author: Mr. Justice Brown

text:
    Harry Lea Dodson, Appellant, v. Bennet D. Marks, Appellee.
    Gen. No. 14,472.

      Instructions—when slight inaccuracy will not reverse. Slight inaccuracy in instructions will not reverse where it appears that substantial justice has been done.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 20, 1909.
    Statement by the Court. The plaintiff and appellant, Harry Lea Dodson, sued the defendant and appellee, Bennet D. Marks, in assumpsit on August 2, 1907. He began the action by an attachment and garnished the Foreman Bros. Banking Company. In his affidavit to secure the attachment the plaintiff swore that the defendant was indebted to him (the plaintiff) in the sum of $10,000, upon a contract for services as patent attorney, and promoting a certain invention, and that the defendant was not a resident of this State; that his place of residence was unknown and that upon diligent inquiry the plaintiff had not been able to ascertain it. He filed a declaration containing only the consolidated common counts. The defendant pleaded the general issue and demanded a more specific bill of particulars. This was filed as follows:
    ‘.‘To the value of one-third of ten thousand shares of the capital stock of the Marks Automatic Wood Reproducing Company, the property of the plaintiff converted by the defendant to his own use............$10,000.00
    To interest on the above to date of payment.
    To one-third of the proceeds and benefits derived from the sale of United States letters Patent on a certain graining machine, issued to defendant for the joint benefit of plaintiff (including the above $10,000, to-wit) ..:.................... 20,000.00
    To services in perfecting certain wood graining devices in such form as to obtain United States Letters Patent on same, organizing Companies, interesting capital, etc., and services in making the above valuable and salable, and establishing a market for the same (to-wit, one-third part of the proceeds derived from the sale of the above,) all per verbal agreement..... 10,000.00
    To services in perfecting a certain wood graining device in such form as to obtain United States Letters Patent on same, organizing ' companies, interesting capital, etc., and services in making the above valuable and salable, and establishing a market for the same (one-third certain other part of the proceeds derived from the sale of the above), all per verbal agreement, to-wit..........................8,000.00.”
    The defendant also filed a traverse of the attachment affidavit, praying judgment of the writ. It asserted that the defendant was, at the time of the commencement of the action and the filing of the affidavit for attachment, a resident of this State; that he resided at 4814 Vincennes avenue in Chicago, and had resided in Chicago for five years last preceding.
    This cause was submitted to a jury, both on the merits and on the attachment issue, and the jury found both issues for the defendant.
    A motion for a new trial was made and overruled, and a judgment of nil capiat and for costs against the plaintiff and this appeal followed.
    In this court the appellant has assigned as errors, that both verdicts were against the law and the evidence ; that the trial court erred in rulings on evidence, in instructing the jury, in overruling the motion for a new trial, and in entering judgment against the plaintiff.
    Eastman, Eastman & White, for appellant.
    Bichard J. Cooney, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

Great reliance is placed by the appellant on the position that the tenth instruction given at the request of the defendant was erroneous. The instruction was as follows:

“If you believe from the evidence that the defendant employed the plaintiff to secure letters patent on a certain improvement in graining machines and printing rollers, and that the plaintiff agreed with the defendant to charge a stipulated price for said services in securing said letters patent; and if you further believe from the evidence that the defendant has paid to the plaintiff the sum of money which he agreed to pay the plaintiff for his services in securing the said letters patent, if you believe from the evidence any certain sum was agreed to between the parties, then the court instructs you that your verdict must be for the defendant.”

The contention of the plaintiff is that this instruction is erroneous, because, although directing a verdict, it omits the real issue for the jury to decide. He alleges that there was no controversy in the evidence on the proposition that: (1) defendant employed the plaintiff to secure letters patent; (2) that the plaintiff agreed with the defendant to charge a stipulated price for said services in securing said letters patent.; and (3) that defendant has paid- the plaintiff the sum of money which he agreed to pay the plaintiff for his services in securing said letters patent.

But the plaintiff says the question in the case really is: Was there not promised (in addition to this1 stipulated sum which was paid for procuring the letters patent) certain other sums, contingently or otherwise, for “the trip to Washington, the ideas for means to get around existing patents, the interviewing and interesting capitalists, the promotion business,” etc.!

If this were all accurately stated, it is quite evident that the tenth instruction could only be made correct by inserting the word “only” after the words “the plaintiff” in its opening clause, making it read:

“If you believe from the evidence that the defendant employed the plaintiff only to secure letters patent,” etc.

But the proper answer to the argument that the omission of this qualification in the instruction should reverse this judgment is two-fold. In the first place, consideration of the pleadings and evidence makes us disagree with the statement that there was no dispute about the three propositions above formulated. Undoubtedly, there was no controversy over the proposition that defendant employed the plaintiff to secure letters patent; but we think both pleadings and evidence show that the plaintiff himself did dispute the proposition that he had agreed to charge a stipulated price therefor, and the proposition that the defendant had paid him such stipulated price.

The impression made on our mind is the same which evidently was made on the mind of the trial judge, and which he intended to indicate by the instruction complained of, namely, that the contention of the plaintiff was that his services were to involve more action in the interest of the patent owner than the mere securing of the letters (although that was to be included), and that they were to be paid for on a contingent basis by a portion of the net result of the issuance and disposition of the patent; while the contention of the defendant was that the services for which the plaintiff was employed were only those necessary in procuring the patent, and that for those a stipulated sum was named and paid. In other words, we fail to see where the plaintiff asserts, either in pleadings or evidence, that there was one contract (which was fulfilled) for obtaining the patent, and another (which was unfulfilled) for other services in connection therewith.

And although in the condition of the record which actually existed, it would not have injured, and would have rendered more precisely accurate, the instruction above quoted to have inserted the limiting word “only” as suggested, yet its absence by no means renders the instruction obnoxious to the same criticism to which it would be liable if the other alternative suggested, of two contracts, was presented by the record.

We think that as the record actually stood the issue really presented was made by a sharp contradiction between the plaintiff’s story and the defendant’s story, and that in connection at least with the other instructions given, the tenth instruction above quoted stated fairly enough the defendant’s theory of the case, and did not and could not in reason have misled the jury.

There is, however, as we have indicated, a second reason for not considering that the giving of the tenth instruction was reversible error. We think the judgment should be allowed to stand because, it seems to us that justice has been done between the parties.

The plaintiff’s argument asserts that where the evidence is conflicting the instructions must be precisely accurate or the judgment will be reversed.

It would state the rule laid down in the cases cited better, to say, “Where the case is close on conflicting evidence, the instructions must be accurate or the judgment will be reversed.”

In this case the evidence is indeed, conflicting, but we do not deem the case so close as to come within that rule.

We have given due weight to all the circumstances marshalled by the plaintiff’s counsel in his brief, and have compared and studied the differing stories of the witnesses in the record diligently. But the testimony to the settlement and the actions and words of the plaintiff at that time, given by the defendant and cor-' roborated to the fullest extent by the witness Gris-wold and, so far as it goes, by the written evidence, seems to us stronger than the plaintiff’s own story, with the inferences drawn from the admitted facts by plaintiff’s counsel added.

To discuss the evidence would be useless for the purposes of this opinion.

We do not think the ninth instruction is open to the criticisms made of it.

As for the attachment issue, the evidence on this also was conflicting, but the jury passed on it in accordance with our view of its weight.

The judgment of the Municipal Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Rosa Rumpza, Appellee, v. Knickerbocker Ice Company, Appellant.
    Gen. No. 14,483.
    1. Verdict—when not disturbed. A verdict will not be set aside on review as against the evidence unless clearly and manifestly so.
    2. Instructions—when upon permanent injury appropriate. Held, that the evidence justified an instruction to the jury by which they were told among other things that they might take into consideration “the effect which such injury may have, if any,- on the future health of the plaintiff."
    3. Instructions—as to pain and suffering sustained. Held, that the instruction made the subject of complaint in this case did not authorize the jury to find damages for any pain or suffering except that caused by the injury.
    4. Instructions—when refusal of correct not error. It is not error to refuse a correct instruction if its substance is substantially contained in other instructions given.
    5. Instructions—when upon care required of minor^ defective. An instruction upon the subject of the care and caution required of a minor is defective if it omits the word "experience.”
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 20, 1909.
    Ben O’Hara and Lawrence W. Potter, for appellant; Quin O’Brien, of counsel.
    Arnold Tripp, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

We are reminded by counsel in this cause that it is the province and duty of the Appellate Court to reverse a judgment based on a verdict manifestly and clearly against the weight of the evidence. We have this brought to our attention too often to be likely to forget it. But it is at least equally our duty to refrain from putting ourselves into the position of a jury and passing on degrees of credibility in witnesses who tell conflicting stories, or determining that a judgment shall not stand because based on a verdict to which we might not be inclined were we jurymen.

