author: Mb. Justice Graves

text:
    Mary Burgoyne, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,036.
    1. Passenger and carrier—what establishes prima facie case of negligence. In an action by a passenger against a carrier for hire to recover for personal injuries sustained, a prima facie case is established by proof of the relation, a collision while the relation existed and resulting injury and damages.
    2. Passenger and carrier—care required of latter. Carriers of passengers are held to the exercise of the highest degree of care for the safety of their passengers reasonably consistent with the practical operation of the road.
    3. Passenger and carrier—contract between. The contract between a carrier and passenger for hire is that the carrier will transport the passenger to his destination in safe and sound cars, equipped with all necessary and proper appliances, operated in a safe and proper manner and without injury.
    4. Passenger and carrier—when presumption of negligence not overcome. Held, under the evidence, that the presumption of negligence arising from the collision which resulted in the injury of a passenger was not overcome by the evidence adduced by the carrier to rebut such presumption.
    5. Verdicts—when remittitur does not cure excessiveness. If a verdict is so excessive as to force the court to the conclusion that it was the result of passion, prejudice or sympathy, a remittitur will not cure its vice.
    6. Verdicts—when excessive, Held, in an action on the ease for personal injuries that a verdict for $6000, reduced by remittitur to $4000, was still excessive where the evidence showed as the only serious injury a wrench to the knee joint, resulting in confinement in bed for a few weeks, leaving synovitis of the knee which may or may not be permanent, but not resulting in any impairment of capacity to pursue usual employment, and where it further appeared that there was no proof of any loss of income or of any moneys expended for medical aid,
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed upon remittitur.

    Opinion filed January 17, 1912.

      Remittitur filed January 23, 1912.
    John E. Kehoe and Watson J. Febby, for appellant.
    James C. McShane, for appellee.
   Mb. Justice Graves

delivered the opinion of the court.

The undisputed facts in this case are that appellant owns and operates a street car line on 31st street and also one on Halsted street in the City of Chicago. The cars running on Halsted street had the priority of way over cars running on 31st street. The cars running on 31st street were customarily stopped to discharge and receive passengers before they crossed Halsted street. On the evening of April 21,1908, there was a car on each of these lines approaching the intersection of these two streets, the car on Halsted street was approaching from the south and the car on 31st street was approaching from the east. The car on Halsted street was a large double truck car and reached the intersection of these two lines just ahead of the car on 31st street. The car on 31st street was a smaller single truck car and did not stop as it approached the intersection, but ran against the Halsted street car with sufficient force, so that some of the windows in each of the cars were broken, and the cars were otherwise injured, and the front wheels of the 31st street car were carried from the rails some eight to twelve inches to the north by the motion of the Halsted street car. Appellee was a passenger for hire on the 31st street car, intending to alight from it when it should stop on the east side of Halsted street. As the car on which she was riding approached the usual place for discharging and receiving passengers on the east side of Halsted street, appellee, with other passengers intending to alight there, arose from their seats preparatory to alighting. When the car collided, appellee was thrown to the floor of the car and was injured. The jury found the issues for appellee and assessed her damages at $6,000. A remittitur was entered for $2,000, and judgment was entered for $4,000 against appellant. Appellee’s theory of the case is that the collision was caused either by the negligent operation of the 31st street car or by some defective condition of the appliances by which the car is supposed to be controlled, while appellant insists that the collision was an inevitable accident which no one could have foreseen or avoided.

Appellee, having made out a prima facie case by showing that she was a passenger for hire and that the car she was on was not stopped at the usual place for stopping, but collided with another car belonging to appellant, there crossing the track ahead of the car on which she was riding, and that she was thrown down and injured by the collision, was entitled to recover damages, unless the proof offered by appellant shows that the collision was not the result of any failure to exercise the degree of care due from it to its passengers. Carriers of passengers are held to the exercise of the highest degree of care for the safety of such passengers, reasonably consistent with the practical operation of the road. The contract between the carrier and a passenger for hire is that the carrier will transport the passenger to his destination in safe and sound cars, equipped with all necessary and proper appliances, operated in a safe and proper manner and without injury. “Where such a passenger is injured by a collision, proof of the relation of passenger and carrier, of the collision and the injury, if no contributory negligence on the part of the passenger appears, makes a prima facie case for resulting damages, and casts upon the common carrier the onus of proving that the injury resulted from inevitable accident or from some cause against which human prudence and foresight could not have provided.” Elgin, A. & S. Trac. Co. v. Wilson, 217 Ill. 47.

How the collision in the case at bar occurred, what caused it and whether it was the result of unavoidable accident or of some cause against which human prudence' and foresight could not have provided, is a question of fact to be determined by the jury. Chicago City Ry. Co. v. Pural, 224 Ill. 324.

The substance of the testimony of the motorman on the 31st street car, a witness who was produced by appellant to show that the collision in question was an unavoidable accident, was that he knew he should stop his car' before crossing Halsted street; that at about the place where the power was usually thrown off and the brakes applied to stop the car before crossing Halsted street he threw off the power and applied the brakes; that for some reason, he did not know what, the brakes did not work; that it seemed to him that the chain' caught or something like that, as if the chain got a- kink in it; that while the car slackened a little, it did not stop; that as soon as he found he could not stop the car with the brakes, he put on the reverse power; that when, he did that the fuse blew out; that he might then have been thirty-five or forty feet east of Halsted street; that then there was nothing more he could do to stop the car, and it ran on “at not much speed” and collided with the Halsted street car. He further testified that if the brake chains caught or tangled it was because they were too loose; that if they had been in proper shape they could not tangle or kink, and as there is no evidence in the record in conflict with these last statements of the motorman, they must be' considered correct. Brakes are attached to cars for the purpose of furnishing a means of stopping them when desired, and the reversing appliances are attached in part for the same purpose, to be applied when the brakes are ineffective. The brakes and the reversing appliances were the only means by which this ear could be stopped. Each of these means was successively employed by the motorman without effect, if his testimony is to be believed. It follows inevitably either that the motorman did not properly manage his car and the stopping devices to it,- or that the stopping devices were defective either in original construction or for want of repair, and that the collision resulted from one of those causes. If the negligence of the motorman in managing the car was the cause of the accident, appellant is liable. If defective appliances was the cause, the presumption of negligence arising from the making of a prima facie case cannot be overcome, unless it appears from the evidence that appellant did not know of the defects and could not have known of them by the exercise of that high degree of care required of carriers for the safety of their passengers.

Aside from the testimony of the motorman, there is no evidence in the-record to show whether the brakes or the reversing .appliances were out of order when the collision occurred or not, nor whether they were out of order or in good, proper and safe condition when the car left the car barn, nor whether, if they were in good order when the car left the barn, they were likely to or could get out of order by proper use after the car left the barn and before the collision, nor whether the defect, if any, was one of original construction or resulted from lack of repair, nor whether .a defective condition of the brake or brake chains or reversing appliances, if it existed, would be hidden and difficult of ascertainment or would be open and obvious to the most casual observer. Neither is there any evidence whatever of any inspection of the car by appellant at any time, while it was in its possession, nor that appellant had ever exercised any care whatever, much less the high degree of care required of carriers of passengers, to see to it that the car was in a safe condition and repair. The decided weight of the evidence' tends to show that the motorman was mistaken as to where the car was when the fuse blew out, and that in fact it did not blow out until the instant' the collision occurred. In fact, the evidence in the record is more significant for what it fails to show than for the light it throws on the question of due care on the part of appellant. In what way it tends to overcome the presumption of negligence arising from the prima facie case made by appellee, it is difficult to conceive. We think the jury were amply warranted in finding, as they did, that the collision was due to the negligence of. appellant.

