text:
    John B. Math, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,513.
    1. Passenger and carrier—what not contributory negligence. A passenger standing upon a car in a place such as upon a step, foot-board or platform is not guilty of contributory negligence as a matter of law.
    2. Passenger and carrier—what does not affect relation. If a person takes a position of danger upon an overcrowded car and the carrier accepts his fare, the status of such person as a passenger is not affected by a formal remonstrance made by such carrier to such passenger retaining his position of danger.
    3. Passenger and carrier—what not contributory negligence. A passenger even though he may assume a place of danger is not guilty of contributory negligence which will bar his recovery if his negligence does not contribute to the particular result occasioned by the negligence of the carrier.
    4. Negligence—operation of overcrowded car. Both on principle and on authority the operation of an overcrowded car is prima facie an act of negligence.
    5. Evidence—when impeaching foundation sufficient. If the questions put to a witness sought to be impeached embodied substantially the varying statements claimed to have been made, the foundation is sufficiently laid.
    6. New trials—what essential to granting. To induce the granting of a new trial on review there should be strong probable grounds to believe that the merits of the case have not been fully and fairly tried and that injustice has been done.
    7. Verdicts—failure to render judgment upon. If the verdict is in favor of one defendant and against another, it is error to fail to render judgment with respect to both such defendants; held, however, in this case, that such error was harmless.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Theodore Bbentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed May 11, 1909.
    Statement by the Court. John B. Math, administrator of the estate of Charles A. Bietzel, deceased, in August, 1903, brought suit in the Superior Court of Cook county against the Chicago City Bailway Company to recover damages for having by its carelessness and negligence caused the death of Bietzel. Originally plaintiff had impleaded, with the Bailway Company, the Joseph Stockton Forwarding & Transfer Company and the Joseph Stockton Company, but by amendment Joseph Stockton & Company was made the only joint defendant with the Bailway Company. A trial was had in December, 1902, and a verdict returned finding Joseph Stockton & Company not guilty and the Bailway Company guilty with damages assessed at $5000. In January, 1903, plaintiff remitted $1200, whereupon the court overruled a motion for a new trial and rendered judgment against the Bailway Company for $3800. The Company appealed from this judgment. In June, 1904, the Appellate Court reversed the judgment because of the use, by appellee’s attorney, of improper and inflammatory language, calculated to arouse in the jury passion and prejudice against the appellant, and for error in the giving of an instruction. Chicago City Railway Company v. Math, 114 Ill. App. 350.
    As appellee made no motion for a new trial, as to Stockton & Company, that defendant has not been in the case since the judgment was entered in the Superior Court, in January, 1903.
    In May, 1907, the case was again heard before a jury, as between the plaintiff and the Railway Company, and a verdict was again rendered against the Company for $5000. Upon this verdict a judgment was rendered on January 25, 1908. From that judgment appellant, the Railway Company, prosecutes this appeal.
    Another case, involving an injury to another person upon precisely the same state of facts, arose out of the same occurrence and was before this court in Chicago City Railway Company v. Schaefer, 121 Ill. App. 334.
    The Railway Company operates a double track street railway in Chicago, on Clark street, a north and south street, which railway runs both north and south of Fourteenth street, an east and west street. The street cars are operated by electricity and a trolley. Fourteenth street runs into Clark street from the east and stops at Clark street. On the west side of Clark street is a brick wall about eight feet high. At Fourteenth street the Company’s tracks are laid at the extreme west side of Clark street, over against the brick wall, so close that there is scant room for a person to get out of a southbound car and stand between it and the wall. The southbound cars run on the west track and the northbound cars on the east track. Between the east rail of the two tracks and the east curbstone there is a roadway space of eighteen feet. The Erie Railway freight office building is on the southeast corner of Clark and Fourteenth. The building stands out to the sidewalk on Clark street for a distance of fifty feet, from Fourteenth street south, and from that point, for a further distance of about fifty feet south, which is the extent of the building, there is a jog arising from that part of the building being set back twenty-five feet from Clark street. The part of the building standing out to Clark street is four stories high and the other part is two stories high. Adjoining the building to the south are railway freight sheds which also stand back and extend south some hundred feet. At the time of the occurrence here in question the street space eighteen feet in width, as well as the area adjacent to the street, south of the jog in the building, was all level and well paved with granite block pavement up to the doors of the freight sheds.
    About one o’clock in the middle of the day, on July 2,1901, a bright and hot summer day, the open trolley car of the street car company, in connection with which this controversy arose, came from the south toward Fourteenth street. The car had seats running all the way across the car and so placed that two seats or benches faced each other; consequently there was no aisle lengthwise in the car. There were foot-boards on each side of the car. There is a square conflict in the evidence whether the body of the car was so filled with passengers that there were no vacant seats therein. On the one side witnesses testified that all the seats were occupied, and on the other side witnesses testified that there were vacant seats in the car. It is undisputed that some persons were standing upon the foot-board on the east side of the car. Among those so standing were two boys about fourteen years of age: the decedent, Charles A. Eietzel, who stood at the first upright post, or stanchion, from the front, and John Schaefer, his friend, who was with him and stood at the second stanchion from the front. These boys had taken the car some considerable distance from the place we have described and stood on the-foot-board the whole time until they were brushed off, as will appear later. The fares for both were paid by Eietzel, when the conductor came to collect them. The conductor testified that when he collected the fares he asked the boys to step inside and take seats but received no reply. No street runs west from Clark street between Twelfth street on the north and Eighteenth street on the south and, consequently, there is no travel across Clark street between those points. There is no dispute but what the trolley car came along at a pretty good rate of speed, ten to twelve miles per hour. When the car approached Fourteenth street, a large truck wagon, hauled by two horses, came from the east on Fourteenth street and turned south into Clark street. The truck was empty and came along with the horses on a trot. It belonged to Joseph Stockton & Company and its destination was a door of the freight shed located about three hundred feet south of the office building. There , was no other train or wagon in the street at the time nor was there anything else to obstruct the view. The motorman in charge of the trolley car testified that the car was about two hundred and forty feet distant from the team after the team had “straightened out on Clark street coming south.” The car continued without lessening its speed until it slowed up in stopping and it stopped about twenty-five feet north of Fourteenth street. The witnesses of the plaintiff and defendant conflict squarely as to the manner in which Bietzel was knocked off the foot-board and as to where the teamster was driving as he approached and passed the car. Bietzel and his companion Schaefer were scraped off the foot-board by the corner of the truck which, at the same time, nicked, somewhat, the projecting metal handle of the front stanchion of the car. Bietzel was so injured that he died three days later. Unquestionably, had there been no carelessness on the part of the motorman or on the part of the teamster, Bietzel would not have been killed. It is but natural that the witnesses should, as they do, differ regarding the precise distance south of Fourteenth street at which the car and the truck came in contact. It appears to us, however, that that point was about sixty to one hundred feet south of the south line of Fourteenth street. The witnesses, on behalf of the company, who testify on the subject, say, that at no time before reaching the car or while passing it, until the truck was turned toward the east, did the truck come within from three to six feet of the easternmost rail of the car tracks, variously estimated, and the company’s theory is, that, as the truck turned to go to the Erie freight sheds, when the horses were turning toward the southeast, while the nearest part of the truck was about three feet from the street car tracks, the wheels began to slide and slid toward the car and thus the boys were knocked off. And, the company contends that this would not have happened if the boys had not stood upon the foot-board. A witness for the company, W. B. Smith, presents this view of the occurrence most clearly. On the other hand the witnesses for plaintiff, including the teamster himself, testify that at no time, while the teamster was driving, straight south on Clark street and before he turned out of the track, in front of the car, was the truck wholly east of the east rail of the car tracks. In substance, these witnesses say that the truck came along with the horses on a trot and its two west wheels within the.east track; that as the teamster made the turn in front of the car, to go east or southeast to the freight shed, his west wheels dragged for quite a distance before the front wheel came out of the east rail and thereafter the hind wheel dragged, but "both wheels were out and the wagon nearly clear of the car, as the car passed and the collision occurred. There is a conflict in the testimony of these witnesses whether the metal handle outside of the first stanchion or the dashboard of the car first came in contact with the wagon. The theory is that both the teamster and the motorman in approaching one another, as the team was turning out toward the freight shed, continued their rate of speed too long and therefore negligently and unnecessarily took the chance of coming too closely together so that the car, going at the speed it was going, grazed the corner of the truck. In the brief on behalf of the company it is said: “But it all happened in an instant, in a flash; the car ran on at full speed, and the collision was so momentary, and so unexpected by everybody, that the locality of it was with many a mere guess.”
    John E. Kehoe and O. Le Boy Brown, for appellant; John S. Lord, of counsel.
    Charles M. Foell, Marvin E. Barnhart, and Fmrt. J. Walker, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

Appellant presents two main contentions upon the merits of the case: First, that the evidence shows that the motorman was not negligent; and second, that by standing upon the foot-board the decedent was negligent, and that that negligence contributed to occasion the injury.

