text:
    James Lyons, Appellee, v. Joseph T. Ryerson & Son, Appellant.
    Gen. No. 14,436.
    1. Master and servant—who not fellow-servants. A servant is not the fellow-servant of another if at the time of his injury in the performance of his regular duties he was not brought into contact or association with such other servant.
    2. Master and servant—limitation of duty of former. If a servant is voluntarily at a place where his duty does not call him his master owes him no duty at that place to furnish him a reasonably safe place to do work which does not fall within the line of his duty and in the doing of which he is a mere volunteer.
    3. Master and servant—when latter may properly leave his-usual post. A servant is justified in leaving the place where he is working and in entering upon another portion of the premises of his master if in doing so he is seeking to avert what threatens to be a disaster both to himself and others in his vicinity.
    4. Master and servant—failure to observe custom. If it has become customary to give a particular signal a servant has a right to rely upon the giving of such signal, and if his injury results from a failure to give such signal a recovery will be sustained.
    5. Instructions—when giving of abstract proposition of law will not reverse. An instruction which states a correct proposition of law will not reverse if it does not tend to mislead.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 3, 1909.
    H. B. Bale and Morse Ives, for appellant.
    Rice & O’Neil, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action on the case for personal injuries, by the servant, against his master. The injuries are claimed to have been suffered while the servant was working in the discharge of the duties which had been assigned to him by the foreman under whose direction he was working at the time he was injured. The master is said to be answerable in damages for such injuries to the servant because, it is said, the master failed to furnish the servant a reasonably safe place in which to work. The accident happened upon Sunday, July 2, 1905, and the declaration of one count charges that plaintiff was in the employ of defendant as a common laborer and was engaged in repairing a certain railroad track in defendant’s machine shop and near to a certain car upon which defendant whs loading a large amount of iron by means of a travel-ling crane, and that defendant so carelessly and negligently loaded the iron upon the car and so negligently managed the travelling crane that a chain attached thereto became entangled with said iron and said car and lifted np and tilted the car so that the iron thereon fell over and upon plaintiff and injured him. The general issue was the plea interposed by defendant, and upon the issues so joined the cause proceeded to trial before the court and a jury, resulting in a verdict .of $2,500, upon which the court entered judgment after denying motions for a new trial and in arrest of judgment. Defendant appeals and argues for a reversal of the judgment, upon errors duly assigned, that there is no evidence tending to prove the negligence alleged; that according to the testimony of plaintiff his sole duty at the time in question was to repair the track at a place different from the point on the track at which the injury occurred; that he was at the track where he sustained his injuries as a mere volunteer, at which place defendant .owed him no duty; that by the manifest weight of the evidence, the chain must have become entangled in the iron by reason of carelessness in handling it, in which plaintiff participated; that the negligence, if any, was that of a fellow servant, and that the court erred in giving instruction No. 1 proffered by plaintiff.

It appears from the evidence that at the time of the accident plaintiff was working in a building divided into two large rooms by a partition running north and south at about the middle; that there was an opening through the partition between eight and twelve feet in width; that there was a truck standing on the track about fourteen feet west of the opening; that over the truck there was a cage, in which the operator of the crane was located; that plaintiff was directed by his foreman, Anderson, to repair certain tracks and was at work putting in new pieces of track between the two rooms; that after the iron was put upon the truck, plaintiff observed the truck to move slightly; that the truck was on a slight incline, and that he arrested its motion by putting a block at one of its wheels; that while he was standing at the truck for the first time, plaintiff noticed the hoist coming over him; that he endeavored to escape by running toward the wall; that the chain caught in the iron, causing it to fall on him as it went upward. Plaintiff swears that he had nothing to do with the hoisting of the iron out of the truck and took no part in placing the chain which hoisted the iron around it; while Bens, defendant’s witness, swears that plaintiff placed the chain around the iron, so that the truck could be moved away toward the east, and that prior thereto Bens and plaintiff had loosened the chain from the iron. The probative force of the evidence and the credit to be given the testimony of the several witnesses was the province of the jury to determine, and whether the plaintiff was a fellow servant of the men employed on the truck and the crane at the time of the accident, was likewise a question of fact for the jury.

Plaintiff’s ordinary duties were those of a “chipper,” but on the Sunday when he was injured he was engaged in track work, which was different in character from that of his usual employment. Neither his work as a “chipper” nor in repairing the track necessarily brought him into contact or association with the workers on the crane or truck, so that it could be said that plaintiff was a fellow servant with the crane and truck workers. Nat’l Enameling Co. v. McCorkle, 219 Ill. 557. But plaintiff has placed himself upon the horns of two dilemmas (a very dangerous position) when he contends that he was not a fellow servant of the crane and truck men, and yet invaded their place of work in the discharge of the duties of his employment. It is clear the latter contention puts him forth in the light of a fellow servant, and if not, then being voluntarily at a place where his duty did not call him, the master owed him no duty at that place to furnish him a reasonably safe place to do certain work which did not fall within the lines of his duty or employment, and in the doing of which he was a volunteer. C. C. & St. L. Ry. v. Carr, 95 Ill. App. 576. We do not, however, think these considerations influenced the jury in arriving at their verdict. What impresses us, and what, in all probability, impressed the jury, was that a condition of danger noticed by the plaintiff was present, threatening peril to himself and others working upon the tracks with him, which he sought to avoid by blocking the wheel of a truck on a track in alignment with the place where he was working. This truck was heavily loaded with angle iron, and plaintiff says it rested on a slight incline and had started to move. If this account is true, then he was justified in leaving the place where he was working and invading the field of operation of the truck and crane men to avert what threatened to be a disaster both to himself and others working in his vicinity. Barry v. St. J. & H. R. R. Co., 98 Mo. 62; 20 Am. & Eng. Ency. Law, 149. But the evidence supporting plaintiff’s contention is in much conflict and in some of its parts seems unreasonable. That the motion down an incline of a truck loaded with iron weighing two tons could have been arrested by placing a block at one of its wheels seems incredible, especially so when it is borne in mind that plaintiff had some twenty feet to travel after the truck started to move before he could apply the block. Then again, plaintiff disclaims having participated in “hooking the chain” onto the iron, while Balfanz swore that plaintiff did hook the chain onto the iron, and Sheski swears that plaintiff and Bens unhooked the chain, which being immediately hauled up by the crane, caught in the iron, tipping some of it onto plaintiff. The witness Evert made a sworn statement out of court, that plaintiff unhooked the chain from the iron, but after-wards retracted such statement on the witness stand. This leaves the proof in these very important particulars in a highly unsatisfactory condition, and to our minds more in consonance with a verdict for the defendant than plaintiff, and although were we jurors such would have been our conclusion on this disputed evidence, still the jurors’ advantage from seeing the witnesses and observing their manner when testifying being so much better than ours, we are inclined to yield to their finding and leave the responsibility where the law places it, as we do not feel justified in holding that the verdict is so manifestly contrary to the preponderating weight of the evidence that it ought to be set aside. Then there is another phase of the case which is somewhat controlling. There is proof - that it was customary for some one to give an audible signal to the man in charge of the crane, and that on the occasion under consideration no such signal was given. Had the customary signal been given, plaintiff would have had an opportunity to seek a place of safety. Starting the crane without giving any signal was negligence contributing to the accident. Such negligence is imputable to the master because the crane man and plaintiff were not fellow servants.

The defense is somewhat contradictory in one very, material matter, which may have led the jury, as they lawfully might, to disregard all the evidence of defendant’s witnesses on this subject. Balfanz swore that he saw plaintiff “put the chain on the hind end of the angle iron to move the truck away to the east, then the load tipped over.” Bens testified that Sheski and plaintiff were in charge of the load on the truck, and that he, Bens, unhooked the chain and then motioned the crane man to pull up the chain; while Sheski swears that both Bens and plaintiff unhooked the chain from the load. These discrepancies in the testimony of these witnesses were of such importance that they may have led the jury to disregard them altogether as being so much out of harmony as to be unreliable, and have influenced them to adopt the testimony of plaintiff as most worthy of belief and containing a truthful account of what really occasioned the accident.

Defendant contends that instruction 1, given to the jury at the request of plaintiff, constitutes reversible error. It is as follows:

“The jury are instructed that where the negligence of the master is combined with the negligence of a fellow servant in producing the injury, and the negligence of neither is the efficient cause, the master is liable.”

The instruction states a correct but abstract proposition of law, which the court might have refused, but which it was not error to give if it had any application to the facts in evidence fairly tending to support the theory announced in that instruction. Much has been and still may be said on further review pro and con as to the applicability of the instruction in question to the case in hand. From certain viewpoints of the evidence it has some application, but looking at it broadly it has none. We are not able to discover, however, that its effect upon the jury was seriously prejudicial to the defense made or violated, to its detriment, any legal right of defendant. While not at all confident of the wisdom of this conclusion, we do not feel warranted in reversing a judgment and awarding' a new trial for the giving of an instruction stating an abstract proposition of law couched in technical legal language, which in all probability the jury did not comprehend, especially when the jury were so carefully and liberally instructed at the instance of defendant as to every phase of the law to be applied to the evidence under the defenses interposed.