Appellant insists that the verdict is so excessive as to force the court to the conclusion that it was the result of passion, prejudice or sympathy; that when a jury is so influenced, a remittitur will not cure the vice, and that the case should be reversed for that reason. We are inclined to agree with appellant that the verdict of $6,000 was too high, and that the judgment of the court below for $4,000, after the remittitur was filed, was still excessive to the amount of $2,000. While appellee complains of some other bruises, the only serious injury shown by the evidence was a-’ wrench to the knee joint resulting in confining her to her bed for a few weeks, and leaving her with synovitis of the knee which the doctors say may or may not be permanent, but which does not prevent her from pursuing her usual and former employment as housekeeper, and which her daughter says does not even leave a lameness, although there is a peculiarity in her walk. There is no proof of any loss of income, nor of any moneys expended for medical aid, nursing or medicines. Neither is there any claim for punitive damages. While we feel that the judgment is excessive, we are not convinced that passion, prejudice or sympathy entered into the finding of the jury. While the question of the amount of damages that should be awarded in an action ex delicto is one of fact, it is one into which, particularly in cases where no special damages are proven, the element of judgment and opinion enters so largely that no fixed rule can be laid down by which the line between cases where the amount of the verdict is and where it is not evidence of the influence of improper motives can be determined, but where the right to recover something is clearly established, as it is in this case, the courts of this state are firmly committed to the practice of allowing remittiturs both in the trial and appellate courts. Sandy v. Lake Street El. R. R. Co., 235 Ill. 194, and numerous cases there cited.

If appellee will file a remittitur of $2,000 within ten days, the judgment will be affirmed for $2,000, otherwise it will be reversed and the cause remanded.

Affirmed with remittitur.

Remittitur filed and judgment affirmed January 23, 1912.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Matej Cigler, Appellee, v. Mary Keinath et al., Appellants.
    Gen. No. 16,057.
    1. Jurisdiction-—presumptions in aid. Where a court of general jurisdiction adjudicates a cause, the presumption is that it had jurisdiction of the parties, unless there is something in the record affirmatively showing the contrary. The fact that the record is silent on that question is not enough to overcome this presumption.
    2. Jurisdiction—to what actions presumptions which aid, apply. The presumption which aids the jurisdiction of courts of general jurisdiction applies to decrees in proceedings for mechanic’s liens, the same as to judgments at law.
    3. Coram: nobis—when section 89 of Practice Act inapplicable. Section 89 of the Practice Act which provides a motion as a substitute for the writ of error coram nobis, has no application to chancery causes.
    4. Decrees—when jurisdiction of cha/ncery lost. A court of chancery loses jurisdiction over its decrees after the lapse of the term of entry.
    5. Writs of assistance—what questions properly considered upon application for. Upon an application for a writ of assistance the jurisdiction of the court in the original cause is a proper subject for consideration.
    6. Writs of assistance—what issues not presented upon application for. A question of title cannot be tried on an application for a writ of assistance any more than it can be tried in an action of forcible entry and detainer. Neither can the original case be reviewed, or its decree modified, on such application any more than in a proceeding for contempt' for a failure to obey the decree.
    7. Appearance—presumption as to authority. The authority of an attorney to enter the appearance of an adult party to a suit will be presumed from the fact that he has entered the appearance, until the want of authority is made to appear. The burden of proving the facts tending to impeach the jurisdiction of the court is on the party denying the jurisdiction.
    8. Appearance—how authority of attorney questioned. A collateral attack cannot be made upon a decree by asserting that an appearance entered by an attorney was unauthorized. The question of the authority of such attorney must be raised and determined in a direct proceeding.
    9. Service of process—when upon minors established. Held, under the evidence in this ease, that service upon minor defendants was established.
    Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed January 17, 1912.
    John C. Wilson, for appellants.
    Charles T. Farson, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

On April 12, 1907, a decree was entered in the Superior Court of Cook county, establishing a mechanic’s lien on the property therein described and ordering the sale of such premises to satisfy the claim. The claim was not paid and the premises were sold, and appellee became the purchaser. After the time for redemption had expired appellee received a deed for the premises. Thereafter appellee made a demand on appellants for possession of the premises, and on March 30, 1909, possession not being surrendered to him, appellee moved for a writ of assistance. On the same day appellants appeared and filed a cross-motion to set aside and vacate the decree of sale 'and the order approving the same, because the same were null and void for the reason that two of the defendants who were minors were not personally served with summons and that Charles Vesely, who entered the appearance of such of the appellants 'as were then adults, was not authorized so to do. The motion of appellants was denied and the motion of appellee was allowed and a writ of assistance was ordered. This action of the court is assigned for error.

The contention of appellants is that the court did not have jurisdiction of appellants when the original decree, establishing the lien and ordering the sale of the premises to satisfy the claim, was entered.

The Superior Court is a court of original, general jurisdiction. Every presumption not inconsistent with the facts shown in the record is in favor of the jurisdiction of courts of that character. Where a court of general jurisdiction adjudicates a cause, the presumption is that it had jurisdiction of the parties, unless there is something in the record affirmatively showing the contrary. The fact that the record is silent on that question is not enough to overcome this presumption. Forrest v. Fey, 218 Ill. 165; Benefield v. Albert, 132 Ill. 665. This presumption applies to decrees in proceedings for mechanic’s lien the same as to judgments at law. Pensoneau v. Heinrich, 54 Ill. 271. Appellants contend that the facts disclosed by the affidavits filed with the motions above referred to overcome this presumption, and affirmatively show the lack of jurisdiction. The motion of appellants to set aside and vacate the decree establishing the lien and the order approving the sale was made long after the term of court at which they were entered had ended, and was an attempt by the motion provided for in section 89 of the Practice Act, as a substitute for the writ of error coram nobis, to have the court that entered the same review its own findings of fact and correct the same if found to be erroneous. That section of the Practice Act does not apply to cases in chancery. Tosetti Brewing Co. v. Koehler, 200 Ill. 369. While courts of chancery have control over their orders and decrees during the term at which the same are entered, they have no such control at a subsequent term and when the cause is no longer pending in the court. Appellant’s motion was, therefore, properly denied.

While appellants’ motion could not be entertained, the question of- jurisdiction was properly before the court on the motion of appellee for a writ of assistance, for if the original decree was void for want of jurisdiction, the writ of assistance could not properly be ordered.