The testimony presents two inconsistent states of fact. If the state of facts developed by the evidence on the part of the street car company be adopted, then no negligence on the part of the motorman was shown. If, on the other hand, the view of the appellee be adopted, the motorman was too venturesome and negligently hazarded the safety of his passengers, particularly the safety of those who stood upon the east foot-board of his car. There was ample room for the jury to adopt either view and, in our opinion, both the preponderance of the evidence and the more reasonable view are to be found with the appellee. The attorneys for appellant at the beginning of their statement of the case, referring to decedent, assume and assert: “He was struck by a passing truck wagon belonging to the Joseph Stockton Company, the rear end of which was swung against the side of the ear.” And later it is asserted: “Upon the evidence of both parties, it is apparent to the point of demonstration that the real cause of the collision was the abrupt swing eastward of the horses just as the car and wagon were abreast of each other.” Neither the jury nor the trial judge assented to the view of the facts thus contended for.

The truck driver testified that, “in pulling out [of the rail] to avoid the car that was coming, it [the car] struck the hind stake of the hind end of my wagon.” The “hind” end, and the stake upon it, projected two or three feet back of the rear wheels of the truck. Assuming that statement, with other evidence of like tendency, to be the true version of the occurrence, the conclusion is irresistible that by not lessening the speed of the car, but undertaking to pass the truck at full speed, the motorman failed to exercise the care which the law required of him, for the safety of his passengers, and for that reason the car ran so close to thé rear of the truck that the boys, one at the first stanchion and the other at the second stanchion of the car, were scraped off from the foot-board. The jury were not without evidence upon which to base a finding that in handling his car the motorman did not exercise that high degree of care which is owing from a carrier to a passenger in his charge. Whether the teamster’s version of the occurrence was the true one or not was a question for the jury, and where, as here, there is a sharp conflict of fact and the evidence, taken all together, reasonably sustains the view taken by the jury and the trial judge, we ought, not to interfere with their conclusion. •

It is contended by appellant that the boy Bietzel was negligent in standing upon the foot-board and that that negligence contributed to his injury. The facts in this case are such that, unquestionably the carrier’s —the motorman’s—negligence would have resulted in no injury to Bietzel, had he not stood upon the foot-board. Yet that does not .dispose of this contention in appellant’s favor. It still remains to be determined whether his so standing was negligence. It has, repeatedly, been held by the courts of review that a passenger’s standing upon a car in a place such as upon a step, foot-board or platform, is not negligence per se which bars recovery. Consolidated Traction Co. v. Schritter, 222 Ill. 364, 366-7; Alton Light & Traction Co. v. Oller, 217 Ill. 15; North Chicago St. R. R. Co. v. Polkey, 203 Ill. 225, 232. Certainly, the proposition of its being negligence to stand upon the step or foot-board of a car is not one in respect of which it can be said that all reasonable minds will come to one' and the same conclusion, namely, that it is negligence. That being so, it is a question of fact for a jury; for, if, upon a given state of facts, the question be whether a party has been negligent or not, in his conduct, and the state of facts is such that all reasonable minds would not arrive at the same conclusion, then the question is one for a jury. In this case we are, furthermore, obliged to take the view that Bietzel stood upon the foot-board, not from choice but from necessity, owing to a condition arising from the failure of the street car company, a common carrier of passengers, to furnish sufficient cars to accommodate all the passengers within the car. There is a sharp conflict in the testimony of the witnesses whether there was any vacant seat, in the car in question. The verdict being against the company we must assume, should it be necessary, that the jury found the car contained no seat that could be taken by Bietzel. Attorneys for appellant incorrectly state the condition of the record, in their statement of the casé, when they say: “There was some indefinite evidence that certain witnesses saw no vacant seats and that they thought the car was pretty well filled.” We cannot understand how such statement could be made to this court when, aside from other evidence tending to show the car was full, at least two witnesses testified positively that there were no vacant seats. The witness Fletcher said: “At the time I got on the car, there were no unoccupied seats, I had to stand. ” “At the time I got on, three or four persons were on the foot-board.” “There were no unoccupied seats on the car at that time nor until the time of the accident.” The witness Maloney said: “When I got on the car it was filled.” “The car was filled all the way down.” Street car companies are under an imperative public duty, as common carriers of passengers, to furnish sufficient cars to accommodate the travel along their lines. We call to mind some steam railway cases in which, solely upon the ground that they were common carriers, that doctrine was distinctly declared. In Quinn v. I. C. R. R. Co., 51 Ill. 495, it was held: “A railway company which fails to furnish comfortable sitting accommodations for its ordinary number of passengers, or even for an extraordinary number upon due notice,' is certainly negligent, and should be held to strict accountability. ’ ’ In O. & M. Ry. Co. v. People, 120 Ill. 200, a petition, for a writ of mandamus, had been filed to compel the company to furnish, among other things, a sufficient number of trains. The company answered that it lacked the necessary funds. So far as the mandamus proceeding was concerned, that reply was considéred sufficient, but our Supreme Court said: “The matter thus set up in the answer no more exonerates the company from the duties which it owes the public than the inability of one to pay his honest debts would relieve him, from his legal liabilities to his creditors.” Other cases holding it to be a failure in the performance of a public duty for a common carrier to fail in furnishing sufficient accommodations to passengers are: C. & A. R. R. Co. v. Flagg, 43 Ill. 364; C. & A. R. R. Co. v. Randolph, 53 Ill. 510; C. & A. R. R. Co. v Wilson, 63 Ill. 167; C. &. E. I. R. R. Co. v. Jennings, 190 Ill. 478. This duty to furnish sufficient accommodation being a public duty, common carriers can exonerate themselves from liability for failure in that respect only by proof of being prevented by some cause beyond their control. In the case at bar there was not even an attempt at producing proof to that effect. Both on principle and upon authority the operation of an overcrowded car is, prima facie, an act of negligence by a carrier. By such act, according to the verdict of the jury, the carrier prevented Bietzel from obtaining the proper accommodation and obliged him to stand upon the foot-board. Under such circumstances, the street car company is in no position to advance Bietzel’s standing upon the foot-board as an act of negligence on his part which, in joint operation with the motorman’s negligent handling of the car, produced the injury to Bietzel.

The appellant’s contention of contributory negligence is also overcome by another and distinct line of reasoning. The conductor testified that when he collected the fares from the two boys he asked them to step inside and take seats and, as he puts it: “They made no reply whatever,” but remained standing upon the foot-board until the accident. Notwithstanding this uncontradicted testimony of the conductor we must regard Bietzel as a passenger and not as a licensee or trespasser. A common carrier for hire who takes a person’s money, for his transportation to his destination, thereby accepts him as a passenger. The carrier cannot take and retain the consideration and then repudiate the relation any more than a landlord can accept rent and then deny the existence of the relation of landlord and tenant. We hold that, without any qualification, the relation of passenger and carrier existed between the street car company and Bietzel, at the time he was injured. Assuming for present purposes, without conceding, the correctness of appellant’s contention that standing upon the foot-board is an unusual mode or manner of travel upon a street car and that there are certain risks or hazards connected with so traveling, other and different from traveling in a seat within the car, yet, when a carrier accepts the fare of one standing upon the foot-board and, expressly or tacitly, agrees with him upon such mode or manner of transportation, or knowingly permits him to so travel, the carrier is not absolved from all responsibility for injuries that might happen to such passenger traveling in that manner. Upon no principle of law can a carrier, in such case, be held to be absolved from his duty to safely carry, so far as acts of negligence by the carrier himself are concerned. The taking of such position by a passenger does not operate as a permit from him to allow the carrier to be negligent, in respect to him, the passenger, and to relieve the carrier from all responsibility in that connection. The passenger is still a passenger and entitled to the benefit and protection of the law, as such, against acts of negligence by the carrier himself. The risks and dangers, which a passenger standing upon the foot-board is exposed to, may be regarded as arising from two possible sources or causes, viz.: (1) negligence on the part of the carrier and (2) some other source or cause.

In the case at bar, as already shown, the appellant’s negligent act caused the injury. Whether or not that negligent act operated in combination with negligence of a third party is now immaterial. The nature of the occurrence in question is such that if fault were attributable to Bietzel, at all, it would, in this instance, be because of his having contributed, by his mere presence where he was, only to the result of the carrier’s negligence upon himself. He did not contribute in the negligent act which occasioned or was the cause of the unfortunate accident and produced the injury of himself and his companion. Bietzel’s position on the car had no tendency to induce the motorman to so handle his car as to hazard passing the truck without accident when he should have run no such risk. Dr. Bishop, in one of his excellent works, says: “If, while one is negligent—perhaps the expression should be, in a state of negligence—another negligently employs an independent force, which, availing itself of the occasion afforded by the former’s negligence, works a harm not its natural and probable consequence, but an independent harm, the first negligence is not contributory to the second.” Bishop Non-Contract Law, sec. 463. The harm worked, in the present instance, was not a natural and probable consequence of Eietzel’s act in standing upon the foot-board. Eietzel had a right to suppose and assume, as he stood upon the foot-board, that the street car company would in nowise be negligent so as to injure him. A passenger need not anticipate negligence on the part of his carrier and govern his acts and conduct upon the theory that the carrier may be negligent. It was the street car company’s duty to exercise the highest degree of care and caution, consistent with the practical operation of its road, for the safety of Eietzel, its passenger, no matter where he stood. In this respect the company failed. If a common carrier carries a passenger, for hire, by some means or in a mode other than usual, its general responsibility for safe carriage is not thereby otherwise relaxed than as may be incidental to or connected with the means or mode. C. & A. R. R. Co. v. Arnol, 144 Ill. 261, 271. Negligence on the part of the carrier himself can be an incident to no means or mode of travel. Public policy forbids exoneration from its acts of negligence by a carrier; even to the extent that carriers are prohibited from protecting themselves against their own negligence by contract. Individuals, even outside of the relation of passenger and carrier, are not obliged to anticipate negligence in others and govern their movements by such rule. Chicago City Railway Co. v. Fennimore, 199 Ill. 9, 17. Ernst v. Hudson R. R. Co., 35 N. Y. 9, 28, 35, was a suit brought against the railroad company for negligently causing the death of a person at a crossing and the defense of contributory negligence was interposed. In that case, although the relation of passenger and carrier did not exist, the court held that the decedent had a right to assume that in propelling their cars the railroad company would act with appropriate care. By so holding, the court held that acting upon that assumption was not negligence on the part of the decedent and, consequently, that there was no contributory negligence. To the same effect are: Harpell v. Curtis, 1 E. D. Smith, 78, and News on v. N. Y. Cent. R. R. Co., 29 N. Y. 383. In the latter case the court said (p. 390): “The law will never hold it imprudent in any one to act upon the presumption that another, by his conduct, will act in accordance with the rights and duties of both”.