Whether the defendant’s servant was guilty of negligence in the accident which caused the injury to the infant plaintiff, was in this case a question for the jury. We think there was evidence tending to show that the appellant’s heavy team was coming at a trot on a-north and south street, turned a short corner into an east and west street and knocked down the little girl, who was crossing the street on her way to school. This would constitute a fair ground on which to base the verdict, we think.

The driver of the wagon and other witnesses deny this statement of the accident and give a different description of the occurrence. But we cannot say that there is "any such manifest preponderance in their version of the story as to justify us in disturbing the judgment on that ground.

The only erroneous rulings during the trial which are complained of, are those relating to one instruction given and two which were refused.

It is said that without any evidence to base it on, the third instruction given at the request of the plaintiff directed the jury to give damages for permanent injuries, and also was erroneous because it did not confine compensation for plaintiff’s suffering to that caused by the accident. The instruction was as follows:

“If from the evidence the jury find the defendant guilty, then in determining the amount of damages (if any), you have a right to take into consideration the nature and extent of the injury (if any), the pain and suffering of the plaintiff (if any is shown), the length of time the plaintiff has been sick as the result of the injury (if any), and the effect which such injury may have (if any) on the future health of the plaintiff, and award to the plaintiff such a sum as you shall believe Prom all the evidence to be a fair compensation for the injury sustained.”

We see nothing erroneous in the instruction. The phrase “and the effect which such injury may have, if any, on the future health of the plaintiff,” was justh tied by the evidence, which tended to show continued suffering to the time of the trial. Kennedy v. Swift & Co., 234 Ill. 612.

The other objection to the instruction is hypercritical. No person fit to sit on a jury would understand the instruction to require the jury to find damages for any pain or suffering except that caused by the injury.

The appellant complains because tendered instruction 27 was not given to the jury. It was as follows :

“The court instructs you that if you believe from the evidence that the defendant’s servants drove the team and wagon on a slow trot and in a reasonably careful manner at and before the time of the accident, and that, when said team was near the cross-walk in question the plaintiff, Rosa Runmza, ran north towards the center of Wrightwood avenue, and that when she had gotten part way across said avenue she stopped running and turned back and then suddenly ran north again into the pole chain or pole of the wagon, and was thereby knocked down, and if you further believe from the evidence that such action on the part of the plaintiff was a want of such ordinary care as might reasonablv be expected of a girl of her age, capacity and intelligence, under such circumstances, then you should find the defendant not guilty.”

The appellant says this was the only instruction specifically covering appellant’s theory of the case. We do not think this conveys an accurate impression of the instructions.

If no other of the instructions contains exactly the same hypotheses, the principles involved in some of them separately, and especially the principles clearly set forth in the instructions given, when viewed as a series, clearly cover anything of legal doctrine which could help the jury in the instruction tendered.

Thus, for illustration merely, the difference between the hypothesis that under certain circumstances the plaintiff “suddenly ran from a place of safety on the sidewalk out into the driveway of the street and towards the team in question,” as stated in the 4th instruction, and the hypothesis that the plaintiff, under the same circumstances, “ran north towards the center of Wrightwood avenue, and that when she had gotten part way across said avenue she stopped running and turned back and then suddenly ran north again into the pole chain or pole of the wagon, ’ ’ is not such a difference as would make against the defendant. The jury certainly would understand that the principle or doctrine which was applicable to the circumstances mentioned in the 4th instruction would have even greater strength in the case supposed in the 27th.

But apart from this, the instruction is, according to a very recent decision of the Supreme Court, defective in the omission of the word “experience” in setting up the standard by which to judge the plaintiff’s conduct. Fowler v. Chicago & Eastern Illinois R. R. Co., 234 Ill. 619.

It is true that in that case the fact that the instruction (which was offered by the plaintiff) did not recognize “experience” as a necessary factor in the standard, operated in favor of the defendant and reversed the judgment against it; but the absence of the word might he as likely to militate against the plaintiff as against the defendant, and the same reason that made the instruction offered in the Fowler case by the plaintiff erroneous, made' the one under discussion here, offered by the defendant, objectionable. We think, moreover, the jury were thoroughly and sufficiently instructed in the law of the case. Even though it might not he error to give a certain instruction, it does not necessarily follow that it is erroneous to refuse it.

There was, in onr opinion, no error in refusing the instruction numbered 28, submitted in behalf of appellant. Examination of the medical testimony in the record entirely fails to convince us that (to use the language of defendant’s argument) “there was evidence of unskillful treatment on the part of the doctors, aggravating the injury and delaying the cure.” There being no such evidence, there would have been no propriety in giving the instruction.

The clerical error by which the judgment was ordered paid in “due course of receivership,” when no receivership of the defendant existed, has been corrected in the court below, and a supplemental record in this court has shown it here.

We do not think the case is one for the assessment of damages for delay, but the judgment of the Circuit Court of Cook county is affirmed.

Affirmed.


text:
    George B. Meleny, Appellee, v. Library Bureau, Appellant.
    Gen. No. 14,489.
    1. Instructions—when error wilt reverse. An Instruction Is erroneous and requires reversal which is likely to mislead the jury into believing that the court had heard and remembered testimony during the trial which they had forgotten.
    2. Arreáis and errors—when error will reverse; when not. Under the doctrine of Crane v. Hogan, 228 Ill. 340, a judgment will not be reversed unless error is affirmatively made to appear, but whenever error is shown to exist it will compel a reversal unless the record affirmatively shows that the error was not prejudicial.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Mancha Bruggbmeyer, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed May 20, 1909.
    Ahdrew J. Eyax, for appellant.

      Custer & Cameron, for appellee; Timothy F. Mullen, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The appellee’s statement of this case seems to us accurate and we adopt it substantially.

Meleny, the appellee, brought this suit against the Library Bureau, an Illinois corporation, to recover a balance claimed to be due under a contract of employment for the year 1905. He served the company as general manager. His contract for that year gave bim a yearly salary of $6,000 and “in addition 25 per cent of the earnings of the business after first taking out $20,000 from the profits.”

The salary of $6,000 was paid from month to month, and on account of the additional compensation he collected $9,000 in stock (afterwards converted into money), leaving a balance which the parties agreed was to be paid in cash. This suit was brought to recover that balance with interest.

The dispute is over the meaning to be placed (in the light of all the evidence) on the words, “the earnings of the Library Bureau of Chicago above $20,000, for the year ending 1905,” as they appear in defendant’s Exhibit 7, where the Library Bureau says, by its President, in a letter to Meleny, dated December 19, 1904:

“The understanding is that we will guarantee to you an additional salary of a sum equal to 25% of the earnings of the L. B. of Chicago above $20,000 for the year ending 1905.”

Meleny claims they mean the net gains or profits from the business of the Bureau of any sort, and relies upon a statement prepared by the Library Bureau’s Auditor and handed to Meleny by Davidson, the President of the Library Bureau, at Boston, in February, 1907. This Auditor’s statement is in evidence, and it includes the “Profits and Loss Account for year ending December 31, 1905, ’ ’ as follows:

“Net Profit on Sales.. 7,764.85
Gain on Library Primes............. 216.55
Inventory Profits..... 38,540.97
Fire Loss Account.... 818.97
Gain on Wabash Avenue Lease.......... ' 6,323.39
Mfg. Corporation per cent. Amt. Appropriated ............... 70,725.22
Less Mfg. Corpn. expns. 31,140.64
Adm. Corpn. expns,... 20,092.29
51,232.93 19,492.29
Pay Poll of Dec. 31,1904, Chgd. in 1905 acct... 2,682.84
75,839.86
Loss:
Loss on Public libraries ............ 2,109.67
Strike Account...... 2,047.94
Depreciation of Plants 5,446.05
Bad Debts.......... 16.30 9,916.96
Net gain on 1905 business............66,219.90”

Deducting $20,000 from the “net gain on 1905 business,” leaves $46,219.90, of which 25% is $11,554.97.