If the court had jurisdiction of the minor defendants, it must have been by the service of summons. No constructive service is claimed. In support of their contention that there was no service of summons on the minor defendants, appellants filed two affidavits. One was made by Peter Rudolph, one of the minor defendants, in which he says no summons was served on him so far as he hnotus. The other is the affidavit of the solicitor for appellants in which he says he has examined the clerk’s register in the cause and that a paper presented with the affidavit is a correct transcript of that register. That paper shows the issuance of a summons on January 28, 1907, and an alias summons on March 4, 1907, but does not show a return of either summons or who were named in either as defendants. The affiant farther says that the docket of the sheriff in the cause shows only the following:

“Number 1028. Matej Cigler vs. Mary Kienert et al. 258057. Ais. chy. sums. Chas. T. Farson. Date Jan. 28. Returnable, Mch. Given to -- Ahern. Proceedings and return: Svd. Peter Rudolph and Henry Rudolph. 1-28-07. Fee $3.00.”

It was stipulated at the hearing of the motion for the writ of assistance that the summons shown by the clerk’s record was lost or destroyed and was not in the possession of either of the parties. To support the presumption of jurisdiction referred to appellee filed the affidavit of Charles Vesely, in which affidavit he states that he was in the office of the sheriff of Cook county on January 28,1907, in company with Peter and Plenry Rudolph, the two minor defendants, and that they were then personally served with summons in this cause in his presence by a deputy sheriff by the name of Ahern. Upon a consideration of -all these affidavits and the records referred to and the stipulation made, there is, we think, ample proof that the summons was issued and served on the minor defendants in apt time, and that the court had jurisdiction over them when the decree for sale and the order confirming the sale were entered.

It was further stipulated between the parties on the hearing of the motion of appellee for a writ of assistance that no service of summons was ever obtained on Mary and Ernest Keinath and Frances and John Collins, and that their appearance was entered in the original cause by Charles Vesely purporting to act as their solicitor. The right of Vesely to so enter their appearance or represent them is challenged by appellants. The authority of an attorney to enter the appearance of an adult party to a suit will be presumed from the fact that he has entered the appearance, until the want of authority is made to appear. Ferris v. Commercial Nat. Bk., 158 Ill. 237; Martin v. Judd, 60 Ill. 78; Ransom v. Jones, 1 Scam. 291; The People v. Parker, 231 Ill. 478. The burden of proving the facts tending to impeach the jurisdiction of the court is on the party denying the jurisdiction. Pensoneau v. Heinrich, 54 Ill. 271-273; Whittaker v. Whittaker, 151 Ill. 266-271. Even if the appearance of these appellants was entered by Yesely without authority, that would not render the judgment void for want of jurisdiction, but voidable only, and its validity can only be attacked in a direct proceeding for that purpose. Hntil it is so attacked, it is binding on all the parties to it. Peak v. Shasted, 21 Ill. 137; Martin v. Judd, 60 Ill. 78-84.

Direct and collateral attacks are well defined in Schneider v. Sellers, 25 Tex. Civ. App. 226, as follows:

“A direct attack upon a judgment is an attempt to amend, correct, reform, vacate, or enjoin the execution of the same, in a proceeding instituted for that purpose, such as a motion for a rehearing, an appeal, some form of writ of error, a bill of review, an injunction to restrain its execution, etc.; while a collateral attack is an attempt to avoid its binding force in a proceeding not instituted for one of the purposes aforesaid, as where, in an action of debt on a judgment, defendant. attempts to deny the fact of indebtedness, or where, in a suit to try title to property, but a judgment is offered as a link in the chain of title, and the adverse party attempts to avoid its effects, etc.”

While a writ of assistance is ancillary to the original proceeding, in the sense that the right to the writ is dependent on a title derived through a judicial sale under a decree entered in the original proceeding (State v. Superior Court of Thurston Co., 21 Wash. 469,) and the writ can issue only against a party to the original proceeding, or one who has come into possession pendente lite, it is to all intents and purposes a new and independent suit, and the writ must he issued, if at all, at the instance of the owner of the title acquired under the judicial sale, whether he was one of the parties to the original suit or not. The question of title cannot be tried on an application for this writ anymore than it could be tried in an action in forcible entry and detainer. Kerr v. Brawley, 193 Ill. 205. Neither can the original case be reviewed, or its decree modified, on such application any more than in a proceeding for contempt for a failure to obey the decree. The attack on the jurisdiction of the court made by filing counter affidavits on the motion for the writ of assistance was clearly a collateral attack, and so far as it was sought by that means to question the authority of Vesely to enter the appearance of the adult defendants, presented a question that could not be determined or considered by the court in such an attack.

There was no error committed by the court in allowing the motion of appellee for the writ of assistance, nor in ordering that writ to issue. The order of the court below is, therefore, affirmed.

Order affirmed.


author: Mb. Justice Gbaves

text:
    John Lynch, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 16,070.
    1. Negligence—what essential to recovery. In order to recover in an action for negligence the negligence charged in the declaration must be established by the proof. The proof of other negligence which if it had been alleged would have warranted a recovery, is not sufficient.
    2. Negligence—effect of minute description. If in an action to recover for negligence the plaintiff needlessly describes the manner in which the injury was inflicted with minuteness and particularity and the proof substantially varies from the statements in the declaration, he cannot recover.

      Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. BbsT M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed January 17, 1912.
    David F. Hatchett and Amos W. Mabston, for appellant.
    Fbanklin B. Hussey and Febdinand Goss, for appellee. ' ■!
   Mb. Justice Gbaves

delivered the opinion of the court.

This is a suit to recover for personal injuries sustained by a boy of eleven years of age claimed to have resulted from the negligence of the servants of appellee in the management of a street car. The declaration consists of an original count and two additional counts. The negligence charged in the original count is that while appellant, who, it is alleged, was a passenger on the car for hire and who had paid his fare, was attempting to alight from the car while it was standing still at the intersection of Sixty-third street and Indiana avenue for the purpose of permitting passengers to alight therefrom, appellee, through its agents in charge of- the car, negligently, suddenly and violently started the car and appellant was thereby thrown to the pavement and injured. The first and second additional counts charge appellee’s negligence to be that while appellant was in the act of attempting to hoard the car at the intersection of Sixty-third street and Indiana avenue, while it was there stopped for that purpose," appellee, through its agents, negligently, suddenly and violently started the car, and appellant was thereby thrown to the pavement and injured. The jury-found appellee not guilty and judgment was entered on the verdict. From that judgment the plaintiff in the court below appeals.

Appellant does not claim he is entitled to recover under the first or original count in the declaration, but insists that the evidence shows him to be entitled to a verdict under the additional counts. The undisputed evidence shows that the car from which it is alleged appellant was thrown was running westward on Sixty-third street. As it approached the intersection of Indiana avenue, no one on the car had signalled the motorman to stop or in any other way signified their desire to alight from it at Indiana avenue, and both the motorman and the conductor of the car testified that they saw no one there who in any way signified their desire to hoard it; that while the speed of the car was slackened about the time it was crossing Indiana avenue to a speed of three or four miles per hour, “or about as fast as a man would he walking,” it was not for the purpose of receiving or discharging passengers, but was for the purpose of safely taking an “S” curve that began at about the east side of Indiana avenue and extended westward from that avenue a few feet, and the decided preponderance of the evidence shows that the car did not stop at all until it had passed by the place where appellant was injured, some sixty feet, and then only because the motorman was notified by a passenger who was riding on the front platform that a had fallen from the car.

