text:
    Hugo Peterson, Executor, Appellee, v. The Sahlin Company, Appellant.
    Gen. No. 18,987.
    1. Master and servant, § 845

      —when master liable for act of night watchman in leaving elevator door open. Where a night watchman is employed to guard and keep an elevator door closed until the elevator man arrives in the morning, and the watchman in operating the elevator left the door open so that an employee returning to work in the morning fell into the elevator shaft, held that the leaving of the elevator door open was the act of the employer, though it was not within the scope of his employment to run the elevator.
    2. Master and servant, § 98*—defenses not available in action for violation of Factory Act. The doctrine of assumed risk, contributory negligence or fellow-servants cannot be availed of as a defense in an action by an employee to recover for injuries resulting from a violation of the Factory Act, J. & A. lili 5386 et seq.

    3. Master and servant, § 784*—when instruction erroneous as omitting elements of recovery. In an action by an employee based on an alleged violation of the Factory Act, held that an instruction which directed a verdict and set out the provisions of the act alleged to be violated was erroneous for the reason that it did not embody all the elements necessary for the jury to find before returning a verdict, and that it failed to define for the jury the terms “factory, mill or workshop.”
    4. Master and servant, § 98*-—proof essential to a recovery for a violation of Factory Act. To entitle an employee to recover under statutory counts for violation of the provisions of the Factory Act, J. & A. lili 5386 et seq., such employee must prove that he or she was an employee in a factory, mill or workshop within the meaning of the act, and that the defendant operated or controlled it.
    5. Master and servant, § 792*—when instruction as to applicability of statute improper. In an action for an alleged violation of certain sections of the Factory Act, where an instruction given for plaintiff set out such sections of the act, the language of a portion of the instruction which intimated that whether or not the sections were applicable was a question for the jury, held improper and misleading.
    6. Master and servant, § 98*—what constitutes violation of Factory Act. Under the Factory Act, J. & A. ffl 5386 et seq., an employee is not required to prove a wilful violation in order to recover, as is required under the Miners’ Act, J. & A. Iff 7475 et seq.

    7. Master and servant, § 622

      —when evidence of previous violations of Factory Act inadmissible. In an action by an employee to recover for personal injuries resulting from a violation of the Factory Act, evidence that the employer had violated the statute on other occasions than the one relied on for recovery, held inadmissible.
    8. Master and servant, § 98*—ivhat not a compliance with provision of Factory Act requiring lights in front of elevators. Section 17 of the Factory Act, J. & A. j[ 5402, requiring an artificial light when necessary to be placed in front of elevators, etc., held not fully complied with by placing such light in the elevator.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1914.
    Rehearing denied October 16, 1914.
    John A. Bloomingston, for appellant.
    Daniel V. Gallery, for appellee.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.

The Sahlin Company appealed from a judgment of $2,000 against it and in favor of Edna Ellingsen in her suit for personal injuries.

Appellee had been employed by appellant for five years and when injured was working for it upon the fourth floor of its building at 1403 and 1409 on the south side of West Congress street, Chicago. The building fronts north one hundred feet and extends south to the alley, and a three story building adjoins it on the corner lot immediately east. Entrance to the building from Congress street is made through a hall in the northeast corner extending south thirty-four feet. The elevator shaft projects into the hall from the east wall, is sixteen feet south of the double door entrance, and faces west. The hall north of the elevator is thirteen feet and four inches wide and five feet nine inches where it passes west of the elevator. The west wall of the elevator is twenty inches thick, and the doors to it are hung about even with the east side of that brick wall, and those doors have glasses about three feet long and twenty-two inches wide, the door that is moved by the elevator man being about three feet wide. The inside walls of the elevator are said to be whitewashed, but of a ‘1 dark white color,” according to appellee’s evidence, by reason of having been soiled. The ceiling was about fourteen feet in height. There is a large room just west, separated from the hall by a partition, lathed and plastered for the first four feet up from the floor, and the rest of the partition is of opaque wire glass. The natural light that reached the elevator came from the north through the clear glass in the double doors and in the transom above them, the glass in each door being two feet four inches by five feet six and one-half inches, and that in the transom being six feet six inches by eighteen inches. Appellant claims that some light comes through the glass partition from the well-lighted room west of it. There was no artificial light in front of the elevator. There was one in the elevator for use on dark days, but it was out of commission on the day in question. Appellee was injured on a bright sunny day, July 13, 1910, about two minutes before 7:30 a. m., the time to begin work there, by falling into the well hole at the bottom of the elevator shaft and fracturing the fibula or small bone of her right leg, by reason of which she lost several months’ time and incurred $215 expenses for hospital fees and services of a physician in being healed. Appellee sometimes used the elevator there and sometimes the stairway to go to her working place. On the day of her injury she came into the building in a hurry having only two minutes to get to her work on time. A crowd of girls had preceded her to the front of the elevator, and as the regular elevator man was late that morning, at the urgent entreaty of those girls, the watchman had come down from the third floor with the elevator, and had taken a load of them to the fourth floor, and by oversight had left the elevator door on the first floor open just before appellee came. Appellee walked straight south down the hall to the elevator, turned to her left to enter it, and seeing the door was open, and thinking the elevator was in place, stepped into the shaft and fell to the bottom of the well hole.