Crediting on this $9,000, which Meleny received in stock (afterward converted in money), leaves $2,554.97, which is the amount for which Meleny sued in this case.

The jury to whom the issues were submitted took his view of the matter. But an item of $204.74, being 25 per cent, of the $818.97 appearing in the “Profit and Loss Account” as “Fire Loss Account,” was waived by the appellee before the case went to the jury. This reduced Meleny’s claim to $2,350.23, and the jury returned a verdict for that amount, plus one year’s interest at 5 per cent. The interest was remitted by appellee and judgment entered for $2,350.23.

The objection made by the appellant to this amount involves these items in the Profit and Loss account:

On the credit side:
Gain on Wabash Avenue Lease...........$6,323.39
Fire Loss Account...................... 818.97
On the debit side:
Loss on Public Libraries................. 2,109.67

As to the first of these items, it is claimed by defendant that it should not be included among those which make up the “earnings” from which Meleny’s additional compensation is to be paid.

Besides a contention that the profits on the lease should not be included because the “earnings” of the Library Bureau meant, in the light of the evidence, “net trading profits” or “net trading earnings,” which would properly exclude the “gain on the lease,” it is insisted that the lease belonged to the Library Bureau of New Jersey (another corporation), and any “gains” from it had no place in the profit account of the Library Bureau of Illinois.

As to the second item—“Fire Loss Account, $818.97” —the arvnellee says in his argument: “The evidence as to the ‘Fire Loss’ item was confusing; the amount involved was only $204.74, or 25 per cent of $818.97, and before the case went to the jury the appellee waived this item.” But this concession does not satisfy appellant, who contends that the evidence not only does not show a gain of $818.97 on this account, but does show a loss of $2,332.15, one-fourth of which, or $583.04, should be deducted from the amount allowed by the jury to the appellee.

The third item disputed is on the debit side—“Loss on Public Libraries, $2,109.67.” For the purpose of calculating the amount due to the plaintiff, this amount should be doubled, says the defendant, because the loss of the Library Bureau of Illinois on the magazine “Public Libraries” was really $4,219.34, one-half of which, by way of donation, the Library Bureau of New Jersey made up to the Library Bureau of Illinois.

The appellee resists this contention by the proposition that the “Loss on Public Libraries” really represented advertising expense, borne primarily by the Library Burean of Blinois, but refunded to the extent of one-half by the Library Bureau of New Jersey, whose business purposes it equally subserved. The payment of $2,109.67 by the latter corporation therefore was no donation, but a payment lessening the “expense” or “loss” by that amount, and legitimately reducing it to the amount in which it appeared in the Auditor’s account.

This view, it is contended by appellee, is borne out, among other ways, by the fact that the evidence shows that another employe of the Library Bureau of Blinois, named Burrage, who had a contract for additional compensation in almost every respect identical with Meleny’s, was allowed the benefit of this payment.

The appellant admits and claims an agreement or settlement which took no account of the item of $583.04, which it says should justly be deducted from Meleny’s claim on account of “Fire Loss,” but insists that on account of the “Wabash Avenue Lease” matter there should be deducted one-quarter of $6,323.39, or $1,580.85, and on the Public Libraries matter one-quarter of $2,109.67, or $527.41, making together $2,108.26. This item taken from $2,350.23 leaves $241.97, which sum the appellant says in its opinion is the amount for which a verdict and judgment should have been rendered.

Although we have thus, at some length, stated the contention of the respective parties, we do not propose to discuss the weight of the evidence on them. We might be content to leave the verdict of the jury undisturbed, if a very serious admitted error had not been committed in instructing the jury.

The fourth instruction given at the request of the appellee was this:

“If the jury believe from the evidence that the defendant had an agreement with one or more persons other than the plaintiff, by which such person or persons was or were entitled to a percentage of the profits of the business of the defendant for a certain year or years, and if they further believe from the evidence that in determining the amount of profits upon which such person or persons would be entitled to a percentage, the defendant admitted that the profits for the year 1905, growing out of the so-called Wabash Avenue lease, were a part of the profits for that year, upon which such person or persons were entitled to a percentage, then the jury are instructed that such admission, if any, is evidence to be considered by them in this case in determining whether the plaintiff is entitled to his percentage on such profits, if any.”

The appellant claims that giving this instruction was error, because there is no evidence in the record of any such admission by appellant, nor evidence from which any inference can be drawn that such an admission was made.

The tendering and giving of the instruction seems to have been the result of a misapprehension and the confusion of the “Public Libraries” matter with the “Wabash Avenue Lease” matter.

The appellee does not deny that giving the instruction was error, but argues that it should not result'in reversal.

He quotes from Bettis v. Green, 171 Ill. 495, the language : “It is well settled that to authorize a reversal of a decree, it must appear not only that an error intervened, but the record must contain enough to raise and justify the inference that the error was prejudicial or probably prejudicial to the party who asks reversal.”

The argument of appellee then proceeds: •* ‘ The only result unfavorable tq the appellant to which this instruction might have contributed, was the finding by the jury that the profits of the Wabash Avenue Lease were a part of the appellant’s earnings for the year 1905. We have labored fruitlessly if the Court is not convinced upon the whole evidence, that such was the fact, and that with or without this instruction, the jury could not have found otherwise. A finding to the contrary would not he allowed to stand.”

Perhaps if we could yield our assent to the concluding sentence of this paragraph of the appellee’s argument, we could bring the admitted error within that class of errors which alone the Supreme Court in a much later case than Bettis v. G-reen says are harmless, not requiring reversal.

In Crane v. Hogan, 228 Ill. 340, the Supreme Court says: “A judgment will not be reversed unless error is affirmatively made to appear, but whenever error is shown to exist it will compel a reversal unless the record affirmatively shows that the error was not prejudicial.”

But even if we follow what seems to us the less drastic rule laid down in the earlier case, and require something in the record justifying the inference that the error was prejudicial, to prevent affirming, rather than something which shall “affirmatively show” that it was not prejudicial, to nr event reversing, we cannot, in this case, overlook this admitted error. The principal matter left„to the jury was this very item of the alleged gains on the Wabash Avenue lease. The instruction was very likely, under the circumstances, to mislead the jury at least into believing that the court had heard and remembered testimony during the trial which they had forgotten; and altogether we can neither say that “a finding to the contrary would not have been allowed to stand,” nor that there is not enough in the record “to raise and justify the inference” that the error was “probably prejudicial” to the party who asks reversal. At all events we certainly cannot say that “the record affirmatively shows that the error was not prejudicial. ’ ’

For the error indicated we must reverse the judgment and remand the cause for a new trial.

We do not think that the other instructions complained of were erroneous, nor do we express any opinion on the weight of the evidence.

The judgment of the Municipal Court of Chicago is reversed and the cause remanded to that court.

