 235 Ill. 566, 573. The burden upon the defendant in such case is not satisfactorily to account for the occurrence, but merely to rebut the inference that he had failed to use due care. Stearns v. Ontario Spinning Co., 184 Pa. 519.

Aside from proving the casualty and circumstances under which it occurred, plaintiff made no proof of negligence. Defendants produced experts to explain away or overcome the presumption. The plaintiff produced no witness who contradicted the testimony of the defendants’ experts. There is, therefore, no conflict of testimony in respect to the existence or nonexistence of a cause of action. The only question in the record in this respect is: Do defendants’ experts explain away the. inference or presumption of negligence that arises, as stated, from the occurrence?

It appears that, prior to the shooting out of the flame from the controller, the overhead automatic circuit-breaker broke the electric circuit several times, but each time the motorman restored it. At such times, “there was quite a report,” as the witness O’Neill puts it. Some of the witnesses, particularly the women witnesses, speak of these circuit breakings as explosions and, in their minds, these “explosions” evidently had some connection with the subsequent blazing out of the flame from the controller. These.impressions of such connection were apparently conveyed to the jurors and obviously operated injuriously to the defendants. The experts testify that these circuit breakings are no warning of any impending danger. They, therefore, were utterly immaterial and in nowise served to prove negligence upon the theory that they had a tendency to warn the crew of something being wrong in connection with the controller. The evidence of the electrical experts is, in fact, to the effect that the shooting out of a flame from a - controller is a casualty that cannot ordinarily be foreseen or prevented. That being so, the presumption raised under the doctrine of res ipsa loquitur is rebutted in respect to such casualty. Whenever that doctrine is in play we must keep continuously in mind that it is merely a presumption which the doctrine raises, and a presumption such that it readily yields to evidence. A presumption which is not of the conclusive class can never withstand evidence, even though it be but the slightest.

It appears, from the testimony of the experts, that the controller is made up of a cylinder around which there is a metal casing. Between the cylinder and the casing there is a space. The operation of the controller, in the repeated openings and closings of the circuit, may create copper fumes forming a conductor from the controller cylinder to the controller case. When considerable of these fumes form in the space between the case and the cylinder there may be formed p.n electrical path, thereby “grounding” the case. This condition enables an arc to form between the cylinder and the case. The inside of the controller’s case is covered with asbestos. The arc is very intense in heat. The asbestos does not burn but it will heat through. The intense heat will melt through the case of the controller and the arc will shoot out. Most of the time it burns a hole in the sheet iron case in front of the controller. Sometimes it shoots out between the top of the controller and the edge of the case where they are joined. The flame will shoot out in almost any direction. It cannot be foretold any more than you can foretell where lightning is going to strike. The formation of these copper fumes is a condition that no one can foresee. It is a condition that will happen and, as testified, all inspections and “theory inspections” possible to be made will not prevent the occurrence of such “blow-outs” of flame. There was, at the time in question, no device known in the building of cars and other appliances to prevent such an occurrence. Such an outburst of flame, it appears, may be due to a number of different causes “over which the outside agency of motor men or any one else will have no control.” “It may be due to some weakness in the controller which has all of a sudden developed, that no one knew anything about beforehand, and there is no possible way of finding out, even although the apparatus was most carefully inspected.” Upon inspection of the controller after the outburst of the flame you would find nothing but a little hole in the case and no indication to show what had caused the outburst, except that the case would be a little blackened or scarred from the arc. In the majority of cases, says the expert Jenks, “there is no warning by reason of the machinery or in any other way” that such an occurrence would or could take place. Although the examinations of the expert witnesses, by the counsel for the respective parties, do not evidence a great familiarity with the subject, on the part of counsel, which is, perhaps, not to be expected, yet it appears quite clearly that such an occurrence, in connection with the controller, as the one here involved, is not fairly to be attributed to negligence. Furthermore, defendants ’' counsel asked the expert Jenks, substantially, whether, supposing the circuit upon a car is broken several times and supposing that one of the motors, there being two upon the car, is disconnected or cut out and, supposing further, that there is thereafter an explosion or blow-out of the controller, whether, at any time along the route or by an examination of the car before it started, such occurrence could have been foretold? And to such question an objection was interposed which the court, erroneously, as we think, sustained.. If this occurrence could have been foreseen neither by inspection before starting nor, by the crew, at any time along the route, then we fail to see where the negligence can be presumed, in respect to this occurrence.

The expert Volk, upon cross-examination, testified that “a blow-out of that kind may be caused by the controller not being in proper condition. ’ ’ This makes the error occasioned by the objection interposed the more injurious.

The difference between the case at bar and the case of Chicago Union Traction Company v. Newmiller, 215 HI. 383, is that in the case at bar evidence to rebut the inference or presumption of negligence is interposed while, in that ease, none was interposed. It appears to us the presumption raised herein, under the doctrine of res ipsa loquitur, has been overcome.

We are of the opinion that the judgment must be reversed and we think the case should be remanded for another trial.

Reversed and remanded.