A common-law declaration was originally filed charging negligence in appellant for its failure to furnish her a reasonably safe place in which to work, and reasonably safe means of reaching her work, charging failure to keep the elevator door closed and properly lighted. Appellee treats this count as a part of her declaration, although she asked no instructions applicable to it and it has little or no importance in this appeal.

Afterwards, what is called an amended declaration was filed containing three statutory counts, all charging that appellant controlled there a factory building or workshop and the said elevator, at which factory or workshop appellee was employed by it in its business conducted there, and on which elevator it had frequently carried her prior to her injury, while so at work. The first count thereof charges a violation of section 92, ch. 48, of Hurd’s St. 1911, p. 1129 (J. & A. 5389), or section 4 of what is commonly known as the Factory Act, by allowing the said elevator door to remain open at a time when it was not necessary that it be open in order that the elevator might be used.

The second count charges a violation of section 17 of the Factory Act (J. & A. Jf 5402) by neglecting to keep burning a proper light in front of said elevator door when it was dark there and on a work day, and when the influx of natural light there did not make artificial light unnecessary.

The third count of the amended declaration combined the first two statutory charges aforesaid and all three of said counts averred that appellee was injured hy reason of appellant’s violation of said statute, and while she was in the exercise of due care for her own safety.

It is contended by appellant that the evidence is not sufficient to sustain the averment in the second count of the amended declaration, that it was dark at the elevator and that the influx of natural lig’ht there did not make artificial light unnecessary. Much of this argument is based upon appearances at and in the elevator as shown by a certain photograph in the record, and the evidence of nine of appellant’s witnesses who testified that the elevator and its surroundings were as well lighted and as plain to the view of any one standing in front of the elevator as they appear in the photograph. It must be admitted that all things in and about the elevator are very plain and easily seen from any point in the hall in front of the elevator if the witnesses were not mistaken about the correctness of the photograph, because the picture shows that every particle of the inside and outside of the elevator is so well lighted that they could easily be seen. It is claimed by appellee that the photograph was made from a negative taken by a flash light, but if this be true it should have been shown by evidence that was certainly obtainable, but which does not appear in the record. As the judgment will have to be reversed for reasons to be herein set forth, we do not desire to go into a full discussion of the merits of the case on the evidence. We think, however, that the question argued is one that should be submitted to the jury for settlement. Appellee testified on that point that there was no light in front of the elevator on the day of her injury, which was a work day there, and that there was no light in the elevator shaft, and that it was dark in front of the elevator and in the elevator shaft. One of the said nine witnesses for appellant, Freda Amies, on cross-examination, testified: “Yon had to walk np to the elevator before you found out the elevator wasn’t there. You couldn’t see it until you got there, not until you got in front of it. You have to go up to the door to see, if it isn’t there. You are in the hall when you are standing in front of the door and until you are standing in front of the wall you can’t see whether the elevator is open or not. You have got to get right up to it. You can’t see it until you get up to it.”

The elevator was above the first floor when appellee was injured. The picture in question shows the elevator in place on the first floor, and, therefore, does not present a photograph of the appearance of things there with the elevator removed to its situation when the injury occurred.