When Bietzel, willing to endure the discomfort and inconvenience of standing upon the foot-board and willing to risk the danger of injury, there, from causes other than the company’s negligence, which the law did not require him to risk, in order to be able to reach his destination took standing room upon the foot-board and the company took his fare and suffered him to remain there, then that mode of travel was mutually agreed upon. A formal or perfunctory protest by the conductor made no difference in the relation, between Bietzel and the street car company. By occupying that place, as a passenger, Bietzel did not, for he could not, contract to discharge the company from the duty not to occasion him injury by its own acts of negligent operation of its car. It may be that a passenger, by taking an unusual place, risks certain hazards inherent and obvious to the place or position, such as the danger, in this case, of Bietzel losing his hold upon the angle bar, but danger from negligence by the carrier is not one of those hazards.

Standing upon the foot-board did not cause, or cooperate with, the negligent act of the street car company, or with any act of the truck driver, to occasion or bring about the occurrence as a result of which decedent and his companion were injured. There was no duty on the part of the boys injured to refrain from standing upon the foot-board on the ground that they should, in the exercise of ordinary care, have anticipated the negligent act of the carrier, and, by not being on the foot-board, have avoided injury therefrom; and, therefore, they did not, in that regard, fail in any duty to exercise ordinary care. For these reasons we hold that there was no negligence on the part of the boys, on the occasion in question, and, consequently, no contributory negligence.

Had Rietzel suffered injury from some other source or cause than through negligence of the street car company itself, then a different question would have arisen, which we need not consider now.

The question whether the truck or the street car had the right of way, discussed by the attorneys for appellant, is totally foreign to the present controversy. The present controversy is solely one between the street car company and the administrator of Rietzel, its passenger, not between it and the driver or owner of the truck.

Complaint is made, also, that the learned trial judge erred in holding, during the cross-examination of the plaintiff’s witness Fletcher, one of .the passengers on the car, that if appellant’s attorney wished to impeach the witness, by proving previous statements inconsistent with the witness’ present testimony, he must, in putting the questions relative to the previous statements, embody the precise questions and answers previously put and made, that is, use the precise language used at the previous time or occasion involved. Such ruling was undoubtedly inadvertent, and it was erroneous. Our Supreme Court long since held (Marshall v. Adams, 11 Ill. 41), and it has ever since been the practice when the foundation is being laid, for impeaching a witness, by showing that on some previous occasion he has made some statement at variance with what he is testifying, that it is sufficient if the question purports to give but the substance of the witness’ previous statement. The rule is that the witness’ attention must be called to the subject-matter of the previous statement and to the time of the previous occasion. The reason for the rule is satisfied if sufficient, in substance, be given to so call the witness’ attention to the previous statement that the witness can admit or deny having made the statement. If there be a denial the trial judge can, and must, then exclude the previous statement when offered, if it does not fairly and substantially correspond with the previous statement embodied in the question asked. But, so far as we can see, the error was harmless. Inspection of what transpired, when the ruling was made, shows that the precise subject-matter involved in the proposed impeachment was not of itself of the most serious importance and that it had not of itself a bearing, directly, upon any of the direct issues in the testimony. It bore, rather, upon the power or possibility of observation and the recollection of the witness. Furthermore, the question was, in substance, whether, at a previous trial, the witness had answered: “I lost sight of them [the approaching horses] for a little while and then I saw them coming toward the southeast”. The examiner desired a categorical answer but the witness persisted in attempting to reply by answering what in fact happened, according to his view, at the time of the occurrence. The witness did, however, at one time, in answer to one of numerous repetitions of the question, reply: “I saw them all the way until we struck them. There was a moment or two, there, when they were lost sight of, when they were directly on the track— directly ahead of us”. This was, substantially, a repetition and reassertion of the supposed inconsistent and variant statement imputed to the witness in the question asked by the examining attorney. Such being the witness’ present testimony, the imputed previous statement, being consistent therewith, became immaterial and the ruling, apparently made to terminate a long drawn out repetition of the same question, affirmatively appears'not to be prejudicial. Upon this record it is manifest that no improper result followed the erroneous ruling and it is not reasonable to suppose that the error affected the result. And, furthermore, assuming there were room for contradiction, the attorney for appellant did not follow up the question with the production of any former contradictory statement by the witness. We cannot, in order to make the ruling appear materially erroneous, assume that there was any previous contradictory statement. “To induce the granting of a new trial [upon review], there should be strong probable grounds to believe that the merits of the case have not been fully and fairly tried, and that injustice has been done”. Wheeler v. Shields, 2 Scam. 348, 351. This decision was rendered in 1840 and such has been the rule ever since. We find no instance where our Supreme Court has overruled this case because not stating the correct rule. No legislative enactment that we are aware of has changed the rule. In Deigh v. Hodges, 3 Scam. 14, 18, our Supreme Court said: “Sitting, as the Circuit Court was, in disposing of this motion for a new trial, we are only to ascertain if, upon the whole case as presented, substantial justice has been done. It does not always follow that a new trial will be granted, even if the jury find against the weight of evidence, against the instructions of the court or through misdirection of the court on a point of law, provided the court is satisfied that justice has been done”. In Newkirk v. Cone, 18 Ill. 449, 454, our Supreme Court expressed itself in this connection as follows: “* * iS We can discover, upon the whole case, no error in law, in legal effect, prejudicial to the defendant, and which, upon this record, entitles him to a reversal of the judgment. Evidently substantial justice has been done between these parties, and the defendant has no just cause of complaint. And in such case, this court will not reverse a judgment, even if errors have been committed, by the court below, upon the trial, in the admission or exclusion of evidence, or in the giving or refusing of instructions”. The same doctrine has been announced by our Supreme Court in numerous other later cases, among others in Chicago v. Jackson, 196 Ill. 496, 511. Upon the merits of the ease at bar, so far as appellant is concerned, substantial justice appears to have been done.

The complaint made of the giving of an instruction, conceded to be correct in the abstract, we have considered and find it to be totally without merit.

It is urged upon ns that there is error in this record because no action has ever been taken by the trial court upon the verdict of the jury, returned in the first trial of this case, in so far as it was in favor of the Joseph Stockton & Company. There was error in the procedure of the court in that respect. In this particular case, however, there are two reasons why the present judgment should not be disturbed because of that error. In the first place the Bailway Company appealed from the judgment then rendered and, so far as we can see, failed to raise the question of that error at that time. A party cannot be permitted, upon taking an appeal, to refrain from raising an error then existent upon the record and hold it in reserve to be raised upon a future appeal. By not raising the question of that error upon the former appeal and by going to trial, when the judgment now before us was rendered, without raising the question in the trial court, appellant has waived that error. In the second place this is a tort action and such an one that there would be no right of contribution. It has been held that, in such case, taking judgment against one, upon a declaration charging joint negligence with others is but an irregularity and amounts to a dismissal of a defendant against whom the judgment is not taken. Such procedure is not sufficient ground for reversal.' Postal Telegraph-Cable Co. v. Likes, 225 Ill. 249, 265; Davis v. Taylor, 41 Ill. 405, 408.

The judgment of the Superior Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Adams

license: Public Domain

text:
    Ida Oberreich, Appellee, v. Frank Foster, Appellant.
    Gen. No. 14,508.
    1. Bankruptcy—what debt not affected by discharge. A judgment rendered in an action of which fraud was the gist is not affected by a discharge in bankruptcy.
    2. Res judicata—when question of fraud is. The fact that a judgment was rendered in an action of which fraud was the gist is res judicata where it appears that upon the review of such judgment the Supreme Court held that one of the two counts of the declaration was insufficient and that the other of such counts was sufficient and contained “all of the essential elements of a cause of action in case for fraud and deceit.”
    Trespass on the case. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 20, 1909.
    Poynton & Poynton and Lyman M. Paine, for appellant.
    James O. Elsdon, Cyrus Heren and N. A. Stern, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Appellee brought suit against appellant July 12, 1902, and filed her declaration therein. The defendant was defaulted and the damages were assessed by a jury at the sum of $2,130, and February 23, 1905, the court rendered judgment for said sum. The defendant appealed to this court and the judgment was affirmed. Foster v. Oberreich, 130 Ill. App. 568. The defendant then appealed from this to the Supreme Court, which court affirmed the judgment of this court. Foster v. Oberreich, 230 Ill. 525.