Reversed and remanded.


author: Mr. Justice Holdom

text:
    The Pope Metal Company, Appellee, v. The Sandoval Zinc Company, Appellant.
    Gen. No. 14,447.
    1. Contbacts—against whom, ambiguities resolved. If words of a contract are of doubtful import, then he who creates the doubt must have it resolved against his interest and in favor of the party upon whom he caused it to be imposed.
    2. Contbacts—when and how rescission made. A rescission ■ should be made at the earliest practicable moment and notice of rescission must be given to the party in interest.
    3. Damages—when purchase in open marlcet aptly made. A party who has contracted for the purchase of merchandise has a right to assume that the other party will carry out his contract and make delivery and until such other party has definitely declined so to do a purchase in the open market need not be made. A purchase made upon the day after definite refusal to make delivery is in apt time.
    4. Measube oe damages—in action for failure to deliver merchandise. In an action for failure or refusal to deliver merchandise as per contract, the measure of damages is the difference between the contract and the market price at the time of such failure or refusal.
    5. Evidence—when admission of erroneous, will not reverse. Where the trial was before the court without a jury the Appellate Court will assume that the trial judge based his judgment on relevant testimony to "the exclusion of all to which objections made could be sustained.
    6. Appeals and eeeobs—what abstract should contain. Abstracts filed to facilitate the review of a cause should comply with the rules with respect thereto and among other ■ things should contain indices.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Geobge A. Dupuy, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 20, 1909.
    Statement by the Court. The Pope Metal Company sued The Sandoval Zinc Company in an action of assumpsit for breach of contract. • The parties waived a trial by jury and the cause proceeded to trial before a judge of the Superior Court, who, after hearing the proofs, rendered a judgment sustaining plaintiff’s claim and assessing its damages at $375. From that judgment this appeal is prosecuted by defendant.
    In assigning error for reversal and in argument, defendant challenges the validity of the contract sued upon and the method adopted in admeasuring damages for its breach.
    Defendant among other products manufactured, at St. Louis, Missouri, and at Sandoval, Illinois, a zinc commodity known as “spelter.” The contract in dispute was brought about substantially in the following manner: Charles S. Trench & Co., of New York City, brokers in tin plates, lead, spelter, etc., wrote to The Illinois Smelting & Refining Company, inquiring for some “spelter.” This letter was turned over to defendant, who wrote Trench & Go., “We are in receipt of your letter of September 9, which has been referred to us by the Illinois Smelting & Refining Co., and in reply we beg to offer you two cars of spelter for September for $5.65 per hundred pounds delivered E. St. Louis basis. This price is subject to immediate wire acceptance on receipt of this letter.” Trench & Co. immediately, on September 13, 1905, complied by telegraphing defendant as follows: “Sold fifty tons of Prime Western Sandoval Spelter your offer. Commission y2 %. Telegraph instantly what allowance if delivery taken Sandoval, Ill. Also quote duplicate lot.” Defendant responded by telegraph to Trench & Go., acquiescing in the sale in these words: “Have booked your order 50 tons Sandoval Spelter. Send shipping directions. Sandoval and E. St. Louis freight same basis.” These telegrams of Trench & Co. and defendant were followed by confirmatory letters from each to the other; defendant declining to make any allowance on account of freight because the rates were the same from Sandoval and E. St. Louis. On September 15, 1905, defendant attempted to rescind the contract and returned all the papers to Trench & Co., but the latter refused to permit of a cancellation, insisting on the contract being carried out as made, and returned to defendant the enclosures sent in its letter of September 15th. Some other correspondence passed between Trench & Co. and defendant, but not until September 27, 1905, did defendant indicate an inclination to repudiate the sale, which it did by letter to Trench & Co., which was called forth by a letter of plaintiff to defendant in which plaintiff notified defendant that it would hold defendant to the terms of its contract and for damages if it failed to perform. To most of the letters of Trench & Co and to one from plaintiff, defendant turned a deaf ear, and it wrote no letters between September 15th and 27th. On October 3, 1905, plaintiff again wrote defendant a letter covering the whole situation and reciting its contract for 50 tons of spelter made with the brokers, Trench & Co., for its account, and asserting that a failure to perform the contract would be met by appropriate steps on its part to enforce its rights thereunder. Plaintiff on the same day wrote Trench & Co., saying inter alia, “We now beg to advise you that in the event of the Sandoval Zinc Co. failing to fulfill their contract within a reasonable length of time from the date of this letter, we shall purchase in the open market in E. St. Louis a similar quantity of spelter as that sold us, and should we by such purchase be at any loss, we shall hold them for the amount of such loss.” Defendant, spurred in a measure by plaintiff’s letter, on the next day, October 4, 1905, wrote Trench & Co. in part as follows: “Kindly see that we have shipping instructions for the 50 tons of spelter sold you Sept. 13 not later than October 9th,” and then demanded a new contract “showing that the delivery is to be made from Sandoval.” Plaintiff, on being informed, October 6,1905, by Trench & Co. of this latest attitude of defendant, responded to the effect that it was satisfied with its contract and did not desire to modify it in any way, reciting the fact that it had accepted the contract in writing. However they added, “We do not object to a delivery of zinc at Sandoval, Ill., provided that we can obtain the same rate of freight to New York, Cambridgeport and Boston, Mass., as we can from St. Louis, but we think under the circumstances you had better insist upon the original delivery at E. St. Louis, Ill.” After this Trench & Co. wrote several letters to defendant, but received no responses to any of them until October 28, 1905, when defendant wrote to Trench & Co. under that date, thus: “Replying to your several favors, we wish to state that when we directed you to dispose of fifty (50) tons of spelter we made certain terms and conditions, and as you saw fit to change them we consider same no sale.” On October 30, 1905, Trench & Co. communicated to plaintiff by letter defendant’s ultimatum of the twenty-eighth of October, repudiating the contract, whereupon plaintiff the next day instructed Trench & Co. to buy 50 tons of spelter in the New York market F. O. B., E. St. Louis, for account of purchase of defendant, which Trench & Co. did, paying therefor $6.02% per pound, the difference between the contract and market price on the day last mentioned being $375, the amount of the judgment appealed from.
    Daniel M. Rothschild, for appellant.
    Paddock, Furness, Clarkson & Rutter, for appellee; Vm; Eliott Furness, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

The evidence clearly establishes that Trench & Co. had authority as the broker of defendant to make the sale of 50 tons of spelter, which it did, for its account, to plaintiff on September 13, 1905. Not only was the authority sufficient, but the sale was expressly and in terms ratified by defendant in its letter of same date confirming the broker’s telegraphic report of the sale. While two days thereafter there was an attempt on the part of defendant to avoid the sale, in a letter to Trench & Co. returning the papers, yet they accepted a return of the papers made by Trench & Go., and not until September 27, 1906, did defendant actually repudiate the sale—not by notice to plaintiff, but to its brokers. Defendant, however, receded from its attempt at repudiation by asking Trench & Go. for shipping instructions October 4, 1905, and thereby again ratified the sale which its brokers had made to plaintiff. We therefore have a contract made originally by an agent—the broker—with authority, and a double ratification of the contract by the principal. But defendant finally, and without any logical reason therefor, on October 28, 1905, refused to carry out the contract and repudiated its obligation in virtue of it. With these repeated ratifications of the broker’s actions in making the contract, we are little concerned with the question, argued at some length, in relation, to the extent of the broker’s authority, or the power of Trench & Co', to bind defendant in the terms in which the contract was made. Nor are we able to discover that the contention as to freight rates injected into the case by defendant, is of any moment. If the term "E. St. Louis basis” meant anything else than a reference to the- rate of freight obtaining at that point, or, as commonly understood, goods to be ££F. 0. B.,” free on board cars at the point of shipment, it was a latent ambiguity created by defendant in the use of a vague term. If these words are of doubtful import, then he who created the doubt must, under well-settled legal principles, have' it resolved against his interest and in favor of the party upon whom he caused it to be imposed. Foster v. Rockwell, 104 Mass. 167; Diversy v. Kellogg, 44 Ill. 114. But even these questions are without any significance if we read the record aright, because, as it clearly shows, plaintiff was willing to accept shipment at either E. St. Louis or Sandoval.

Had defendant the right, in the first instance, to rescind the contract, it should have- proceeded so to do without delay, at the earliest moment practicable," and notice of rescission must be given to the party in interest, for in no case conld defendant rescind by notice to its own broker of its intention. Johnson v. Jones, 4 Barb. 269; Diversy v. Kellogg, supra. Lord Ellenborough’s statement in Pickering v. Busk, 15 East. 38, that “a common broker employed in the ordinary course of his trade, is so far a general agent as to have power to bind the principal to third parties by contracts within the scope of the employment, whether the terms of such contract be in accordance with his private instructions or not,” is a rule applicable in determining the power' of Trench & Co. to bind defendant, in its contract with plaintiff, including the terms of shipment embodied in it. Lobdell v. Baker, 42 Mass. 193.