Appellant also strenuously insists that the watchman who ran the elevator at the request of the other girls there, and negligently left open the said door of the elevator shaft, had no authority whatever from appellant to run the elevator, and that his acts in that regard did not render appellant liable for any injury by reason of his operating the elevator. That may be conceded, but that argument is completely met by the fact that the operation of the elevator was not the sole cause of appellee’s injury. The opening and leaving open the said door was an approximate cause of her injury which could not have happened as it did if the door had been kept properly closed. If the watchman was the representative of appellant to guard and keep said door closed in the absence of the elevator man, appellant would be chargeable with his knowledge in that regard, and bound by his negligence in opening and in failing to close the door after he had opened it, even though those negligent acts were committed preliminary to his unauthorized act of running the elevator. The facts that he was employed there as night watchman and that he was the custodian of the key to the door in question while such watchman, and that his duties required him to be at the premises until the elevator man came on for work in the morning, tend to prove that it was a part of his duty to keep the said door closed at the very time of appellee’s injury. The evidence might have been made more satisfactory upon that point by further examination of the watchman, but being a hostile witness to appellee she was under no obligation xto cross-examine further upon that point. We may say in conclusion on this point that the question of whether or not appellant is to be held to notice of the fact that the elevator door was open at the time in question depends solely on whether or not it was chargeable with the negligence of the watchman in leaving the door open, for if it was a part of his duty to keep the door closed appellant was chargeable with his knowledge and his acts, and the question of how long the door had remained open has no bearing on the question of notice in this case. If the act of the watchman in that regard was the mere act of a servant done outside of the scope of his employment, appellant was not bound thereby, any more than it would have been if the door had been opened and left open by a stranger or intruder.

Appellant offered certain instructions that were refused by the trial court in which the defenses of assumed risk, contributory negligence and of fellow-servants were presented for the consideration of the jury and refused by the court. Certain other instructions were given by the court for appellant in which the jury were told that contributory negligence of appellee would be a bar to her recovery. We do not care to discuss those refused instructions further than to say they were properly rejected as to the common-law count, because they were not expressly limited to that count, and that as to the statutory counts none of those defenses were applicable. Our Supreme Court in the case of Streeter v. Western Wheeled Scraper Co., 254 Ill. 244, as we understand that decision, held, in substance, that the doctrine of assumed risk, contributory negligence and of fellow-servants furnish no defense to a violation of the Factory Act by the operation of a factory or workshop within the meaning of that act. The reasoning and the declarations of that court, on pages 256 to 260 inclusive in that case, make it clear that those defenses cannot be made to a suit for personal injuries by an employee in a factory or workshop against the operator thereof, where the charge is that the injury was caused by a violation of that act by the operator. The Court expressly decides in that case that the doctrine of assumed risk furnishes no defense to such a suit by an employee. On page 258 of that opinion the Court, speaking through Justice Dunn, said: ‘ ‘ For many years we have held, in the construction of the mining act, that neither assumed risk nor contributory negligence is available as a defense to a suit for damages caused by a wilful violation of the provisions of that act,” citing a number of eases. It is then further said by the Court that the reasoning on which those cases under the mining act are based is applicable to a case under the Factory Act, and that in view of the construction given to the mining act in regard to the assumption of risk, the General Assembly must have supposed that the same construction given to the mining act providing for the health and safety of miners would be given to the Factory Act in that regard, as that statute was expressly passed to provide for the health and safety of employees in factories.

All the decisions of our Supreme Court on the Mines and Miners’ Act, beginning with the case of Bartlett Coal & Mining Co. v. Roach, 68 Ill. 174, have held, wherever the questions have been raised, that the doctrine of assumed risk and of contributory negligence furnish no defense to a wilful violation of that act by the operation of a mine, no matter how negligent the injured employee may have been. It has been frequently declared in those decisions that the statute was not only designed to protect employees in coal mines from the inherent dangers of the business, but also to protect them from the result of their own negligent or inconsiderate action. Brunnworth v. Kerens-Donnewald Coal Co., 260 Ill. 202; Catlett v. Young, 143 Ill. 74. And an averment in the declaration that the plaintiff was in the exercise of due care under that act is surplusage and need not be proved. Carterville Coal Co. v. Abbott, 181 Ill. 495.

It is also well settled by the decisions under the mining act that the operators of coal mines are responsible for all injuries sustained by employees in their coal mines by reason of a wilful violation of the statute by any of their agents or employees while working within the scope of their employment, and that the doctrine of fellow-servants furnishes no defense to such an injury. The important question is as to the authority or duty of the offending employee, and not as to whether or not he was a fellow-servant of the injured employee. The concurrent negligence of the injured servant or of any third person is no defense to such an action. Girard Coal Co. v. Wiggins, 52 Ill. App. 69; Joseph Taylor Coal Co. v. Dawes, 122 Ill. App. 389, affirmed in 220 Ill. 145; Moore v. Centralia Coal Co., 140 Ill. App. 291; Niantie Coal & Mining Co. v. Leonard, 126 Ill. 216; Spring Val. Coal Co. v. Rowatt, 196 Ill. 156; Brunnworth v. Kerens-Donnewald Coal Co., supra.