It is a well-settled rule that in order to recover in an action for negligence the negligence charged in the declaration must be established by the proof and that proof of other negligence which, if it had been alleged, would have warranted a recovery is not sufficient. Chicago City Ry. Co. v. Bruley, 215 Ill. 464. If in such an action the plaintiff needlessly describes the manner in which the injury was inflicted with minuteness and particularity, and the proof substantially varies from the statements in the declaration, he cannot recover. C. B. & Q. R. R. Co., v. Morkenstein, 24 Ill. App. 128, and cases there cited.

The proof in this case fails to show that the car was stopped at the intersection of Sixty-third street and Indiana avenue to receive passengers, or at all until after appellant was injured; that appellant attempted to hoard the car while it was standing still or that while he was in the act of boarding the car it was suddenly and violently put in motion. The averments in appellant’s declaration, as to appellee’s negligence, were, therefore, not supported by the evidence, and the jury would not have been justified in returning any other verdict than the one returned.

Other errors are assigned, but as the verdict and judgment were correct on the facts, and as a retrial of the case could not result in a different judgment, it is not necessary to consider them. Robertson v. Moir, 88 Ill. App. 355.

The judgment of the court below is, therefore, affirmed.

Judgment affirmed.


text:
    Ralph E. Nettleton et al., Appellees, v. Robert J. Kerr, Appellant.
    Gen. No. 16,074.
    1. Trover—what essential to recovery. Trover is a possessory action, and before the plaintiff can recover he must show a tortious conversion of the chattel, a right of property in it, and a right to the immediate possession of it. He must show a right to possession that is absolute and unconditional and not dependent on some act to be performed. He must recover on the strength of his own title and not on the weakness of the title of his adversary.
    2. Trover—when demand insufficient. If at the time a demand was made the plaintiff did not have the right to the present possession, such demand is unavailing.

      Trover. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion filed January 17, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Kerr & Kerr, for appellant.
    Henry W. Leman and Frank H. Culver, for appellees.
   Mr. Justice Graves

delivered the opinion of the court.

On March 15,1909, a firm known as Piper Bros, purchased from one A. B. Nettleton (appellees’ intestate), 746 shares of the capital stock of the Piper Texas Plantation Company for $12,000, to be paid for; part in cash and part in the notes of Piper Bros., payable to appellees’ intestate. On March 16, 1909, certificates for all the stock bargained for were delivered by A. B. Nettleton to Piper Bros., except certificate No. 3 for 25 shares of preferred stock and certificate No. 7 for 50 shares of common stock which Nettleton could not find. At that time Nettleton prepared, signed and delivered to Piper Bros, a statement in the form of a letter which was in part as follows:

“* * * * * * Certificate No. 7 for 50 shares of common stock and certificate No. 3 for 25 shares of preferred stock, both standing in my name are unfortunately not in Chicago but are in Brownsville, Texas, and will be delivered to you within ten days from this date, your attorney Mr. B. J. Kerr, to hold, pending delivery to you of said last two certificates, the note for $3,000, dated March 16, 1909, due ten months after its date to my order, given by you as part payment for the stock this day sold to you and to deliver said note upon my order after receiving from you due notice that you have received the last two named certificates representing 75 shares.” *****

Piper Bros, thereupon delivered to the attorney, Bobert J. Kerr, named in the statement, appellant here, the $3,000 note mentioned in the statement, and appellant wrote on the back of the statement the following, ‘Received the within mentioned note fór $3,000 under the terms of the within letter. Robert J. Kerr.” On April 8, 1909, A. B. Nettleton sent to Piper Bros, two certificates of stock corresponding in description to the two certificates mentioned in the letter or statement of March 16, 1909, but which were each marked “Cancelled” in three places on the face and in one place on the back by the imprint of a rubber stamp, and with these certificates Nettleton sent a letter in which he said the certificates had been cancelled by mistake. There is no evidence in the record that any certificates were ever issued in lieu of the two so marked can-celled. On April 12, 1909, Nettleton made formal demand on appellant for the note in question. There is no evidence in the record, nor is it contended, that Piper Bros, had then, or have since, notified appellant that they had received the two certificates in question. Appellant did not deliver the note in question to Nettle-ton, as requested in the demand for the same, and on April 28,, 1909, Nettleton brought this suit in trover against appellant, claiming as damages $3,013.50, the same being the amount of the face value of the note and the accrued interest thereon.' The case was tried by the court without a jury and resulted in a finding and judgment for the plaintiff for the sum of $3,076.28 and for costs. Pending this appeal, A. B. Nettleton, plaintiff below, died, and Ralph E. Nettleton and Burton Cobb Hamilton, his executors, were substituted as appellees.

Trover is a possessory action, and before the plaintiff can recover he must show a tortious, conversion of the chattel, a right of property in it, and a right to the immediate possession of it. Owens v. Weedman, 82 Ill. 409. He must show a right to possession that is absolute and unconditional and not dependent on some act to be performed. Frink v. Pratt & Co., 130 Ill. 327. He must recover on the strength of his own title and not on the weakness of the title of his adversary. Davidson v. Waldron et al., 31 Ill. 120.

In the case at bar, before Nettleton could rightfully recover, it was incumbent on him to prove that all the conditions contained in the statement under which the note was placed in the hands of appellant had been complied with. This he failed to do. The conditions named in that statement were that Nettle-should deliver to Piper Bros, certificate No. 7 for 50 shares of common stock and certificate No. 3 for 25 shares of preferred stock, and that Piper Bros, should notify appellant that they had received those certificates. Neither of the conditions had been performed when demand was made by Nettleton for the note and when this suit was begun. The only attempt Nettle-ton made to comply with the first condition was to deliver to Piper Bros, two certificates corresponding in general description to the ones he agreed to deliver, but which had been marked cancelled. True, he says they were marked cancelled by mistake, but even if they were marked cancelled by mistake, they in fact bore on their face and back the evidence of cancellation, and in that shape did not even purport to be valid existing certificates and had no evidentiary value as such. It was shares of stock Piper Bros, bought, which shares of stock were to be evidenced by certificates. While in a suit for dividends, or to require the issuance of new certificates in lieu of those marked cancelled, these certificates could undoubtedly be introduced in evidence, upon satisfactory proof being introduced that the cancellation of them had been made by mistake, it would require an adjudication by a court having jurisdiction to determine the question, to establish their validity as existing certificates, and Piper Bros, were under no obligation to accept them on the mere word of Nettleton that they had been cancelled by mistake, and assume the obligation of establishing their validity, particularly when they were not personally cognizant of the fact that the same were so cancelled by mistake and would be forced to rely on such proof on that question as they might be able to secure from Nettleton, even if he could be found and his testimony secured when desired. The delivery of these certificates was' not a compliance with the conditions providing for the delivery of certificates Nos. 3 and 7, and Piper Bros, could not, in consonance with the truth, notify appellant that they had received the certificates mentioned in the stipulation, and it is not claimed they did give any such notice.