The appellant filed his petition in the United States District Court for the Northern District of Illinois, in bankruptcy. November 24,1904, he was adjudicated a bankrupt, and December 11, 1905, the United States District Court, on appellant’s petition, entered an order restraining appellee from proceeding to enforce and collect her judgment against appellant “until the further order of the court or until the discharge of said bankrupt be determined by this court”. January 30, 1906, a final order was entered in the United States Court, ordering “that said Frank Foster be discharged from all debts and claims, which are made provable by .said acts, against his estate, and which existed on the 29th day of November, 1904, on which day the petition for adjudication was filed by him, excepting such debts as are by law exempted from the operation of a discharge in bankruptcy”. January 14, 1908, appellant filed in the Circuit Court of Cook county, by leave of the court, his petition setting up the foregoing facts, and also that appellee’s claim was scheduled in the bankruptcy court. Appellee answered the petition, and the court, after hearing the evidence and argument of counsel, dismissed the petition.

The restraining order of the United States Court is limited, in terms, to the date of appellant’s discharge. This is recognized by appellant, in petitioning the Circuit Court for a restraining order. The sole question between the parties is one of law, namely, whether appellee’s claim against appellant is provable in bankruptcy.

Section 17 of the act of 1898, in regard to bankruptcy, provides that a discharge shall not release the bankrupt from certain debts, among which the following are mentioned: “Judgments in actions for fraud, or obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another”. Fed. Stat’s Annotated, p. 578, sec. 17, division 2.

In Foster v. Oberreich, 230 Ill. 526, the question before the court was whether the declaration was sufficient to suport the judgment. There were only two counts in the declaration. The court held the first count insufficient, and held the second sufficient, and, after quoting the count, say: “This count of the declaration contains, in substance, all of the essential elements of a cause of action in case for fraud and deceit”. It is therefore res adjudicata, as between the parties, that the judgment is for fraud and deceit, and, therefore, the discharge in bankruptcy did not operate to release appellant from it.

The judgment of the Circuit Court dismissing appellant’s petition will be aErmed.

Affirmed.


author: Mb. Presiding Justice Adams

text:
    Jacob Huber et al., Appellees, v. Thomas Brown et al., Appellant.
    Gen. No. 14,454.
    1. Appeals and errors—when assignments of error too general. Assignments of error which bring into question an entire order are bad if any part of such order is valid.
    2. Masters in chancery—when findings of fact not disturbed. Findings of fact by a master will not be disturbed as against the evidence unless clearly and manifestly so.
    3. Decree—-when does not merge trust deed. A decree which does not increase or in the least affect the rights of the owners of a trust deed in the premises covered thereby, does not effect a merger of such trust deed.
    4. Foreclosure—validity of provision for solicitor’s fees, etc. While it may be that a provision in a trust deed or mortgage for payment of solicitor’s fees for services in foreclosing a trust deed or a mortgage is a penalty, yet such provision is valid and enforceable in a court of equity.
    5. Negotiable instruments—what not defense. The fact that a purchaser of a note before maturity knew that the same represented a building loan and that the money constituting the consideration was to be paid out by the party originally acquiring such note as the building in question progressed, would not, if such money was not so paid out, constitute a defense at law.
    Foreclosure. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 20, 1909.
    Statement by the Court. This is an appeal by-Thomas Brown and Elizabeth, his wife, from a decree rendered against them on a bill filed July 2, 1903, by Jacob Huber, Nicholas J. Mann, Theodore H. Schintz, devisee, and others, to foreclose two trust deeds. It is, in substance, averred in the hill as follows:
    April 26, 1897, Thomas Brown made a note for $2,500, payable to his own order, due five years after date, with interest at six per cent per annum, evidenced by interest notes, and endorsed and delivered the same to Jacob Huber, and, at same date, made a note for $700, payable to his own order, payable three years after date, with interest at seven per cent per annum, and endorsed and delivered the same to Nicholas J. Mann. At same date Thomas Brown and Elizabeth, his wife, executed two trust deeds to Theodore H.- Schintz, as trustee, of the following described premises in Cook county, Illinois: Lot 45, block 1, Frank Wells & Co’s Boulevard Subdivision of the N. W. 1/4 of the N. W. 1/4, sec. 23, town 39 N., range 13; one of said trust deeds to secure payment of said $2,500 note, the other to secure payment of said $700 note; the said trust deeds containing the same provisions except as to indebtedness secured. Then follow covenant of grantors to pay taxes, etc.; that, in default of any interest due remaining unpaid, the whole should, at the option of the legal holder of the note, and without notice, become due and payable, grantors waiving right to possession, income and rents, and that a receiver be appointed. Then follows these provisions :
    “And it is further agreed that in case of a right of foreclosure or other right or procedure should arise under such trust deed, all expenses or disbursements paid or incurred upon behalf of the complainant in connection with the foreclosure thereof, or in connection with any proceedings thereunder, or on any of the said notes, including the sum of $300 for solicitor’s fees, and also all outlays for documentary evidence, stenographer’s charges, cost of procuring and completing abstract of title showing the whole title to the premises, including foreclosure proceedings and record of master’s certificate of sale, should be paid by said grantors; that all costs, expenses, solicitors or attorney’s fees incurred, or paid by the grantee, or any holder of any part of said indebtedness in any suit or proceeding, in which any of them as such might be a party, should also be paid by said grantors; that all of such costs, solicitors’ fees, and disbursements should be an additional lien upon said premises and be taxed as costs and included in any decree that might be rendered in any foreclosure proceeding”.
    August 9, 1897, George Wheatman et al. filed in the Circuit Court of Cook county a bill against Thomas Brown and complainants Huber and Mann, praying for a mechanic’s lien on said premises, and August 10, 1907, John Claney was, by consent, appointed receiver of said premises, and qualified as such, and, August 30, 1907, said court authorized said receiver to borrow $600, to complete buildings on said premises, and to issue his certificate for that sum, the same to be a first lien on the premises.
    Default was made in payment of the first of the interest notes secured by the Huber trust deed, due October 26, 1907, and, October 27, 1907, Huber declared the whole principal sum secured by said trust deed due. A like default was made in respect to the interest note due October 26, 1907, secured by the .Mann trust deed, and, October 27, 1907, Mann declared due the whole sum secured by said trust deed. Said receiver, in pursuance of his aforesaid authority, borrowed from complainants Huber and Mann, 'September 29, 1897, $600, and, at same time, delivered to them his receiver’s certificate for $600, with interest at six per cent per annum, payable semi-annually. The receiver also, to secure said certificate, executed to the American Trust & Savings Bank a trust deed of said premises, which was filed for record, which contains a provision for the payment of expenses and disbursements of complainants, in case the same shall be foreclosed, including reasonable solicitor’s fees.
    It is next averred that in mechanic’s lien suit in the Circuit Court of Cook county, Wheaton v. Brown, a certain decree was rendered and certain orders made, and that the decree was appealed to the Appellate Court, and afterward to the Supreme Court, and by the Supreme Court approved.
    S chintz prosecuted an ejectment suit against Thomas Brown on the trust deed, and recovered judgment, which the Supreme Court affirmed, etc. The bill sets out moneys expended by complainants Huber and Mann in the different suits mentioned in the bill, etc., makes Thomas and Elizabeth Brown, Charles H. Jackson, trustee, A. Levi, Aaron Brown, Asher Brown, and unknown owners, defendants, waives answer under oath, and prays for an accounting, etc. Thomas and Elizabeth Brown, and Charles H. Jackson, trustee, answered; unknown owners were defaulted; the bill was dismissed as to A. Levi, Aaron Brown and Asher Brown, and the cause was referred to a master to take proofs and report the same, with his conclusions on law and facts. The master reported, finding and recommending in favor of the complainants, and the court overruled exceptions to the report and confirmed the same, and rendered a decree as recommended by the master. The following, stipulation was made between the parties:
    “Nicholas J. Mann ef al., vs. Thomas Brown et al.} Generai No. 230,954. Term No. 1,853.
    It is hereby stipulated by and between Jacob Huber and Nicholas J. Mann, individually and by their attorneys, and Thomas Brown and Elizabeth Brown, defendants in the above entitled cause, individually and by their attorneys:

