text:
    Steven Mena, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,470.
    Contributory negligence—when person injured By traction company guilty of. Held, under the evidence, that the plaintiff in this case, who was injured while attempting to cross street car tracks, was guilty of such contributory negligence as barred his recovery.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed with finding of fact.
    Opinion filed March 9, 1909.
    Rehearing denied March 23, 1909.
    Statement by the Court. This is an appeal from a judgment of the Superior Court of Cook county in favor of appellee, Steven Mena, and against appellant, Chicago City Railway Company, for personal injuries.
    It appears from the record that appellant, on February 5, 1904, owned and operated in the city of Chicago a street railway on Archer avenue which runs in a southwesterly direction from State street at about the comer of Nineteenth street. State street is a north and south street, and Nineteenth street runs east and west, its eastern terminus being the west line of State street. The Archer avenue street railway line turns into State street at about Nineteenth street and the cars on that line were there attached to the cable cars on appellant’s State street line and brought down to the center of the city, and back again to Archer avenue, where they were detached and proceeded thence on Archer avenue, propelled by electric power.
    Between six and seven o’clock in the evening of February 5, 1904, appellee was crossing the tracks of the Archer avenue line on the street crossing on the west side of State street, and was struck by a car of appellant which was leaving State street and going into Archer avenue, and suffered injuries.
    On the trial of the cause the jury returned a verdict finding appellant guilty and assessing appellee’s damages at $3,000. After overruling a motion to set aside the verdict and grant a new trial, .'and a motion in arrest of judgment, the court entered judgment on the verdict.
    William J. Hynes, John E. Kehoe and Watson J. Ferry, for appellant; John R. Harrington, of counsel.
    Rioholson & Levy, for appellee; C. Stuart Beattie, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Several grounds are urged by appellant for a reversal of the judgment, but in the view we take of the case it is only necessary to consider one ground, namely, the contributory negligence of the plaintiff, appellee.

Mena, appellee, testified that he was going home between seven and eight o’clock in the evening. It was snowing, sleeting and cold, and there was a great amount of snow on the ground. He was going south on the west side of State street. When he got to the crossing of Nineteenth street he stood there and looked north and west and saw nothing. He then started to walk still going south, and when he was two feet from the first rail of the west bound track he again stopped and looked north and west. Before he got across the track the car struck him.

On cross-examination he said: “I rode south on the State street car to that corner and got off at Eighteenth street. I knew the drug store I wanted to go to was at Nineteenth street. It was a bad evening, snowing and raining at the time, and I got off at Eighteenth and walked that block. I knew there were electric street cars turning off State street on Archer avenue. I was walking on the west sidewalk of State street from Eighteenth. I walked up to within about two feet of the street car track and stopped there. Two feet is just about one step. When I got up within one step of the street car track I knew that was the track on which cars would go out on Archer avenue; I knew that cars going out on Archer avenue on that track would come from the north on State street and would come around that corner. I looked west to see if any cars were coming and Hooked north. I didn’t see any cars coming from the west, and didn’t see any coming from the north. I don’t know how far I can see up that track to the north. I could see the street car tracks circle on State street and run up north on State; I could see that track for quite a distance. From where I was standing to go to the place where I was struck, I just had to take one step to reach the track, and then one or two steps to get between the rails.”

The witness Alexander, called by appellee, testified that he was standing near the patrol box on Nineteenth street and Archer avenue about fifty, sixty or seventy yards from State street. When he first saw the car it was about forty or fifty feet from the man. When he first saw the man “he was over the first track, over the first railing of the Archer avenue track; he was on the walk that leads from Nineteenth, the corner, the Alhambra block—he was on the sidewalk; it is all brick there, you know.” The witness further said that “when the car came around the fender of the car hit the man and knocked him down”; The man who got hurt came from the north, going south towards the drug store and when witness first saw him he had already crossed the first rail and the car was then fifteen or twenty feet away from him.

The witness Heffron, called by appellee, testified that he saw an accident in February, 1904, at Archer avenue and State street. He saw a man walking across the street, and saw a west-bound car hit him and push him twenty or twenty-five feet. He did not hear anything except the car rattling around the curve; “it was going around the curve at an ordinary rate of speed. The man was walking straight down State street.” When witness first saw him he was about the center of Nineteenth street and walked about fifteen feet before he reached the track, and while he was going that fifteen feet he did not hasten or change the position of his head at all.

The - witness Bailey, a bootblack, testified he was standing at the northwest corner of State and Nineteenth streets, and saw the man first when he was in the middle of the track and the car struck him. He further said that when he first saw the car the car and the man were about sixty feet apart and the car was going around the curve at a rapid gait.

The witness Robertson, called by the plaintiff, testified that he saw appellee and the car about the same time and that “they were just about coming together at that time; they were„pretty close together when I first saw them. If he had made one more step he would have been out of the track. He was coming towards me, coming south. I was right on the corner, about fifty feet from him.”

The testimony of the above witnesses is all the evidence in behalf of the plaintiff, appellee, touching the movements of the plaintiff and the car before the accident.

Appellant called the witness Hillyer, who testified that he was the conductor of the car in question. He saw appellee before he was struck, when he was about ten feet from the car track, walking south with his head down and his hands in his pockets. Witness “heard the bell, and heard someone holler. When I heard those sounds he came up to within a few feet of the track and kind of stopped, and started ahead again. • When he started ahead the second time the car was a few feet from Mm, and it ran after that about eight feet before it came to a stop.”

The witness Julian was the motorman on the car. At the time of the trial he was in the city fire department. He testified that when he first saw the man that got hurt he “was about fifteen feet from the front of the car and about fifteen feet away from the track my car was running on. He was coming from the north, going south on State street at a good lively walk. My car was going about four miles an hour. From the time I first saw him there he walked along with his hands in his pockets and his head down, and kept on coming. I kept on going until he got within five feet of the car, and when I saw he was not going to stop, I shut off my power and put on my lever and fetched the car to a stop. * * * He walked right in front of me, and, of course, when I hit him he tripped over the corner of the fender and went to the left of the car. * * * The lights in my car and the headlight were all right; the inside lights were electric. As I was coming around the curve there, from the time I left the switch until this man was struck, I was ringing my gong.”

Rinck, a witness called by appellant, testified that at the time of the accident he was about four feet away from where it happened. “I was waiting there to leave the car go by; I was crossing the street. I had stopped. This man when I first saw him, passed by me on my right side. As he passed me the car was about eight feet from him. This man passed by me, and I seen the car coming there, and I hollered at him just like that, ‘Hey,’ and somebody shouted from the car. He hesitated a minute and then he bumped right into it. * * * The ear was lit up, and ran after i| struck the man about ten feet.”

From a consideration of this evidence' we are of the opinion that it shows that appellee was guilty of negligence which directly contributed to produce the injury which he sustained. When appellee stated in his testimony that he stopped when he was two feet north of the track and looked north to see if a car was approaching from that direction and saw no car, although he could see some distance north, and could see the track circle into State street and up that street, and that he was struck by the car when he had taken one or two steps, his testimony must be regarded as so inherently improbable as to make it unbelievable, and it must be rejected as not in accordance with the truth (C. & E. I. R. R. Co. v. Kirby, 86 Ill. App. 57; Bornscheuer v. Consolidated T. Co., 198 Pa. St. 332). In Stafford v. Electrical Ry. Co., 85 N. W. 1036, the Supreme Court of Wisconsin say of such testimony (p. 1046): “The testimony of a person or any number of persons that he or they, when approaching a street car track with a view of crossing it, looked along •the track for a coming car and did not see one, though a car was in plain sight and so near the point of observation as to render an attempt to cross the track in front of it dangerous, is inconsistent with all reasonable probabilities.”

To the same effect are Fiddler v. N. Y. C. & H. R. R. Co., 71 N. Y. Supp. 721; Chicago, Peoria & St. Louis Ry. Co. v. DeFreitas, 109 Ill. App. 104; C. & A. R. R. Co. v. Vreimeister, 112 Ill. App. 346; Ill. Cent. R. R. Co. v. McMillion, 129 id. 27.

Appellee’s testimony shows that before the accident his sight was good, and that he was familiar with the situation at the place of the accident and knew that the Archer avenue electric street cars turned off of State street on that track.

The testimony of Alexander presents an impossible situation. He places appellee between the rails of the track when he first saw him and the car at that moment fifteen or twenty feet away from him. It is evident on a moment’s reflection thatfif the car was going eight or ten miles an hour, appellee Would have had ample time to cross the tracks and be out of danger before the car reached the point where appellee crossed the tracks.