Mr. Justice Bakeb dissenting.


author: Me. Presiding Justice Chytraus

text:
    Travellers Insurance Company, Appellant, v. Benjamin A. Leafgreen, Appellee.
    Gen. No. 15,412.
    1. Municipal Court—what statute governs filing of transcript on appeal from. The transcript of the record made in the Municipal Court must be filed pursuant to the provisions of the Practice Act as amended in, 1908 rather than pursuant to section 22 of the Municipal Court Act; the Practice Act being the later enactment prevails; and, likewise, the regulation of practice in the Appellate Courts is not authorized by section 34 of Article IV of the Constitution pursuant to which the Municipal court law was enacted.
    2. Appeals and errors—statutory right to appeal, The right to appeal exists only by virtue of some statute.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding;
    Heard in the Branch Appellate Court at the March term, 1908.
    Motion to dismiss denied.
    Opinion filed June 25, 1909.
    Horton & Miller, for appellant.
    Lee & Lee, for appellee.
   Me. Presiding Justice Chytraus

delivered the opinion of the court;

Appellee has moved for an order of dismissal of this appeal. He points out that the judgment appealed from was rendered in the Municipal Court of Chicago on November 18, 1908, and that an authenticated copy of the record in the court below was not filed in the office of the clerk of this court within forty days after the rendition of the judgment appealed from. The case is one of the first class in the Municipal Court and the record was filed in this court on March 2, 1909. The right of appeal exists only by virtue of some statute. Appeals from judgments of the Municipal Court, in this class of cases, are allowed by section 22 of the Municipal Court Act, as it appears in the Revised Statutes of 1908. It is there provided, however, that authenticated copies of the records shall be filed within forty days after the rendition of the judgment appealed from, unless the Municipal Court shall, within forty days, grant further time. This enactment was approved June 3,1907, and adopted at an election held September 17, 1907. By the general practice act, chapter 110 of the Revised Statutes, as amended by an act approved January 25, 1908, and in force July 1, 1908, it is provided that “Authenticated copies of records of judgments * * * appealed from any court to the Appellate Courts shall be filed * * * on or before the second day of the succeeding term of said court,” etc. This amendment of the practice act is the later and controlling enactment. Besides, regulations with reference to the practice and procedure in the Appellate Courts do not properly belong under the heading of “An Act in relation to a Municipal Court in the city of Chicago,” and provisions regarding the time for filing the records in the Appellate Courts relate to the practice and procedure in those courts.

Furthermore, it has been held and declared as the law of this state, by our Supreme Court, that no regulation of the practice in the Appellate Courts is authorized by section 34 of article 4 of the constitution of this state, and it was by virtue of that section of our constitution that the Municipal Court Act was! passed by the legislature. Clowry v. Holmes, 238 Ill. 577. It is our duty to follow the law as declared by our Supreme Court.

The record in this case was not filed too late; the motion to dismiss must be denied.

Motion to dismiss denied.


author: Mr. Presiding Justice Chytraus

text:
    Michael O’Connell, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,569.

      Negligence—duty of motorman at street crossing. It is the duty of a motorman to have his car under control when approaching street crossings.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed July 9, 1909.
    John E. Kehoe and C. LeRoy Brown, for appellant; John R. Harrington, of counsel.
    Whitman & Horner, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The railway company is prosecuting this appeal to procure the reversal of a judgment for $5,000 recovered against it, by Michael O’Connell, in an action on the case for personal injuries.

O’Connell, a teamster, had finished his day’s work, at about six o’clock in the evening of October 8, 1903, by unloading his last load at the Wabash Railway freight depot on Twelfth street, here in Chicago. In driving home he drove his team to Taylor street and west on that street until, in crossing Clark street, his wagon was struck at about its center by a street car of the railway company. The car was an electric trolley car, southbound, running on the west one of two tracks operated by the company in Clark street. In the collision the king bolt on the wagon was broken and the horses passed on “pretty lively” with the front wheels. The remainder of the wagon was carried south by the car, a distance estimated at from twenty-five to fifty feet. At a distance of from fifty to seventy-five feet from where it struck the wagon the car stopped. O’Connell was thrown from the wagon to one side. In the collision the controller box on the front platform was broken and the motorman’s handle thereupon was knocked off, thereby the motorman was prevented from reversing the electric power or doing anything toward stopping the car, except applying the brake.