Defendant’s contract was for September delivery, and it should have made delivery during that month; but it failed, and it cannot now be allowed to gain any advantage through its own delinquency. Moreover, defendant vacillated in its action and again, on October 4, 1905, ratified the contract by asking for shipping instructions. It is true, it at the same time requested a new contract, but this it had no right to demand. Not until October 28, 1905, did defendant finally repudiate the contract and refuse to perform, in a letter to its brokers, who, on the thirtieth, communicated such action to plaintiff. In buying the spelter the next day in open market at New York, F. O. B. East St. Louis, plaintiff acted with sufficient promptness. Plaintiff had a right to assume, up to the time when defendant finally repudiated its contract, that it would perform the same according to its terms. From the time that the refusal of defendant to carry out the contract came to the knowledge of plaintiff, it had the right to calculate its damages. Williams v. Woods, 16 Md. 220. Plaintiff filled the contract the day following by buying the spelter in the New York market F. O. B. East St. Louis. The measure of damages was formulated upon correot principles applicable to cases of this nature. Such damages suffered by plaintiff through defendant’s refusal to perform its contract, is the difference between the contract and the market price at the time of refusal. Thompson v. Woodruff, 7 Coldwell (Tenn.) 401; Diversy v. Kellogg, supra.

The spelter was bought for plaintiff by defendant’s own broker in the New York market, F. O. B. Bast St. Louis, promptly after knowledge of repudiation. This was sufficient to fix the market price of spelter at that date as a basis of calculating plaintiff’s damages.

Objections are made as to the admissibility of some of the evidence contained in the depositions read by plaintiff on the trial. As the trial was before the court without a jury, we will assume that the learned judge who presided based his judgment on relevant testimony, to the exclusion of all to which objections made could be sustained. An examination of the propositions of law held and refused satisfies us that the court’s action thereon was without error.

The counsel on both sides of this case filed abstracts of the record—appellee one in addition to that filed by appellant. They have equally failed to comply with the rule in relation to “indexes.” All the exhibits are referred to by number and letter only. Such an index, necessitating an examination of all the exhibits in an effort to find the one needed, is a hindrance rather than a help to the reviewing court, imposing upon it labor which the rule, was promulgated to obviate.

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

Affirmed.


author: Me. Justice Holdom

text:
    Will S. Jack, Appellant, v. George A. Blettner et al., Appellees.
    Gen. No. 14,488.
    1. Pleading—when bill of complaint multifarious. A bill' in, equity which as to one defendant prays a money decree and as to another an injunction, etc., and which as to others neither seeks nor justifies any relief, is multifarious.
    2. Chancery—when will not take cognizance of fraud as basis for relief. While equity and law have concurrent jurisdiction to relieve against fraud, still when the remedy at law is adequate and complete and not surrounded with obstacles or unusual inconvenience, equity will not interfere but will leave the parties to obtain redress at law; likewise, where the parties are entitled to a jury trial to determine questions of fact in dispute, it is the policy of equity not to take jurisdiction but to relegate the parties to that remedy at law where their constitutional right to have the facts in dispute submitted to a jury, can be accorded to them.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 20, 1909.
    Statement' by the Court. Complainant filed in the Circuit Court liis bill praying for an injunction restraining all the defendants from prosecuting in the Municipal Court of Chicago a suit entitled George A. Blettner v. L. F. Bowyer et a.l., brought on a promissory note made by defendant L. F. Bowyer, payable to the order of defendant Maud H. Jack, for the sum of $500, and restraining Bowyer from paying the note until the further order of the court. The ultimate relief prayed is, that the endorsement of complainant upon the Bowyer $500 note and delivery of the same by him to the defendant Gray may be cancelled and set aside as having been procured by fraud, deceit and circumvention, and that defendant Blettner may be restrained from prosecuting a suit on said $500 note then pending in the Municipal Court of Chicago, and from taking any further steps to collect the same, and from endorsing, transferring or disposing of the said note, and that Bowyer may likewise be restrained from paying or settling or compromising said note, and that upon a final hearing the injunction may be made perpetual, and that the promissory note for $500 may be surrendered and delivered to complainant as his own property, and that the defendant Gray may be decreed to pay him the sum of $100 obtained from complainant by fraud, and for other <md further relief, etc.
    The circumstances under which the transaction sought to be avoided was brought about, are in substance, as they appear from the bill, about as follows: Defendant Fred S. Gray claimed to own a saloon and liquor store at No. 3865 Cottage Grove avenue, of which he was in possession, of the value of $5,000. On April 13, 1907, complainant was in the saloon of Gray, who then represented, for the purpose of inducing complainant to purchase a half interest therein, that the business conducted in said saloon was very profitable and that the gross receipts frequently amounted to as much as $600 in one day; that the place was free from liens and encumbrances; that all of said representations were false when made, and so known to be false by Gray when he made them; that in fact the receipts of said saloon were small and barely sufficient to pay running expenses; that the saloon and its contents were mortgaged for a large sum to the Berghoff Brewing Company of Chicago; that Gray, in furtherance of carrying, out his fraudulent scheme, and to deceive and prevent complainant from inquiring into the true condition and situation of said saloon business, induced complainant to partake freely of intoxicating liquor, which he did to such an extent that he became drunk and intoxicated and totally unable to intelligently transact business; that while in such drunken state Gray induced complainant to pay him the sum of $100 in money, and to assign and deliver to him a promissory note made by defendant Bowyer, payable on Septemher 15, 1907, to the order of his sister-in-law, the defendant Maud H. Jack, for the sum of $500, which note Maud H. Jack had endorsed and delivered to him; that he was induced to pay said money and deliver said note as earnest money for a half interest in Gray’s saloon and business, and pending the time during which complainant could examine into the title of Gray to the saloon property; that complainant did not receive any receipt for said payments or any bill of sale or other conveyance of any interest in the saloon of Gray; that the intoxication of complainant was so profound that he became unconscious and in such unconscious condition was taken to his home, and as a result of such intoxication he became sick and remained confined to his home and his bed for several weeks thereafter; that upon recovering from his sickness he learned that the Berghoff Brewing Company had foreclosed its mortgage upon the saloon and its contents and ousted Gray from possession thereof; that on maturity of the note defendant Blettner, claiming to be its legal owner, through his attorneys, the defendants Hebei and Haft, commenced suit theron, in the Municipal Court of Chicago, against Gray, Maud H. Jack and complainant as endorsers, and Bowyer as maker of the note; that defendant Blettner was the agent of the Berghoff Brewing Company and was not an innocent purchaser for value, but was privy to the frauds practiced upon complainant, by which the transfer of the note was procured to Gray, and was present in Gray’s saloon at the time of the transaction and witnessed the artifices resorted to by Gray in procuring the note and the money from complainant; that Blettner paid no consideration to Gray for said note; that no defendant other than Bowyer was summoned in the suit brought in the Municipal Court on the note.
    A temporary injunction was awarded ex parte and without notice, in bond of $1,000. A general demurrer was interposed to the bill, which upon hearing was sustained, and, complainant electing to stand by his bill, the temporary injunction was dissolved and the bill dismissed for want of equity. To reverse the decree so disposing of complainant’s bill this appeal is prosecuted.
    Henry D. Beam and Bazel. W. Vibes, for appellant.
    Hebel & Haet, for appellees.
   Me. Justice Holdom

delivered the opinion of the court.