      First: That the cause of Nicholas J. Mann versus Thomas Brown, now pending in the Circuit Court of Cook County, general number 177,187, term number 1,893, shall be continued and shall not be tried until the entry of a decree in the above entitled cause of Mann et al. versus Brown et al., cause number 230,954 of said Superior Court.
    2nd. That a jury is hereby waived in said cause of' Mann versus Brown and Huber versus Brown in said Circuit Court; and that when tried the same shall be submitted to the court for decision without a jury.
    . 3rd. That the bill of complaint filed in the Circuit Court of said county, Thomas Brown et al. versus Jacob Huber et al., case 240,773, shall be dismissed without prejudice and without costs, and the questions raised by said bill and the questions which might be raised by any proper amendment to said bill, may be litigated by said Thomas and Elizabeth Brown, and any relief which they or either of them might be entitled to upon said bill and any proper amendments thereto may be granted in this cause.
    4th. That upon the hearing of this case the issues offered or any issues that might be properly offered in said Circuit Court law cases of Mann versus Brown and Huber versus Brown may be litigated, tried and determined, and that this court shall determine whether said Thomas Brown had or has' sufficient defense to judgments entered by confession or to any part thereof in said Circuit Court cases of Mann against Brown and Huber against Brown, or either of them, or upon the notes upon which said judgments were rendered, or either of them, and shall determine the said judgments so entered by confession in said cases of Mann versus Brown and Huber versus Brown shall stand and be made absolute, or shall be set aside or reduced, and that such decision and determination shall be made according to same rules of law and evidence which would be applicable to said cause if the same were tried and the issues therein decided upon the law side of said Circuit Court, it being understood and agreed that the said Brown may offer any evidence that would be competent under the pleas already filed and under any plea or pleas that might be filed.
    5th. It is further stipulated that upon the entry of a final decree herein adjudicating the rights of said Mann and Huber and Browns with reference to said judgments, the said Circuit Court shall enter an order of judgment in said law cases above mentioned in conformity with the findings and decree of this court upon the issues raised or which might be raised in said law cases.
    6th. It is further stipulated and agreed that all the questions at issue between the said Huber and Mann and said Thomas and Elizabeth Brown both at law and in equity, arising out of said suits, shall be submitted to this court in this cause and that this court may fully and completely determine the same and fully dispose of all such matters in controversy between said respective parties.
    It is further stipulated and agreed that no order or disposition of said suits at law, of Mann vs. Brown or Huber vs. Brown, Circuit Court, shall be entered or made in pursuance of any decree entered in this cause, if any appeal by either party be prayed and allowed, or if a writ of error shall be sued out by either party to review such decree and proceedings herein, within three months from the date of.entry of such decree herein; and that in the event of such appeal or writ of error being taken or sued out, no order shall be entered in said suits at law until said appeal or writ of error proceeding, is finally disposed of in the Courts of Appeal, and a decree entered in this court in pursuance of the directions of such higher court. It is further agreed that if such appeal or error be taken to the Appellate Court, either party shall have the right to appeal or sue out a writ of error from said Appellate Court (provided such appeal or writ lies) upon the terms and to the same effect as is hereinabove provided as to appeals from said Superior Court; and the said judgments in said suits at law shall not be vacated, altered, reduced or modified in any respect until a final decree, and all appeals and writs of error thereon, provided same are prosecuted

      within the time hereinabove specified, shall have finally been disposed of.
    Jacob Huber,
    Nicholas J. Mann,
    Thomas Brown, Elizabeth Brown.”
    Peed H. Baymond and Charles S. Babcock, for appellants.
    Mason & Wyman, for appellees.
   Mb. Presiding Justice Adams

delivered the opinion of the court.

The assignments of error in this case are as follows:

1. The court erred in entering a decree in favor of appellees.

2. The court erred in sustaining the master’s report.

3. The court erred in not entering a decree in favor of appellants.

4. The court erred in not finding the issues for appellants.

5. The court erred in overruling appellant’s objections to the master’s report.

Counsel for the defendants object that these assignments are too general, and require the court, if it will review the cause, to search the record for errors which may have been committed, a burden which should not be placed on the court. The only clue which the court would have in such search is the fifth assignment, that “the court erred in overruling objections to the master’s report,” which were ordered to stand as exceptions on the hearing, and which are fifty-eight in number.

Counsel for defendants cite, in support of their objection, Skakel v. The People, 188 Ill. 291; Verble v. Dillow, 218 ib. 537, 539-40; Stanley v. Chicago T. & S. Bank, 61 Ill. App. 257, and Barth v. Union National Bank, 67 ib. 131, 133. In the case last cited the court say: “The assignments are, in effect, that the whole order is wrong, and, therefore, if it is in part right, the assignments must be overruled. 2 Ency. PL & Pr. 951”. This is in accordance with the rule that if two or more assign errors jointly, and the assignment is bad as to one, it is bad as to all. In the present case it cannot be said that all of the objections to the master’s report are good, if any of them are, and we are inclined to the view that the decree should be affirmed for want of specific assignments of error. However, we will consider the propositions on which counsel for the complainants rely and which they argue.

It appears from the evidence that the notes in question, secured by the trust deeds sought to be foreclosed, were made by Brown for a loan to be used in the erection of a building on the premises described in the trust deeds, and that the complainant Huber knew that the money was to be so applied, and that, about the time of the loan there was money belonging to Huber in the hands of Theodore H. Schintz, trustee, who made the loan to Brown. From these and other circumstances counsel for defendants argue that Schintz acted as Huber’s agent in making the loan, that the loan was really Huber’s to the extent of the amount of the note held by him.

The evidence on the question whether Schintz acted as Brown’s agent is conflicting. The master found to the contrary, and his report was confirmed by court. In such case the decree must stand, unless it is clearly and manifestly contrary to the evidence (Siegel v. Andrews & Co., 181 Ill. 350), which we cannot say it is.

It is contended that Huber and Mann are not innocent holders, because, as counsel say, they took the notes with full knowledge of the fact that it was a building loan, and that the money was to remain in Schintz’s hands to be paid out by him as required. Huber and Brown, when they purchased the notes, paid $3,200 for them, and the court allowed only $1,200 principal on the two notes, dividing it proportionally between Hnber and Mann, so that the objection of counsel affects only the confessions of judgment on the notes, which are for the whole amounts due on them, and in respect to which the court decreed that the judgment should stand and be made absolute. The judgments are not made a lien by the decree, and the decree provides that the proportions allotted to complainants of the $1,200 advanced by Schintz shall be credited on the judgment. It is contended that the notes and trust deeds were merged in a decree of the Superior Court of Cook county rendered January 15, 1900. The decree referred to was in a mechanic’s lien suit by Wheatman and Boulton, copartners, against Thomas and Elizabeth Brown, Huber, Mann, Schintz and others, praying a lien on the premises in question. Huber and Mann filed an answer, setting up their liens as in the present case. The court adjudicated the rights of the parties, and dismissed the petition and granted no relief to complainants Huber and Mann. An appeal was taken to this court by the Browns and the decree was affirmed— Brown v. Theodore H. Schintz, 98 Ill. App. 452, and an appeal was taken from this court to the Supreme Court, which affirmed the judgment of this court— Brown v. Schintz, 202 Ill. 509. The decree of the Superior Court, so far as complainants Huber and Mann are concerned, is merely a finding of facts and an ascertainment of their rights. No relief is granted them by the decree. “Merger, in the law of contracts, is an absorption or extinguishment of a security of a lower legal degree into another of a higher legal degree”. 20 Am. & Eng. Ency. 596; James v. Morey, 2 Cowen, 246, 300; Weiner v. Heintz, 17 Ill. 259, 262.

The interest of complainants in the premises described in the trust deeds was not increased or in the least affected by the decree in Wheatman v. Brown. Therefore, there was no merger. The Brown notes, held by complainants, were merged in the judgments by confession, bnt this does not , affect their competency as evidence in the case at bar. Brown v. Schintz, 203 Ill. 136, 139. The chief contention of defendants is, that the court erred in allowing certain attorney’s and solicitor’s fees and decreeing payment thereof.

The complainants introduced evidence of the services for which the fees were allowed, and their reasonable value, and defendants produced no contrary evidence. Each of the trust deeds in question provides for solicitor’s fees of the complainant, in the event of foreclosure, following which is this provision : “and that all costs, expenses and solicitor’s and attorney’s fees incurred or paid by the grantee or any holder of any part of said indebtedness, in any suit or proceeding in which any of them as such may be a party, shall also be paid by the grantors, and that all such costs, solicitor’s and attorney’s fees, outlays, expenses and disbursements, shall be an additional lien upon said premises, and be taxed as costs and included in any decree that may be rendered in such foreclosure proceedings”.

The only objection made by counsel for defendants to this provision is that it is in the nature of a penalty. The provision is merely for the payment of expenses which may be legally and actually incurred by the grantees in the trust deeds or any holder of any part of the indebtedness secured by them, and is not, in the least, in the nature of a penalty. It might as well be said that a provision in a trust deed or mortgage, for payment of solicitor’s fees, for services in foreclosing the trust deed or mortgage, is a penalty; yet such provision has been frequently held valid.