The evidence, therefore, fails to show that Nettle-ton, at the, time he demanded of appellant the possession of the note, or at the time this suit was commenced, was entitled to the present possession of it. The failure of appellant, under this state of facts, to deliver the note on that demand was not a conversion of the note, and the finding and judgment of the court should have been for appellant.

The judgment of the court below is, therefore, reversed with the finding of facts that the conditions under which appellant was to deliver the note in question to-A. B. Nettleton were not complied with, and that appellant was not guilty of conversion of the note.

Judgment reversed.


author: Mr. Justice G-raves

text:
    Gilbert H. Hoxie, Appellee, v. Abraham Pfaelzer, Appellant.
    Gen. No. 16,085.
    1. Verdicts—when not disturbed, as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    2. Trial—when incident will not reverse. The fact that the jury’s attention is directed to the nationality of the defeated party, as being that of a Hebrew will not result in reversal.
    3. Judicial notice—of what not to,hen. The courts will not take judicial notice that there is an existing prejudice against the Hebrew race.
    4. Instructions—when not erroneous. An instruction that tells the jury that if they find “from the evidence” a certain fact, is not faulty because the words “and from the instructions” or “under the instructions of the court ’ ’ are not added.
    5. Instructions—when use of word “material” will not reverse. Where the word "material" is coupled with the words "to the issues," a question of law is not necessarily stated and a reversal will not necessarily ensue.
    6. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse where its substance is embodied in other instructions given.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court, at the October term, 1909.
    Affirmed.
    Opinion filed January 17, 1912.
    Mayer, Meyer, Austrian & Platt, for appellant.
    Tenney, Coeeeen, Harding & Sherman, for appellee.
   Mr. Justice G-raves

delivered the opinion of the court.

This is a suit in assumpsit based on the claim of the plaintiff, appellee here, that he had loaned to the defendant, appellant here, $1,600 in money. On the trial appellee took the stand and testified in detail to the fact of making the loan; that appellant said he wanted the money because he was in trouble with a girl; that the money was delivered to appellant at the residence of appellee in the foym of a certified check of appellee, drawn on the Corn Exchange Bank of Chicago, and made payable to appellee or to currency and endorsed by appellee and dated December 6, 1902; that at the suggestion of appellant that he did not want the transaction known at the stock yards, appellee transferred on that date $2,000 from an account at the national Live Stock Bank at the Stock Yards to his own credit at the Corn Exchange Bank, and drew his check for the amount loaned on and had the same certified by the last named bank. To corroborate his testimony the bookkeeper of the Corn Exchange Bank was called as a witness and testified that the transfer of the $2,000 had been made and a check drawn by him on that bank for $1,600 had been certified by that bank on December 6, 1902, as testified to by appellee.

James H. Bobinson also testified to the transfer of the $2,000 account to the Corn Exchange Bank. II. P. Chesley, General Manager of the Mexico Federal Packing Company, testified that in the spring or early summer of 1903 he overheard appellant say to appellee, “I have got that matter all fixed. I will pay you in a couple of days,” and that appellee replied, “All right I will expect it.” George H. Steenberg, an employe of appellee, testified that in the winter of 1905, he went to appellant and asked him for the $1,600 appellee had loaned him some time ago, and that appellant replied, “That has all been arranged. I saw Mr. Hoxie (appellee) the other day and told him I would pay him in February.” Dr. C. C. Singley testified that in December, 1902, he saw appellant in appellee’s residence just inside of the front 'gate talking to appellee.

Appellant testified that he never borrowed $1,600 of appellee; that he never talked with him. about borrowing any money; that he never told him he was in trouble with a girl; that he never was in trouble with a girl; that he never received a certified check for $1,600 from appellee; that he never was in appellee’s house or even inside his gate; that he never told Steenberg he would repay appellee $1,600 and never had any conversation with him on the subject; that he never told Chesley he was going to pay appellee; that he never was asked by appellee or any one in his behalf to repay any money to him. In fact, he denies seriatim and categorically everything that appellee and his witnesses testified to of which it was claimed he had knowledge. The only evidence offered by appellant besides his own testimony was that of two witnesses who testified that the reputation of appellee for truth was bad.

The jury returned a verdict for $1,973.45 against appellant, on which verdict judgment was entered.

It is not contended that, if appellee is entitled to a judgment at all, the same is excessive. Appellant urges as reasons why this judgment should be reversed that the verdict is contrary to the evidence; that it was the result of passion and prejudice; and that the court erred in giving, modifying and refusing instructions.

The evidence in this case was hopelessly in conflict. It cannot be reconciled. The testimony of appellant stands alone without corroboration, while the testimony of appellee was corroborated by several witnesses in several important details. If the testimony of appellant was true, then the testimony of appellee and all of his witnesses was false. It was for the jury to weigh the evidence and pass upon the credibility of the witnesses. Their verdict shows that they believed the testimony of appellee and his witnesses and disbelieved that of appellant. They saw the witnesses and heard them testify, and their determination on these questions should not be lightly disturbed. It is only where the finding of the jury, based on conflicting testimony, is so manifestly wrong as to shock the conscience and sense of justice of a reviewing court that it should be set aside by such court. If the testimony of appellee was true, and the jury evidently believed it was true, he was without doubt entitled to the judgment rendered, and we are not prepared to say that, if we were called upon to determine the facts on the record presented, we would not come to the same conclusion as the jury did. It is certainly true that the verdict is not so manifestly wrong as to warrant us in disturbing it on the ground that it is not supported by the evidence.

The claim of appellant that the verdict was the result of passion and prejudice is based on the fact that one witness improperly answered one question by saying, “Who can forget that countenance?” referring to the countenance of appellant, in connection with the further fact asserted by the attorney for appellant in his argument that appellant “was not a very prepossessing looking man and had a distinctively Jewish face,” and this we are asked to assume so inflamed the passions of the jury as to cause them to return a verdict against appellant. We are not prepared to take judicial knowledge that there is such a prejudice existing against the Jewish, or more properly speaking, the Hebrew race that a jury will be stampeded by having their attention called to the fact that a partisan before them belongs to that race or even that he is not handsome. This is essentially a cosmopolitan country,, and it would be a severe commentary on our prated claim that all men stand equal before our laws, if a court should hold that a man of any na-. tionality, though

“deformed, unfinished, sent before (his) time Into this breathing world, scarce half made up, And that so lamely and unfashionable, That dogs bark at (him),”

could not, on account of these facts, get justice at the hands of men qualified to be jurors. Neither can it be assumed that the references made by the witness to appellant’s countenance in any way accentuated any of his natural peculiarities. The jury had seen him, heard him testify, and knew he was the party before the occurrence complained of took place and if it is true that he had a “distinctly Jewish face,” and not a prepossessing one, the jury were aware of it before such reference was made, and that reference could have done no possible harm.