The witnesses Bailey and Robertson saw the ear and appellee at the moment when the car struck appellee. The testimony of appellee’s witnesses taken together, therefore, affords little light on the question of due care on his part, and does not strengthen his case on that point.

On the other hand, the testimony of the witnesses called by appellant shows clearly the negligence of appellee. The witness Rinck was in the best possible place for observing what happened, and appears to be an intelligent and disinterested witness. His testimony is corroborated in essential points by Julian and Hillyer. In our opinion these witnesses tell a consistent story in their testimony, and we can reach no other conclusion from all the testimony bearing upon the question of negligence of the parties than that appellee walked directly in front of the moving car and was guilty of negligence which directly contributed to the injury sustained by him, and he is not entitled under the law and the facts to recover against appellant.

The verdict was against the evidence, and the judgment must be reversed with a finding of fact.

Reversed with finding of fact.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Alex. Friend et al., Defendants in Error, v. Charles W. Triggs Company, Plaintiff in Error.
    Gen. No. 14,387.
    Bbokebs and factobs—what essential to earning of commissions. In order that a broker shall be entitled to recover commissions for bringing about a lease of premises, it must appear that he brought about an agreement between the parties to such lease, or else it must appear that he was wrongfully prevented by his principal from so doing; such a principal has a right to employ several brokers with respect to the effectuation of'the same transaction and may consummate the same with the buyer who is first procured by any of. them without being called upon to decide which .of such brokers was the primary cause of the sale, providing he remains neutral between them and is not guilty of any wrong.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Ceeeand, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908..
    Reversed and judgment here for the defendant.
    Opinion filed March 9, 1909.
    Frederick P. Vose, Hubert E. Page and Allen Frake, for plaintiff in error.
    Everett & McG-onigle, for defendant in error; John C. Everett, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

November 18, 1907, plaintiff in error, a corporation, leased to one Bapp, who did business under the name of the Novelty Paper Box Works, certain premises at 17 and 19 Milwaukee avenue, for a term of years from December 1, "1907.

Defendants in error, real estate brokers, brought an action in the Municipal Court against plaintiff in error, “for commissions on lease to Novelty Paper Box Works.” A trial by the court, without a jury, resulted in a judgment for plaintiffs for $96, to reverse which defendant prosecutes this writ of error.

The errors assigned are sufficient to bring before us for review the question whether, on1 the law and the evidence, the plaintiffs were entitled to recover against the defendant. ■

About October 15, 1907, the plaintiffs were authorized by the defendant to procure a tenant for the premises in question, but were not given an exclusive agency or authority to procure such tenant. A few days later, the box factory of Bapp was burned.

The evidence in the record as to conversations and transactions between Peton, a representative of the plaintiffs, and Baton cannot be considered. Baton was a. die cntter in the service of Rapp, and there is no evidence tending to show that he had any authority from Rapp to negotiate for him in reference to a lease, or that Rapp was informed of anything that Baton may have said or done in respect to leasing or procuring premises for Rapp.

Peton testified that some days after the fire he saw Rapp and asked him if he was not ready to go to look at the place on Milwaukee avenue and that Rapp, “waved me off and said that he did not have time to go then; that he had insurance matters”; that a few days later he again asked Rapp if he was not, “ready to go over and look at that floor”, and that Rapp said, “No, he had insurance matters to look over and was too busy;” that about October 30, plaintiffs received from defendant the following letter:

“Gentlemen;—As we have not yet heard from you anything definite about the renting of our Milwaukee avenue place, we beg to advise you that in case we can secure a tenant through some other means that we will pay the commission to the one that secures the tenant. We have allowed you to put up your sign, and suppose that this understanding will be agreeable to you. Kindly advise.”

About this time Thorpe, another real estate broker, took Rapp to see the premises in question. Peton had several interviews with Triggs, the president of the defendant, told him that if he leased to Rapp, plaintiffs would claim a commission; Triggs suggested that he see Rapp and if he could make a lease to him it was all the same to the defendant. Triggs testified that Peton then: “informed me that he was not in a position to get them (the box company). He said there was an arrangement between Thorpe and the box company whereby he couldn’t lease it.” Peton testified that in the conversation testified to by Triggs he told Triggs: “that I couldn’t work with another agent in the field, because they (the box company) had obligated themselves in some way to Thorpe.”

Eapp testified that after he had cleared up his insurance matters he asked Thorpe’s representative if he had any premises to offer him, that said representative presented several places, among them the premises in question; that at Eapp’s request said representative took him to said premises; that he had never been there before; that he had not known anything about said premises before they were so presented to him by Thorpe’s representative. Thorpe was given by the defendant authority to procure a tenant for said premises a day or two after the fire. It was two weeks or longer after the time that Eapp went to see the premises before an agreement was reached and the lease executed. During all of that time negotiations were in progress between Eapp and defendant, which were conducted by Thorpe. Thorpe submitted defendant’s propositions to Eapp and Eapp’s propositions to defendant. Eapp told defendant that Thorpe first presented the building to him and that: “Thorpe would have to get the place for him.” Eapp was under no obligations to the plaintiffs to become their customer, nor to enter into negotiations with them'about a lease, he refused to become their customer, or to enter into negotiations with them in respect to a lease, and it cannot be held that he was ever their customer, or in negotiation with them in respect to a lease. Although plaintiffs first presented Eapp to the defendant as a possible tenant, defendant had the right to employ Thorpe to secure Eapp as a tenant.

“A broker, unless wrongfully prevented by his principal, .must bring about an agreement in order to be entitled to his commission, and the principal may employ several brokers to sell the same property, and may sell to the buyer who is first procured by any of them, without being called upon to decide which of the brokers was the primary cause of the sale provided he remains neutral between them and is not guilty of any wrong.” Day v. Porter, 161 Ill. 235, 237

Plaintiffs did not bring about the agreement for a lease. That agreement was brought about by Thorpe. If the judgment can be sustained, it must be sustained on the ground that defendant did not remain neutral, but was guilty of some wrong towards plaintiffs, of some act or omission which tended to hinder or prevent plaintiffs from securing Rapp as a tenant of the defendant. There is in the record no evidence tending to show that defendant did not remain neutral as between plaintiffs and Thorpe. Defendant gave plaintiffs a reasonable time to secure Rapp as a tenant. It was not until two weeks or longer after plaintiffs, through Peton, informed the defendant that they could do nothing with Rapp; that they could not se-, cure him as a tenant, that defendant availed itself of the services and efforts of Thorpe and through him, as their broker, leased the premises to Rapp. When plaintiffs informed the defendant that they could not secure Rapp as a tenant the defendant was not bound to wait longer. The failure of plaintiffs to secure Rapp as a tenant for the defendant was not through any fault, any act or omission, of the defendant, and the plaintiffs therefore failed to prove their claim for commissions from the defendant.

The judgment of the Municipal Court will be reversed with a finding of facts and judgment will be entered here for the defendant.

Reversed and judgment here for the defendant.


text:
    Louisa Weber, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 14,413.

      Notices—act requiring notice, of injuries, to municipality construes. Section 2 of the act referred to does not apply to cases in which the injury was sustained before the act took effect.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 9, 1909.
    Kruse & Peden, for plaintiff in error; Oreb T. Crissey, of counsel.
    Edward J. Brundage and John R. Caverly, for defendant in error; M. R. Harris and Edward C. Pitch, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings before us for review a judgment of the Superior .Court for the defendant, entered on a directed verdict for the defendant, in an action on the case, brought by plaintiff in error against defendant in error for personal injuries alleged by her to have been sustained through the negligence of the defendant. Plaintiff was injured May 3, 1905, and brought her action December 22, 1905.

The following act was approved May 15 and took effect July 1, 1905:

“1. No suit or action at law shall be brought or commenced in any court within this State for damages against any incorporated city, village or town by any person for an injury to his person unless such suit or action be commenced within one year from the time such injury was received or the cause of action accrued.

“2. Any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date and about the hour of the accident, the place or location where such accident occurred and the name and address of the attending physician (if any).

. “3. If the notice provided for by section two of this act shall not be filed as provided in said section two, then any such suit brought against any such city shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing.

“4. All acts or parts of acts inconsistent with any of the provisions of this act are hereby repealed.” Hurd’s Stat. 1905, 1153.

The only question here presented is: Do the provisions of section 2 of the act above quoted requiring a statement in writing to be filed within six months, ‘1 after the date of the injury or when the cause of action accrued”, apply to plaintiff’s case, in which the injury occurred before the act took effect? Said section does not, in express terms, apply to cases in which the injury was sustained before the act took effect, nor are such cases, in express terms, exempted from its provisions. Manifestly said sections cannot be construed to apply to injuries sustained more than six months before the act took effect, for such a construction would bar all right of recovery for such injuries.