Substantial justice appearing to have been attained by the judgment of the Superior Court, it is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    A. Klipstein & Company, Appellee, v. Frigid Fluid Company, Appellant.
    Gen. No. 14,451.
    1. Vebdict—when not disturbed. A verdict will not be set aside as against the weight of the evidence unless clearly and manifestly so.
    2. Contracts—election of remedies. If a party refuses to receive merchandise pursuant to a contract, the other party may either treat the contract as abandoned and sue for profits or may keep the same alive until the time for deliveries has passed and sue for the difference between the contract price and the market prices at the times when the various deliveries should have been accepted.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 3, 1909.
    Hamilton So Hamilton, for appellant.
    Steele & Thompson and Charles Hughes, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

On September 23, 1903, the parties to this suit entered into the contract set out in haec verba in the declaration, by which plaintiff agreed to sell to the defendant 200 carboys of formaldehyde, to be delivered to defendant at equal intervals during the succeeding twelve months, at the price of fourteen and one-half cents per pound, each delivery to be paid for within thirty days, and if paid for within ten days of delivery, such delivery so paid for was subject to a discount of one and one-half per cent. Defendant took forty carboys, but was somewhat irregular in discharging its obligation to pay for them.' Plaintiff, while defendant was in arrears in making payment for carboys delivered, refused requests for more carboys, but, as admitted by defendant’s witness Krum, when arrears were paid more carboys were delivered and accepted. Defendant claims that plaintiff refused to make further deliveries of carboys under the contract after delivering forty of them; while plaintiff insists that defendant, because of a decline in the market price of formaldehyde, refused to receive any more of the carboys. Plaintiff .claimed as damages for a breach of the contract by defendant in refusing to receive the remaining 160 carboys, the difference between the contract and market price. The cause was tried before court and jury, resulting in a verdict and judgment for $638.40, from which judgment this appeal is prosecuted.

It is argued, under sufficient assignments of error, that the trial judge erred in his rulings upon the evidence and in the giving of instruction 3 to the jury, and in refusing to give other instructions requested by defendant, and that the verdict is not supported by the evidence.

A careful examination of all the evidence fails to disclose any rulings prejudicial to the defense interposed, or that was calculated to affect the merits of the case adversely to the rights and claims of defendant. The evidence on the crucial point as to whether plaintiff refused further deliveries or defendant declined to accept further deliveries, is in some conflict. The duty of reconciling the discrepancies in the testimony of the several witnesses and of harmonizing them in reaching a conclusion upon the facts, was cast upon the jury. With their finding we see no good cause to interfere. The testimony of plaintiff is all sufficient to sustain a verdict in its favor, and where the countervailing proof conflicts with such testimony it is for the jury to say whether it is of sufficient probative force to overcome the case made by plaintiff. As we are unable to say that the finding of the jury is manifestly contrary to the weight of the evidence, it is not our duty to interfere with it on that ground.

It appears quite clear to us, on a consideration of all the proofs, that the jury may have well believed that defendant intentionally broke its contract with plaintiff, and did so in an attempt to make a financial gain and to profit by the decline in the market price of formaldehyde from the contract price of fourteen and one-half cents per pound- to nine and one-half or nine and three-quarters cents a pound. That the trial judge so believed is evidenced by his denial of defendant’s motion for a new trial, and we do not feel inclined to dissent from such belief, but on the contrary to accord our assent to the conclusions reached by the court and jury. It is therefore patent that unless the trial judge so erred in instructing the jury as to prejudice thereby some substantial right of defendant, or that some settled principle of law has been disregarded to its detriment, the judgment appealed from must be affirmed.

The errors claimed to be inherent in the court’s instructions are in argument by appellant confined to criticism of instruction 3 given at the instance of plaintiff, and the errors claimed in refusing instructions 2, 3, 7, 8 and 9, tendered by defendant are restricted in argument to instruction 3, which was given. Defendant cites and relies upon Palm v. O. & M. R. R. Co., 18 Ill. 217, and Christian Co. v. Overholt, ibid 223, as being decisive of the infirmity claimed as existing in instruction 3.

To ascertain the correctness of an instruction upon the law as applied to any given case, it is essential to have in mind the particular facts in such case, in order to determine the correctness of the legal principle stated in the instruction. The facts in the cases supra are so variant from the facts in the case at bar as not to be controlling. But as applied to the facts in this record we find no principle of law in either of the cases supra which was violated by the giving of the third instruction. Those decisions relate to the abandonment of the contract by the party in default. Here plaintiff, so far from abandoning the contract, kept it in force and stood ready to make deliveries under it during the whole time covered by it. The breaches of the contract by refusal of defendant to receive further deliveries under it, constituted an abandonment by it. There was no attempt at abandonment by plaintiff, but it bided its time until the life of the contract had ended and then sued for damages sustained by non-performance on the part of defendant, the measure of which was the difference between the market and the contract price during the times when the goods should have been delivered by plaintiff and received by defendant.

Whatever may be urged against this instruction, we are unable to perceive that its effect on defendant’s rights could be at all harmful. On breach of the contract by defendant plaintiff could have treated such breach as putting an end to it for all purposes of performance, and sue for the profits it would have realized if not so prevented from performing, continuing the contract in full force for such purpose only. L. S. & M. S. Ry. Co. v. Richards, 152 Ill. 59. But we are of the opinion this instruction was pertinent for the jury to apply to the evidence in the record that plaintiff declined at one time to make a delivery requested, for the reason that defendant was behindhand in not paying for goods received, according to the terms of the contract, although subsequently, on payment being-made, deliveries were thereafter made by plaintiff as requested and received by defendant. These facts were not contradicted, but defendant put in .as a defense to the claim, that' such refusal of plaintiff was such a breach of the contract on plaintiff’s part as to excuse defendant from further performance. We think, as applied to these facts, and especially having in mind the payment after refusal and subsequent deliveries under the contract, this instruction stated a correct legal principle and one necessary for the guidance of the jury.

By defendant’s refusal to receive more goods under the contract, plaintiff was completely cut off from further performing its part of the contract by making other deliveries; and even under the authorities supra in 18 Ill., plaintiff is entitled to maintain this action to recover the profit which it would have made had defendant received the goods and paid for them at the contract price. Hosmer v. Wilson, 7 Mich. 294; Johnstone v. Milling, 16 Q. B. D. 460.

Finding no reversible error in this record, the judgment of the Circuit Court is affirmed.

Affirmed.


author: Mb. Justice Holdom

text:
    B. A. L. Thomson, Appellant, v. Edward E. Caverley, Appellee.
    Gen. No. 14,461.
    1. Judgments—who may sue upon. Prior to the act of July 1, 1907, the assignee of a judgment could not maintain an action thereon in his own name.
    2. Judgments—act authorising suit by assignee construed. The amendment to the Practice Act in force July 1, 1907, by which an assignee of a judgment is authorized to maintain an action thereon in his own name, is not to be given a retroactive effect and has application only to actions commenced since it went into force.
    3. Bankruptcy—when discharge defense. A discharge in bankruptcy as a bar to an action is not affected by a defense which consists of a verbal showing that the debt sued upon was not contained in the schedule of liabilities filed in the bankruptcy proceeding—proof of omission to schedule should be made by the production of such schedules.
    4. Bankruptcy—effect of failure to schedule. Failure to schedule a debt does not affect the force of the discharge as to such debt, if the debtor had actual notice of the bankruptcy proceedings.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. Holland A. Russell, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 3, 1909.
    Alexander Collins, for appellant,

      Charles J. O’Cohnoe, for appellee.
   Mb. Justice Holdom

delivered the opinion of the court.

On the twenty-fourth day of June, 1899, one A. L. Thomson recovered a judgment against the appellee before Martin R. M. Wallace, a justice of the peace for the county of Cook, for forty-eight and 60/100 dollars and costs of suit, and on the same day by an instrument. under seal, the said A. L. Thomson assigned that judgment to the appellant. On November 24,1906, the assignee of that judgment, the appellant, commenced a suit before another Cook county justice of the peace, one Aaron C. Strayer, against appellee on an alleged claim to revive the judgment entered by Wallace in favor of his assignor against appellee. In all the subsequent proceedings, however, the action proceeded in assumpsit. In the proceedings before Strayer a judgment was rendered in favor of appellant and against appellee for $72 and costs of suit, from which appellee prosecuted an appeal to the County Court, whereupon a trial before the court with a jury, appellee prevailed and appellant now seeks our review of the record.

The primary question presents itself for our consideration as to whether appellant, as assignee of the judgment first recited, can maintain an action based upon it in his own name, and underlying and subsidiary to this question is whether a discharge in bankruptcy can be overcome by negative parol proof that the debt sued for does not appear to have been scheduled in the bankruptcy proceeding. To the latter proposition and the intemperate remarks of appellee’s counsel to the jury, counsel for appellant restricts his argument.