The court gave to the jury two instructions at the instance of appellee. The first one told the jury, in substance, that if they believed from the evidence that appellant had borrowed money of appellee, and had not paid it back, the plaintiff would be entitled to recover it back in this case with interest at five per cent. This instruction is criticised because the jury were not told that if they believed from the evidence and “from the instructions’’ or “under the instructions of the court.’’ While it is true that juries are to make their findings of fact under the instructions of the court, as to the law applicable to the case, and in coming to a verdict must apply the facts found to be true to the law as given them by the court, they are the sole judges of all controverted questions of fact, and they must find the facts from the evidence and not from the instructions of the court. The court has no right to instruct a jury as to the facts, except in cases when the facts are so far beyond controversy that the jury could not in the eyes of the law reasonably find but one way. The instruction as given was properly given.

Counsel for appellant says, “The instruction is also bad because, being directory in form, it does not embrace all the evidence which under the pleadings and evidence is essential to a verdict.” Whatever is meant by this objection it is safe to say the instruction is not subject to it. If there is anything essential to a recovery, where the defense is a general denial, beyond the fact that a person has borrowed money and has not paid it back, we are unable to conceive what it is.

The second instruction given at the request of appellee is the stock instruction following:

“The jury are instructed that if you believe from the evidence that any witness had knowingly testified falsely as to any material fact then you are at liberty to disregard entirely the testimony of such witnesses except in so far if at all as that testimony is corroborated by other credible testimony, or by facts and circumstances in evidence.”

The contention of appellant is that the words “as to any material fact” are not equivalent to “fact material to the issue,” while if the words suggested had been substituted for those used, the instruction would have been correct. Wé think the two expressions are equivalent and could not have been misunderstood by the jury. Instructions in which .the term “material” is used in the same connection without being coupled with the words “to the issue” have many times been approved by the higher courts of this state. Chicago City Ry. Co. v. Shaw, 220 Ill. 532; Hanchett v. Haas, 219 Ill. 546.

It is lastly contended that the court erred in refusing one instruction and in modifying several others. All proper elements in the instruction refused were included almost word for word in one given at the instance of appellee. The material modifications complained of were accomplished by striking out parts of the instructions that were found in other instructions given, if not in exact words, certainly in equivalent ones.

The practice of counsel in iterating and reiterating the same propositions of law in numerous instructions which they request the court to give is not to be commended. If the charge, as given, contains all the proper elements requested by him, a party cannot complain that they have not been repeated.

No error being found in the record, the judgment is affirmed.

Judgment affirmed.


text:
    Julia Lachmann, Appellee, v. Nathan H. Benson et al., Appellants.
    Gen. No. 16,100.

      Parties—who may not maintain action of trespass. One co-partner is not entitled to maintain an action of trespass for conspiracy, directed against and affecting the assets of the partnerships, which partnership has not been settled or adjusted.
    Trespass on the ease. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed January 17, 1912.
    Albert H. Meads, for appellants.
    No appearance for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

This is an action in trespass on the case begun by one partner against two defendants, one of whom was his copartner, charging a conspiracy between the defendants to wrongfully cause the foreclosure of a chattel mortgage on the property of the firm and the sale of the property, and that as a result of such conspiracy the chattel mortgage was wrongfully foreclosed and the property of the firm sold, by means whereof the plaintiff was deprived of her interest in the property and business of the firm.

The plaintiff in the court below recovered a judgment for $2,250. From this judgment the defendants appealed.

There is neither proof nor averment that the partnership had been dissolved nor that any settlement or adjustment of the partnership affairs had been made nor that there were no outstanding obligations of the firm at the time the claimed cause of action accrued. The property of a firm is held by all the parties subject to the partnership debts. What the interest of any one partner in the property and assets of a partnership is cannot be ascertained, except by a settlement of the partnership and its affairs. The profits and good will of a partnership business is as much the assets of the partnership as. is its tangible property. Sindelare v. Walker, 137 Ill. 43, and cases there cited.

Such damage, if any, as resulted from the wrongful foreclosure of the mortgage and the sale of the partnership property was, therefore, a damage to all of the partners jointly as a partnership, and not to the individual members thereof in severalty. There is no way of ascertaining what separate damage, if any, the plaintiff in this case sustained, until the value of her interest in the partnership is determined, and that cannot be ascertained in this proceeding.

We are fully satisfied that the plaintiff has neither in the averments in her declaration nor in the proof offered shown a right to recover.

The judgment of the court below, is therefore, reversed with a finding of facts to be incorporated in the judgment of this court.

Reversed with finding of facts.

Finding or Facts :

We find as ultimate facts in this case that the property which is the subject-matter of this litigation was, at the time suit was commenced and prosecuted, owned by the plaintiff and one of the defendants as co-partners; that there has been no dissolution of said partnership or any settlement between said partners with reference to said partnership property and business; and that plaintiff has sustained no separate or individual damage.


text:
    Meyer Coleman Barnett, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,112.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the evidence where it is not clearly and manifestly against its weight.
    2. Evidence—when as to ringing of bell competent. The question being, "Did it ring before that?” an answer as follows, "No, if it had I would have heard it, but I did not hear it,” is competent though not responsive, and in the absence of a specific motion to strike for irresponsiveness the answer is properly allowed to stand.
    3. Damages-—what may be considered in personal injury case. In fixing the amount of damages plaintiff is entitled to receive, the jury has a right to take into consideration not only the injuries to the plaintiff and the resultant conditions but also has a right to consider physical pain and suffering undergone.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, .presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed January 17, 1912.

      Samuel S. Page and Watson J. Ferry, for appellant.
    James C. McShane, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

On October 24,1903, appellant owned and operated a double track cable street car line on State street in the city of Chicago. State street runs north and south. The west track is used by south-bound cars and the east track is used by north-bound cars. In the early evening of that day appellee, then four days less than eight years old, in company with a brother about two years younger, started from their home on the west side of State street between 47th and 48th streets to go to the store of their father on the east side of State street and a few doors north of their home. They started north towards a building occupied as a laundry where a Chinaman had that day established himself. When near the building so occupied by the Chinaman, some one called out “the Chinaman is coming.” This so frightened the boys that they started on a run out int6 the street in a northeasterly direction towards their father’s store. This was near the middle of the block and not at a regular street crossing. Appellee was slightly in advance of his younger brother. There was at the same time a train of street cars, composed of a grip car and one trailer, approaching from the south, running about ten miles per hour, that being about the usual speed for cars between stopping points. This train and appellee collided at the point where appellee’s course crossed the east or northbound street car track, and the boy was severely injured, having both thigh bones broken and both bones of one leg below the knee broken twice and receiving a severe flesh wound. There was a reasonably good recovery as to the fracture of the thigh hones, but the bones below the knee did not properly unite and portions of them rotted away, and at the time of the trial, which was nearly six years after the injury, these bones were still rotting; that leg was two inches shorter than the other, and there was a running sore from which pus, forming about the rotting bones, flowed. The evidence tends to show that whether the bones will ever unite is problematical and that the leg’ may have to be amputated. The verdict was for appellee for $9,000, and judgment was entered thereon.

The negligence charged in the declaration is that, while appellee was exercising such care as could reasonably be expected of one of his years and intelligence, appellant ran, managed and operated its car in such a reckless, negligent and.improper manner that the same ran against and injured appellee. Appellant insists that the verdict is not justified by the evidence, but is manifestly against the weight of it; that it fails to show that appellant was guilty of any negligence, but does show that the accident was caused by the negligence of appellee; that improper evidence was admitted and that the verdict was excessive.