This bill is multifarious. This is so as to the subject-matter of the relief prayed against defendants. There is also a misjoinder of parties defendant. As against the defendant G-ray complainant seeks a decree for the payment of $100 only. Such is the limit of the relief asked against Gray. As to the defendant Blettner, the transaction as to the note of which he is the holder is sought to be avoided by eliminating therefrom the endorsements of Gray and complainant and the re-investing complainant with the title thereto and the enjoining of the prosecution of the suit in the Municipal Court. The relief thus attempted to be procured is divergent, and as to some of the defendants no relief at all is either sought or is possible under the averments of the bill. Surely the lawyers, the defendants Hebei and Haft, are in no way responsible for the mala fides charged in the bill against Gray and Blettner, and no reason appears why they should be joined as parties in the bill. If an injunction was invokable, its running against Blettner would have been all sufficient to arrest the prosecution of the action in the Municipal Court, and a decree requiring Blettner to deliver the note in controversy to complainant would have accomplished the end desired, which could not be strengthened or made more effective by any order against the attorneys in that suit. We think it quite plain that, the averments of complainant’s bill being conceded to be true, the facts there alleged make it patent that his remedy, if any, is at law and not in equity. There is no averment of insolvency of Gray or Blettner, and an action for fraud and deceit against them, jointly or separately, would seem to furnish a complete and effectual remedy to complainant for the wrongs he alleges he has suffered at their hands. While equity and law have concurrent jurisdiction to relieve against fraud, still when the remedy at law is, as here, adequate and complete and not surrounded with obstacles or unusual inconvenience, equity will not interfere, but leave the parties to obtain redress at law. In a case like the one before us, involving questions of fact, presumably in dispute, where the parties are entitled to a trial by a jury to determine such questions of fact, it is the policy of equity not to take jurisdiction, but to relegate the-parties to that remedy at law where their constitutional right to have the facts in dispute submitted to a jury can he accorded them. This would be so even in a doubtful case, which the case at bar certainly is not. Shenehon v. Ill. Life Ins. Co., 100 Ill. App. 281; Hacker v. Barton, 84 Ill. 313.

. Complainant’s counsel cite Vol. 14, p. 172, Am. & Eng. Ency. of Law, and cases there cited, to sustain their contention that equity will take jurisdiction in cases of fraud of the character of the case disclosed by the hill, and make the following quotation, viz: “Subject to a few exceptions, courts of equity exercise a general jurisdiction to grant relief in cases of fraud, concurrent with the jurisdiction of courts of law. It is a general rule, however, that a court of equity will not assume jurisdiction in a case where there is a plain, adequate and complete remedy at law, even though fraud is charged as a ground of relief. But to exclude jurisdiction, it is not enough merely to show that there is a remedy at law. The remedy must be plain, adequate and complete.” We accord our approval of this statement of the law and, conceding its correctness, its application to the case at bar inhibits the right of complainant to any relief in equity. His remedy is complete, plain and adequate at law. There is no reason apparent from any averment of the bill, on the assumption that all of them are susceptible of proof, why a court of law cannot grant full and complete relief to complainant for the frauds alleged in his bill .to have been practiced upon him.

The Circuit Court did not err in sustaining the demurrer to complainant’s hill and dismissing the same for want of equity, and its decree is therefore affirmed.

Affirmed.


author: Mb. Justice Holdom

text:
    The People, ex rel. George F. Clute, Appellee, v. Milan M. Hitchcock, Appellant.
    Gen. No. 14,504.
    1. Cities, villages and towns—section 20 of Township Organization Act construed. Section 20 of chapter 139 has no application to villages.
    2. Cities, villages and towns—section 11 of article 11 construed. In virtue of the power conferred by section 11 of article 11, chapter 24, the president and board of trustees of a village have the sole appointing power as to a village treasurer.

      Quo warranto. Appeal from the Circuit Court of Cook county; the Hon. Mebritt W. Pinckney, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 20, 1909.
    Abthub R. Wolfe, for appellant.
    F. M. Williams, for appellee.
   Mb. Justice Holdom

delivered the opinion of the court.

This proceeding is one of quo loarranto upon information filed by leave of the Circuit Court, by the State’s attorney, with the object in view of ousting appellant, Milan M. Hitchcock, from the office of treasurer of the village of Berwyn in Cook county, the functions of which he was averred to be unlawfully exercising.

The questions here involved were determined by the trial court upon the demurrer of appellant filed to the plea of respondent to the information. The demurrer was sustained and judgment of ouster entered. This appeal is prosecuted with the intention of having this court reverse that judgment. The validity of the judgment rests in the interpretation of certain statutes hereinafter referred to.

The defendant, Hitchcock, who had, as appears from his plea, served for several years as treasurer of the village of Berwyn and collector of the town of Berwyn, was, on the first Tuesday of April, 1907, again elected by a vote of the electors of the town and village of Berwyn, town collector, to serve for a term of one year. On November 21, 1902, the president and board of trustees of the village of Berwyn passed an ordinance, of which section 2 only is pertinent to our decision. It reads as follows:

“Sec. 2. That the office of Treasurer of the Village of Berwyn and Collector of the Town of Berwyn are hereby consolidated and united in and shall be held by one and the same person.”

Respondent having taken the oath of office as town collector and village treasurer, in faith of the above ordinance, presented to the board of trustees of the village of Berwyn, on May 7, 1907, his bond as village treasurer in the penalty of $40,000 for its approval, whereupon the board passed the following resolution, viz:

“Resolved: That the statute vests in the president and the board the right to appoint a treasurer of the village, and until such an appointment shall have been made and the appointment approved, the presentation of a bond is not in order; therefore, be it
Besolved: That the bond be not accepted.”

Bespondent filed said bond with the village clerk, where it still remains, and proceeded to assume the office of village treasurer and to discharge its duties. According to the averments of the information, it appears that the relator, Clute, was by the president and board of trustees of the village of Berwyn, on May 21, 1907, duly appointed village treasurer, and gave bond as such, which was approved by the board of trustees of the village.

Besponclent rests his contention upon the claim that the village is such village in virtue of chapter 139, B. S., title, “Township Organization,” and that section 20 of said Act is controlling and conclusive of his rights. In this, however, we are convinced that he is in error. Section 20 has application to cities, not villages. Therefore the ordinance consolidating the offices of collector and village treasurer was passed evidently under a misapprehension, and is therefore without force or binding effect. The language of this section is plain and wholly unambiguous. There is no place for interpretation. It means just exactly what it says and no more, and clearly has no reference whatever to villages. It is in these words: “When in any county under township organization, there is any territory co-extensive with a city situated therein, and which is not included within any organized town, such territory shall constitute a town by the name of such city, and all the provisions of this act shall apply to the town so constituted, the same as if it had been organized in the manner provided in this act in the case of the organization of new towns.”

Another cogent reason to our minds why this Act is inapplicable to village organization, arises from the condition in which we find the statutes bearing upon this subject. Chapter 24, title, “Cities, Villages and Towns,” makes full, ample and distinct provisions for the incorporation, control and operation of cities and villages. Article XI of chapter 24 relates to the organization of villages, and, as we gather from respondent’s plea, the village of Berwyn was organized in pursuance of the provisions of such Act. By section 11 of article XI, chapter 24, it is provided that “the president and hoard of trustees * * * may also appoint a treasurer * * * and such other officers as may be necessary to carry into effect the powers conferred upon villages, to prescribe their duties and fees and require such officers to execute bonds as may be prescribed by ordinance. ’ ’ In virtue of the power thus conferred, the president and board of trustees of the village of Berwyn appointed relator village treasurer, and thereby conferred upon him authority to exercise the functions and perform the duties of that office.

In Rowley v. The People, 53 Ill. App. 298, it was decided that the appointment of village treasurers was vested in the president and board of trustees of the village under authority of section 11 supra.

As the plea of respondent states no fact entitling him to fill the office of village treasurer or exercise its functions, his so assuming to do is an intrusion into that office without warrant of law, and the Circuit Court therefore properly sustained the demurrer of relator to respondent’s plea and entered judgment of ouster, and such judgment is consequently affirmed.