There is great conflict in the evidence in respect to the details and precise circumstances of the occurrence. It is absolutely impossible to harmonize the various and differing versions. • The company contends that there is an entire lack of evidence to prove the exercise of ordinary care by plaintiff. We do not agree with that contention. Plaintiff’s wagon was run into at a public street crossing practically in the center of Chicago. There is evidence in the record tending to prove that the horses’ heads were on the east rail of the east or northbound track when plaintiff began to whip his horses; that the team and wagon were then visible from the car and were seen by one of the passengers on the car; that that passenger stood beside the motorman, who had an equal opportunity of observing the plaintiff, and that the car was then about one hundred and fifty feet north of Taylor street. There is evidence tending to show that at the time' plaintiff began whipping up his horses he looked toward the car. Counsel for appellant, in their brief, characterize this effort to then hnrry the team across the tracks as reckless. They say: “This reckless attempt was made after he had looked directly at the approaching car, which was within one hundred and fifty feet of him coming south at full speed.” There is a question whether the car was then at full speed. The jury did not regard plaintiff’s act as reckless; neither do we. The motorman testified that his car was pretty well loaded; that he first saw the horses as they were about to step over the east rail of the northbound track; that they were then about nine feet from the track his car was upon; that he was approaching this crossing at a rate of speed of about seven or eight miles per hour; that the full speed of that type of car was about twelve miles an hour; that the “horses traveled seventeen feet while the car traveled fifteen feet;” that “when I first saw those horses’ heads I put the lever brake on;” that “at the time I first saw the horses’ heads the power was off;” that “the rule requires us to pass crossings without the power on and that is what I was doing at this time;” that “I no more than saw the horses’ heads when I applied the brake and in a couple of seconds it hit the wagon;” that at the time of the occurrence he had been a motorman about five weeks, running upon different lines as an extra man, and that he then understood the operation of electric cars as well as at the time of testifying. There is evidence that another team and wagon were immediately ahead of O’Connell, and it was argued that the whipping up of the horses could serve no purpose. Although the motorman testified that he was “looking south” as he approached Taylor street and that there was no team ahead of O’Connell, we believe the evidence fully justified the jury in believing that this team did precede O’Connell and in concluding that the motorman did not look south soon enough, or when he should have been looking south, since he failed to see the first team. Flanigan, who drove the team ahead, testified that the first thing he knew of the “happening” was when he heard a loud crash and that when he drove into Clark street he looked north and saw the car about four hundred feet north, coming south. He said, also, that his team “must have been going at the rate of four or five miles an hour.” There is also evidence tending to show that the motorman’s attention, immediately before the collision, was diverted by the possibility of an accident to a boy who was stealing a ride on the east side of the platform of his car, from a car running north on the east track. There is, however, a square conflict in the evidence as to whether this incident, with reference to the boy, was not closed fully half a block north of the Taylor street crossing. Considering the several phases of possible facts presented by the evidence, any one of which the jury might properly adopt, and considering, further, the inferences and deductions the jury were justifiable in drawing from the facts and circumstances they might adopt, we cannot say there was an absence of sufficient evidence that plaintiff exercised ordinary care for his own safety at the time in question. Neither can we hold that there was not negligence in the motorman’s operation of the car or that he did not fail to exercise ordinary and reasonable care in approaching the crossing. It was his duty in approaching the street crossing here in question to have his car under control. Upon the evidence in this record there is ample evidence to justify the jury in arriving at the conclusion that the motorman failed in that respect. What has been said disposes, also, of the question of contributory negligence, raised by appellant.

While, ordinarily, it would have been prejudicial error to admit evidence, as was here done, with reference to his wife having had healthy children by him, yet, a question, such as was here raised, regarding plaintiff’s health having been raised by defendant, we do not regard the subject as irrelevant and incompetent.

The defendant’s offered instructions, which were refused, were covered by instructions given, so far as legally sound.

As to the amount of the damages, we are not prepared, upon the evidence in this record, to set up our judgment against that of the jury and the trial judge, who saw the plaintiff, and say that the amount is excessive.

Other contentions, of lesser consequence, have been presented, which we have carefully considered, but we find no reason for disturbing the judgment of the trial court. The judgment will be affirmed.

Affirmed.

Me. Justice Mack took no part in the consideration of this case.


text:
    Chicago Open Board of Trade, for use of Imperial Building Company. Appeal of Imperial Building Company, Appellant, v. Illinois Trust & Savings Bank, Appellee.
    Gen. No. 14,576.
    1. Gabnisi-iment—control of proceeding. In a garnishment suit the beneficial plaintiff controls the suit even as against the nominal plaintiff.
    2. Gabnishment—what essential to maintenance. In the absence of an existing judgment as provided by Section 1 of the Garnishment Act, no original garnishment proceeding can be maintained.
    3. Gabnishment—when proceeding properly dismissed. Upon motion of the nominal plaintiff in the absence of the garnishee, it is proper to dismiss a garnishment proceeding when the judgment upon which it was predicated has been set aside.
    Garnishment. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed July 9, 1909.