Said section, by its terms, requires such notice to be given only where the action is brought after the act takes effect. If it applies to injuries sustained before the act took effect, then if two persons were injured in the same accident, and one brought his action before the act took effect and the other after-wards, one could maintain his action and the other could not. Again, to so construe said section would be to bar the action of one who was injured only one day less than six months before the act took effect and failed to give the notice, as effectually as it would the action of the plaintiff in this case who was injured almost two months before the act took effect. In the absence of clear and unequivocal language, we are unwilling to ascribe to the legislature the intention to enact a law so' unequal in its operation and effect. We think the intention of the legislature, to be gathered from the act, and the subject-matter to which it applies, was that the act should apply only to injuries sustained after the act took effect and not to injuries sustained before it took effect. This was the construction given to similar statutes in Angell v. West Bay City, 117 Mich. 685, and Sehl v. Syracuse, 81 N. Y. S. 482.

We think the trial court erred in directing a verdict for the defendant and in overruling the motion of the plaintiff for a new trial, and the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Me. Justice Baker

text:
    H. D. McDonald, Appellee, v. Helen Mark, Appellant.
    Gen. No. 14,459.
    1. Mechanic's liens—when wife bound by husband. If with knowledge of the contract and the delivery of materials thereunder, a wife makes no protest against the acts of her husband, a lien may be enforced against her property with respect to which such contract has been made and such materials delivered.
    2. Mechanic’s liens—right of subcontractor to recover in action at law of owner notwithstanding breach by contractor. Under the act of 1903, a subcontractor in an action at law brought against the owner and contractor may recover against such owner, notwithstanding abandonment and non-performance by the contractor, to such an extent that his claim when added to that of others in like situation will not exceed the sum stipulated in the original contract between the owner and contractor.
    3. Constitutional law—when questions waived. The right to raise the question of the constitutionality of an act is waived by taking an appeal to the Appellate instead of to the Supreme Court.
    Chytbaus, J., dissenting.

      Action commenced before justice of the peace. Appeal from the Superior Court of Cook county; the Hon. William H. McSubely, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 9, 1909.
    Statement by the Court. Appellee brought an action at law before a justice of the peace to enforce a subcontractor’s mechanic’s lien against appellant, as owner of certain real estate, and one Blaha as contractor. The case was taken by appeal to the. Superior Court, and the trial in that court resulted in a directed verdict for the plaintiff for the full amount of his claim with interest, and from a judgment on the verdict against both defendants for that sum as damages, $20 attorneys’ fees and the other costs, the owner prosecutes this appeal.
    Early in March, 1906, John P. Mark, the husband of appellant, made a contract with Blaha by which the latter agreed to install in defendant’s building on said real estate a boiler and radiators for the sum of $250. Soon afterwards Blaha purchased of appellee, McDonald, a boiler and radiators to be used by him in the performance of his said contract, at the price of $193.84, and March 19 the same were delivered by McDonald at the building of the defendant in which the same were to be installed by Blaha. Soon after said articles were so delivered by McDonald, Blaha demanded of John P. Mark $50 in addition to the contract price, and the demand was refused. Blaha then removed said articles from the premises of appellant and did nothing further towards installing a boiler or radiators in appellant’s building. April 27, 1906, after said articles had been so removed by Blaha, appellee gave to appellant the notice required by section 24 of the Lien Act of 1903.
    Adams & Froehlich, for appellant.
    Wyeth, Clark & Zollars, for appellee.
   Me. Justice Baker

delivered the opinion of the court.

The contention that the judgment should be reversed on the ground that the authority of the husband. of appellant to make for her the contract he made with Blaha is not shown, cannot be sustained. From her testimony on the trial the existence of such authority may fairly be inferred. Again, she expressly stated that she knew of the contract a few days before the radiators were removed from her premises. With knowledge of the contract with Blaha and of the delivery of the boiler and radiators to be used, under said contract, in her building, she made no protest, gave no notice of any objection on her part to the improvement contemplated by the contract, and we think that the right to a lien is, under the provisions of section 2 of the Lien Act, the same as if the contract had been made with her.

The right to raise the question of the constitutionality of the provisions of the Lien Act in relation "to attorneys’ fees was waived by taking the appeal to this court instead of to the Supreme Court. Haas Electric Co. v. Amusement Co., 236 Ill. 452.

The principal contention of appellant is, that under the lien act of 1903, there is no right in a subcontractor in an action at law, brought against the owner and contractor, to recover against the owner, where the contractor, by reason of the abandonment and nonperformance of his contract, would not be entitled to recover as against the owner. The question of the right of the subcontractor to recover against the owner under such circumstances has not, so far as we are advised, been passed on by any court of review in this State.

Section 21 of the Lien Act provides that:

“Sec. 21. Every mechanic, workman or other person who shall furnish any materials, apparatus, machinery or fixtures, or furnish or perform services or labor for the contractor shall be known under this act as a subcontractor, and shall have a lien for the value thereof, with interest on such amount from the date the same is due, from the same time, on the same property as provided for the contractor, and, also, as against the creditors and assignees, and personal and legal representatives of the contractor, on the material, fixtures, apparatus or machinery furnished, and on the moneys or other considerations due or to become due from the owner under the original contract, whether or not the original contractor could have obtained a lien or was by contract or conduct divested or deprived of a right to obtain a lien. In no case, except as hereinafter provided, shall the owner be compelled to pay a greater sum for or on account of the completion of such house, building or other improvements than the price or sum stipulated in said original contract or agreement, unless payment be made to the contractor or to his order, in violation of the rights and interests of the persons intended to be benefited by this act. * * * Also, in case of default or abandonment by the contractor, the subcontractor or party furnishing material shall have and may enforce his lien to the same extent and in the same manner that the contractor may under conditions that arise as provided for in section 4 of this act, and shall, have and may exercise the same rights as are therein provided for the contractor.”

Section 4 of the act is as follows:

“Section 4. When the owner of the land shall fail to pay the contractor moneys justly due him under the contract at the time when the same should be paid, or fails to perform his part of the contract in any other manner, the contractor may discontinue work, and the contractor shall not be held liable for any delay on his part during the period of, or caused by, such breach of contract on the part of the owner; and if after such breach for the period of ten days the owner shall fail to comply with his contract, the contractor may abandon the work, and in such a case the contractor shall be entitled to enforce his lien for the value of what has been done, and the court shall adjust his claim and allow him a lien accordingly. In such cases all persons furnishing material which has not been incorporated in the improvement shall have the right to take possession of and remove the same if he so elects.”

.Section 7 relates to the lien of the contractor and contains the following provisions:

“Nor shall any such lien for material be defeated because of lack of proof that the material after the delivery thereof, actually entered into the construction of such building or improvement, although it be shown that such material was not actually used in the construction of such building or improvement. Provided, it is shown that such material was delivered either to such owner or his agent for such building or improvement to.be used in such building or improvement, or at the place where said building or improvement was being constructed, for the purpose of being used in construction.”

Section 28 of the act provides that the contractor “may sue the owner and contractor jointly for the amount due him in any court having jurisdiction of the amount claimed to be due, .and a personal judgment may be rendered‘therein, as in other cases. In such actions at law, as in suits to enforce the lien, the owner shall be liable to the plaintiff for no more than the pro rata share that such person would be entitled to with other subcontractors out of the funds due to the contractor from the owner under the contract between them, except as hereinbefore provided for laborers, and such action at law shall be maintain (maintained)' against the owner only in case the plaintiff establishes his right to the lien. * * * All such judgments, where the lien is established, shall be against both jointly, but shall be enforced against the owner only to the extent that he is liable under his contract as by this act provided, and shall recite the date from which the lien thereof attached according to the provisions of sections one (1) to twenty (20) of this act; but this shall not preclude a judgment against the contractor, personally, where the lien is defeated.”

Speaking of the subcontractor’s lien given by section 21 of the act, it was said in the opinion in Keeley Co. v. Decorating Co., 194 Ill. 580, 593: “The lien of the subcontractor by virtue of this section is not dependent upon the fact that the original contractor has a lien, and the subcontractor, under said section, may have a lien although the original contractor have none. The lien of the subcontractor does not spring out of the lien of the contractor and is not derived therefrom or made subordinate thereto. "While the aggregate of all the liens may not exceed the contract price agreed upon to be paid by the owner, if he comply with the statute and there is no fraud this limitation concerns not the fact of a lien but the extent thereof. The lien of the subcontractor being a direct lien its existence does not depend upon the existence or nonexistence of a contractor’s lien, and the waiver of a lien by a contractor, either in express terms or by the execution of a contract which does not create a lien under the statute, will not affect the subcontractor’s lien. The contractor may waive or estop himself to enforce a lien, but the subcontractor may, nevertheless, bring himself within the protection of the statute by complying with the provisions thereof, and, independently of the contractor, assert a lien for his work or materials.”