In Dobbins v. Cruger, 108 Ill. 188, the court say: “It is but restating the former decisions of this court to say that a judgment is not assignable at common law or under the statute so as to vest the legal title in the assignee. It is a mere chose in action and only the beneficial interest, whatever it may be, passes to the purchaser.” If the legal title to the judgment is not vested in appellant, it follows logically, under the doctrine announced in the above quotation, that he cannot maintain any action at law thereon. McJilton v. Love, 13 Ill. 486; Hughes v. Trahern, 64 ibid. 48. This was the law at the time of the institution of this suit, although the Legislature has since changed the law by enacting section 18 of the amendment to the practice act in force July 1, 1907, by which enactment an assignee of a judgment may now maintain an action thereon in his own name. This statute, however, has no retroactive effect and is only applicable to actions commenced since it went into force.

Appellee put in evidence his discharge in bankruptcy, the effect of which appellant sought to avoid by testifying that he “had searched the three sets”— referring to appellee’s bankrupt schedules—“and the name of B. A. L. Thomson, either by initial or name, or that of Agnes J. Thomson, do not appear in any one of the three schedules filed in that court.” On motion of appellee this evidence was expunged from the record. Appellant contends such ruling of the trial court was error, and cites Cross v. Pinckneyville, 17 Ill. 54, and City of Beardstown v. City of Va., 81 ibid. 541, to sustain his contention. We do not Think these cases have any application to the point under discussion. In the Cross ease, while the court held that the certificate of the Secretary of State that a duplicate of the certificate of organization of a company had not been filed in his office, was not evidence, still it held further that a failure so to do did not defeat the organization. The Beardstown case involved the certificate of a circuit clerk that there was no evidence in the records of the court in relation to the naturalizing of certain persons. In both these cases the negative certificates were concerning records. Schedules in bankruptcy are not records, but files in the bankruptcy proceeding. The best evidence that the debt in controversy was not set forth in the schedules, would be the schedules themselves, or a certified copy thereof. Such schedules, unlike public records, are within a reasonable compass and easy to produce as evidence. They are the best evidence obtainable, and the law requires the best evidence available and will not excuse its non-production except for cogent reasons. It would be attended with much risk to allow the rights of parties to rest on the unsupported word of what was not contained in a written document, of a person inexperienced in matters about which he assumes to testify. The discharge in bankruptcy was a complete defense to the judgment, even as against the assignor, and it stands to reason that the advantage so given by the judgment of a Federal Court cannot be overcome and avoided by the testimony of what an available document does not contain. One might as well maintain that parol proof that a conveyance lacked a covenant material to make it effective to convey title was sufficient to defeat it, without the production of the conveyance itself, as to contend that the legal effect of a discharge in bankruptcy could be overcome by negative parol testimony as to what some schedules of the bankrupt did not contain. Especially is the danger of such testimony apparent, if admitted, when we take into consideration the fact, so far as the record fails to disclose to the contrary, that the witness was unskilled in the proceedings of bankruptcy courts and not familiar with legal terms, and that the debt might have been scheduled in its original form without reference to the judgment in which it afterwards became merged, and though present in such form its legal effect might not ■be discernible to an inexperienced person, though seen by him.

Even had appellee failed to schedule the debt, still if appellant had notice or actual knowledge of the bankruptcy proceedings, this would have operated to make the discharge effective as a bar to a recovery. Section 17, chapter 3, Bankruptcy Act; Alling v. Straka, 118 Ill. App. 184.

Whatever may be said about the remarks of counsel objected to, they in no way affected the right of appellant, as under the proofs he is in no event entitled to prevail.

The judgment of the County Court being without error is affirmed.

'Affirmed.


text:
    The Wacker & Birk Brewing & Malting Company, Appellant, v. Cornelius DeKoker, Appellee.
    Gen. No. 14,478.
    1. Verdict—when set aside as against the evidence. A verdict will be set aside on review as against the evidence where clearly and manifestly so.
    2. Appeals and errors—when final judgment not entered. The Appellate Court has no authority to enter a final judgment upon reversing a cause if the party as to whom such final judgment is asked has the legal right to an assessment of damages by a jury.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1908.
    Rehearing denied May 17, 1909.
    Reversed and remanded.
    Opinion filed May 3, 1909.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett, of counsel.
    Edmund S. Cummings, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of nil capiat and for costs against appellant in an action of assumpsit brought upon a promissory note made by appellee to appellant for the sum of $867. The defense interposed to the note is want of consideration, and a special plea sets forth a loaning of the chattels alleged to be the consideration of the note, and that the note and a chattel mortgage upon snch chattels securing the same, were given as a matter of form and to anticipate the rights of any third person intervening to destroy appellant’s title to the chattels.

A painstaking review of the evidence convinces us that the verdict of the jury and the judgment of the court are so manifestly contrary to the plain weight of the evidence and its probative force as to imperatively demand a reversal of the judgment by this court. Conceding all the contentions and claims of appellee to be well taken as to every other feature of his defense, still his failure to maintain such defense, which is an affirmative one, by a preponderance of the evidence, forbids a judgment in his favor. Appellee executed the note in suit and a chattel mortgage securing the same, with full knowledge of their contents, and is at least impliedly chargeable with knowledge of the legal effect of such act. The note and mortgage are dated August 18, 1897. They have been thrice renewed, without protest, and the note in suit is the latest written evidence of the debt originally contracted. But appellee says Goetz, at whose request he executed the papers, said that “it was only a matter of form,” and so he executed them. Against appellee’s claim that the chattels were a loan or gift, there is arrayed in contradiction the evidence of Mr. Trick, with whom appellee says he had his dealings, the denial of Goetz of the representation imputed to him by appellee, the documents, the notes and chattel mortgages executed by appellee, all at variance with his claim. The writings speak for themselves and their execution is admitted. Trick and Goetz are credible and unimpeached witnesses. Can such an array of pertinent proof be discarded for the unsupported statement of appellee? Not while rules of evidence prevail as guides to weighing and testing the probative force of evidence in courts of law. Then again, there is not a consistent circumstance in the whole proof sustaining in the remotest degree appellee’s claim. He received and used the chattels. He gave chattel mortgages upon them as security to the seller and thrice affirmed the sale after giving the initial security. All these facts, so far from corroborating appellee in his version of the transaction, refute his contention and support the claim and theory of appellant. Appellee being entitled to a trial by jury, it will be the duty of the jury on another trial to assess appellant’s damages, so that the suggestion of appellant that this court make final disposition of the case cannot be complied with. We are without legal authority to interfere in any case where a jury trial can be demanded and where there is evidence calling for an assessment of damages by a jury. City of Spring Valley v. Spring Valley Coal Co., 173 Ill. 497.

The judgment of the Superior Court is reversed and the cause remanded for another trial conformable to the views here expressed.

Reversed and remanded.


author: Mr. Presiding Justice Smith

text:
    Charles D. Benedict, Appellee, v. Henry W. Dakin, Appellant.
    Gen. No. 14,496.
    1. Brokers and factors—when brokerage fees earned. Brokerage fees are earned if the broker was the procuring cause of the sale and the means of introducing the purchaser to the property and the seller.
    2. Evidence—when impeaching evidence property excluded. Impeaching evidence is properly excluded if the foundation therefor has not been properly laid.
    3. Evidence—what part of res gestae. Conversations held out of the presence of the party against whom they are offered are competent if they form a part of the res gestae and tend to prove the issues of fact before the jury—verbal statements accompanying evidential facts are competent evidence.
    4. Practice—when propositions of law properly refused. Propositions of law which ignore essential issues in the cause are properly refused.
    Assumpsit. - Appeal from the Superior Court of Cook county; the Hon. Geobge W. Patton, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied May 21, 1909.
    Affirmed.
    Opinion filed May 11, 1909.
    Statement Iby the Court. Charles D. Benedict, appellee, brought suit in the Superior Court against Henry W. Dakin and others, and recovered judgment therein against Dakin for the sum of $19,875 for commissions for finding a purchaser for a lumber plant and property. From that judgment Dakin prosecutes this appeal.
    The evidence in the record tends to show that prior to and at the time the matters in controversy here had their inception, the plaintiff Benedict was in the lumber business in Peoria, Illinois, and was purchasing lumber of the defendant and his associates who were manufacturers of lumber at Natalbany, Louisiana.
    On or about February 17, 1902, at Natalbany, Benedict being there on business, was employed by Dakin to find a purchaser for the property of the Natalbany Lumber Company, and the New Orleans, Natalbany & Natchez Railroad Company, an associated enterprise, under a promise of compensation if successful. The capital stock of both corporations was owned by Dakin and his two associates Caryl B. Young and George H. Richey, except two shares of the railroad company which were owned by a Mr. Smith.
    March 12,1903, at Natalbany, a contract was signed, by which Dakin, Young and Richey sold to the Weyerhaeuser & Derikmann Company the total capital stock of the two corporations above named. And later, on March 24, 1903, at New Orleans, Louisiana, the contract was performed on both sides, and the sale became an accomplished fact. The purchase price was $397,-500, which was paid in checks and notes, the transfer being made by assignments of the certificates of stock.
    Arnd & Arnd, for appellant.
    George C. Otto and Frank P. Leffingwelb, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Aside from certain questions of procedure, the question presented by the record is one of fact entirely, for there is no room for controversy that if Benedict was employed by defendant to procure a purchaser of the property, brokerage fees were earned if Benedict was the procuring cause, of the sale and the means of introducing the purchaser to the property and the seller.