On the question of how the accident happened and what was the proximate cause of it, the evidence was conflicting. The jury were instructed fully as to the law in the case. The rights of appellant were set out in the instructions quite as favorably to it as the law will warrant, and no complaint is made of the action of the court in that regard. Among other things, the court instructed the jury that appellee was required to exercise that degree of care which could reasonably be expected of an ordinarilv careful and prudent boy of his age, intelligence and experience; that the exercise of that degree of care was of vital importance to appellee’s right to recover, and that if the preponderance of all the evidence did not show he exercised that degree of care at and just before the accident, he could not recover; that if the evidence was evenly balanced or preponderated in favor of appellant, appellee could not recover - that if appellee ran in front of the car and the motorman before and at the time he did so exercised ordinary and reasonable care to avoid injuring him, appellee could not recover; that the jury could not resolve any doubts they might have on any controverted fact in favor of appellee, but in such case should find such facts for appellant. We are unable to see how the jury could have failed to understand the basis on which appellee must recover, if at all. When the evidence is conflicting, and the jury is properly instructed, the verdict should not be disturbed, unless it is manifestly against the weight of the evidence. We have given all the evidence careful consideration, and feel satisfied that it fairly justifies a finding by the jury that appellee, at and immediately before the injury, was, and that any ordinary boy of his age, intelligence and experience would, under the same circumstances, naturally have been acting under fear of pursuit by the Chinamán; that the car approached appellee on his rear right side; that the bell on the car approaching from the south was not ringing; that appellee did not hear or see the car approaching, and that at and immediately before the injury appellee was in the exercise of ordinary care and caution for his own safety, commensurate with his age, intelligence and experience; that it was about fifty feet from the point where appellee started from the sidewalk to cross the street to the place where he received his injuries ; that while appellee was passing from where he left the sidewalk to where he was injured, there was nothing to prevent the motorman from seeing him and observing his movements; that the motorman did see him or by the exercise of ordinary care for the safety of persons who might be in the street and about to cross the street car track he would have seen him in time to have stopped his car and avoided the injury, and that the motorman was guilty of negligence in not stopping his car in time to avoid the injury.

The only error complained of in the rulings of the court on the admission of evidence is when the witness, Mrs. Cox, was asked, speaking of the bell on the north bound car:

Q. “Did it ring before thatl”
She answered: “No, if it had I would have heard it, but I did not hear it.”

A motion was made by counsel for appellant to strike out “her statement that she would have heard it.” This motion was denied. The question to which this answer was interposed was put to the witness by counsel for appellee, and if he had asked that it be striken out because not responsive, the court would undoubtedly have allowed the motion, but when the statement volunteered by a witness is relevant to the issue being tried, and is one the examining party would have a right to elicit, the opposing party cannot complain. 1 Thompson on Trials, sec. 706; Turck v. City of Chicago, 146 Ill. App. 472. The case of Math v. Chicago City Ry. Co., 243 Ill. 114, is not in conflict with the view above expressed, and is not in point here. While the language complained of is in form the expression of an opinion, it was in effect saying there was nothing to prevent her from hearing the bell if it had rung, and questions eliciting such answers have been many times approved by the courts of this state. C. & A. R. R. Co. v. Dillon, 123 Ill. 570, on p. 577; Peoria, Pekin & Jacksonville R. R. Co. v. Siltman, 88 Ill. 529; I. C. R. R. Co. v. Slater, 139 Ill. 190-200. There was no error in denying the motion to strike the answer of the witness from the record.

In fixing the amount of damages appellee was entitled to receive the jury had a right to take into consideration not only the injuries to appellee and the resultant conditions already mentioned, but had a right to also consider the physical pain and suffering undergone by appellee during the six years between the injury and the time of the trial, as well as what he will still be compelled to endure, and also the fact that he is crippled for life with all that that implies, so far as these facts are disclosed by the evidence, and while the amount fixed as such damages was substantial, we are not prepared to say it was more than under all the circumstances was fairly compensatory.

The judgment of the court below is, therefore, affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Brown Per Curiam.

text:
    Levi G. Hetzel, Appellee, v. George M. Fadner, Appellant.
    Gen. No. 15,935.
    1. P aether ship—construction of contract of, upon dissolution. Held, that where a contract provides for a credit in favor of one party to the partnership, a corresponding charge must be made against the other co-partner.
    2. Appeals and errors—when petition for rehearing may he properly stricken. A petition for rehearing may properly be stricken if its statements are inaccurate and disrespectful to the court.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed in part and reversed in part and remanded with instructions.
    Opinion filed February 5, 1912.
    Rehearing denied, February 19, 1912.
    Harris F. Williams, for appellant.
    John S. Hummer and Charles A. McDonald, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The complainant and defendant in this case were in partnership for a little over three years from June 11, 1901, in the business of dealing in real estate in Cook county and surrounding counties. They were quite successful in the buying of suburban lots in the vicinity of Chicago and selling them, mostly to non-resident purchasers, on installment contracts. They quarreled, however, and in January, 1904, dissolved partnership, but could not and did not agree as to the manner of liquidating the firm business noy on the proper accounting between themselves, although it was not a complicated matter. It certainly would have been the part of wisdom to do so.

In February, 1904, through the joint efforts of counsel retained by them respectively, an agreement was reached as to the general lines of a settlement of their affairs—all minor matters to be settled by the two lawyers they had engaged, and if the two lawyers could not agree, by a third party chosen by them. Most unwisely also this agreement was allowed to come to nothing, and on March 10, 1904, the complainant Hetzel, by filing a bill of complaint in chancery praying that a dissolution of the copartnership should be “declared” by decree and an accounting made between the partners, began a litigation which after continuing eight years has, in the present case, in one branch of it only, not involving a complete and final disposition of the whole matter nor the relief of the parties from the burden of future expenditures of time, money, energy and temper, brought to this court a record consisting of 2693 typewritten pages, and further printed matter for our consideration of 1379 closely printed book pages. We have considered it at length, but with what counsel and parties must realize was too great an expenditure of our time and attention (limited at least by the duration of human life and our terms of office), on which the parties in other cases pending here have an equal claim, to leave us with the leisure to discuss in an opinion the multifarious matters of evidence appearing in the transcript and abstract and the elaborate arguments which are made in the respective briefs. We shall not do so.

Master in Chancery Jamieson of the Circuit Court filed in the ease a report on March 7, 1908, to which the complainant Hetzel made forty-one objections (one of which was subdivided into eight others), and the defendant Fadner made (in installments) fifty-four. Two of the defendant’s objections, which were on purely formal matters, were sustained by the Master. All the other objections were overruled by him and after-wards stood by order of the court as exceptions to the Master’s report before the Chancellor. Of this report, however, counsel for defendant Fadner says in argument here: “We contend that Master Jamieson’s report on the merits was in the main correct. * * * It is supported by the evidence. We therefore insist * * * that the cause be remanded to the Circuit Court with instructions to that Court to enter a decree in accordance with Master Jamieson’s report except as to the expense items, the $1500 Edgewater item and the $500 item concerning which Fadner’s exceptions should be sustained.”