Henke v. Gunzenhauser, 195 Ill. 130, was a suit to foreclose a trust deed which contained a provision for $100 solicitor’s fees in foreclosing the trust deed, next after which was this provision: “It is agreed that said grantors shall pay all costs and attorney’s fees incurred or paid by the said grantee, or the holder or holders of said notes, in any suit in which either of them may be plaintiff or defendant by reason of being a party to this trust deed or a holder of said notes, and that the same shall be a lien on said premises, and may be included in any decree ordering the sale of said premises and taken out of the proceeds of any sale thereof”. The complainant, Henke, claimed that, in addition to his expense, in employing the solicitor who acted in the foreclosure proceedings, he had become indebted to other solicitors for drafting the bill, etc., to the amount of $800. The court entered a decree for $625, solicitor’s fees, which was reversed by the Appellate Court (97 Ill. App. 485), the latter court holding that only the sum of $100, provided by the trust deed for foreclosing it, could be allowed. The judgment was affirmed by the Supreme Court, that court holding that the provision in the trust deed quoted supra applied to proceedings “other than the proceedings to foreclose,” saying: “It can readily be conceived that such a suit might have been brought, either at law or in equity, affecting the rights of the grantee or holders of the notes, before the mortgage debt was due, and before the deed could have been foreclosed”. Ib. 134. The validity of the provision is not questioned by the Supreme Court, and we have no donbt of its validity. The attorney’s and solicitor’s fees allowed by the decree are within the provisions of the trust deeds, and the contrary is not claimed.

It is urged that the court erred in decreeing that the judgments by confession should stand, for the reason that Huber and Mann were not innocent holders of the notes. "While Brown might set up, in a suit by Huber and Mann to foreclose the trust deeds, any defense which he might have in such a suit by Schintz, it does not follow that he could so do in a suit on a negotiable note, for which full consideration was paid. As said of Huber and Mann in Brown v. Schintz, 202 Ill. 509, 510, “It is not denied that they paid in money not only the $1,200, which they are seeking to recover, for the notes and trust deeds, but the full consideration named therein, $3,200”.

The mere fact that Huber knew that the loan was a building loan and would be held by Schintz to be paid out by him as the building progressed—in other words, that the consideration for the note which he, Huber, paid was to be paid out on Brown’s account in the future—would not be a defense in a suit against Brown on the note. Siegel v. Chicago T. & S. Bank, 131 Ill. 569. Brown, himself, knew this.

There is no evidence to show that Mann had any knowledge that the loan was a building loan, or that any of the money loaned was to remain in Schintz’s hands.

We find no reversible error in the record, and the decree will be affirmed.

Affirmed.


text:
    Patton Paint Company, Appellee, v. Erie Railroad Company, Appellant.
    Gen. No. 14,466.
    Common carriers—when interest not chargeable against. Upon the entry of a finding for the value of property destroyed by fire while in the possession of a carrier, interest from the time of such destruction to the time of the entry of the finding should not be included.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed May 20, 1909.
    W. O. Johnson, Thos. Bates, Seymuur Edgerton and Gale & Johnson, for appellant.
    Wheeler, Silber & Isaacs, for appellee; Frederick D. Silber, of counsel.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The appellee sued appellant in assumpsit. The declaration contains four counts. The defendant pleaded the general issue. No question is raised as to the sufficiency of the declaration, or as to variance. The cause was tried by the court, without a jury, and the court found for the plaintiff and assessed its damages at the sum of $1,357.90, denied motions of defendant for a new trial and in arrest of judgment, and rendered judgment on the .finding.

The court, in assessing damages, allowed interest on the value of the property from December 8, 1905, till the date of the finding, the amount of interest so allowed being $128.10. The only controversy between the parties here is whether interest should have been allowed, the defendant contending that it should not, and the plaintiff the contrary. The facts are substantially as follows:

November 5, 1905, the Union Steamboat line, which is the Lake line of the Erie Eailroad Co., received from Euston & Co., at Chicago, 60 barrels of linseed oil, for transportation by lake and rail from Chicago, Illinois, to the Patton Paint Co., consignees at Newark, New Jersey. A bill of lading was issued for the oil by the Erie Eailroad Co. That company received the oil at Chicago, November 6, 1905, and loaded it onto the steamer Eochester. The steamer arrived at Buffalo, New York, November 28, 1905, and that day and the next the oil was unloaded and placed in the railroad company’s warehouse, in the usual course of transfer to the railroad cars. The evidence is that there was a shortage of cars from September, 1905, till December 8,1905. December 8,1905, a fire occurred in the warehouse and the oil was consumed. The plaintiff recovered, as damages, the value of the oil, but the court allowed, in addition thereto, interest from December 8, 1905. The plaintiff proved no special loss in excess of the value of the oil. Interest is the creature of the statute and can only be allowed when authorized by the statute. This rule has frequently been announced and is beyond question the logical rule, as at common law interest is not allowable.

Counsel for defendant rely on Ill. Cen. R. R. Co. v. Cobb et al., 72 Ill. 148. The suit in that case was for damages for unreasonable delay in the transportation of grain. The trial court gave this instruction:

“The court instructs the jury that,"in this case, they may allow interest, if they believe, from the evidence, that the circumstances of the case are such as amount to a conversion of the property by the defendant, or that there was a fraud on the part of the defendant or its agents, or that there was a gross neglect of duty by the defendant. As to whether interest should be allowed or not, you are to be governed by all the facts and circumstances in evidence before you, touching the character, degree and extent of the defendant’s neglect or breach of contract or duty.”

The court, on appeal, held the instruction erroneous, saying: “While our statute has received a liberal construction, yet we are aware of no case similar to the one under consideration, in which interest has been allowed.” The court, after referring to cases in which interest had been allowed, in some of which there had been a wrongful taking, in respect to which trespass was maintainable, and in some of which there was a conversion, in respect to which trover was maintainable, say:

“The doctrine established by these authorities is, where property has been wrongfully taken, or converted into money, and an action of trespass or trover may be maintained, interest may properly be recovered. And this is based upon the statute, which authorizes interest when there has been an unreasonable and vexatious delay of payment.
“There can be no difference between the delay of payment of a moneyed demand and one where property has been wrongfully taken, or taken and converted into money, or its equivalent—the two rest upon the same principle.
“But in this case there is no pretense of a trespass or conversion of property, or of any fraud practiced. The action is based solely on the alleged fact that appellant failed to ship and deliver grain within a reasonable time, and that the grain was damaged in transitu.
“If interest could be recovered upon the facts disclosed by this record, we can scarcely conceive of any action brought to recover damages in which it might not be allowed.”

The case has been referred to with approval in City of Chicago v. Allcock, 86 Ill. 384, 385, Munger v. Jacobson, 99 ib. 349, 354, and Fowler v. Harts, 149 ib. 592, 597, and was followed by this court in C. & A. R. R. Co. v. Davis, 54 Ill. App. 130.

In the present case, as in the Cobb case, supra, there is no pretense of a trespass or conversion of property. In the first count of the declaration it is averred that the defendant negligently allowed the oil to remain in the warehouse an unreasonable length of time. The second count is for negligence in not safely carrying and delivering. The third is substantially the same as the second, and the fourth is for not carrying and delivering within a reasonable time.

We think the decision in Ill. Cen. R. R. Co. v. Cobb controlling in this court.

The judgment will be reversed and judgment will be entered here for $1,229.80.

Reversed and judgment here.


text:
    George S. MacKenzie, Appellee, v. Fred T. Barrett, Administrator, Appellant.
    Gen. No. 14,485.
    1. Debtor and creditor—effect of check as evidence of debt. A check on a bank is not evidence of the fact of indebtedness of the payee to the drawer of the check, but, on the contrary, it is evidence of the indebtedness of the drawer to the payee.
    2. Debtor and creditor—what essential to establishment of relation. The relation of debtor and creditor cannot be established without the consent of the debtor.
    3. Evidence—effect of entries upon stubs of check book. Held, in an action against the estate of a deceased party that entries contained upon stubs of a check book are not evidences of indebtedness.
    4. Evidence—what not part of res gestae. Held, that entries contained upon the stubs of a check book were no part of the res gestae in an action against the estate of a party deceased to recover an alleged indebtedness claimed to have been shown by such entries.
    5. Evidence—when admission by administrator incompetent. Held, that a letter urged as containing an admission by the administrator of an estate sought to be charged with a debt was not competent as evidence tending to show the existence of such debt.
    Contested claim in court óf probate. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthild, Judge, presiding.
    Heard in this court at the March term, 1908.
    Rehearing denied June 14, 1909.
    Reversed and judgment here.
    Opinion filed May 20, 1909.
    Statement by the Court. The appellee filed a claim in the Probate Court of Cook county against the estate of Arma. A. Barrett, deceased, of which estate appellant is administrator. The Probate Court disallowed the claim and appellee appealed to the Circuit Court, where the cause was tried by the court, without a jury, with the result that the court found for appellee and rendered judgment on finding for the sum of $583.36. Appellee’s claim, filed by him in the Probate Court, is for cash loaned September 4,1905, $300; cash loaned November 4,1905, $100; cash loaned February 21,1906, $183.36.