On the question of the employment the proof is quite satisfactory in favor of the plaintiff. "While theré is some conflict between the testimony of the plaintiff and that of the defendant as to what was said and done at the interviews between them on February 17, 1902, at Natalbany, we are convinced from the evidence, including the correspondence and the actions of the parties, that Dakin then employed Benedict to secure a purchaser, promising him a commission if he was successful.

The chief question here is: Was Benedict the procuring cause of the sale and purchase? There is no doubt left in the mind from the evidence, that Benedict went immediately from Natalbany to his home in Peoria, Illinois, and from thence to Bock Island, Blinois, and presented the property to F. O. Denkmann with a plat of the property, a list of assets, buildings and machinery, and a letter of authority given him by defendant Dakin, which stated, among other things: “Our company would most probably entertain or consider a proposition based on a $2 stumpage value, with a fair and liberal value on the plant, railroad and other equipment.” Prospective purchasers were to be referred to the defendant. Frederick C. Denkmann was at that time the local manager of the business of the lumber firm of-Weyerhaeuser & Denkmann, doing a large lumber business. At this time F. C. Denkmann did not know that the plant and property of the Natalbany Lumber Company was for sale. The defendant Dakin testifies he did not then know Weyerhaeuser & Denkmann. F. C. Denkmann testified that he was not then acquainted with the defendant Dakin, Caryl B. Young or George H. Bichey. Benedict at once reported his interview with Denkmann to the defendant Dakin by letter, in which he asked for information on certain points raised in his interview with Denkmann. Without waiting, however, for a reply by mail, Benedict proceeded at once to Natalbany to see defendant Dakin, arriving there before Dakin had received his letter.

While F. C. Denkmann in his testimony makes it appear that he took no particular interest in the proposition submitted to him by the plaintiff Benedict, and even told Benedict he was not interested, it appears that E. H. Easterling, an experienced lumberman, located at Cold Springs, Mississippi, some sixty or seventy miles from Natalbany, had then recently been employed by Weyerhaeuser & Denkmann as their southern agent. He was in Bock Island about the time that Benedict had his interview with F. C. Denkmann, and Denkmann told him that the property of the Natalbany Lumber Company was for sale. What transpired between F. C. Denkmann and Easterling does not clearly appear from the record, but it does clearly appear that Easterling some time between the date of Benedict’s interview with Denkmann, February 20, 1902, and February 24 following, called up Dakin over the telephone in regard to the property of his company and Dakin refused to talk about it over the telephone and requested Easterling to write him. Accordingly Easterling wrote Dakin in regard to the purchase of the plant for Weyerhaeuser & Derikmann. Dakin replied to Easterling that the property was not for sale. This intervention of Easterling and the correspondence between him and Dakin had all taken place before the arrival of Benedict in Natalbany on his second visit. In the meantime also defendant Dakin had written to plaintiff the letters of February 25 and 26, 1902, shown in the record, which were received by Benedict after bis return home from this second visit to Dakin.

In his letter of February 25, 1902, Dakin wrote to Benedict acknowledging his letter of the 22nd and said: “Richey is in New Orleans to-day, and until I can review the matter with him cannot inform you on some of the points asked for. As far as getting price on our interests is concerned, I can say that we would only do that after matter had taken more tangible shape, and when the prospective parties interested have seen what we have.”

In the letter of the 26th defendant wrote: “We are all agreed that we prefer to put no price on the property at present other than the information which I recently gave you. Any figures that we might name now, would give but little information before the lands and timber had been looked at by the parties who may be interested. * * * Before the time comes to make a price we will have a definite understanding with you concerning your interest in the commission due you for bringing the matter about.”

When the plaintiff, Benedict, appeared at Natalbany the second time, defendant told him of the letter which he had received from Easterling asking whether they could open negotiations, and stated that he had replied that the property was not for sale. He had stated the same thing in his postscript to his letter to plaintiff of February 25, 1902. Plaintiff then said to defendant that he hoped Easterling’s connections with the Denkmanns would not interfere with the arrangements he had for commissions on the sale if it was consummated, and Dakin said it would not. On this point Easterling testified: “Dakin wanted to .know when I commenced to speak to him about purchasing the plant * * " * who it was that I wanted to purchase the plant for, and if I expected a commission out of him for the sale; and stated if he did sell, he wanted to sell direct, so as to avoid a commission; and I told Mr. Dakin that the property would he bought direct, and I expected no commission from him whatever. Then Mr. Dakin and myself began to see what kind of a trade could be made for Weyerhaeuser & Denkmann of Bock Island, Illinois.”

As to the further conversation at this second interview between the plaintiff and defendant relating to the proposed sale of the lumber company’s plant the plaintiff testified that he told Denkmann about the property and that Denkmann was considering the proposition favorably and wished him to find out about the terms of the sale, and whether the entire capital stock would be sold with the understanding that Mr. Bichey would retain part of the interest in the mill. Dakin replied that there would not be any trouble about the terms providing they were properly secured for the deferred payments. Dakin also said that if they sold their interest Mr. Bichey would sell his interest with them; that all three would sell out together. This testimony of the plaintiff Benedict is corroborated by the letters of Dakin to plaintiff of February 25 and 26, 1902, above referred to.

After returning from his second trip to Natalbany on this business, Benedict went again to Bock Island and informed Denkmann as to the matters which he desired to -know.

In April, 1902, Benedict made a third trip to Natalbany and saw Dakin in regard to the proposed sale, and suggested that inasmuch as he was just out of the hospital and sick Dakin had better take up the negotiations directly with Denkmann and Dakin said he would take it up himself with Denlonann.

Dakin and plaintiff had a fourth interview in regard to the proposed sale in October, 1902, in Benedict’s office in Chicago. Dakin then said that the Denkmanns were very slow in making up their minds. Benedict suggested that he was probably asking too much money. They had some further talk in regard to the value of the property, Dakin making some showing as to the increased value thereof which he wrote out on a paper. Correspondence continued between plaintiff and defendant down to November, 1902.

In the meantime, as the evidence shows, Weyerhaeuser & Denkmann had organized the company bearing their name for the purpose of taking over their business, and had been investigating the properties of the Natalbany Lumber Company through their agent Easterling, an expert lumberman, and others. Finally in March, 1903, a sale was made as stated in the statement of the case preceding this opinion.

From the evidence above referred to and other facts and circumstances appearing in the record which we do not stop to recite, we are of the opinion that the plaintiff Benedict pointed out to Dakin the purchasers of the property in question, and called the attention of the purchasers to the properties which they finally purchased. It was the plaintiff who brought the parties into communication with each other on the subject of the sale and purchase, and gave the purchasers such information as to the property that they were induced to investigate it. The evidence shows that promptly after the subject was presented to Denlonann at Bock Island, Weyerhaeuser & Denkmann took steps to place themselves in communication with Dakin and make the necessary investigations, and that while the investigations and negotiations between the parties took up considerable time they were never suspended or abandoned. We think Benedict was the procuring cause of the sale and that the finding to that effect by the trial court is sustained by a preponderance of the evidence. .

We do not think that there was any material error in overruling the objections to the disposition of Easterling presented by the defendant before the trial of the cause.

The testimony of the impeaching witnesses Robinson and Noble, in our opinion, was properly excluded. The questions propounded to the witnesses were not properly framed and the foundation for the testimony was not properly laid. Crabtree v. Kile, 21 Ill. 180, 182, 183; Spies v. The People, 122 id. 1, 208; Magee v. The People, 139 id. 138, 142; Gifford v. The People, 148 id. 173, 176, 177.

We do not think there was material error in excluding the testimony of Jennie White as to certain statements claimed to have been made by Easterling in August, 1903, in the office of defendant’s attorneys in Chicago. Her testimony was not material. It did not show that Easterling’s statements then made were necessarily contradictory of the testimony given in his deposition read in evidence.

Complaint is made that the trial court erred in its rulings upon the further cross-examination of Easter-ling, had under an order of court permitting it, and a dedimus issued for that purpose. We think the trial court admitted in evidence all that was material on that cross-examination, and all that was material of Dakin’s testimony with reference to the matters inquired about in the cross-examination of Easterling.