      Statement by the Court. The Imperial Building Company having, previously, on December 7, 1905, in the Circuit Court of Cook county, recovered a judgment against The Chicago Open Board of Trade, the Building Company, on December 8, 1905, caused to be filed in that court an affidavit for a garnishee summons against the Illinois Trust & Savings Bank, as garnishee. The proceeding was duly instituted under section 1 of the Garnishment Act, chapter 62, Revised Statutes, and thereafter duly prosecuted as The Chicago Open Board of Trade for the use of The Imperial Building Company against the Illinois Trust & Savings Bank. Interrogatories were filed and the bank filed its answer thereto.
    Subsequently, on December 16, 1907, The Chicago Open Board of Trade came and, in open court, moved that the garnishee proceeding be dismissed. At that time the Imperial Building Company, by its attorney, was present but no one represented the garnishee. In support of the motion to dismiss the Open Board produced and offered a duly certified copy of an order entered in the suit between the building company and the Open Board, on December 9, 1907. From such certified copy it appears that the judgment of December 7, 1905, was, on December 9, 1907, duly “set aside, vacated and for nothing esteemed.” It further appears that this order of vacation of that judgment was made and entered by the Circuit Ceurt in compliance with a' mandate from the Appellate Court of Illinois, for the first district. From the mandate it appears that the judgment of December 7, 1905, was entered by confession, that the Circuit Court had denied a motion by the Open Board to vacate the same and that the Open Board had appealed from the order denying such motion. The judgment of the Appellate Court, rendered on October 29, 1907, was that the order of the Circuit Court denying such motion “be reversed, annulled, set aside and wholly for nothing esteemed, and that this cause be remanded to the Circuit Court of Cook county, with directions to said Circuit Court to grant said motion.”
    When, on December 16, 1907, the Open Board moved for the dismissal of the garnishee proceeding, The Imperial Building Company, by its attorney, objected, stating, in substance, that the building company was the beneficial plaintiff and, being such, controlled the actions of the Open Board, as to the proceedings in the suit, so that without the consent of the Building Company the Open Board could not dismiss the suit, and the building company objected to a dismissal. But the court disregarded this objection of the building company and dismissed the garnishee proceeding, 'and from the order of dismissal this appeal is prosecuted.
    Taylor & Martin, for appellant, Imperial Building Company.
    Newman, Northrup, Levinson & Becker, Ben & Brady and Chester E. Cleveland, for Chicago Open Board of Trade.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Undoubtedly, in a garnishment suit, the beneficial plaintiff controls the suit even against the nominal plaintiff. Weckler Brick Company v. McLean, 124 111. App. 309. The courts of law look through the nominal party to the rights of the real or beneficial party. These courts, also, upon a proper motion made at any time during the pendency of a garnishee proceeding, such as this, look through the nominal party to ascertain whether the apparently real or beneficial party is actually such a party. A garnishee proceeding is a statutory proceeding, purely. The sole source and foundation of the court’s power to act, in such case, is the statute. The right of the beneficial plaintiff to prosecute a garnishment is predicated, wholly, upon the existence of the conditions required in section 1 of the Garnishment Act. There being no judgment, no court can examine or proceed against a garnishee. The right of one person to use the name of another, in a prosecution of a suit or proceeding against á third person indebted to or having effects or estate of that other, depends entirely upon such person having a judgment against the other. In the case at bar the Circuit Court properly set aside the judgment of December 7, 1905, in compliance with the mandate of this court. When the judgment was set aside the foundation for prosecuting the garnishment failed and the learned trial judge correctly dismissed the suit on motion of the nominal plaintiff, when the record, uncontroverted, was presented showing the setting aside of the judgment. That leave was given, when the judgment was set aside, to plead, is a matter of no consequence in this garnishment proceeding. The absence of the garnishee, when the suit was dismissed, made no difference, as the garnishee could not be prejudiced by such an order.

This disposition of this cause renders it unnecessary to consider the motion to dismiss this appeal.

The judgment of the Circuit Court is affirmed.

Affirmed.

Mr. Justice Mack took no part in the consideration of this ease.


text:
    R. S. Blome et al., Appellees, v. Wahl-Henius Institute of Fermentology, Appellant.
    Gen. No. 14,585.
    1. Pleading—what constitutes duplicity. To state several causes of action upon different contracts, appearing to be of different dates, in one count of the declaration, is to violate the rule of pleading inhibiting duplicity.
    2. Pleading—when states legal conclusion. A pleading alleging a failure to do an act “without any valid reason” states a conclusion of law; either the word “valid” should be omitted or the facts set up which show the absence of a valid reason.