      The appellant’s intestate, Miss Anna A. Barrett, was in appellee’s employ, and quit his employ in the latter part of January, 1906, on account of sickness, as we infer from the evidence. She died July 13, 1906. Appellee put in evidence, in support of his claim, the following documents:
    “Chicago, September 4, 1905.
    No. 1603.
    The Northern Trust Company, Southeast corner LaSalle & Adams street:
    Pay to the order of A. A. Barrett $300.00.
    G-. S. McKenzie.
    Pay First National Bank or order.
    Anna A. Barbett.”
    Entry on stub of check: “Order of A. A. Barrett for loan $300.”
    “Chicago, February 21, 1906.
    No. 1707.
    Northern Trust Company.
    Pay to the order of Aetna Life Insurance Company $183.36, one hundred eighty-three 36/100 dollars.
    Gr. S. Mackenzie.
    Aetna Life Insurance Co. Pay to the order of 1st National Bank, Chicago.
    Thomas R. Lynas, Mgr.”
    Stub of check: “No. 1707. February 21, 1906. To the order of Aetna Life for A. A. Barrett, $183.36.”
    “Aetna Life Insurance Company.
    Habtfobd, Conn., February 20, 1906.
    The receipt of the premium due on above date, under policy No. 283,383 on the life of Miss A. A. Barrett is hereby acknowledged. * * * Paid this 20th day of Feb’y, 1906.
    Thos. R. Lynas, Mgr.
    Agent at Chicago, Ill.”

      “No. 1630. Chicago, Nov. 6, 190—
    Pay to the order of A. A. Barrett $100.00, one hundred 00/100.
    G-. S. Mackenzie.
    Pay to the order of the First National Bank of Chicago. Anna A. Barrett.”
    Stamped: “Paid through Chicago Clearing House November 6,1905.”
    Stub of check: “No. 1630. November 4, 190— to the order of A. A. Barrett for loan, $100.”
    It was proved, without objection, that next after 190— in the stub and check should be the figure 5.
    The signatures to the checks and corresponding stubs were proved to be genuine, and the evidence for appellee, the claimant, tends to prove that his uniform custom was to write checks and notations on the stubs of the checks contemporaneously. There is no evidence to the contrary of this. Margaret E. Brennan testified that, during-the time of the transactions in question, she kept appellee’s books, and produced a book in which were the entries of payments and expenses, and that there were no entries in the book of the sums of $300, $100 and $183.36 shown in the checks. The book was admitted in evidence over appellant’s objection.
    Miss Brennan testified that she visited Miss Barrett in the hospital Easter Sunday, 1906, and in conversation with Miss Barrett, she, Miss Brennan, referred to the fact that Mr. Mackenzie had been exceedingly kind to her, and Miss Barrett said that he had been not only exceedingly kind, that he had paid her salary constantly, and had advanced her considerable in addition to it.
    No evidence was offered by appellant.
    Whitfield & Whitfield, for appellant.
    Willaed & Evans and Bex Mackenzie, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Counsel for appellant contend that there was no competent evidence in support of appellee’s claim, objecting specifically to the checks and stubs as evidence of loans by the appellee to Miss Barrett, the appellant’s intestate.

A check on a bank is not evidence of indebtedness of the payee to the drawer of the check. On the contrary, it is evidence of the indebtedness of the drawer to the payee. Chestnut v. Chestnut, 15 Ill. App. 390, 392. If such a check is not paid when presented for payment, for want of funds of the drawer, and if the payee, in a suit by him against the drawer, proves these facts, a prima facie case is made for a recovery. The checks, therefore, standing alone, are no evidence of loans by appellee to the deceased. Are the notations on the stubs of the checks, assuming them to have been made at the same times as the checks, and taking them in connection with the checks, evidence of loans by appellee to the deceased? It would seem that the stubs are no stronger evidence than entries in appellee’s books of loans to the deceased of the several sums for which the checks were given, made at the same times at which the checks were given. Such entries of charges for money loaned would not be evidence. Boyer v. Sweet, 3 Scam. 119; Ruggles v Gatton, 50 Ill. 412; Schwarze v. Roessler, 40 Ill. App. 475; Smith v. Rentz, 131 N. Y. 169, 176.

In Boyer v. Sweet the court, after stating the rule as to the admission of books of account as evidence, say: “This rule would not apply to an account for money lent, as that is not usually the subject matter of an account, notes being generally taken, nor to an account certain—a single charge only, as that would show no re¿’ :ar dealings between the parties.”

In Ruggles v. Gatton, supra, the court, p. 416, refer to the above quoted language approvingly.

In Smith v. Rentz, 131 N. Y. p. 176, the court say: “Moreover, entries of cash transactions may be fabricated with much greater safety and with less chance of the fraud being discovered than entries of goods sold or delivered, or of services rendered. It would be unwise to extend the operation of the rule admitting a party’s books in evidence, beyond its present limits, as would be the case, we think, if books containing cash dealings were held to be competent.”

The words on the stubs of the checks for $300 and $100 are ambiguous. They are, “Order of A. A. Barrett for loan.” These words may import a loan from Miss Barrett to the appellee as well as a loan from him to her.

In the present case a book of appellee’s which Miss Brennan testified contained the entries of cash payments made in the regular course of business, was put in evidence. For what purpose it was admitted, we do not know, as it was stipulated in open court, on the trial, that it contained no entries of any sums evidenced by the checks. As appellant defended as administrator, appellee was excluded from testifying by section 2 of the statute in respect to evidence; but if, as he claims, the checks were for loans to the deceased, he had ample time in which to secure acknowledgment of this from the deceased, as by notes, or other written evidence, Miss Barrett left his employ in the latter part of January, 1906, from sickness, as we infer from the evidence, and went to a hospital, and did not die till July 13, 1906, and the checks are dated, respectively, September 4, 1905, November 4, 1905, and February 21, 1906. The appellee’s counsel contend that the stubs are admissible as res gestae. They are no more res gestae than would be entries in appellee’s books made at the very time the checks were written. But, in view of the law in respect to books of account as evidence, such entries would be inadmissible. It is desirable that the law shall be consistent.

The evidence is, we think, sufficient to prove that check No. 1707 to the order of the Aetna Life Insuranee Company, was received by that company in payment of the premium on a policy on the life of Miss A. A. Barrett. The policy was not produced, nor is there any evidence of its contents or for whose benefit it was, or by whom it was held. There is no evidence of any request of the deceased to appellee to pay the premium, or of any obligation resting on him to pay it. It was, so far as appears from the evidence, a voluntary payment by appellee. We do not understand that one can make another his debtor without the latter’s request or consent. If it be said that the payment was for Miss Barrett’s benefit, the answer is that this is not shown by the evidence.

It was objected to the receipt as evidence, that there was no evidence that Miss Barrett had authorized appellee to make the payment. Appellee relies on the testimony of Miss Brennan, that the deceased said to her that appellee had been exceedingly kind to her, that he had not only paid her salary constantly, but had advanced her considerable in addition to it. Neither time nor circumstance nor amount was stated. The statement may have been strictly true, and yet have had no reference to any item of the claim in question.

The appellee has assigned, as cross-error, the ruling of the court against the admission in evidence of the following letter offered in evidence by appellee:

“South Haven, Michigan, August 7.
Dear Mr. Mackenzie : You must think I have deserted you, but I have been over here answering all the letters to Anna’s friends, as it is a nice, quiet place. I am coming home tomorrow, as I go into the hospital in about a week.
Our lawyer won’t allow me to settle any of Anna’s accounts except those that have been made since her death, such as the undertaker and so forth. He says the court has to know about them or I may get into trouble. I wish we could settle it all now, as it is a shame to keep you waiting for your money. There are other bills coming that I can not settle, such as Marshall Field’s, and also a dressmaker’s bill that she refused to pay.
I am going into the hospital in a short time, but I will drop in and see you as soon as I return.
Hoping you are well and happy, I am,
Tour sincere friend,'
Fred T. Barrett.”

The letter was written subsequently to the appointment of appellant as administrator and prior to the filing of appellee’s claim against the estate. It is urged that the letter is an admission by the appellant, as administrator, and is competent evidence, and cases in other jurisdictions are cited to the effect that the admissions of administrators, in their respective capacity, are admissible in suits against them. The letter was written prior to the filing of appellee’s claim and does not indicate that appellant knew just what the claim was, but only that appellee claimed that the estate owed him something, and there is a refusal to settle anything with appellee before the court’s action in the premises.

We do not think the court erred in ruling against the admission of the letter in evidence. We are impressed with the view, that if all the facts could have been proven in regard to the items of the claim, which was perhaps impossible owing to the exclusion of appellant’s testimony by the statute, the justice of the claim might have been shown. But we are limited to passing on the competency and sufficiency of the evidence in the record, and cannot escape the conclusion that the claim has not been proven, and that the court erred in its finding.

The judgment will be reversed and judgment will be entered here that appellee’s claim be disallowed and dismissed.