It is contended also that testimony of conversations between Benedict and F. 0. Denkmann, and between Denkmann and Easterling in the absence of defendant Dakin was not competent evidence. With this contention we cannot agree. These conversations all took place during the negotiations for the sale and purchase of the property and in connection with what was done by the witnesses in relation to the sale which was finally consummated. The conversations were a part of the res gestae, and tended to prove the issues before the court. The conversations reported by Easterling were not offered or received for the purpose of establishing the truth or falsity of the conversations. The question was not whether, when F. C. Denkmann told Easterling that the property was for sale and that Easterling should see Dakin and ascertain what was the best trade that could be made, Denkmann spoke the truth, but, whether he spoke at all, and if so what he said. The truth or falsity of what Denkmann then said was not an issue in the case. The question was not whether what he said was true, but only whether he said it. As to that any one who heard him speak was competent to testify to the fact. Verbal statements accompanying an evidential act are competent evidence. Wigmore on Evidence, Vol. 3, sections 1768, 1772 to 1776; Clayton v. Tucker, 20 Ga. 452, 463. Everything that passed between Easterling and the Denkmanns in relation to the investigation of the property in question, arranging to purchase or purchasing it, was a part of the transaction, and for that reason admissible.

We do not perceive any error in the admeasurement of the damages by the Louisiana standard. The contract of employment was made in Louisiana, the property was in that state, and the sale was made there, and the services of plaintiff were in part performed there. We think- there is competent evidence in the record on the admeasurement of damages and that it sustains the finding and judgment.

We have considered the various legal propositions submitted to the court to be held as the law applicable to the case and the criticisms of and the objections made to them on behalf of appellant, and we find no material error in those held by the court. The trial court did not err, we think, in refusing to hold proposition numbered 11 submitted by appellant. It does not state correctly the law applicable to the facts of this case.

That portion of proposition numbered 15 submitted by appellant which the court held contains a correct statement of the law. As to that portion of the proposition which the court refused to hold, it ignores the agreement between appellee and appellant, namely, that Benedict was not to carry on negotiations for a sale of the property in question. It presents a proposition which has no bearing upon the case made by the evidence. It was entirely immaterial under the evidence whether negotiations between Benedict and Denkmann were at any time- at an end. In other words, the refused part of the proposition might be conceded, if it embraces any proposition of law, and still Benedict would be entitled to recover. For the reasons above given, proposition numbered 16, submitted by appellant, was properly refused.

We find no reversible error in the record, and the judgment is affirmed.

Affirmed.

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


text:
    Freehold Bank, Appellee, v. Kennedy & Wright Company, Appellant.
    Gen. No. 14,525.
    1. Continuances—when motion properly denied. A motion for a continuance based upon the absence of a witness is properly denied if it does not appear that the testimony of such witness would tend to establish any legal defense.
    2. Negotiable instbuments—presumption as to purchase before maturity. The presumption is that the assignee or a promissory note purchased the same prior to maturity.
    3. Negotiable instbuments—what not defense against assignee. The fact that the payee of notes sued upon by an assignee before maturity thereof warranted merchandise for which such notes were given, does not constitute a defense as against such innocent assignee for value.
    4. Negotiable instruments—when fraud and circumvention no defense. Under the Illinois statute making fraud and circumvention used in obtaining the making or execution of a note a defense to an action thereon, the fraud must relate to the execution of the instrument itself and not to the consideration.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Mancha Bruggemeyeb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed May 11, 1909.
    Zeisler & Friedman, for appellant.
    Hoyne, O’Connor & Irwin, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This appeal is prosecuted from a judgment of the Municipal Court of Chicago for $1,060.70 in favor of appellee, and against appellant, the defendant. The plaintiff brought the action on two promissory notes made by the defendant payable to the Ford China Company, and transferred by it to the plaintiff for value before maturity.

When the cause was called for trial, the defendant moved for a continuance of the case on the ground of the absence of the sole witness by whom the defendant had expected to prove its defense to the case, and in support of its motion read the affidavit of Friedman, its president, to the effect that he had been president since the beginning of September, 1906; that prior to that time one Mayberry had been general manager of the defendant; that the original purchase of goods for which the notes in question were given, was made at the time said Mayberry was the manager, and that Mayberry was familiar with all the circumstances of the purchase; that affiant has made diligent search to discover where said Mayberry is located, and has made constant search for said Mayberry; that his place of residence is not known to affiant or to any officer of the company, but affiant believes if further time is given affiant he will be able to locate Mayberry through some of his former employers.

Affiant further states that he expects to prove by said Mayberry that a warranty was made at the time of the purchase and sale of the goods for which said notes were subsequently given; that they were so represented and in good condition; that said goods when they arrived were défeetive, broken and chipped and were not as represented; and that at the time these representations were made, the Ford China Company knew that the said goods were defective and the representations were made to secure the notes so that they might be transferred and the entire amount collected thereon.

Affiant further states that he believes that said May-berry, if present, would further testify that fraud was used in procuring said notes, that the representations were made that the goods purchased had been shipped in good and sound condition; that favors were promised by the Ford China Company if the notes should subsequently be given to it by the defendant, and that any allowance for damages or breakage should be settled for immediately.

The motion for a continuance was denied, and error is assigned upon the ruling.

The presumption is that the plaintiff, Freehold Bank, purchased the notes before maturity. Depuy v. Schuyler, 45 Ill. 306. The fact, if it be the fact, that the Ford China Company warranted the goods for which the notes were given to be of a certain quality and they were not as represented, would not constitute a defense to the notes in the hands of an innocent purchaser for value before maturity. The facts set forth in the affidavit were, therefore, not material. It has repeatedly been held that, under our statute, making fraud or circumvention used in obtaining the making or execution of a note a defense to an action thereon, the fraud must relate to the execution of the instrument itself, and not to the consideration. Adams v. Woodridge, 4 Ill. 255; Easter v. Minard, 26 id. 494; Shipley v. Carroll, 45 id. 285, 287; Depuy v. Schuyler, supra.

There is no pretense set out in the affidavit that any fraud was practiced on the defendant in the making of the note itself.

There are other defects in the affidavit which are too obvious to require discussion. The court did not err in overruling the motion for a continuance. The evidence sustains the judgment and it is affirmed.

Affirmed.


author: Mb. Pbesiding Justice Smith

text:
    Frank Koutnik, Appellee, v. Margaret Cody et al., Appellants.
    Gen. No. 14,542.
    1. Appeals and eeeoes—when assignments of error not considered. Assignments of error will not be considered if the abstract does not contain the evidence and the objections upon which they are predicated.
    2. Appeals and eeeoes—when assignments of error insufficient. Assignments of error should point out the error complained of; if they fail in this the point urged will not be considered on review.
    3. Appeals and eeeoes—waiver by appeal to Appellate Court. A question as to the allowance of an attorney’s fee in a mechanic’s lien proceeding which raises a constitutional question, is waived by an appeal to the Appellate Court.
    Mechanic’s lien. Appeal from the Superior. Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed May 11, 1909.
    Charles L. Mahout, for appellants.
    Dmm & Hates, for appellee.
   Mb. Pbesiding Justice Smith

delivered the opinion of the court.

This appeal is prosecuted to reverse a decree of the Superior Court entered in a proceeding for a mechanic’s lien filed by appellee Koutnik against Margaret Cody and John Cody, her husband, for the sum of $797.35, which includes the balance due "on contract and extras, master’s fees, for taking testimony and making his report, and $100 for complainant’s solicitor’s fees.

The bill was filed January 28,1907, and after answer of the defendants was filed, the cause was referred to a master in chancery to take proofs and report. The master filed a report with the evidence and testimony taken, and after overruling exceptions thereto, the court entered the decree.

This litigation arises out of a building contract and the failure of the defendants to pay the contract price, and certain extras. The defense was delay, imperfect work and failure to complete the contract according to specifications. The evidence is conflicting upon all the questions of fact presented. The abstract of the record is incomplete. It does not contain the contract or the specifications of the objections and exceptions to the master’s report. We cannot say, from the abstract of record and the arguments of counsel, that there is any clear mistake, or any fraud or error in the findings of the master. At the most they show that the testimony heard by the master was conflicting and contradictory in many respects. The findings of the master when sustained and confirmed by the chancellor, will not be disturbed, on appeal unless clear mistakes or fraud is' shown, or the weight of the evidence is manifestly and clearly against the finding. Siegel v. A. H. Andrews Co., 181 Ill. 350; Dickinson v. Torrey, 91 Ill. App. 297.

Appellants seek to raise questions relating to the allowance in the decree of $100 solicitor’s fees, and the allowance of $100 master’s fees.

The assignment of errors as abstracted is as follows :

“First: The court below erred in approving and confirming the master’s report as to the law and the evidence, and his conclusions thereon.

Second: The court below erred in not sustaining the objections of appellants to the master’s report herein.

Third: The court below erred in entering a decree in favor of appellee.

Fourth: The court below erred in not finding in favor of appellants and entering a decree dismissing the bill of complaint.