      3. Pleading—when defects waived. Defective pleading as distinguished from wholly insufficient pleadings is waived by proceeding to trial upon the merits.
    4. Contracts—when recovery may be predicated upon building contract in the absence of an architect’s certificate. An unreasonable or arbitrary refusal by an architect to issue a certificate is a fraud and such a refusal to issue a certificate being shown, recovery may be had without the architect’s certificate upon a building contract which makes the certificate of the architect a condition precedent to payment. If the architect in refusing a certificate has acted honestly and in good faith, a recovery upon such a contract cannot be had.
    5. Contracts—when building contractor liable for failure to perform. If a contractor promises and undertakes to produce a result or a piece of work up to a certain standard or of a certain quality, knowing that it cannot be done, he, nevertheless, may be held to pay damages for not doing it.
    6. Fraud—who party to. One who has not participated in the perpetration of the original fraud becomes a party thereto by insisting upon availing himself of the fruits thereof.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. William L. Pond, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed July 9, 1909.
    Statement by the Court. Judgment for $502.09 was rendered against the Wahl-Henius Institute of Fermentology, a corporation, defendant, by the County Court of Cook county, in an action of assumpsit, on December 14, 1907. From that judgment the Institute is prosecuting this appeal. A claim of set-off for $647, made by the Institute, was disallowed, and the Institute complains, also, of that disallowance. The ease was tried without a jury, and was heard upon an amended declaration consisting of four counts.
    It appears from the evidence that defendant erected a three-story and basement building which was specially constructed for an institute of fermentology. The structure consists of a main building and an annex. In the main building are located laboratories and offices and, also, schoolrooms, where examination work is done and investigations are conducted for the United States government, etc. The annex is designed for use as a model brewery. In the construction considerable concrete and cement work was required. The basement floors are all concrete, three halls and the toilet rooms in the main building are concrete and all the brewery floors are concrete.
    Plaintiffs were engaged in the business of doing concrete and cement work and their skill and experience in that business are conceded. By written contract between plaintiffs and the Institute, under date of October 8, 1904, plaintiffs undertook and agreed to furnish the material and perform the work for the concrete work in the building, according to certain plans and specifications of Bernard Barthel, the architect of the building. The contract provides, also, that the work should be done under the direction of this architect and his decision as to the true construction and meaning of the drawings and specifications should be final; that plaintiffs should, within twenty-four hours after written notice from the architect, remove all materials condemned by him, whether worked or unworked, and take down all work which he shall, by like notice, condemn as unsound, improper or in any way not in conformity with the drawings or the specifications ; that should the contractor at any time refuse or neglect to supply materials of the proper quality or fail in performance of any of his agreements, the refusal, neglect or failure being certified to the owner by the architect, the owner should, after notice to the contractor, be at liberty to make good the default and deduct the cost from the contract price, and that, if the architect should certify that sufficient ground existed, the owner might terminate the contract and complete the work or employ others to do so, and, if the expense exceeded the amount unpaid to the plaintiffs under the contract, then, as stated in the contract: “the contractor shall pay the difference to the owner,” and, further, in such case, as stated: “the expense incurred by the owner as herein provided, either for furnishing materials or finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate shall be conclusive upon the parties.” The contract also provides that the contract price of $2,150, subject to additions or deductions under the terms of the contract, shall be paid by the owner in current funds, “and only upon certificates of the architect as follows:” eighty-five per cent during the progress of the work and the remaining fifteen per cent within twenty days after completion and acceptance “and all payments shall be due when certificates for the same are issued;” and the contract also states “that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials.”
    Plaintiffs began work under the contract in November, and were through some time in December, 1904. After they were through, they came back and relaid two floors, which defendant had claimed were defective. This was done upon their being urged to do so by the architect and, as they claim, upon a promise by him that when they had done so he would issue the certificate for their unpaid claim. When plaintiffs stopped this work, $300 of the contract price remained unpaid, besides $202.09 which they claimed for certain extra items of work done and materials furnished, according to requests made by defendant, at various times. For the aggregate of these two amounts the architect gave plaintiffs no certificate. But he did give defendant a certificate as follows:
    “Inasmuch as B. S. Blome Company have refused and neglected to supply properly skilled workmen and have failed to carry out their contract with the Wahl-Henius Institute of Fermentology under the terms of said contract dated October 8, Í904; and said B. S. Blome Company have failed to substantially comply with the terms of said contract: I hereby certify that, on account of said failure on the part of E. S. Blome Company, the Wahl-Henius Institute of Fermentology were obliged to and did provide other labor and material and employ other contractors to finish said work.
    “I further hereby certify that I have audited the expense incurred by the said Wahl-Henius Institute of Fermentology for furnishing said material and finishing said work and the damage incurred through such default and failure of said It. S. Blome Company to perform said contract, and I hereby further certify that the expense incurred by the said W ahl-Henius Institute of Fermentology for furnishing material and finishing said work and damage incurred by them, through such default on the part of said E. S. Blome Company, amounts to the sum of Six Hundred and Forty-seven Dollars ($647.00).
    Chicago, 111., February 3rd, 1906.
    B. Barthel, Architect. ’ ’
    In the meantime, however, before this certificate was given, this suit was begun by the filing of a declaration on August 28, 1905.
    In their declaration plaintiffs have not averred the issuance to them of any architect’s certificate for the amount sued for, although their contract provides that no payments shall be due until such certificates shall have been issued and that the owner shall only be obliged to pay upon architect’s certificates. The only explanation or excuse presented by plaintiffs, in their declaration, for the absence of such averment or for not possessing such certificate is an averment that although plaintiffs had fully performed their contracts and agreements “yet the architect, without any valid reason or excuse therefor, has failed and does refuse to give to plaintiffs a written certificate to the effect that such payments have become due, in accordance with the terms of the aforesaid contract herein fully set forth.”
    On June 27, 1906, the parties stipulated that under the plea of general issue filed the defendant might, on the trial, introduce evidence of counter-claim or set-off, whether existing at time suit was brought or accrued subsequently, the same as if specially pleaded.
    Walter F. Heinemahu and Henry L. Wallace, for appellant.
    William M. Pindell and P. H. Bishop, for appellees.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The plaintiffs seek to recover payment in this action, under the contract involved, without a certificate from the architect, the issuance of which their contract specifically provides shall be prerequisite to payment being due. The first and second counts of plaintiffs’ declaration are predicated upon the contract and full performance thereof. The third and fourth counts are predicated upon other contracts and performance^ thereof, involving, respectively, work and material for $66 and $63.84. The declaration contains no other counts. We shall not concern ourselves at all with the third and fourth counts, as, in their briefs in this court, the attorneys for defendant admit and allow the items embraced in those counts.