The lien of the subcontractor attached upon the delivery of "the materials and upon compliance on his part with the" provisions of the lien act. The question of the extent of his lien and of the amount a subcontractor is entitled to recover against the owner is a question not free from difficulty. The language of section 21 is, that the contractor shall not be compelled to pay etc. a greater sum, “than the price or sum stipulated in the original contract. ’ ’ The language of section 28 is: that the owner shall be liable to a subcontractor for no more than his pro rata share: “out of the funds due to the contractor from the owner under the contract between them.” In Keeley Co. v. Decorating Co., supra, it was said: “While the aggregate of all the liens may not exceed the contract price agreed upon to be paid by the owner”, etc. We think that the intention of the legislature was to limit the extent of the liens of the subcontractors to the amount of the price or sum stipulated in the original contract and not to the amount due from the owner to the contractor under that contract in case of total or partial failure to perform by the contractor. There is no evidence tending to show that if the owner had proceeded to install the boiler and radiators so delivered by the subcontractor, that she would have been compelled to pay more on account of such improvement than the price or sum stipulated in the original contract. The subcontractor was not bound to follow up the delivery of the boiler and radiators and see that the contractor performed his contract with the owner. That was the business of the owner. In place of doing so she permitted the contractor to enter upon her premises and remove the articles which the subcontractor had delivered there to be used in the improvement of her building.

We think the Superior Court did not err in directing a verdict for the plaintiff and in entering on the verdict the judgment which was entered, and the judgment'will be affirmed.

Affirmed.

Mr. Justice Chytbatts dissenting.


author: Mr. Justice Chytraus

text:
    Julia M. Vaughn, Defendant in Error, v. George F. Slater, Plaintiff in Error.
    Gen. No. 14,337.
    1. Contracts—when lack mutuality. A contract between two parties, executed by an agent on behalf of one of the parties, which stipulates that it shall not become effective without the approval of the principal, lacks mutuality until so approved, and if not approved by such principal before rescission by the other party, is void.
    2. Statute of frauds—-when contract for sale of real estate within. A contract providing for the sale of real estate, executed upon behalf of the owner thereof by an agent not authorized in writing so to do, which contract contains a provision that it shall not become effective until approved by such owner, is within the Statute of Frauds and before it can become a binding obligation upon the purchaser, it must be approved in writing by the owner.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 9, 1909.
    Rehearing denied March 19, 1909.
    S. F. Lynn, for plaintiff in error.
    Albert B. George, for defendant in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

On May 28, 1907, Julia M. Vaughn paid $100 to Arthur H. Weinreb, a real estate agent, which money he afterwards turned over to defendant below, George F. Slater. At the time she paid the money she received from Weinreb a paper reciting the receipt of the money as part payment towards the building and lot known as 3738 Calumet avenue in Chicago, which property, the paper states, was thereby bargained and sold to her for $3,500 and that, of the purchase price, $3,400 remained to be paid, as in the paper specified. The writing also provides that should the title to the property not prove good, then the $100 paid was to be returned, and that if Mrs. Vaughn should fail to perform her part of the agreement, then the $100 was-to be forfeited by her. In conclusion a provision appears that: “This contract is subject to approval of owner.” Weinreb signed: “George F. Slater by A. Weinreb, his agent”, and Julia M. Vaughn also affixed her name. This writing purports to be a contract for the sale of land. George F. Slater, by his defense in this suit) seeks to have it considered a valid and binding contract for the sale of the real estate mentioned therein. Upon the theory of its validity as such contract and because Mrs. Vaughn refuses to carry out that contract, Slater is keeping the money she paid Weinreb. Section 2 of chapter 59 of the Bevised Statutes. of this state, which chapter is entitled Frauds and Perjuries, provides as follows: “No action shall be brought to charge any person upon any contract for the sale of lands * * * unless such contract or some memorandum oí note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.”

Julia M. Vaughn brought suit in the Municipal Court for the $100 and recovered a judgment against Slater therefor. Now Slater is prosecuting this writ of error to reverse that judgment.

There is in this record no evidence of any authorization of Weinreb, in writing, by Slater, to execute the instrument in question. Weinreb testified Slater did authorize him to sign, but not in writing. Slater testified that he ratified the act of Weinreb and that he had told Julia M. Vaughn so. According to the statute quoted above, the writing, so far as it purports to be a contract for the sale of real estate, never became effective,—and it purports to be nothing else. It is sought to charge Julia M. Vaughn in this suit as a purchaser of real estate. She cannot be so charged, unless upon a contract binding and enforce-i able as to both parties. This writing, upon which the decision herein depends, is not a contract binding upon Slater. It therefore lacks mutuality. The “approval of owner” required by the writing itself refers to an approval in the manner and form required by law to make the particular contract valid and binding upon the approver. In this instance, the contract to be entered into required, under the law, the signature of Slater himself or “some other person thereunto by him lawfully authorized in writing”, in order to be binding upon him. Lacking in that respect the attempt of the parties never ripened into a contract. Under those circumstances Mrs. Vaughn is entitled to recover.

None of the authorities to which we are referred by counsel for plaintiff in error, in respect to subsequent ratification, relates to contracts for the sale of real estate. Ratification of other contracts is not pertinent here. We find the judgment of the Municipal Court to be without error and it must be affirmed.

Affirmed.


text:
    Abraham Bernstein et al., Defendants in Error, v. Chicago, Indianapolis & Louisville Railway Company, Plaintiff in Error.
    Gen. No. 14,349.
    1. Appeals and errors—what not subject to review. A party at whose instance an error is committed cannot afterwards complain of that error in a cour-t of review.
    2. Evidence—when failure to make particular proof not open to complaint. If a party seeks to introduce particular evidence and is prevented from so doing by the objection of the opposite party, such opposite party cannot thereafter raise the question of the absence of such evidence.
    Tort. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 9, 1909.
    Statement by the Court. Bernstein & Wolf brought suit in the Municipal Court against the Chicago, Indianapolis & Louisville Bailway Company, plaintiff in error, and another railway company, for $308.25, but dismissed as to the other company. Thereafter a judgment was rendered against plaintiff in error, for the amount sued for. This writ of error is prosecuted to reverse that judgment. The suit is to recover damages for injuries to certain furniture, sustained in transit, consigned from Drexel, North Carolina, to Bernstein & Wolf, in Chicago. Plaintiff in error is a common carrier.
    It appears that when the furniture, a carload, arrived in Chicago, one Essig, a driver for Bernstein & Wolf, went to the freight depot for it. Upon looking-through the car he found, as he says: “The goods were all broken up and in bad condition, and I refused to take the goods.” But he telephoned his employers and they sent Geiger, one of their salesmen, down to the freight depot. Essig, Geiger and a general clerk of the plaintiff in error then arranged that Essig would take the furniture and that the yardmaster of the railway should be present and check up or note what was broken. In that manner the furniture was received by Bernstein & Wolf and it was carted to their warehouse. Essig signed and delivered to the yardmaster, Kopsell, a paper, spoken of as a receipt, as follows:
    “8-9-06.
    Car No. 16450 Initials—SOW
    8-2-06
    Track No. Low Ky. Seals E.____________W.___________
    Consignee W. B. X. 105 Pro 596
    Contents Bernstein & Wolf.
    No. and Description. Date Signature.
    # 1 car C Furniture.
    # 40 Dressers marred more or less
    # frames broken
    W. W.'8/11/06.
    Lay in car the same.
    Bemarks: A. Essig.
    Bep. 8/22/06.”