Fifth: The court below erred in overruling the objections of the appellants to the report of the master in chancery, filed herein. ’ ’

As to the second and fifth assignments of error, it is manifest that as the master’s report, except as to some of the evidence, and the objections thereto, are not abstracted, these assignments of error cannot be considered. City Electric Ry. Co. v. Jones, 161 Ill. 47. Furthermore, the assignments of error do not mention the allowance of solicitor’s and master’s fees. In other words, the assignments of error are not sufficiently specific. They should point out the error complained of. Berry v. City of Chicago, 192 Ill. 154. An error not assigned is not open to review.

Again, the question as to the allowance of attorney’s fees is waived by taking the appeal to this court. Haas Electric Co. v. Amusement Co., 236 Ill. 452, 466.

The decree must be affirmed.

Affirmed.


text:
    James H. Nolan, Appellee, v. Michael O’Sullivan, Appellant.
    Gen. No. 14,549.
    1. Instructions—must not assume facts in dispxite. An instruction is erroneous which assumes the existence of an oral agreement which was a fact in dispute.
    2. Instructions—must be predicated upon evidence. An instruction which is not based upon any evidence in the cause should be refused.
    3. Contracts—effect of verbal agreement to draft. If it was the understanding and intention of the parties to draft and sign a written contract covering their oral agreement, the oral agreement without being reduced to writing and signed is not binding and enforceable.
    4. Evidence—when custom incompetent. It is not competent to show that there were certain usual and customary terms and provisions put into contracts of the character of the one sued on when nothing was said between the parties on that subject or when what was said did not relate to any such provisions expressly or by implication.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. Holland A. Russell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed May 11, 1909.
    Miles J. Devine, for appellant; John T. Murray, of counsel.
    W. A. Marrow, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellant, Father O’Sullivan, appeals from a judgment of the County Court against him and in favor of James H. Nolan, for $500.

In July, 1905, appellant was the parish priest of the Roman Catholic Parish of St. Bridget, on Archer avenue, Chicago, and was engaged in erecting a parish church building. Appellee was at that time engaged in the stone business at Stinerville, Indiana. He sent to the architects a written bid to furnish the stone work for the building, and subsequently a revised bid to do the work for $6,840. He received, he states, a note from the architects requesting him to call on Father 0 ’Sullivan, and claims that the priest gave him an oral contract for the stone work at $6,700. This is denied by Father 0 ’Sullivan.

The contract for the work was awarded by the architects to Edwards & Ward. Thereafter appellee, claiming to have been injured by not obtaining the contract, brought this action to recover damages for the breach of the contract.

As the judgment must be reversed and a new trial awarded for errors in instructions, we refrain from discussing the evidence and from expressing any opinion thereon.

The court gave to the jury the following instruction at the request of appellee:

“The court instructs you that, although you may believe from the evidence that it was customary to reduce contracts of the character of the one in question to writing, yet you should not conclude therefrom that the parties in this case intended that the said contract in question was reduced to writing and was signed by them, from the mere fact that such a custom existed. Whether or not it was the understanding, intention or agreement of the parties that said contract should not be complete or binding on them until the same was reduced to writing and signed, is a question of fact to be determined by you, and in determining the same you should not take into consideration any one particular fact or circumstance, or set of facts or circumstances to the exclusion of other facts or circumstances proven in the case bearing thereon; but in determining said fact you should take into consideration all the testimony, evidence and circumstances in the case, and if, after a full and fair consideration thereof, you should believe and find that it was not the understanding, intention or agreement of the parties that said contract should not become binding until the same was reduced to writing and signed, then you will find that the fact that said contract was not reduced to writing and signed would not render it invalid or non-enforceable, even though you may further believe that it was the understanding and intention of the parties to draft and sign a written contract covering their oral agreement.”

The instruction assumes that there was an oral agreement made between appellee and appellant. This is the material fact in issue in the case.

In the second place, it is not the law that if it was the understanding and intention of the parties to draft and sign a written contract covering their oral agreement, the oral agreement, without being reduced to writing and signed, was binding and enforceable. The agreement to have the contract reduced to writing and signed, before it became a contract between them, was a condition precedent to a consummation of the contract between the parties. The instruction is misleading a!nd states an erroneous proposition of law.

The court gave the following instruction at the request of appellee:

“You are instructed, as a matter of law, that such customs as are universally known to exist, enter into and form a part of every contract to which they are applicable, although they are not mentioned or alluded to in the contract as expressed, and the parties entering into a contract are supposed to contract with reference to the known usages and customs pertaining to the business or subject matter to which the contract relates, unless such presumption is rebutted by the express agreement itself. And in this case, although you may believe from the evidence that if a written contract for the furnishing of said cut stone had been drafted, it would have contained terms and provisions not contained or mentioned in the plans and specifications for said cut stone work and not expressed in the verbal agreement of the parties, yet you should not conclude therefrom that said contract in question in this case, which plaintiff is seeking to establish, was not complete or had not been consummated or that the same could not be considered or held to be complete and binding until reduced to writing and signed, because of the fact that the same, had it been reduced to writing, would have contained terms and provisions not contained or mentioned in the plans and specifications for said cut stone work, nor expressed in the verbal agreement of the parties; providing you believe from the evidence that the said terms and provisions which would be contained in said contract had the same been reduced to writing, and which were not contained in the plans and specifications nor expressed in the verbal agreement of the parties, were the usual and customary terms and provisions put in all contracts of the character of the one in question, and that it was the universal custom to puf such terms and provisions in all such contracts, as it will be presumed, under such a state of affairs, if you believe from the evidence the same exists, that said parties assented to said terms and provisions, and that the same were in the contemplation of said parties at the time said verbal agreement was made and that said parties contracted in reference thereto.”

This instruction is not based on the evidence in the case. It refers to usual and customary provisions contained in all contracts of the character of the one in question, but not contained or mentioned in the plans and specifications for said cut stone work, “and not expressed in the verbal agreement of the parties,” but no evidence was introduced as to the usual and customary terms or provisions put in all contracts of the character of the one in question. The jury were left to imagine and speculate as to such terms and provisions, and as to the custom.

The court and jury had nothing to do with terms and provisions not expressed in the oral agreement, if there was one, for that was the agreement sued on.

In an action for breach of an oral agreement it is not proper to establish the agreement by evidence of the usual and customary terms and provisions put in all contracts of the character of the one sued on when nothing was said between the parties on that subject, or when what was said did not relate to any such provisions expressly or by implication. There is no presumption, as stated in the instruction, that the parties assented to said terms and provisions, when nothing appears from the conversation that the parties had such provisions in mind, or intended to embody them in their agreement. Such provisions and terms are not the subject-matter of a general custom which enters into contracts. In our opinion the instruction is erroneous.

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

Reversed and remanded.


text:
    Helen von Holland, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,555.
    1. Contributory negligence—in attempting to cross street car tracks. Held, under the evidence in this case, that the plaintiff was guilty of contributory negligence in attempting to cross the defendant’s street car track in front of an approaching car.
    2. Contributory negligence—effect of failure to look. If one seeking to cross street car tracks in front of an approaching car fails to look in the opposite direction, contributory negligence does not follow as a matter of law, but such conduct is negligence in fact if there were no conditions or circumstances which excused such person from looking.
    3. Contributory negligence—when verdict of jury not conclusive. If there was a conflict of testimony on the issue of contributory negligence, and there was evidence, if considered alone, sufficient to sustain the verdict, the finding of the jury might be conclusive; but where there is no evidence tending to show care and caution, and no excuse or reason shown for their absence, the allegation in the declaration of due care and caution is not proved. The affirmative allegation of due care and caution being a material allegation, not proved, an instruction to find for the defendant should be given.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Solon Philbbick, Judge, presiding.

      Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied May 25, 1909.
    Reversed with finding of facts.
    Opinion filed May 11, 1909.
    S. S. Page and C. LeBoy Browe, for appellant; Johe B. Habriegtoe, of counsel.
    Kruse & Pedee and Oree T. Crissey, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This appeal from a judgment of $2,000 in favor of appellee against appellant presents the question whether appellee was guilty of contributory negligence in attempting to cross appellant’s street car track in front of an approaching car.

There were two car tracks on Halsted street. Appellee was struck by a north-bound car operated by appellant on Halsted • street at its intersection with Sixty-first street in the city of Chicago, on February 14, 1904. Miss von Holland was a school teacher and had come from her school three blocks west of Halsted street. When she reached the northwest corner of Sixty-first and Halsted streets, she saw a northbound ear approaching at about Sixty-first place which she intended to take. Another car was approaching from the north. After she stepped into the street she stood near the curb awaiting the passage of the southbound car. As soon as it had passed, appellee says she walked rapidly across the street behind it and was struck by the north-bound car, sustaining the injuries for which she seeks in this action to recover damages.