The declaration does not reflect great credit upon the pleader in respect to the care and skill with which it was prepared. That great writer upon the subject of pleading, Ohitty, says: “In actions in form ex contractu the pleader may join as many different counts as hé has causes of action of the same nature in assumpsit.” 1 Ohitty PI. (10th Am. Ed.) 200. But to state several causes of action upon different contracts, here appearing to be of different dates, in one count, as is done in the first count, is a gross violation of the rule against duplicity. The same writer says: “The object of the science of pleading is the production of a single issue upon the same subject-matter of dispute. The rule relating to duplicity, or doubleness, tends, more than any other, to the attainment of this object.” Ib. 226. The rule precludes "plaintiff, he says, from stating or relying upon more than one matter constituting a sufficient ground of action, referring, of course, to a statement in or reliance upon one count. Further, the same writer says: “If the breach vary from tie sense and substance of the contract, and be either more limited or larger than the covenant, it will be insufficient.” Ib 334-5. In both the first and the second counts herein, the pleader, in stating the breach, does vary from the sense and the substance of the contracts set up. In both these counts the breach is alleged by an averment that “the defendant refuses to pay the lalance of $502.09,” followed by the laying of plaintiffs’ damages at $600. No averment in the declaration develops any connection between “th.e balance of $502.09” and the several contracts set up in either of these two counts. These counts are also defective in other respects. If attorneys would pay more heed to the plain, simple and logical rules of pleading, the reversals by courts of review would be less, litigation would be more expeditious and less expensive, and there would be no ground for complaining of the delays and technicalities of legal procedure. As in this particular case there has been a trial upon the merits, we regard all causes of objection to the defects in the counts herein as waived.

Plaintiffs allege, in the first and second counts, that they have fully performed their contract and “yet the architect, without any valid reason or excuse therefor, has failed and does refuse to give the plaintiffs a written certificate.” This averment, owing to the use of the word “valid,” is not well pleaded. Either the word, “valid” should have been omitted or else the facts, relied upon as reason or excuse, should have been stated, in order that the court, upon demurrer interposed, might have determined upon the validity or that an issue might have been taken upon the facts. As it is, the averment asserts nothing more than that for some unstated reason or excuse, which the pleader asserts to be “valid” and as to which the court and the opposite party must rely upon the pleader’s conclusion in that regard, the architect has failed and refused to give a certificate. The averment only states a pleader’s conclusion, which is not good pleading. However, this suit has been conducted as if the averment were, that, without any reason or excuse existing,- or being given, for his action, the architect has arbitrarily failed and refused to give a certificate. Such arbitrary non-action is, in law, equivalent to a decision, or exercise of judgment, against a party, without any ground or warrant of fact therefor. Such arbitrary conduct by one entrusted with a power of decision, to be exercised upon a point or proposition in controversy between the parties who have delegated the power to him, is a fraud in fact and in law. A provision, such as here involved, in a building contract, inserted in anticipation of the possibility of some controversy arising, is a provision for a form of arbitration between the parties. An arbitration, when not statutory or under a rule of court, which forms of arbitration are provided for in some jurisdictions, is a form of settlement in pais, agreed upon to avoid the invocation, by either party, of judicial action, i. e., a resort to courts. It may be true that arbitrations are often followed, as a consequence, by the misfortune of a resort to judicial action and an invocation of the judicial power, but even then the inherent nature of an arbitration in pais proceeding itself is not changed into a judicial proceeding. The case of Perry v. Insurance Co., 137 N. C. 402, is in point on the contention of plaintiffs, that if the architect, without the existence of any reason or excuse whatever, or warrant of fact, therefor, arbitrarily decided against plaintiffs upon questions in dispute, then, such action was a fraud. Perry v. Insurance Co. was a proceeding for the recovery of a fire loss, upon a policy of insurance, and to set aside an award of arbitrators, because of fraud, corruption, bias and undue influence. In that case the court held: “There are two kinds of fraud which will vitiate an award: positive, as by some act that can be proven; or inferential, where.the circumstances so strongly point to dishonesty that the court will consider the fact of its existence to be clearly indicated.” The court, in that case, as to what will establish fraud, quotes approvingly the language of Lord Thurlow, viz: “An inequality so strong, gross and manifest that it must be impossible to state it to a man of common sense without producing an exclamation at the inequality of it,” and also quotes from Goddard v. King, 40 Minn. 164, also with approval, as follows: “Where there is a charge of fraud or partiality made against an award, the fact that it is plainly and palpably wrong would be evidence in support of the charge, entitled to greater or less weight according to the extent or effect of the error and the other circumstances of the case. There might be a case of error in an award so plain and gross that a court and jury could arrive only at the conclusion that it was not the result of an impartial exercise of their judgment by the arbitrators.” In the case of Fallbrook Irrigation District v. Bradley, 164 U. S. 112, we find this question of what may be sufficient to show fraud, in a similar connection, considered. Counsel engaged in that case were among the most eminent in this country. In that case, speaking of a board of supervisors in an irrigation district, established by a state statute as a tribunal invested with power to determine the fact of benefits to lands, the court first (p. 169) quotes as follows: “Like every other tribunal established by the legislature for such purpose, their duties are judicial in their nature, and they are bound in morals and in law to exercise an honest judgment as to all matters submitted for their official determination,” and later (pp. 169-170) the court says: “Very possibly a decision by the statutory tribunal, which included tracts of land within the district that plainly could not by any fair or proper view of the facts be benefited by irrigation, would be the subject of review in some form and of a reversal by the courts; on the ground that the decision was based not alone upon no evidence in its favor, but that it was actually opposed to all the evidence and to the plain and uncontradicted facts of common knowledge, and was given in bad faith. In such case the decision would not have been the result of fair or honest, although grossly mistaken, judgment, but would be one based upon bad faith and fraud, and so could not be conclusive in the nature of things.” In harmony with this line of reasoning, that an act or conduct unreasonable in a high degree proves fraud, we find the following statement by our own Su • preme Court: “The agreement to sell and transfer stock, to the amount of twenty thousand dollars for two dollars, is a fraud per se.” Macoupin County v. People, 58 Ill. 191, 195. Thus, it appears, upon authority, that when one invested by parties with power of decision upon a matter in difference between them, involving the disposition of property or property rights, fails to honestly and in good faith exercise his judgment upon the dispute, but abitrarily or capriciously disposes of what may be involved without exercise of his judgment, a fraud is perpetrated upon the injured party. Indeed, he also, by his arbitrary act, exceeds the power delegated to him, for he was given power to dispose of property by the exercise of his judgment, not, by the exercise of his arbitrary will, to pass the property of the one to the other. If, in plain negligence, defiance or disregard of the fact of full performance, as alleged, by plaintiffs, the architect arbitrarily failed or refused to issue to them a certificate, such action would be dishonest and fraudulent. Defendant would not be permitted to avail itself of the benefit of such fraud, for the rule which was applied in Wierich v. De Zoya, 7 Ill. (2 Gilm.) 385, to De Zoya, who wanted to avail himself of the benefit of fraud, would then be applied to defendant. It was in that case held as to De Zoya (p. 388): “If he did not participate in the original fraud, by insisting upon its fruits he became a party to it. ’ ’