      Mr. Bernstein testified that MeNiff, claim agent for plaintiff in error, told him to have the furniture repaired and to send the company the bill. He testified, also, that he talked with Mr. Clayton, contracting agent for plaintiff in error, at the company’s office. As to him he said: “I asked him what to do with the goods; whether I should load the car and send it back, and he told me I had better have it fixed up and send the bill to the company to be paid.” Mr. MeNiff testified on behalf of plaintiff in error and denied having had any conversation with Bernstein in regard to repairing the furniture. He testified, also, that Clayton, who was an outside solicitor of freight, had no authority in respect to the matter and that he, MeNiff, had not sent Clayton to see Bernstein and did not know how it happened that Clayton had at one time called on .Bernstein. He also stated that the claim might have gone through somebody else’s hands.
    Defendants in error introduced in evidence a receipt for repairing the furniture as follows:
    “10/15/06.
    Repairing done on Drexel Furniture Company’s dressers for Bernstein & Wolf:
    33 dressers, at $3.50........................ ........................$115.50
    24 tt it 2.75........................ ........................ 66.00
    22 tt tt 2.25........................ ........................ 49.50
    17 it tt 1.50........................ ........................ 25.50
    37 tt tt 1.25........................ ........................ 46.25
    11 tt if .50........................ ........................ 5.50
    $308.25
    Paid in full
    Sam Bloom,
    Per D. S.
    Stamped:
    Claim
    139900
    C I & L By.”
    Bernstein testified he paid the amount of the bill $308.25 for the repairing of the furniture and that he was constantly having furniture repaired and knew what was the fair, reasonable and custQmary price for repairing furniture in Chicago. The attorney for defendants in error asked the question: “What was a reasonable price to repair that furniture?” To this question an objection was interposed by the attorney, for plaintiff in error and the court sustained the objection. The witness then testified that the broken furniture, before the repairing thereof, was worth $500. The evidence shows the market value of the furniture, on July 21, 1906, when it was shipped to Bernstein & Wolf, was $1,106.10. It also appears that at the time the furniture was unloaded from the car all the pieces were wrapped in paper and were not unwrapped. Essig testified his receipt was correct and right. It is not disputed but what the furniture was damaged.
    G-. W. Kretzinger and L. L. Smith, for plaintiff in error.
    Blum & Blum, for defendant in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

Plaintiff in error contends that there is an attempt to increase and magnify the damages; that a less number of articles were injured than claimed and that the amount claimed to have been paid out for repairs, upon furniture injured, was not shown to be reasonable or necessary.

As to this last mentioned contention, it it true, as a general proposition, that it was incumbent upon defendants in error to prove that they paid, for repairing or restoring the broken furniture, no more than a reasonable price, at the time in question, for doing such work. But the consequences of improperly objecting are frequently as grave as those of failing to properly object. It is well established that the party at whose instance an error is committed cannot after-wards complain of that error in a court of review.. McKinnie v. Lane, 230 Ill. 544; Smith v. Kimball, 128 Ill. 583; Oliver v. Oliver, 179 Ill. 9; Conness v. I., I. & I. Ry. Co., 193 Ill. 464; Glos v. Murphy, 225 Ill. 58. Parties are estopped, on review, by taking a position in the trial court. Ch. Term. R. R. Co. v. Schmelling, 197 Ill. 625. The attorney for defendants in error sought to prove the reasonable price of repairing the furniture in question and, at the very initial question on that line of evidence, the attorney for the plaintiff in error objected ánd .the court sustained the objection. The attorney for the defendants in error then did the next best thing by showing the value of the furniture as it was before being damaged by the negligence of plaintiff in error and, also, its value after it was damaged but before it was repaired. This showed the injuries thereto to have lessened its value by $606.10—much more than the repairing cost. Plaintiff in error has no just cause of complaint because defendants in error did not show that the amount paid out for repairs was reasonable, the necessity for paying out something is uncontroverted, and, furthermore, plaintiff in error, by its objection, is estopped from urging the error committed, as a ground for reversal.

We cannot, upon the evidence herein, say that there was any attempt to increase or magnify the damages. True the receipt given by Essig, the driver, mentions forty as the number of dressers “marred more or less”, and the receipt for the repairing shows 144 dressers as having been more or less injured and repaired. We cannot consider such a receipt as the one here in question, given under the circumstances here shown, as conclusive upon Bernstein & Wolf, by way of estoppel. It was, undoubtedly, entitled to some weight as evidence. But there is evidence in this case both lessening the weight of that receipt as evidence and controverting it as to the number of pieces injured.

The inspection of the furniture, wrapped up in paper, at the time of the unloading, is not shown to have been so close as to have disclosed injury to all pieces that were injured. The particular number cannot be considered established merely by the introduction of the receipt by Essig. The injury to many pieces does not appear to have been very great.

We find no reason for disturbing the judgment of the court below. The judgment is affirmed.

Affirmed.


text:
    Herman Helfer, Defendant in Error, v. George W. Spunner, Plaintiff in Error.
    Gen. No. 14,369.
    1. Attorney and client—limit of former’s power to settle. An attorney may not compromise his client’s claim or receive anything but money in payment without his client’s assent.
    2. Attorney and client—what not conversion by former. An attorney who is given a note for collection and undertakes to settle the same without his client’s consent by the taking of some cash and a series of notes, and who offers the proceeds of the settlement to his client, is not guilty of a conversion of the original obligation. But the client in such case has the right to repudiate the transaction and seek to enforce the original obligation, even though the signature thereto may have been mutilated.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed.
    Opinion filed March 9, 1909.
    Statement by tie Court. On May 7, 1906, Heifer, defendant in error and plaintiff below, gave Spunner, plaintiff in error and defendant below, who is an attorney at law, a note for collection. The note was for $390, dated January 1, 1904, bearing six per cent, per annum interest and payable in two years. It was signed J. Frank Bichardson, payable to the order of M. C. McIntosh and endorsed only as follows: “I hereby agree to collect the within note including interest and principal, for one per cent, commission. M. C. McIntosh.” When the note was left for collection Spunner told Heifer he must let him, Spunner, use his own judgment in the matter of the collection, to which Heifer acceded. At that time Spunner gave Heifer a receipt for the note as follows:
    “Lake Zurich, May 7, 1906.
    Beceived from Herman Heifer, McIntosh note for $390 and interest. Original note $350. Same for collection. $50 if I collect; nothing if I don’t. Two months to make collection.
    (Signed) Gr. W. Spunuer.”
    On January 8, 1908, Heifer brought suit against Spunner in the Municipal Court for the value of that note. A jury was waived and, upon trial before the court, Heifer recovered a judgment for $300 and costs. In his praecipe Heifer had placed his damages at that amount. Spunner prosecutes this writ of error to reverse that judgment.
    There is no conflict of fact in the case. It appears that Spunner, in the course of his efforts to collect the note, took from McIntosh fourteen notes for $25 each and, when that was done, McIntosh tore off the signature of J. Frank Bichardson to the original note and let it remain with Spunner. These fourteen notes were taken payable to the order of Spunner. Subsequently $55 was collected by Spunner upon the fourteen notes. Spunner says he did what he thought was for the best interests of Heifer and did not intend to convert the note to his own use. He has never disputed Heifer’s ownership of the money and the new notes received. When Heifer came to Spunner with reference to the collection, Spunner offered him the money and the remaining $25 notes, but Heifer refused and insisted upon receiving all cash. Plaintiff in error offered, at the trial, to show that no such person as J. Frank Richardson existed and that the original note was worthless. But the court would permit no evidence in that behalf, to which ruling an exception was preserved. Some evidence appears in 1 the record tending to show the note was worthless.
    Hayden N. Bell, for plaintiff in error.
    C. C. Collins, E. S. Metcalf and R. W. Churchill, for defendant in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

Plaintiff in error, in his argument, insists that this action is one in tort and defendant in error, in his argument, insists the action is one in assumpsit. Both sides are equally strenuous in their respective contentions. Important rights, of the one party or the other, even to the extent of a question of deprivation of a party’s personal liberty under the judgment to be rendered, frequently depend upon the election of the remedy or form of action. But, under the view we take of the case at bar, it is immaterial' upon what theory of action the suit was prosecuted. In this state it is established beyond question that an attorney may not compromise his client’s claim or receive anything but money in payment, without the client’s assent. Nolan v. Jackson, 16 Ill. 273; Danziger v. Pittsfield Shoe Company, 204 Ill. 145. The arrangement made by Spunner with McIntosh, unauthorized by Heifer, did not bind or in any wise affect Heifer. His rights against McIntosh or Richardson remained, after Spunner’s arrangement, precisely the same as they were before. The only difference in Heifer’s situation was that the note was mutilated by Richardson’s signature being torn off. This in nowise affected the validity of the note; it only created some difficulty in making proof of the note. The mutilation would have to be explained and it might be harder to prove the signature. As a matter of law, McIntosh could not set up the settlement against Heifer and neither could Eichardson. Therefore, Spunner did not deprive Heifer of the note by what he did. "When Heifer learned of what Spunner had done he had the option of repudiating his action and proceeding, as he, Heifer, might see fit, upon his original cause of action, which Spunner’s act had not deprived him of, or he could adopt and ratify the act of his attorney. "Whichever course he adopted the present judgment against Spunner cannot be sustained.

The judgment of the Municipal Court is therefore reversed and the cause is not remanded.