Affirmed.


text:
    Catherine Riesen, Appellee, v. Christian Riesen, Appellant.
    Gen. No. 14,511.
    1. Instructions—when errors reverse. An error of law in instructions to the jury of such a nature as to constitute a mis-statement of a legal proposition will in cases where the evidence is close or in sharp conflict require a reversal and the awarding of a new trial by the court of review.
    2. Instructions—erroneous as to credibility of testimony of detective. The impeaching instruction following is erroneous, in that it exceeds the rule which requires the testimony of a private detective to be received with caution.
    “You are instructed that the testimony of a detective may be disregarded by the jury, except when it is corroborated by other and credible testimony.”
    3. Instructions—when as to presumption of innocence erroneous. It is error in an action for divorce to give an instruction telling the jury that in determining the issue of adultery they may take into consideration the presumption of innocence; such instructions are inappropriate in civil causes.
    4. Divorce—when estoppel precludes. A husband who either procures or connives at the debauching of his wife is thereby estopped from improving his marital condition by securing a divorce the grounds for which were brought about by his own perfidy.
    Separate maintenance. Appeal from the Superior Court of Cook county; the Hon. George A. Duput, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed May 20, 1909.
    James Gr. Hood and Edward L. Richter, for appellant.
    Antoinette Funk, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a decree of the Superior Court awarding appellee a separate maintenance from her husband, the appellant, and the custody of their children, with allowances for support of appellee and the children of the marriage.

The decree rests upon the verdict of two juries, the cause originally having been tried with a jury before the late Judge Gary, whose mortal career terminated before he was able to dispose of appellant’s- motion for a new trial.

The cause was tried first before Judge Gary on issues joined in a bill filed by appellee for separate maintenance, to which appellant interposed a cross-bill charging his wife with adultery with one George Benedict. Subsequent to the rendition of the verdict of the jury above referred to, appellant obtained leave to and filed a supplemental cross-bill charging appellee with acts of adultery committed with the above named George Benedict subsequent to the time of the first trial. Appellee filed an answer, denying the adultery charged against her, and the cause proceeded to trial before Judge Dupuy of the Superior Court, with a jury, on the issues joined on said supplemental cross-bill, and the jury returning a verdict exonerating appellee from the adultery charged against her in the supplemental bill, and the court, after overruling appellant’s motion for a new trial, entered the decree appealed from. The errors assigned as cause for reversal relate solely to the proceedings in the last trial of the cause before Judge Dupuy. They challenge the correctness of certain instructions and the admissibility of some evidence of the co-respondent, George Benedict.

An examination of the evidence supporting the charge of adultery and the evidence in denial of that charge demonstrates that it is in sharp conflict. To reconcile such conflict was the duty of the jury. Another duty, in this condition of the evidence, rested upon the trial judge, which was, exactness in rulings upon the evidence and accuracy in stating the law governing the facts to the jury. An error of law in instructions to the jury, of such a nature as to constitute a mis-statement of a legal proposition, will, in cases where the evidence is close on a sharp conflict, require a reversal and the awarding of a new trial by the court of review. Aside from the evidence of the, so-called, detectives, there was the evidence of two witnesses, whose character for verity has not been impeached, which, if credited by the jury, was sufficient to justify their finding that appellee was guilty of the adultery charged against her with Benedict. We do not intend to indicate our opinion, if any we have, as to the probative force of the evidence. That is a matter for the jury, if one is had, upon another trial of the cause; or, in its absence, for the determination of the trial judge. Our only purpose in discussing the evidence at all, being to emphasize the necessity under such circumstances of accuracy in the court’s instructions to the jury upon the law of the case. The court gave the jury this instruction:

“You are instructed that the testimony of a detective may be disregarded by the jury, except when it is corroborated by other and credible testimony.”

We know of no decision justifying the giving of so drastic an impeaching instruction, and the learned counsel f6r appellee, while arguing for its correctness, has failed to refer us to any authority sustaining, in our opinion, her contention. In fact the authorities cited by counsel for appellee are quite at variance with her contention. In Blake v. Blake, 70 Ill. 622, the court held that Gleason, the detective, was a competent witness and that his credibility was solely for the jury. In Needham v. People, 98 Ill. 279, the court held that the testimony of detectives and policemen should be received with caution. We do not regard the New York case of Moller v. Moller, 115 N. Y. 466, as justifying the giving of the instruction under discussion. While the New York court did say that the testimony of prostitutes and private detectives was, uncorroborated, insufficient to break the bonds of matrimony, still that is a very different proposition from an instruction which tells the jury to disregard the whole testimony of detectives unless corroborated by other credible testimony. Neither does the decision of the Nebraska Supreme Court go to this extreme. Juries are simply cautioned to use greater care in weighing the testimony of detectives and prostitutes than of persons engaged in other callings. To such effect is Preuit v. People, 5 Neb. 383; Kastner v. State, 58 Neb. 767; Sandage v. State, 61 ibid. 242. The Michigan Supreme Court in People v. Rice, 103 Mich. 350, went no farther than to hold that defendants in a criminal case had a right to cross-examine the detectives to show that they were employed and acting under pay, as affecting their credibility. And as a general proposition of law it may he stated that the credibility of the testimony of every witness is to be solved by the ¡jury, and it is for them to determine the weight to be accorded to the testimony of any given witness, after taking into consideration all surrounding facts and conditions which may tend to impeach the veracity of the witness. What these are must necessarily be governed by the facts in each particular case and controlled by the law to be applied in instructions to he given by the presiding judge to the jury. The evidence that appellant made a proposal to George Benedict to seduce his wife by getting her with child, so that appellant could get a divorce for his wife’s adultery, was admissible as evidence tending to defeat his right to a divorce, for it is well settled law that the husband who either procures or connives at the debauching of his wife is thereby es-topped from improving his marital condition by securing a divorce, the ground for which was brought about by his own perfidy.

Instruction VIII was justified by the evidence of Benedict, and correctly stated the law governing it. The complaint that instruction ten, which told the jury that before they could find appellee guilty all presumptions of innocence must be overcome by evidence, is erroneous, is well made. It is too broad. Single acts of adultery are not criminal by the law of this state; neither is the charge of adultery when made for the purpose of obtaining a divorce a criminal charge. Presumptions of innocence obtain only in criminal cases. In civil cases, to which class the case at bar belongs, the actor must prove his or her case by a clear weight or preponderance of the evidence in order to entitle such actor to prevail. It Was incumbent upon appellant, in the first instance, to maintain his charge of adultery by a preponderance of the evidence, and failing so to do, appellee would be entitled to a verdict in her favor which in legal effect would exonerate her from the unwifely but not criminal charge made against her in her husband’s accusation of adultery with Benedict.

The solution of the right to the custody of the children of the marriage will depend upon the outcome of the new trial, which we cannot anticipate. The allowance for support of the children and separate maintenance of the wife rests in the sound discretion of the chancellor and will also be controlled by his action upon any verdict which the jury may render, or the conclusions to which the chancellor may arrive should the next trial be had without the intervention of a jury. As to these matters we express no opinion and make no finding.

For the errors of the trial court indicated in this opinion, the decree of the Superior Court is reversed and a new trial awarded conformable to the views here expressed.

Reversed and remanded.