If the plaintiffs’ allegation that no reason or excuse existed for the architect’s failure to issue a certificate were established by the evidence in this record or were it shown that his reason or excuse was so utterly unfounded in fact and so flimsy that all reasonable men would agree that it was but a pretext, then fraud would be established, under the authorities above cited. But, does the evidence disclose that the architect acted without reason or 'excuse, that is, arbitrarily, in failing or refusing to issue a certificate to plaintiffs?

Beginning in the month of February, 1905, and continually thereafter, at least until this suit was begun, it appears that the defendant was complaining, either to the architect or to the plaintiffs, of the character of the work done under the contract in question. From the evidence it appears that in some instances cinder concrete, of the thickness of some inches, with one-inch cement finish on top, was specified. This required a full inch of proper cement finish in every part of the surface covered by such specification. In many places, as is shown, the cement finish was but 1/8, 3/8, 9/16, 7/8 or 15/16 of an inch in thickness, that is, the “top coat” varied in thickness. This was a material non-, compliance with the contract. If defendant had considered less than one inch of uniform thickness sufficient, it would not have contracted for and obligated itself to pay for a “top coat,” or cement finish, of a uniform thickness of one inch. Plaintiffs do not even attempt to justify this furnishing of a less thickness than they contracted to furnish, The cinder concrete was shown to be “soft,” “crumbling,” “loose stuff,” “porous,” “fine dust,” and “so that it could easily be broken with the hand” or fingers. One witness said: “when it is cut through it pours just like meal,” and another: “I found that the ‘concrete’ underneath the top surface did not appear to be concrete at all, but cinders.” It was also shown that the top surface did not “bind” properly to the rough concrete underneath it. In some places the top finish and the rough concrete adhered and in other places it did not. In some places the concrete floors “buckled.” The floors were also shown to have cracks, other than beam cracks, and cracks radiating from these. Beam cracks and radiating cracks were, perhaps, shown to be the consequence of an absence of joints which should have been provided for in the specifications. One witness said he made ‘1 soundings ’ ’ in different places upon floors and found, in spots, hollowness underneath, showing a lack of adherence between the top-finish and the rough concrete. The plaintiffs offered no evidence to contradict these witnesses in these respects. Experts testified that the main body of the cinder concrete, or rough concrete, should be hard and compact and there should be a good “bond” between that and the top-finish, so that both would be hard and tense; that the upper surface should adhere, if the concrete were good and if the top-finish were properly put on while the concrete was green; that by the mixture of the particles of cinders and the particles of sand, if these were properly mixed with cement so that the cement would envelop the particles of these materials, and if there were a proper application of the top-finish and proper tamping, the whole, that is, the top-finish and the rough concrete, would form a monolithic mass throughout.

The specifications require the floors “in basement and brew house (the annex) to have proper slope toward bell-traps” in the floors, in order that water shall naturally flow off the floors into the sewer. The evidence in the case, without conflict, shows that the floors in several rooms were so sloped that, in many instances, water would flow in all directions except toward and into the bell-traps. The “fillets” required by the contract were omitted and in other respects the evidence shows non-compliance and improper compliance with the contract.