Reversed.


author: Mb. Justice Chytbaus

text:
    John E. Windsor, Appellant, v. Kelly Coal Company, Appellee.
    Gen. No. 14,377.
    Brokers and factors—what will not defeat recovery of commissions. In an action to recover commissions by one who has been employed as an agent to effectuate certain results, a defense which consists of a charge that such agent has made certain secret and unlawful profits in connection with his employment, in order to defeat a recovery must be established by a preponderance of the evidence.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 9, 1909.
    Nicholas W. Hackee, for appellant.
    Calhouh, Lyfoed & Sheeah, for appellee.
   Mb. Justice Chytbaus

delivered the opinion of the court.

Appellant, Windsor, brought a suit in assumpsit in the court below against appellee, Kelly Coal Company, for breach of a contract to pay certain commissions. A trial by jury was had, a verdict for the defendant was returned and a judgment was rendered upon that verdict against plaintiff. This appeal was then taken.

The contract involved we find to consist of two writings, one dated April 17, 1906, made in Chicago, and the other dated May 26, 1906, made in Danville, Illinois. Both writings were made between John E. Windsor, of Chicago, appellant, and L. E. Fischer, of Danville, who was general manager of the Kelly Coal Company, appellee. It was contemplated and, in the first paper, provided that the coal company would step into the place of Fischer and assume his obligations under the contract. This the .company subsequently did.

For the purpose of eliminating the paper of May 26 and thereby eliminating the defense of fraudulent performance of his duty, as agent, a main contention by appellant is that the paper of April 17 was executed and delivered as a transaction—and contract-complete in itself. We find no difficulty in arriving at the conclusion that both writings are part of one transaction, not completed without the paper of May 26, 1906. Windsor and Fischer, with their respective counsel, Judge McSurely and George T. Buckingham, met at the Auditorium Annex Hotel in Chicago, on April 17, 1906, and then prepared, and had signed by the two principals, the paper of the latter date. That paper provides: First, that Windsor shall immediately execute a writing releasing the Kelly Coal Company and the Kellyville Coal Company from all obligations, up to that date, by reason of any transactions between him arid those companies. Second, that (a) Windsor shall procure a settlement between the Kelly Coal Company and the Standard Oil Company of Indiana of all controversies then existing between those companies; (b) snch settlement not to become effective, or operate as a performance of this contract by Windsor, until approved by the general manager of the Kelly Coal Company. Third, (a) Windsor shall negotiate a contract between the Kelly Coal Company and the Standard Oil Company for the furnishing of coal by the former to the latter for a period of not to exceed two years beginning about May 1, 1906; (b) such contract not to become effective or operate as a performance by Windsor of this contract until approved by the general manager of the Kelly Coal Company. Fourth, Fischer to cause the Kelly Coal Company to pay Windsor $5,000 within one year, to be paid by way of monthly installments as commissions on sales of coal by the Kelly Coal Company either to the Soldiers’ Home, at Danville, or to some other local customer of the Company. Sixth, Fischer to cause the Kelly Coal Company to pay Windsor an additional amount equal to two and one-half cents for each ton of coal delivered by that Company to the Standard Oil Company, under the contract to be negotiated with the latter.

That paper was signed by the parties, in duplicate, on April 17, 1906, without any intention on the part of either that there should be a delivery thereof at that time. There is some conflict in the evidence whether the papers should be in escrow with Judge McSurely. Certainly there was then no assent to a present delivery. As part of the arrangement between the parties, Fischer was to obtain a guarantor for the carrying out of the contract on his part. Consequently, Buckingham took one or both of the papers, it is neither clear nor material which, in order to procure the signature of W. B. McKinley, as snch guarantor. The next we learn of these papers, or either of them, is that on May 10, 1906, Fischer brought one of the copies to Judge McSurely’s office in Chicago with McKinley’s signature. Fischer then handed that copy to Judge McSurely saying: “I will give this

to you, but I wish you would not deliver it to Mr. Windsor until the Standard Oil contract is actually signed.” If McKinley signed but one of the papers, which appears to be so, then, obviously, that paper was the one which should go to Windsor upon final delivery between the parties. Windsor’s actual possession of the other would not permit of an inference of delivery. We next hear of the papers at Decatur, on May 26, 1906. Up to that time we find no mutual assent to delivery. Windsor and Fischer then met in Buckingham’s office to close the matter. Judge McSurely had brought with him from Chicago the required contract with the Standard Oil Company signed by that Company, to be signed by the Kelly Coal Company. It was found, however, that that contract contained no provision in terms obliging the Standard Oil Company to take the coal and, upon being communicated with by long distance telephone, that Company’s attorney refused to permit an insertion or interlineation to that effect. However, on that occasion, the payment of the $5,000 was made by Fischer by way of checks and notes, which, together with the Standard Oil contract, then signed by the Kelly Coal Company, were placed in an envelope and given to Judge McSurely to procure the acquiescence of the Standard Oil Company to the desired insertion or interlineation. On that same occasion the parties made and signed the paper dated May 26, 1906, which is as follows:

“Danville, Illinois, May 26, 1906.
Me. L. E. Fischee
Dear Sie:—With reference to the contract entered into under date of April 17, 1906, between you and myself, and which contract was on the same date guaranteed by W. B. McKinley, of Champaign, Illinois, I beg to propose that in executing between us the terms of section ‘sixth’ of said contract, the following method shall be adopted, namely, that I will purchase through my concern, known as the Windsor Coal Company, in Chicago, Illinois, screenings to he purchased subject to your approval, and to be furnished by the Kelly Coal Company on its contract with the Standard Oil Company. I will purchase such amounts and at such times as may be arranged between us, and whatever the difference or profit is between the purchase price and the sale price of such screenings will be received by me as payment (so far as the same shall extend) upon the payment of my compensation due me under said Clause ‘Sixth’, and if said amount of profit shall be less than said amount of commission due me by reason of the provisions of said Clause ‘Sixth’, then the difference due to me shall be settled and paid by said Kelly Coal Company under the terms of said Clause ‘Sixth’.
It is understood that I will not charge you any compensation upon the purchase of such screenings for you.
Tours very truly,
(Signed) J. E. Windsor.
I hereby accept and agree to the above method of executing said Clause ‘Sixth’.
(Signed) L. E. Fischer.”

The time or order of signature of these papers is-a matter of- less consequence. The time of delivery in conjunction with the inherent or intrinsic connection of the papers determines whether they constitute parts of one and the same transaction or distinct and separate transactions. We find them to be parts of one transaction and, together, to constitute one contract. Judge McSurely testified that on May 26 nothing was said as to when he should deliver to Windsor either the notes or the contract of April 17, 1906. On May 29, 1906, the Standard Oil Company gave the consent required of it and Judge McSurely then returned the Kelly-Standard Oil contract to the Kelly Coal Company. Since then, if not before, these parties have done business under that contract and Windsor has received, accordingly, his commission of two and one-half cents per ton except the part of such commissions involved in this suit. This suit involves the commission for coal delivered by the Kelly Coal Company to the Standard Oil Company for part of the month of February 1907 and all of the months of March, April, May and June of the same year.

By the contract between the parties hereto, as evidenced by the paper of May 26, Windsor agreed, substantially, that, through his concern, known as the Windsor Coal Company, Chicago, he would, for and on behalf of the Kelly Coal Company, purchase the “screenings” to be furnished by it to the Standard Oil Company, but without charging the Kelly Coal Company any compensation upon the purchase of the “screenings” for it, and, furthermore, it was agreed that any profit difference there might be, between the purchase price and sale price to the Standard Oil Company, should so far as it might extend, be applied upon Windsor’s commissions becoming due under clause “sixth” aforesaid, and the shortage in the payment of such commissions to be made good by the Kelly Coal Company according to the terms of clause “sixth”. The parties, as they said, regarded this arrangement as a method of executing or carrying out clause “sixth”.

Appellee, claiming to have ascertained that in acting for it in the purchase of these “screenings” Windsor took a fraudulent advantage of his position and the relation between the parties, by making an illegitimate profit in handling the “screenings”, now objects to paying the commissions sued for. The contention is that by his fraud, in that connection, appellant has forfeited the right to collect any commissions for his services to his principal. This defense is one appellee was required to establish by a preponderance of the evidence. For that purpose one witness, Alfred L. Hansen, was called. Hansen had been associated with Windsor since 1898; first as a stenographer, then as a salesman and, later, in October, 1906, his name was placed upon the stationery of the Windsor Goal Company as secretary. After that time he was to receive a salary of $100 per month and, in addition, one-third of the net profits of the business, which profits were to be applied toward the payment of one-third of the company’s capital stock that he was to receive. Apparently there were no profits, so this arrangement came to nothing. About the first of January, 1907, Windsor and Hansen had some disagreement and separated. Windsor, sued Hansen. At that time, as he himself informs us, Hansen was not very friendly to Windsor. Hansen informed Hartshorn, manager of appellee, that Windsor was making a profit on the “screenings”, and thus brought about this defense.