text:
    John F. Brockway, Appellee, v. John M. McClun, Appellant.
    Gen. No 14,528.
    1. Service by publication-—when affidavit sufficient. Held, that the form of affidavit (not set forth in the opinion) was sufficient upon which to predicate service by publication.
    2. Foreclosure—who necessary parties. A mortgagor is a necessary party in a proceeding to foreclose filed against his grantee.
    3. Stipulations—power of chancery to relieve against. It is within the power of a court of chancery to permit a party to withdraw a stipulation made in a cause if it appears that such stipulation was executed by the solicitor of such party without authority and without full knowledge of its contents and that the action of such solicitor in so doing was subsequently repudiated by the client.
    4. Trust deeds—effect of extension of payment beyond maturity. An agreement by which the payment of a debt secured by a trust deed is extended beyond the time of maturity, does not affect the right of the holder of such deed to declare, pursuant to the terms of the trust deed, the whole debt due for breach of a covenant to pay taxes.
    5. Trust deeds—when election to declare whole debt due sufficient. It is not essential in order to declare a whole debt secured by a trust deed due for breach of a covenant to pay taxes that notice of the election made pursuant to the terms of the trust deed be given; the filing of the bill is sufficient evidence of such election.
    6. Tender—effect of, as admission. A tender of a sum of money in payment of a specific item is prima facie an admission that such item is correct as to the amount tendered.
    7. Parties—when objection to, waived. If a party who seeks to urge the nonjoinder of necessary parties in a bill to foreclose has by his answer sought to set up the names of all the parties in interest in the cause and has failed to mention the particular party claimed not to have been joined, he is thereby precluded from urging on review the nonjoinder of such party.
    8. Appeals and errors—application of maxim de minimis non curat lex. Held, that a reversal would not be awarded even- though it might appear that there had been an excessive computation of interest, the amount of such excess being claimed as $1.20.
    9. Appeals and errors—when statutory damages not awarded. Notwithstanding the Appellate Court may be of the opinion that the contentions of the appellant are clearly without merit,_yet statutory damages will not be awarded where it may be that upon a further appeal a different judgment will be rendered by the Supreme Court.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter,"Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed May 20, 1909.
    Tinsman, Rankin & Neltnor, for appellant.
    E. H. Arnold, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This cause is before us for a review of the decree of foreclosure entered by the Circuit Court. It appears from the pleadings and the proofs that Laura P. Raisor, a widow, was indebted on December 21, 1901, to John F. Brockway in the sum of $4,000; that such indebtedness was evidenced by her note of that date, payable to the order of John F. Brockway on December 21, 1906, after date, for $4,000, with interest at the rate of two per cent per annum, payable semiannually; that to secure this note Laura P. Raisor executed and delivered to John F. Brockway as mortgagee a mortgage of even date with the note, conveying certain real estate in Chicago. Among other conditions in said mortgage we find the following, viz :

“But it is expressly provided and agreed that if default be made in the payment of the said promissory note, or any part thereof, or the interest thereon, or any part thereof, at the time and in the manner above specified for the payment thereof, or in case of waste or nonpayment of taxes or assessments on said premises, or of a breach of any of the covenants or agreements herein contained, then and in such case the whole of the principal sum and interest secured by the promissory note in this mortgage mentioned shall thereupon, at the option of said mortgagee or his executors, administrators, attorneys or assigns, become immediately due and payable, and this mortgage may be immediately foreclosed to pay the same by said mortgagee,” etc.

The hill was filed before the time maturity of the indebtedness, on the election of the complainant to declare the whole amount due and to file his bill to foreclose the mortgage under the power conferred by the condition last recited, because of the failure to pay certain taxes when they became due, being followed by a sale to pay the same, necessitating redemption therefrom by complainant.

Appellant answered, denying any breach of any of the covenants of the mortgage, or that default had been made in the payment of interest or taxes, and averring that the filing of the bill before the maturity of the note was premature. The cause was referred to a master to take the proofs and state an account between the parties. The master took the proofs and stated the account, recommending in his report that a decree of foreclosure be entered in accordance with the prayer of the bill, and a sale of the mortgaged premises had to satisfy the amount due for principal and interest of the indebtedness secured by the mortgage, together with amounts paid to redeem the mortgaged property from tax sale and the payments of certain solicitor’s • fees provided to be paid by the terms of the mortgage. Objections were filed to the master’s report, which, being overruled by the master, were refiled as exceptions before the chancellor, who, overruling all of them, entered a decree of foreclosure and sale, according to the master’s recommendation.

Appellant brings the record to this court for review, and urges as grounds for reversal that there is a lack of necessary parties defendant; that the bill was prematurely filed; that there is no sufficient evidence of any tax sale or redemption therefrom, and that no part of the indebtedness was due at the time the bill was filed; that the time of payment of the indebtedness had, before the filing of the bill, been extended five years; that a certain stipulation between connsel was improperly excluded; and that the affidavit of non-residence of certain defendants is defective.

The maker of the mortgage, the proof shows, was a widow at the time of its execution, named Laura P. Baisor; that she subsequently married the defendant, Edgar B. Gray; that the husband and'wife are nonresidents of this State and reside in the city of Indianapolis, in the State of Indiana. The proof also shows that the mortgagor conveyed her interest in the mortgaged premises prior to the filing of the bill.

The objection made to the form of the affidavit for publication is without force. Mrs. Gray, the mortgagor as Laura P. Baisor, was a necessary party to the bill, notwithstanding she had parted with her interest in the equity of redemption prior to the commencement of this suit. The affidavit and the publication notice were sufficient under our statute to vest the court with jurisdiction to adjudicate her rights in the. mortgaged premises. Marsh v. Green, 79 Ill. 385; Stiger v. Bent, 111 ibid. 329.

The withdrawal of the stipulation between the parties was a matter resting in the sound discretion of the chancellor. Its exclusion as evidence was justified from the fact, made to appear at the time it was offered, that it was executed by the solicitor of complainant without full knowledge of its contents, and that his action in so doing, being unauthorized by his client, the complainant, was subsequently repudiated by him. Sullivan v. Eddy, 154 Ill. 199. Extending the time of the payment of the note beyond its maturity, if such an agreement was in fact made, in no aspect of the case relieved any party liable from the performance of the agreements binding upon them to the time of maturity of the indebtedness, under the terms of the note and niortgage. Such an agreement does not affect the right of a mortgagee to declare the whole amount due for non-payment of taxes or interest, if such is one of the conditions of the mortgage. Notice of such an election to declare the whole amount due for breach of covenant, is not essential. The filing of the bill is sufficient evidence of such election. Brown v. McKay, 151 Ill. 315.

It is a complete answer to the contention that the proof of non-payment of taxes and redemption from tax sale is deficient, to refer to the evidence of certain of appellant’s witnesses, who testified that on the 20th day of December, 1906, a tender was made to complainant of $70, which complainant had theretofore paid out to redeem the mortgaged property from a tax sale. This was ample at least as prima facie proof of that fact, even were other proof lacking, to shift the burden to appellant of overcoming such prima facie case by countervailing proof. The stipulation of the parties that complainant paid, June 24, 1907, $47.47 for the general taxes levied upon the mortgaged property for the year 1906, constituted prima facie evidence of that fact, from which it is to be inferred that appellant had made default in payment of such taxes, which, in itself, would constitute a breach of the covenant of the mortgage relating to default in the payment of taxes. For such a breach of the condition of a mortgage, the mortgagee has the power to declare the whole amount due and to file a bill with that object in view, without any further notice of his intention so to do other than that which is to be implied from the commencement of the foreclosure proceedings. Brown v. Miner, 128 Ill. 148; Gray v. Robertson, 174 ibid. 242.

The further contention that the property described in the tax receipt does not appear to be the same as the mortgaged premises, we think is waived by the stipulation. under which that tax receipt became evidence. However this may be, an examination of the tax receipt discloses that while the property on which the tax was paid is not described in the same language as that in which the property is described in the mortgage deed, yet that it is apparently the same land. If this is not so, we think the burden of so demonstrating by evidence was cast upon appellant.

The claim that William H. Wells and William E. Elliott have such an interest in the mortgaged premises that they should have been made parties, is unavailing. Not only does the record fail to disclose that these persons have any interest in the mortgaged premises, but appellant pretended to set up in his answer the names of all the parties interested. He failed to mention either Wells or Elliott among them. We think appellant is now concluded by the averments of Ms answer. It is clear that default had been made in payment of taxes, and that the mortgaged property had been suffered to be sold by reason thereof, and that appellee made redemption, and therefore had the right, by reason thereof, to declare the whole amount of the mortgage indebtedness due, and to file Ms bill to foreclose, and that Ms so doing at the time when the bill was filed was not a premature act.

The contention that the computation of interest is excessive to the amount of $1.20 is not well taken and, if it were, would not constitute ground for reversal. The maxim de minimis non curat lex might, regardless of the fact, constitute an all sufficient answer to this contention.

While from the foregoing opimon it is plain appellant’s contentions on this appeal are clearly without merit, yet we do not regard it as a case calling for the assessment of statutory damages. On further appeal the court of dernier ressort may or may not be inclined to yield to complainant’s demand. If it shall agree with our views and also to the contention that the appeals are vexatious and void of merit, statutory damages may yet be awarded.

The record being, in our opinion, free from error, the decree of the CircMt Court is affirmed.

Affirmed.