Reversed, and judgment here.


text:
    Healy Ice Machine Company, Appellee, v. James B. Clow & Sons, Appellant.
    Gen. No. 14,498.
    1. Evidence—when custom incompetent. A custom of manufacturers and dealers is incompetent if it is in conflict with a substantive legal right.
    2. Warranty—when no, that ■ merchandise is suitable. Held, under the facts of this case that there was no implied warranty that merchandise would he fit and suitable for the particular use to which it was to he put.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. W. C. De Wolf, Judge, presiding.
    Heard in this court at the March term, 1908.
    Rehearing denied June 14, 1909.
    Affirmed.
    Opinion filed May 20, 1909.
    Statement by the Court. This is an appeal from a judgment recovered by appellee in an action of assumpsit by it against appellant. The declaration consists of a special count and the common counts. It is averred in the special count, in substance, as follows: Plaintiff was engaged in manufacturing, erecting and installing ice making and refrigerating plants, and in its business used large quantities of wrought iron pipe, through which was distributed a compressed refrigerating medium. About April 18, 1904, the defendant, in consideration that plaintiff would buy of it 20,000 feet of wrought iron pipe for $2,100, and with full notice of the purpose for which the same was required by plaintiff, undertook to furnish said pipe at said price and deliver the same to the plaintiff, and promised plaintiff that said pipe should be of fair strength and reasonably fit for use in the construction and operation of a refrigerating plant, as aforesaid. Plaintiff purchased the pipe and paid therefor $2,076.90; but defendant delivered only 19,760 feet of pipe, which delivered pipe was unfit for plaintiff’s requirements, and was not of the strength, quality or workmanship promised by defendant, and by reason thereof said pipe, when placed in position, hurst and leaked, and plaintiff, in removing, repairing and replacing the same, was put to great expense, to-wit, $700. The defendant pleaded the general issue, a special plea traversing the allegations of the special count, that the pipe was unfit and unsuitable and was not of the strength, quality and workmanship promised, and also filed a plea of set-off. The jury found the issues for the plaintiff and assessed its damages at $173.13. The court denied defendant’s motion for a new trial and rendered judgment on the verdict.
    Wyeth, Clark & Zollars, for appellant.
    Barry & Crowley, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The following letters and acceptance passed between the parties:

“Chicago, Apr. 16th, 1904.
Messrs. James B. Clow & Sons,
City.
Gents : We hereby accept your offer to deliver twenty thousand feet of full weight wrought iron pipe in lengths of 20 ft. each, standard thread each end, F. O. B. cars Central Stock Yards, Louisville, Ky., within 15 days, for the sum of ten and one-half cents per foot, less 2%, 10 days.
The Healy Ice Machine Co.,
By F. McArdle, Sect’y.”
“Chicago, 4/18/04.
Healy Ice Machine Company,
30th &. Wallace Sts., Chicago;
Gentlemen: As advised over ’phone today, we can ship you the 20,000 ft. of 2" full-weight wrought iron pipe in lengths of 20 ft. each, standard thread, each end, some time during the coming week. We cannot guarantee its date of arrival at Louisville, but it wifi be shipped from a mill the nearest possible to destination. Please accept this by return mail.
As stated, the time of payment is very important, as we have been able to obtain the promise of shipment only on account of offer of cash discount within ten days.
Thanking you for the order, and trusting that the material will reach you in good time, we remain, Tours truly,
James B. Clow & Sons,
J. C. Clow, Asst. Treas.”
“Accepted:
The Healy Ice Machine Co.,
By F. McArdle, Sect ’y.”

The letter of April 16th, in purporting to be an acceptance, is explained by the evidence that prior to that date, the price per foot of the pipe, the place of delivery and the discount had been communicated to the plaintiff by the defendant. The letters, however, and plaintiff’s acceptance, constitute a complete executory contract between the parties.

The defendant is a dealer in pipe, but not a manufacturer. It purchased the pipe from the Youngstown Sheet & Tube Co., a manufacturer, at Youngstown, Ohio. That company, at the instance of defendant, shipped the pipe, freight paid, to Louisville, Kentucky, April 27 and 28, 1904. After the pipe arrived at Louisville, George Campbell, plaintiff’s erecting engineer, about July 5, 1904, proceeded to use it in the construction of a refrigerating plant for the Kentucky Packing & Provision Co., and completed the construction about August 1, 1904. He testified that he then applied an air test, but could not get over 100 pounds pressure, the refrigerating fluid, liquid ammonia, being inside the pipe and water on the outside, and that, when the pressure was applied the pipes leaked; that there were blow holes all over the pipe, like pin holes, and the pipe leaked, and that, as he figured, about 25 per cent of the entire pipe contained blow holes, and that, in his experience, only about 2 per cent, on the average, of blow holes is found in that kind of pipe furnished for the construction of refrigerating plants. Campbell further testified that the blow holes in the pipe could not be discovered by the eye, but only by an air test. In September or October, 1904, he complained to James C. Clow, plaintiff’s secretary, that the pipe was full of blow holes, and left samples of the defective pipe with him. The evidence that the pipe was defective is not contradicted by the defendant; but it is claimed that the plaintiff should have tested it before using it in the construction of the plant. This, of course, only goes to the question of damages, the plaintiff having been at the expense of taking the defective pipe from the plant and replacing, in its stead, sound pipe, etc. There is no certain evidence that the pipe was tested at the mills before shipment. Mr. W. C. Reilly, superintendent of the Youngstown Sheet & Tube Co., testified that pipe of the kind described is tested by the manfacturer, by subjecting it to a hydrostatic pressure of at least 800 pounds to the square inch; that he had knowledge of the manufacture and test of pipe from day to day, and from such knowledge and observation it was his best knowledge and belief that the pipe in question was, before shipment, tested by hydrostatic pressure of at least 800 pounds to the square inch. It is evident from this testimony, that the “knowledge and belief” of the witness is a mere deduction or conclusion from his knowledge of the custom of his company, in respect to testing. He does not state that he knew of the pipe having been tested. Both this witness and Day, secretary of the Youngstown Co., testified that air pressure is necessary to discover pinholes in the pipe. But William E. Clow testified that the hydrostatic test would show blow holes and sand holes, and is supposed to show pin holes.

William Clow testified that it is the custom of manufacturers to apply the hydrostatic test only. Campbell and McArdle both testified that it is the custom to test the pipes to be used in refrigerating after the plants are constructed and the pipes in them.

Campbell testified that the pipe was in twenty feet lengths, and that, to test the lengths separately it would be necessary to submerge each length of pipe in a water tank, clamp the ends so that they would not leak air, and then apply pressure from an air compressor, and this would be very expensive and would cost as much as testing after the pipe was in place in the plant.

Evidence was offered by the defendant tending to prove that there was a well-known custom of manufacturers and dealers, that, if pipe should prove defective, it should be returned to the seller and made good by him by credit or replacement. The court excluded the evidence, and it is objected by defendant’s counsel that this was error. We cannot sustain the objection. The plaintiff had the right to retain the pipe, and in an action to recover the price to set off the damages resulting from its defective condition, or to institute an independent action for damages. Doane v. Dunham, 65 Ill. 512; Owens v. Sturges, 67 ib. 366; Prairie Parmer Co. v. Taylor, 69 ib. 440; Benjamin on Sales, 6 Am. ed., Secs. 894, 897.

Plaintiff’s counsel contend, and argue at considerable length, that the defendant impliedly agreed that the pipe would be fit and suitable for use in a refrigerating plant, citing this language from the opinion in Telluride Power Co. v. Crane Co., 208 Ill. 218: “The rule is that if an article is to be made or supplied to the order of a purchaser there is an implied warranty of the fitness of the article for the special purpose designed by the buyer.” We are of opinion that this doctrine has no application to the facts of this case. The pipe purchased by plaintiff is specifically described in the contract as “ #2" full weight wrought iron pipe in lengths of 20 feet each, standard thread each end.” The plaintiff had previously used large quantities of such pipe, and as McArdle testified, had purchased a great deal of .pipe from defendant prior to the purchase of the pipe in question. It knew, from its experience in its business, the sort of pipe which was fit and suitable better than did the defendant, and did not rely on the defendant’s judgment or opinion as to whether the pipe ordered, if furnished as ordered, would be suitable in its business. Suppose the pipe delivered had been of good workmanship, material and quality, and of the dimensions mentioned, so that no fault could be found with it as pipe,' and the plaintiff had discovered on trying it, that it was unsuitable; could it escape from its contract or recover damages on that ground? We think not. But assuming the doctrine to be applicable in the case at bar, what practical effect can it have? There is no contention on the part of the plaintiff that the pipe was unsuitable for any cause except that it was defective by reason of blow holes and pin holes, which caused it to leak when in place in the plant. It is not at all contended that the pipe, if free from the defects mentioned in the evidence, would have been unfit or unsuitable. It is evident from the instructions given at plaintiff’s request, that his counsel, in submitting the case to the jury, relied only on the pipe being “of unsound material, poor in quality, or defective in workmanship.” The jury were not asked to pass on the question, whether, if the pipe was of sound material, fair in quality and good workmanship, it was or was not suitable for use in plaintiff’s business. Mc-Ardle, plaintiff’s secretary, testified that in the early part of July, 1904, he received a report from Mr. Campbell, plaintiff’s erecting engineer, about the defects in the pipe, and, about the middle of July, he read the report to Mr. Armstrong’, defendant’s city salesman, and told him the pipe was in bad condition and that the Kentucky Packing and Provision Co. was threatening plaintiff in respect to damages for delay in getting the work finished. Counsel for defendant claims that it was error to admit this evidence, on the ground that Armstrong was not authorized to receive such statement, and that there was no evidence that he had reported it. The evidence shows that Armstrong was the first person plaintiff communicated with in respect to the purchase of the pipe, and told him what was wanted, and he gave plaintiff the price. We think the evidence competent, but if not, it could not prejudice the defendant, as it was fully informed of the defective condition of the pipe in -September or October, 1904.

Counsel for defendant do not question the rulings of the court on instructions, nor do they contend that the damages are excessive, their contention being that there can be no recovery. We find no error in the record warranting a reversal of the judgment, therefore the judgment will be affirmed.

Affirmed.