This information, according to Hansen, was furnished in the latter part of January; but, according to Hartshorn, appellee’s manager, it was in the latter part of April or the first of May, 1907.

Hansen testified that shortly after the making of the contract between the Kelly Coal Company and the Standard Oil Company, Windsor told him that he, Windsor, was permitted to make no profit on the “screenings”, but, they could take some jobber into their confidence, advise him of the price at which he could sell to the Kelly Coal Company and then divide the profits with him. J. H. Boys, of the Johnson City Coal Company, was suggested by Windsor as the jobber. The three, Windsor, Boys and Hansen, had a meeting where it was arranged Hansen should advise Boys of the price at which “screenings” should be turned in and that one-half of the profits should go to the Johnson City Coal Company and the other half to the Windsor Coal Company, but that the latter company’s half would be paid to Hansen in currency so that the Johnson City Coal Company’s books would show nothing paid to Windsor or his company; and Windsor then said that if anything turned up he, Hansen, was to take all the responsibility. Hansen, as he testified, then bought seventy-five or eighty-five cars of screenings from the Dering Coal Company and had them reconsigned to the Johnson City Coal Company in pursuance of the arrangement; but, he says, when he made a demand for the half of the profits the Johnson Coal Company refused to pay without Windsor’s sanction. Hansen in testifying, said: “I would be willing to take my share of the shady transaction. ’ ’ This arrangement was flatly denied by both Windsor and Boys. Boys, at the time he testified, was a salesman for the Windsor Coal Company, having left the Johnson Company April 1, 1907. Boys denies that any arrangement was made to keep anything ofle the books of the Johnson Company. He testified that the first he knew of this “screening” matter was that, early in August 1906, Hansen called him to the Windsor Company’s office and when he came there Windsor was not in. Hansen then said: “If I can tell you where you can put a bunch of ‘screenings’ will you divide the profits deriving from such?” To which he, Boys, replied: “Providing the parties are of good standing financially, I would agree to it.” Hansen then told him to go to the Kelly Coal Company and sell them a number of cars and he would furnish the numbers. Nothing was said of Windsor or the contract between the Kelly Company and the Standard Oil Company. Boys then went to the Kelly Company and made a sale and returning to the Windsor Company’s office on the same day, in the afternoon, he found Windsor, but not Hansen, there. He then, supposing Windsor knew of the matter, asked him for the numbers of the cars, to which Windsor replied: “What cars?” When Boys explained Windsor said: “What is this? I don’t understand anything about this deal. What is it?” and became very angry and said under no conditions would he have anything to do with it. In the latter part of the month he, Boys, met Windsor and he then told him Hansen had been to the Johnson Company’s office and taken the matter up as a personal matter; at which Windsor said he would go to the Johnson Company’s office and straighten the matter out at once. Boys met Hansen often and when he asked if the screening delivery was going on all right Boys replied it was. Later, when Hansen came in regard to the matter of sharing the profits, Boys referred him to Windsor. No part of the profit on this deal went to Windsor or his company. Windsor, Boys also testified, went to the Johnson Company’s office and gave instructions that no one connected with his company should receive any commission' on this deal. Boys received $103 from the Johnson Company in the transaction. Holland, treasurer of the Johnson Company, knew of the arrangement with Hansen to split the commission. Holland testified he paid to Boys the half, $103, in April 1907, as it was owing from them to some one.

Windsor’s testimony coincides with and is corroborative of Boys’ version of the transaction. He adds that as soon as he learned of the transaction he went to the Kelly Coal Company and told the manager about it and that he was sending him a corrected bill.

When Hansen was no longer in the employ of Windsor he repeatedly sought to obtain from the Johnson Company this commission or “split” as a personal matter of his own.

To us it is perfectly clear not only that the preponderance of the evidence is not with the defendant, on this question of fraud, but, according to the evidence in this record, the preponderance is, clearly, the other way, and for that reason the judgment herein is reversed and the ease remanded.

Reversed and remanded.


author: Mr. Presiding Justice Adams

text:
    Loyal W. Murphy, Plaintiff in Error, v. Charles H. Lever, Defendant in Error.
    Gen. No. 14,320.
    1. Contracts—when question of construction for jury. In this case the question was as to whether or not a warranty was continuous or otherwise; held, that whether such warranty.was continuous by virtue of the construction of the contract by the conduct of the parties, was a question of fact to be determined by the jury and that it was error for the court to decide such question as one of law.
    2. Warranties—what not continuous. Held, as a matter of law, that a warranty in words as follows, was not continuous: “The boiler above referred to is warranted to stand a pressure of 100 pounds,” meaning a steam working pressure; such a provision being contained in a lease which contained the usual provisions with respect to the tenant keeping the demised premises in good repair.
    3. Accord and satisfaction—when exclusion of evidence of, erroneous. If a question becomes the subject-matter of litigation which previously had formed the basis of a settlement between the parties, it is error to exclude a contract which tends to show an adjustment of such controversy.
    Action commenced before justice of the peace. Error to the Superior Court of Cook county; the Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the March term, 1908.
    Opinion filed March 4, 1909.
    Rehearing denied April 8, 1909.
    Cratty Bros. & Jarvis, for plaintiff in error.
    E. C. Mapledoram, for defendant in error.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

This is an appeal from a judgment in favor of the defendant, Charles H. Lever, and against the plaintiff, Loyal W. Murphy, for costs. The suit was commenced by distress warrant and was first tried before a justice of the peace, and was appealed from the justice to the Superior Court, where it was again tried. The jury found for the defendant, the plaintiff’s motion for a new trial was overruled and judgment was rendered on the verdict.

April 3, 1903, the plaintiff executed a lease to the defendant of the following described premises: lots 11 to 26 in block 5, in B. F. Jacobs’ subdivision of blocks 1 to 16, and blocks 21 to 38 in B. F. Jacobs’ Evergreen Park subdivision of the southeast quarter of section 2, township 37 north, range 13 east of the third principal meridian, in the village of Evergreen Park, in Cook county, State of Illinois, together with all buildings and improvements thereon of every kind and character, including all fixtures, boilers, engines, pulleys, shafting, belts, switches, trackage, fencing and the apparatus and equipment of the factory and plant of said premises, except match-making machinery, now on said premises, which is to be removed prior to April 15, 1903. “The boiler above referred to is warranted to stand a pressure of one hundred pounds, meaning a steam working pressure”. The term for which the premises were leased is stated to be from May 1, 1903, till April 30, 1905. The rent reserved is $2,200, payable as follows: $100 on the execution of the lease; $75 on taking possession of said premises on or before May 1, 1903; $75 in advance, June 1, 1903, and on the first day of each month thereafter, to and including April 1, 1904, and $100, in advance, on the first day of each month thereafter until the termination of the lease by lapse of time, or by exercising the option of said second party, of even date herewith, to purchase said property.”

The lessee, defendant, covenants that he “has received said premises in good order and condition”, and that, at the expiration of the term, he will yield up the same in like condition, loss by fire, inevitable accident and ordinary wear excepted; “and also will keep the said premises in good repair during this lease at his own expense”.

The defendant took possession of the premises the latter part of April, 1903, and commenced moving his machinery in May, 1903, which he testified took about a month. He continued in possession till July 31, 1904, when he moved out of the premises, taking his machinery, etc., with him. The present suit is for the rent for the months of September and October, 1904.

The defendant resists payment of the rent, claiming that the boiler would not stand a steam working pressure of 100 pounds. The defendant testified that it was tried for low pressure the first time work was started in April, 1903, and the gauge showed 30 pounds, and that he took the steam gauge to the city and found it was not right, and had to have new-springs put in it, and that, after the gauge had been fixed, he made no test, and did not know what the boiler showed at the time he took possession.

George Overton, who was in defendant’s employ from some time in April, 1903, till February, 1904,-testified that after Mr. Lever had the steam-gauge fixed they made a water test of the boiler, which showed a pressure of 130 pounds.

George Hawley testified that he worked for Mr. Lever from April 17, 1903, till August 8, 1903, as fireman and engineer combined, and that he saw a water test of the boiler May 1, 1903, George Overton being present, and that this was after the gauge had been fixed and was on. He says the boiler was pumped full of water and then, with a force pump, 130 pounds pressure was applied. Overton, who saw the test, testified that there was no leakage from the boiler when the pressure was applied.

W. E. Williams testified that he was a mechanical expert, and at one time was superintendent of motive power and machinery on a line of railroad; also that he had full charge about a year, of such boilers as the one in question and was familiar with the mode of testing such boilers, and that the usual test was with cold water, and that a cold water test of 130 pounds pressure, on a second-hand boiler, would indicate a capacity of carrying 100 pounds steam working pressure without any difficulty.