The testimony of Miss von Holland, appellee, is fair and honest, and is corroborated by other witnesses. On her direct examination she testified: “As I stood on the corner there and looked out for the oncoming car, I saw one coming north near Sixty-first place. * * * Before going over I looked south once and still saw the car that I had seen before. Before passing behind the south-bound car I lifted my skirts but did nothing else. * * * As I passed behind the south-bound car I swerved slightly to the north and continued going east a few feet. I don’t recall what happened after that. I don’t remember the sight of the car that struck me. I didn’t hear a bell before or as I was crossing Halsted street behind the southbound car. As I walked east over Halsted street I walked at a pretty rapid walk in the street.”

On cross-examination the appellee testified that when she arrived at the corner she saw the south-bound car approaching the north walk of Sixty-first street, twenty feet north of it; at the same time she saw the car coming north rapidly near Sixty-first place, although she would not undertake to say within one hundred feet of where it was. There was nothing to interfere with her vision of the north-bound car.

The evidence shows that the distance from curb to. curb on Halsted street at this point was fifty-one and one-half feet. The distance from the west curb to the west rail was eighteen feet; the distance from the west rail of the west track to the east rail of the east track was fourteen feet five inches. Sixty-first street at this' point was sixty-five feet six inches from building line to building line; the distance from the south curb of Sixty-first street to the north curb of Sixty-first place, the next street south, was 298 feet. As appellee stood by the curb, waiting for the south-bound car to pass, she was, therefore, about seventeen feet from the track. In covering this distance and passing to the rear of the south-bound car and upon the north-bound track, she walked rapidly. She says she did not look toward the car which struck her when she was between the two tracks and did not realize it was there. She was bound, she says, to cross the car track. She was hurrying to get the first car that was visible to her in order to get down town quickly.

With reference to the movements of the north-bound car, L. E. Brown, who testified the most clearly of any of plaintiff’s witnesses, and was standing on the northwest corner of the streets near appellee, stated that while appellee was standing waiting for the southbound car to pass, he saw the north-bound car about fifteen feet south of the south cross-walk of Sixty-first street, and that it was then running faster than a man ordinarily walks, but that from that time on it slackened its speed. Appellee’s witness Holcomb, who was standing on the northeast corner of the streets, also locates the north-bound car at the same place at that time. He did not think there was any change in its speed from the south cross-walk to the time of the collision. Appellee’s witness Ballard located the northbound car a little south-of the south cross-walk when appellee started to cross the street.

Appellee, according to the testimony of Brown, deviated to the north as she went across the street in order to get around the rear, of the south-bound car. Holcomb states that she did not leave the cross-walk as she was going over the tracks. Dorothy De Groot says appellee “passed right behind the rear end of the south-bound car and went straight east, walking quite fast.”

From the testimony of appellee, herself, and that of her witnesses, it appears that she knew that the northbound car which struck her was approaching rapidly; that she had an unobstructed view of it, and looked at it twice before she attempted to cross the tracks, and, although she stopped to permit the south-bound car to pass, she walked rapidly behind it and upon the track of the approaching car, without making the slightest effort to ascertain whether the car was near at hand before going upon its track.

If, by the exercise of ordinary care on her part, appellee could have seen the approach of appellant’s north-bound car as she emerged from behind the southbound car and approached the track on which the car was running, then the law made it her duty to see the car, and if she failed in such duty, as we think she did, her failure would bar a recovery. C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 149. Her failure to look tq the south in the direction from which she knew the car was approaching as she emerged from behind the south-bound car and before she stepped upon its track, if not in law negligence per se, was negligence in fact, for there were no conditions or circumstances, according to the evidence, which excused her from looking. “A jury, without evidence of conditions or circumstances which excuse looking, where looking would disclose the danger, is not warranted in finding that such failure to look is not negligence.” I. C. R. R. Co. v. Batson, 81 Ill. App. 142, 153, and cases there cited; Chicago City Ry. Co. v. Cotter, 141 id. 101.

We are unable to find any evidence in the record of the existence of any circumstances or conditions that excused appellee from again looking to the south for the approaching car which she knew was coming, and which she expected to board, before she stepped upon the north-bound track. The south-bound car had moved away from her some little distance as she passed behind it, thus opening a clear space between her and the approaching car so that it was in plain sight before she reached the north-bound track. Nevertheless appellee moved on toward the east track without halting or looking. “This was negligence of the most pronounced sort.” Hornstein v. United Railways, 195 Mo. 440; Doty v. Detroit Citizens Ry. Co., 129 Mich. 464; Baltimore Traction Co. v. Helms, 84 Md. 515; Lee v. Chicago City Ry. Co., 127 Ill. App. 510; Smith v. Chicago Ry. Co., 86 Ill. App. 647.

If there was a conflict of testimony on this issue of contributory negligence, and there was evidence, if considered alone, sufficient to sustain the verdict, the finding of the jury might be conclusive. But where, as in this case, there is no evidence tending to show care and caution, and no excuse or reason shown for their absence, the allegation in the declaration of due care and caution is not proved. The affirmative allegation of due care and caution being a material allegation, not proved, the instruction to find for defendant should have been given. Lake Shore & M. S. R. R. Co. v. O’Connor, 115 Ill. 254; Rack v. Chicago City Ry. Co., 173 id. 291.

We find no evidence in the record tending to show wilful or wanton negligence on the part of appellant, and it is therefore unnecessary to examine the proof of negligence of the appellant.

We think that upon her own testimony appellee did not exercise ordinary care for her own safety, but that she was guilty of negligence which directly contributed to her injury, and the judgment must therefore be reversed with a finding of facts.

Reversed with finding of facts.


author: Me. Justice Bakes

text:
    Oscar Jacobs et al., Defendants in Error, v. Atlas Insurance Company, Plaintiff in Error.
    Gen. No. 14,306.
    1. Insurance—when execution of hinder authorized. Held, under the evidence in this ease, that the “binder” in question was so executed as to become the obligation of the insurance company against whom the action was brought.
    2. Insurance—when cancelation of hinder ineffective. Held, that the attempted cancelation of the binder in suit was not effective and that a cancelation could not lawfully have been made except by the giving of five days’ notice as provided in said binder.
    3. .Insurance—hinder contract construed. Held, that the binder contract in suit provided for insurance to the amount of $500 and not to the amount of $5, as contended by the defendant company.
    4. Insurance—effect of failure to state premium, in hinder contract, Held, that the binder contract in suit was not invalid because it did not state the premium to be paid by the insured; in the absence of a special agreement the company would be entitled to receive and the insured would be liable to pay the usual and customary rate.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Oscar M. Tobrison, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed May 11, 1909.
    Statement by the Court. The Atlas Insurance .Company, an Iowa corporation, prosecutes this writ of error to reverse a judgment rendered against it for $465.19 in favor of the firm of Jacobs & Smittman, composed of Oscar Jacobs and Jack Smittman. The judgment was rendered in the Municipal Court on November 27, 1907, for fire loss where what is, in insurance parlance, called a “binder” had been issued.
    Jacobs & Smittman were in business at 298 & 300 Wabash avenue, Chicago, as manufacturers of artificial flowers for the millinery business. The Atlas Insurance Company is a corporation not licensed or authorized to do business in the state of Illinois. William M. Umbdenstock was in business as a fire insurance agent at 159 La Salle street, in Chicago, doing business as W. M. Umbdenstock & Co. Mr. Umbdenstock had an agreement, executed August 21, 1906, with defendant, Atlas Insurance Company, to act as its agent and representative, the material parts of which are as follows:
    “This Agreement made and entered into this 21st day of August, 1906, by and between the Atlas Insurance Company, of Des Moines, Iowa, party of the first part, and W. M. Umbdenstock & Co., of Chicago, Illinois, party of the second part:
    First: The party of the first part does hereby agree to appoint the party of the second part exclusive agents, with binding power, for writing surplus lines in the Atlas Insurance Company, for the United States except in the State of Iowa, Arkansas, Tennessee and Mississippi, for writing policies on risks acceptable to the party of the first part.”
    [Here follow provisions for compensation which are 25% of the net premiums, 10% of whatever profits may arise annually in the conduct of the business written by Umbdenstock, to be estimated each 12 months after a certain date, and 15% of the net premium for office expenses.]
    “Accounts current for all business written and premiums thereon shall be forwarded monthly by the party of the second part, not later than the 15th of the month following the month in which the business was written and checks for same shall follow within sixty days thereafter, it being understood that the party of the second part shall be responsible to_ the party of the first part for the premiums on all policies issued.
    “The party of the second part agrees to represent faithfully and to put forth their very best endeavors in securing a desirable amount and class of business, and that applications shall be submitted to the party of the first part and policies issued by said party of the first part.
    “The term ‘surplus lines’ is understood to mean only risks that have exhausted the capacity of all Companies regularly admitted to the state in which the risk is located, it being the intent of the party of the second part to accept only strictly surplus business, in no case, less than the full tariff rate on rated risks.”
    Mr. Umbdenstock’s letter reads here as follows:
    “Members of Chicago Board of Underwriters. Insurance Agency
    W. M. UMBDENSTQCK & CO.
    Suite 450-451 National Life Building 159 La Salle Street Chicago.
    Cook County Agents Albany of New York German of Peoria Ohio German of Ohio Commercial of Texas
    Florida Home, Florida Southern National of Texas
    Telephones: Central 4933 Auto 4933
    Facilities for placing Large Lines for Agents anywhere in the United States General Agents
    Des Moines of Des Moines, la.
    Atlas Fire of Des Moines, la.
    Fidelity Fire of Des Moines la.
    Acme of Cedar Rapids, Iowa.
    Cable Address ‘ Umbden ’ Florida Home of Florida. Chicago. Commercial of Texas.
    A. B. C. Code. Southern National of Brokerage Dep’t. Texas.”