The Chancellor, however, who considered the report on the exceptions of complainant and defendant on July 1, 1909, disposed of them by overruling all Fadner’s exceptions and twenty-three of Hetzel’s, and sustaining in whole or in part the remainder of Hetzel’s. He also made in said order certain additional findings of fact and conclusions of law. He then proceeded also on July 1, 1909, to enter a decree in the case, from which and from the order disposing of the exceptions to the Master’s report Fadner, the defendant, prayed and was allowed an appeal to this court. The Chancellor in the Circuit Court made many findings of fact and law to sustain the ordering- part of the decree, which lays down certain rules and adjudicates certain matters in relation to the accounting, but by the instruction to the receivers before appointed to proceed with all convenient speed to settle and liquidate the affairs of said firm, and the express reservation of jurisdiction “for the purpose of hearing and disposing of any and all matters arising out of the receivership or out of the acts or proceedings of the receivers, and for the purpose of winding up and liquidating the affairs of the firm,” and for the purpose of entering any further orders or decrees necessary to carry into full force and effect the terms and provisions of the decree then entered, falls short, as before noted, of involving a complete and final disposition of the matters between the parties.

With this decree of July 10th, however, the complainant Hetzel seems satisfied. He has filed no cross errors. But on this decree, which not only recites that by previous order of the same day the court had confirmed in part and set aside in part the report of said Master Jamieson, but also that a previous report in the case of Master Wait stood approved and confirmed, the appellant Fadner has assigned in this court eighty-nine errors, covering every angle of the record brought up, and so far as said decree is concerned, summing up his objections thereto as follows in the eighty-ninth assignment:

“The said Circuit Court of Cook County erred in entering the said decree of July 1,1909, in that the said decree is contrary to the evidence, contrary to law, contrary to the Master’s report on the merits, and is without anything to support it in the record, it being based not upon the pleadings, not upon the evidence, •and not upon the Master’s report on the merits and in fact having no legitimate basis whatever.”

He closes his assignments of error with a prayer that we may remand the cause with instructions to enter a decree “which shall he based upon the pleadings and the evidence, and the Master’s report upon the merits as modified by the sustaining of Fadner’s objections and exceptions thereto.”

As before indicated, we shall not, in stating our conclusion, discuss the cause and the various issues raised.

It is quite evident from the tone of the controversy in this case that no good results could be expected of it. Neither party would be convinced if we differed from his already formed opinions. We have, however, with great care and diligence studied the matter so copiously presented to us, and our conclusion is that we should not disturb or modify the decree or order appealed from, except as to one item involved in the accounting.

In the copartnership agreement of November 7,1902, which renewed and continued business relations previously entered into between Hetzel and Fadner, the 19th paragraph was this:

“Whereas, on the 1st day of January, 1901, the said George M. Fadner was the owner and possessor of a long established business for the sale of real estate; and whereas, he had in said business gained a vast experience ; and whereas, the said Hetzel had no experience in the carrying on of said business and was taken into the full partnership with said Fadner on a certain subdivision in the City of Chicago; and whereas, said copartnership had since said time extended to various other subdivisions; and whereas, it would have cost said Hetzel considerable time and money to gain the knowledge and experience of the said George M. Fadner in the carrying on of a similar business; and whereas, the said Hetzel contributed no money to the said copartnership, therefore it is agreed by said Hetzel and accepted by said Fadner that upon the final accounting between said copartners the said Fadner shall be entitled to receive from out of the copartnership moneys the sum of One Thousand Dollars ($1000) in excess of his one-lialf interest in said copartnership assets. ’ ’

In disposing in the accounting of this item of $1000 Master Jamieson credited Fadner with it by this item:

“Due from Hetzel under contract, $1000,'" and also charged it against Hetzel under the item, “Charged against Hetzel under his contract with Fadner, $1000.”

This is the proper method of computing if the meaning of the clause above quoted is to be considered precisely expressed by the words, “Fadner shall be entitled to receive from out of the copartnership moneys the sum of One Thousand Dollars ($1000) in excess of his one-half interest in said copartnership assets.”

It is obvious that if out of a certain fund belonging to A. & B., A. is to receive one thousand dollars more than one-half, B. must receive one thousand dollars less than one-half.

In sustaining “Exception 9 (e) ” to the Master’s report, however, the Chancellor made the following ruling: "

“Exception nine (e) is sustained to the extent that the sum of $1000 mentioned in the contract of November 17th, 1902, should be credited to Fadner’s account and charged against the firm, and should not be charged against Hetzel personally, as was done by the Master. ’ ’

To justify this ruling by the Chancellor on this one thousand dollar item, counsel for Fadner in their argument first refer to Hetzel’s testimony as showing that his understanding agreed with the Chancellor’s interpretation of the contract, then argue on the injustice under the circumstances of any allowance whatever on this account to Hetzel, and conclude by saying that “the Chancellor placed himself in the position of the two contracting parties as of the date of the making of the agreement, and endeavored to ascertain their intention from the whole agreement.”

The language of the agreement is too plain to admit of construction of this kind. The amount provided for as compensation for Hetzel’s being otherwise allowed an equal interest in the firm was one thousand dollars to be subtracted from Hetzel’s half and added to Fadner’s half. The construction adopted by the Chancellor makes this amount but $500.

In this particular the order of July 1, 1909 (disposing of the exceptions to the Master’s report), and the decree of July 1, 1909, must be modified. In all other particulars we have determined, after diligent examination, that the Chancellor was right, or at least that there is no such preponderance of evidence on the facts or such error in his conclusions of law as to require us to disturb or to justify us in disturbing his decision.

The costs in this court will be divided, each party to pay one-half the costs in this Court. The cause will be remanded to the Circuit Court with instructions to modify the order of July 1, 1909, disposing of the objections to the Master’s report, and the decree of July 1, 1909, appealed from, in the single matter indicated in this opinion. In all other respects the said order and decree are aErmed.

Affirmed in part and reversed in part and remanded with instructions.

Opinion on Petition for Rehearing.

Per Curiam.

The petition for rehearing filed by the solicitors for the appellant in this case is denied. We do not desire to modify the opinion filed in the cause, but feel it our duty to place upon record our disapprobation of the statements of said petition.

In the petition it is repeatedly stated that, except for one matter, as to which we directed the modification of the decree of the Chancellor below, his decree and order of July 1, 1909, was affirmed by ns pro forma. This statement is entirely unjustified. The statements of the opinion should have prevented counsel from so believing or so stating. In that opinion we said we had considered the record in the matter placed before us at length and had studied it with great care and diligence. After discussing at length the item in which the decree below was modified, we say that “In all other particulars we have determined, after diligent examination, that the Chancellor was right, or at least that there is no such preponderance of evidence on the facts or such error in his conclusions of law as to require us to disturb or to justify us in disturbing his decision.”

The statute which governs our opinions says that they shall be reduced to writing and briefly give the reasons for such opinion or decision. This we have done in the opinion filed in the language indicated. The inaccuracy and impropriety of the statements and language of this petition would have justified us in striking it from the files.