Apparently the supervision of the doing of this work was lax. Indeed, the defects in the floors are so clearly shown by the evidence that counsel for appellees, mindful of the obligation of the members of our honorable profession to the court, are obliged to make various concessions in that respect in their brief. In one place they say: “That these floors were a failure does not admit of doubt,” in another: “Certain it is that the floor was, in some respects, a failure.” It is to be noted also that appellees do not argue for recovery on the ground of performance of their promises and undertakings, but on the ground of substantial performance. In this respect they depart from their pleadings. The excuses advanced by appellees for the lack of full compliance with the terms of their contract are that the use of cinder concrete was ill-advised and was inherently improper, and that they did the best that could be done with such material; and, further, that the cracks complained of arose by reason of no provision being made for joints in the concrete floors and by reason of settlements of the walls. We find no evidence of any settlement of any walls. We cannot assume, merely from the existence of the cracks in the floors, that there were any such settlements.

We come then to the defense of impossibility of producing the result contracted to be produced, owing to the inherent nature of the material specified. According to Mr. Blome’s testimony, plaintiffs knew and understood, when they entered into the contract, what might or would follow if cinders were used in making the concrete. They claim, also, that Barthel and defendant did not know. If this view be accepted, plaintiffs intentionally entered into a contract, which they • knew they could not perform, to lay floors, by the use of cinder concrete, of a certain fixed standard and satisfactory to the architect Barthel. Their defense of impossibility of compliance with their contract is not only unconscionable, but we find it not to be sustained by the evidence. To contract to do work up to a certain standard is, in effect, under the circumstances here involved, a representation that it can be doné. The evidence shows the work could be done according to the fixed standard, for, in places, the concrete floors were up to the standard. Furthermore, it is the law that if a contractor promises and undertakes to produce a result or a piece of work up to a certain standard or of a certain quality, knowing that it cannot be done, he, nevertheless, may be held to pay damages for not doing it. This is said to be “not, in fact, for not doing what cannot be done, but for undertaking and promising to do it.” 2 Pars. Cont. (6th Ed.) 673.

We are not convinced by the evidence in this record that, upon a state of facts so plain that reasonable minds could not differ, the architect, as an arbitrator, inconsistently with such state of facts, failed and refused to issue to plaintiffs a certificate of payment due. Consequently, the plaintiffs have failed to show that the architect, in his failure and refusal to issue to plaintiffs a certificate, acted in fraud of their rights or arbitrarily. On the contrary, having considered the evidence very carefully, we have come to the conclusion that not only was the architect justified in refusing to issue a certificate to plaintiffs, but had he issued one, he would have been grossly derelict in his duty to defendant. It was only necessary, however, that upon examination of the record it should appear that the architect honestly and in good faith exercised his judgment and acted thereupon. It was not necessary that it should appear, in order to sustain the architect, that, in exercising his judgment upon propositions or differences involved, he arrived at a correct conclusion. For, even though an arbitrator in good faith decides incorrectly, the parties who made him such are bound by his decision, when within the power delegated to him. Architects’ decisions are no exceptions to this rule. The law of this state with reference to the conclusiveness of architects’ certificates is well settled. Gilmore v. Courtney, 158 Ill. 432; McAuley v. Carter, 22 Ill. 53; Canal Trustees v. Lynch, 5 Gilm. 521; Coey v. Lehman, 79 Ill. 173; Fowler v. Deakman, 84 Ill. 130; Arnold v. Bournique, 144 Ill. 132; City of Lake View v. MacRitchie, 134 Ill. 203; Barbee v. Findlay, 221 Ill. 251; Stose v. Heissler, 120 Ill. 433. In the Gilmore v. Courtney case our Supreme Court said: “To prove that the [architect’s] estimate is fraudulent, it is not sufficient merely to show that work was rejected or condemned, which in the opinion of others should not have been rejected or condemned. This may, indeed, be proved as a circumstance tending, in some degree, to establish fraud, but it is not conclusive. The evidence must show that the engineer knowingly and wilfully disregarded his duty, and rejected or condemned work which he knew, or at least should have known, fully conformed, in all respects, to the terms of the contract.”

That the amount of $647 is a fair and reasonable charge for the work done and material furnished because of the default of plaintiffs is not controverted; besides, the architect certified to the correctness of that amount. For the outlay of this amount defendant is entitled to recover under its claim of set-off. Defendant, for the purpose of an adjustment of the accounts herein, admits the claims of plaintiffs herein, as follows: Balance due upon contract $300; excavating and filling trench $40; laying extension on first floor $8; concrete foundation $66 and asphalt finish in wash-tub room $63.84, aggregating $477.84. Deducting this amount from defendant’s set-off of $647 leaves $169.16 due the defendant from the plaintiffs.

The judgment of the County Court will be reversed and judgment will be entered here in favor of the defendant and against the plaintiffs for $169.16.

Reversed and judgment here.

Mr. Justice Mack took no part in the consideration of this case.