      These letter heads were used by Mr. Umbdenstock in his correspondence and he used them to the extent of probably one a day in corresponding with the Atlas Insurance Company.
    Mr. Umbdenstock had complied with “An Act providing for licenses to agents to procure fire policies in unauthorized corporations” &c. approved May 14, 1903, and in force July 1, 1903, Laws 1903, p. 221. It is a general custom in the city of Chicago in the insurance business and among general insurance agents to issue what are called “binders.” The “binder” is a written instrument providing for insurance temporarily from the time application to an insurance agent for insurance is made until a policy is issued or the risk is passed upon and declined by the company whose representative has issued the “binder.” Umbdenstock had been issuing “binders” as representative of the defendant company, on what he considered surplus lines, ever since he began representing the company. A. Loeb & Sons is also an insurance agency on La Salle street in Chicago. With that firm Umbdenstock had been doing business for ten years, they had an account with him and the “binder” in question was issued at their request. It was customary for Umbdenstock and A. Loeb & Sons to place risks for each other in their various companies and make monthly settlements of their accounts. On April 2,1907, E. E. Jaycox, a solicitor of insurance business in the employ of A; Loeb & Sons, was procuring insurance for the plaintiffs, who were regular customers, to the extent of $2000. They paid their premium to A. Loeb & Sons on May 1,1907. Jaycox obtained in the aggregate $1500 from three other companies and then the “binder” here in question from Umbdenstock & Co. When Jaycox went to the office of Umbdenstock & Co. on April 2, in regard to the $500 of risk he had, remaining to be placed, Umbdenstock was out of the office but Boss B. Whitney, chief clerk, was in charge of the office and he signed a “binder” and gave it to Jaycox. Umbdenstock tells us that the issuance of the “binder” was reported to him so that he was informed thereof at the time of issuance. He also states it is a “sort of general understanding—custom—that the chief clerk” has the authority to issue the “binders” and “I permitted him to do it from time to time and never rejected any ‘binders’ that he signed.” The “binder” is upon a printed form and is as follows:
    “The Chicago Board of Underwriters of Chicago Form of Binder Adopted January 11, 1906.
    Pending the issue of policies or certificates, binders good for not exceeding thirty days, may be issued, covering the risk in the interim, under the following form, but not otherwise:
    Binder,
    Chicago,..........190
    In consideration of the stipulations herein contained, the several insurance companies (each acting and contracting for itself and not one for another) whose names are entered hereon by their respective representatives, together with their signatures as such, are hereby severally bound to Jacobs & Smittman, as insurers for........days, to-wlt: from 12 o’clock noon of April 2, 1907, until 12 o’clock noon of............ 190...., against direct loss or damage by fire, to an amount not exceeding the sum set opposite their several names by their respective representatives, to the following described property, while located and contained and described herein, and not elsewhere, to-wit: mdse., 298-300 Wabash Ave., Chicago, Ill.
    It is hereby stipulated and agreed, that this binder is issued subject to all the terms and conditions of what is commonly Imown as the Standard Fire Insurance Policy of the State of New York, which are hereby made a part hereof to the same- extent as if fully set forth herein; and to the payment of such premiums for the several insurances entered hereon, as may be found to be due to the several insurers by their respective representatives, which, in the event of loss before the expiration of this binder, shall be fixed at the full annual premiums for the respective sums insured.
    Whenever the policy of any of the insurers is issued in lieu of its undertaking under this binder, its obligation hereunder shall cease and be void.
    In no event shall this binder continue in force beyond the time of expiration stated herein.
    Name of Insurance Amount Insured, Amount In Signatures of rep-
    Company. in writing. Figures. resentatives on behalf of companies. Atlas. 5 00 W.M.U. Ross W."
    A copy of a Standard Fire Insurance Policy of the State of New York was also introduced in evidence.
    Upon receiving the “binder” Jaycox telephoned the result of his efforts to Jacobs & Smittman, and took the binder to A. Loeb & Sons’ office where it remained until after the loss here in question occurred, whereupon Jacobs & Smittman obtained it to settle the loss. Before the fire Jaycox made several inquiries at the office of Umbdenstock regarding the coming of a policy and once he saw Umbdenstock himself, who said he would write concerning it.
    Umbdenstock testified, as to the custom in the transaction of business between himself and the company, that in the usual course of his business with the company, as he put it, he was supposed to report every day and, as a rule, the company either sent him a policy or rejected the risk in two, three, four or five days; never more than four or five days. He kept a memorandum and himself looked over all applications before they were sent to the company.
    On April 22nd following, the place of Jacobs & Smittman was destroyed by fire. Proof of loss was made and delivered to Umbdenstock & Co. The company denied liability. There was substantially a total loss and it appears to be $3762.72 in amount, with a total insurance of $4000. The fire, as shown by the proof of loss, made by Jacobs & Smittman, occurred at 3:44 p. m. on April 22nd, which was a Monday. In the morning of that same Monday, Umbdenstock & Co. received a letter from the Atlas Insurance Company, dated April 20th, declining the Jacobs & Smittman risk and, after having read that letter, Whitney, the chief clerk of Umbdenstock & Co., that same morning stepped over to A. Loeb & Sons’ office and informed them that the company had declined the risk.
    Charles B. Obebmeyeb, for plaintiff in error.
    Blum & Blum, for defendant in error.
   Me. Justice Bakes

delivered the opinion of the court.

We have no doubt but what the “binder” in question was so executed as to become an obligation on the part of the Atlas Insurance Company. Umbdenstock had authority, his chief clerk signed it and before it was forwarded to the company, Umbdenstock obtained information of its issuance and he thereby ratified the signing by the chief clerk.

On its face the “binder” purports to be a preliminary and temporary contract for present insurance which contemplated the maldng of a full and definite contract in the form of a policy. We think that the intention of the defendant, as shown by the language of the “binder,” and the circumstances under which it was issued, was to insure the plaintiffs for a period not exceeding thirty days from April 2, 1907, unless within that time the contract thereby made was can-celled, or a policy was issued and therefore, that the contention that no insurance was effected by the “binder” because the date at which the insurance thereby effected was to expire was not expressly stated, cannot be sustained.

The “binder” contains the following provisions: “It is hereby stipulated and agreed that this ‘binder’ is issued subject to all the terms and conditions of what is commonly known as the Standard Fire Policy of the State of New York which are hereby made a part hereof to the same extent as if fully set forth herein.” The provisions of said form of policy in relation to cancellation are as follows:

“This policy shall be cancelled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation. If this policy shall be cancelled * * * the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is cancelled by. this company by giving notice, it shall retain only the pro rata premium.”

The defendant made no attempt to cancel the policy until April 22, the day of the fire, and then only by a verbal notice given by Whitney, the clerk of Umbdenstock, to Sebillo,' the clerk of Loeb & Sons. Whitney testified that when he told Sebillo that the Atlas company had declined the risk, Sebillo said, “he would leave us off with a five day binder, five day cancellation notice or upon replacing.”

We think that the company, under the provisions of the “binder” and the Form of Policy, which was made a part of the “binder,” had only the right to cancel by giving five days’ notice, and as no such notice was given, the “binder” was in force at the time of the fire.

The amount of the insurance is stated in the “binder” as follows:

“Amount insured Amount in _in writing.__figures._ _I_5 00_"

In Lake View v. LeBahn, 120 Ill. 92, 99, it was held that the figures 50. used in a plat to indicate the width of a street represented, not feet, inches, nor chains, but links. The unit of amount is a dollar. We think the figures 500 as used in the “binder” represent dollars. We also think that those figures represent and mean not five but five hundred. To hold that they represent and mean five would be to give to the vertical line, after the figure 5, the force and effect of a decimal point. We think that the “binder” sufficiently states that the amount thereby insured was five hundred dollars.

We do not think that the “hinder” can be held defective and invalid because it does not state the premium to be paid by the insured. In the absence of a special agreement the defendant would be entitled to receive and the plaintiffs liable to pay the usual and customary rate.

We do not think that under the evidence the damages can be held excessive. The testimony on the trial tended to show a loss of merchandise of over four thousand dollars, with four thousand dollars of insurance. We think the evidence is sufficient to support the finding and judgment, and the judgment of the Municipal Court will be affirmed.

Affirmed.