Frank N". Jewett, mechanical engineer, testified that if a boiler stood 100 pounds cold water pressure, it would safely carry 100 pounds steam working pressure.

There is evidence produced by the defendant to the effect that, subsequent to the time when the test testified to by Overton and Hawley was made, the boiler would not stand a steam working pressure of 80 pounds, though the evidence is conflicting as to this.

We have referred to the foregoing evidence chiefly for the purpose of illustrating the importance, in the case, of the following instruction given at defendant’s request, and which plaintiff’s counsel contend is erroneous :

“The court instructs the jury that while it is in the province of the jury to determine from the evidence whether the lease and contract introduced in evidence were executed by the parties whose names appear on them, it is the duty and province of the court to construe and interpret said lease and contract and advise the jury by instructions as to the rights and liabilities of the respective parties to said lease and contracts.

“And in this case if the jury believe from a preponder ence of the' evidence that the contract of lease introduced in evidence was executed by the parties thereto, then the court instructs the jury that the said contract of lease constitutes and is a valid and binding contract between the plaintiff and defendant, and the court further instructs the jury that in and by said contract of lease the said Loyal W. Murphy covenanted and warranted to the said Charles H. Lever that the boiler mentioned in said lease would stand a steam working pressure of 100 lbs., and under the law and construction put upon the lease by the parties thereto, said warranty extended during the whole period included between May 1st, 1903, and the thirtieth day of April, 1905, and that under the terms of said lease it was the duty of said Loyal W. Murphy to so care for and maintain said boiler that at all times during the period covered by said lease the boiler should stand 100 lbs. of steam working pressure”.

It will be observed that the court, by this instruction, decided that the construction placed on the contract by the parties made the warranty of the boiler a continuous warranty. Whether the parties, by their conduct, or otherwise, placed any construction on the warranty is a question of fact, to be passed on by the jury, from consideration of the evidence, and the assumption by the court that the parties construed the warranty as a continuing one, was prejudicial and reversible error.

Counsel for plaintiff contend that the warranty refers, either to the term the defendant took possession in April, 1903, or to May 1st, the day the term commenced.

Defendant’s counsel contend that the warranty continued during the term. The words of the warranty are: “The boiler above referred to is warranted to stand a pressure of one hundred pounds, meaning a steam working pressure”. There are no words in this warranty indicating that it is to be continuous. The words are, “is warranted”, etc.

In 1 Parsons on Contracts, 6th ed., page 576, it is said: “For these words of warranty are usually subjected to a careful, if not a precise and stringent interpretation, as it is the fault of the buyer, who asks for or receives a warranty, if it does not cover as much ground and give him as effectual protection as he intended”.

Lord v. Edwards, 148 Mass. 476, was a suit for breach of warranty of the test and color of sugar sold by the defendant to the plaintiff. The following facts appear in the opinion, from which we quote: “The contract between the parties is in the form of a letter, written at Boston by the agents of the defendants, addressed to the plaintiffs. The material parts of it are as follows: ‘We have made sale to you of 1200 tons extra Manila sugars, about No. 9 D. S. in color, at 1Ó.10 per ton f. o. b., and we understand it is your intention to load same on the Republic on her arrival at Manila. * * * It is further understood that the sugar is sold on a basis of 88° pol’r with 3d. per cwt. per degree downward and fractions of degree in proportion. The sugars to be thoroughly sampled and tested on arrival. In due season we shall expect satisfactory bankers’ credits at six months to be forwarded to our friends at Manila by cable’. Under this contract the defendants delivered free on board the Bepublic, at Manila, twelve hundred tons of sugar, which, as the jury have found, was equal to the test and standard required in the contract, if that test and standard are to be applied to the sugar at Manila. But, upon the arrival of the ship in New York the sugar was sampled and tested, and it was found that it failed to test 88 degrees by the polariscope, and was not equal in color to extra Manila sugar about No. 9, Dutch standard”. Held, that on delivery of the sugar on board the ship at Manila, and payment made therefor, the title passed to the plaintiff, and that the warranty applied to the delivery on board at Manila.

Luthy & Co. v. Waterbury & Co., 140 Ill. 664, was a suit by Waterbury & Co., in assumpsit, for the price of certain twine sold by that company to Luthy & Co. By the contract of sale, W. & Co. made this guaranty: “Party of the first part hereby guarantee that this twine is in good condition and a merchantable article”. The trial court instructed the jury that the guaranty had reference to the condition and quality of the twine at the time the contract was made. The Supreme Court held the instruction correct, saying: “We are, however, in view of all the provisions of the contract, inclined to the view that the court placed the proper construction upon it. If the sale was complete, and the title to the twine passed on the execution of the contract, as between the parties, then the guaranty related to the date of the contract”, and the court held that the parties intended that the title should pass when they executed the contract. In the present case the warranty is in the present tense equally with the guaranty in the case last cited. In the reservation of rent clause in the lease in question, there is this provision: “$75 upon taking possession of said premises on or before May 1, 1903”, so that there can be no doubt that the title passed on the execution of the contract, and this the defendant understood, and acted on by taking possession in April, 1903. It appears from the testimony of the defendant that, before he leased the premises, he went to the premises two or three times to inspect them, and spent about an hour each time examining them. He testified, however, that he had not any experience in boilers, and could not examine the boiler very well, and for that reason had the guaranty put in the lease. He examined with reference to the then condition of the premises and their appurtenances, and was so well satisfied that he was willing to take the lease and, as appears from the lease, he made an agreement with the plaintiff ftir an option to purchase the premises, and the sole reason why he required a warranty of the boiler was that because of his want of experience in boilers, he was not able to judge of its then condition, as he did of the other appliances, in respect of which he required no warranty, but relied on his personal examination.

The boiler was, as the evidence shows, a secondhand boiler, having been used for a considerable time before the lease was executed. Its future condition depended largely on the manner in which it would be used. It might be seriously injured by improper management, and this actually occurred in at least two instances; once by the fault of the engineer, as he admits, and once by the peremptory order of the defendant to fire it up when it was not sufficiently supplied with water, against the protest of the engineer. It is extremely improbable that the plaintiff would have been willing to warrant the boiler to stand even ordinary wear and tear, without repairs, for two years. Prior to 1904 the defendant complained that the boiler did not furnish sufficient power; and refused to pay the rent if plaintiff would not do something in respect to it, and plaintiff, in the meantime, was insisting on payment. This dispute between the parties lasted, as the defendant testified, till February, 1904, when they made the following agreement:

“This agreement, made this February 18th, 1904, between L. W. Murphy and C. H. Lever, witnesses that settlement between them is amicably made and that said Lever agrees to pay rent now due under the lease, $233, at once. Upon that- payment being made, no more rent will be due until the first of next month, March, 1904.

“Said Lever also agrees to pay during the month of March next the sum of $100, that being the purchase price of two cross-cut saws and all the shafting, belting and pulleys in the premises, (except the main line shaft which runs the full length of the building, and excepting the engine belt and two pulleys.)

“It is agreed that at the termination of the lease between them, the said Murphy shall have the option to repay to said Lever the sum of $100 and retain the articles so sold to said Lever and paid for by him, and in such case said Lever shall leave the same in said premises.

“The articles so sold for said $100«it is agreed consist of two cross-cut saws with countershafts and drive pulleys, one line shaft about 15 feet long with pulley located in- fire-proof room, one line shaft and two hangers formerly located on the north wall, one cross shaft on lower floor and one shaft on upper floor with pulleys, hangers and belts, such being the material which remained in the building from the match factory equipment.

C. H. Lever,

L. W. Murphy,

By W. E. Williams”.

This agreement was offered in evidence by the plaintiff, and the court, on defendant’s objection, excluded it. The ruling was error. The very question which is here litigated, namely, whether it was incumbent on the plaintiff to maintain the boiler in proper condition, had been a matter of controversy between the parties, and the agreement was competent as showing a settlement of it. The defendant, himself, testified, that during the year 1903 he did not pay the rent every month, that he objected pretty hard and refused to pay unless they would do something, and that the controversy lasted till February, 1904. This evidence shows that the defendant regarded the agreement of February as a settlement of the controversy. While we think that the agreement giving the defendant an option to purchase the premises, offered in evidence by the plaintiff, should have been admitted, we do not think its exclusion prejudicial error.

Plaintiff makes some objections to rulings and remarks of the court, which, probably, will not occur on another trial, and which, therefore, we do not think it necessary to pass on in this opinion.

The judgment will be reversed and the cause will be remanded.

Reversed and remanded.