Appellant complains of the following instruction of the court given for appellee:

‘ ‘The court instructs the jury that section 4 of an act to provide for the health, safety and comfort of employes in factories, mercantile establishments, mills and workshops in this State, and to provide for the enforcement thereof, so far as said section may be applicable to this case, is as follows:
“But the court does not mean to intimate that any part of the statute is applicable to any particular state of facts, as the facts are to be determined by the jury from the evidence guided by the instructions of the court as to the law:
“ ‘All hoistways, hatchways, elevator wells, and wheelholes, in factories, mercantile establishments, mills or workshops, shall be securely fenced, enclosed, or otherwise safely protected and due diligence shall be used to keep such means of protection closed, except when it is necessary to have the same open in order that said hatchways, elevators, or hoisting apparatus may be used. ’
“The court further instructs the jury that section 17 of said act is as follows:
“ ‘In all factories, mercantile establishments, mills or workshops, a proper light shall be kept burning by the owner, or lessee, in all main passageways, main hallways, and all main stairs, main stair landings and shafts, and in front of all passenger or freight elevators, upon the entrance floors and upon the other floors on every work day of the year, from the time that the building is open for use until the time when it is closed, except at times when the influx of natural light shall make artificial light unnecessary, provided that when two or more tenants occupy different floors in one building, such elevator shaft need be lighted only on the floors used and occupied by employes.’
“The court further instructs the jury that if you find from the evidence in this case, under the instructions, that there was no light in front of the elevator in question, and that the influx of natural light did not make artificial light unnecessary, and you further find that the defendant did not use due diligence to keep the elevator door closed, and you further find from the evidence that plaintiff was using due care and diligence for her own safety, at and before the time she was injured, arid that she fell into such elevator shaft by reason of the failure of defendant to obey the law as above recited, if defendant did fail to obey said law, then you will find the defendant guilty.”

The foregoing instruction directs a verdict and should embody all the elements necessary for the jury to find before returning a verdict for appellee. It was necessary for appellee to prove and for the jury to find from the evidence that the building or place in question was a factory or workshop within the meaning of said statute, as alleged in her declaration, and that she was employed at such workshop or factory by appellant, and under said section 17 that she was injured on a work day there at a time when the building was open for use. By section 29 of the Factory Act (J. & A. 5414), the terms “factory” and “mill or workshop” are specifically defined, and it is very clear that there is no sufficient proof in the record that the place was a factory, mill or workshop within the meaning of the statute, and there was no attempt to prove it. In speaking of the place some of the witnesses merely refer to it as, “the plant,” “the building,” “the factory building,” and once or twice appellant is apparently referred to as “the corset company.” Not one question was asked by either party as to the character of the work that was done there or who carried it on and for what purpose, or as to the character of the machinery, if any, used there and how driven, or as to the articles made there, if any, or as to the number and character of the people who worked there and what they did and for whom they were employed, etc. The terms “factory, mill or workshop” were not defined for the jury. In order to recover under the statutory counts appellee was required to show that at the time of her injury she belonged to the class of persons for whose protection and benefit the statute was enacted, that is, that she was an employee in a factory, mill or workshop within the meaning of the statute, as alleged in the declaration, and that appellant operated or controlled it. It was not sufficient to prove merely that she was at work at appellant’s building where an elevator was in use for employees. Brurnmorth v. Kerens-Donnewald Coal Co., supra.

With. the proper evidence suggested above in the record the sections of the statute quoted would be entirely applicable, and whether or not applicable should not be left to the jury as was apparently intimated by the Court in the first part of the instruction. Those remarks of the Court were improper and likely to mislead a jury.

The instruction on the measure of damages given for appellee is not subject to the objections urged by appellant. An instruction in almost the identical same words throughout was approved by the Supreme Court in Cicero & P. St. Ry. Co. v. Brown, 193 Ill. 274.

The objections to appellant’s refused instructions have already been indicated in this opinion and need not be here referred to as they were clearly erroneous and misleading. The facts, in other words, that the watchman was not authorized to run the elevator, or that the elevator door was left open for a very short time, could not have any tendency to excuse appellant. The leaving of the door open by the watchman was a proximate cause of appellee’s injury, and if it was the watchman’s duty to guard and keep the door closed, it was the act of appellant, if it so employed him.

Under the Factory Act appellee was not required to prove a wilful violation of that act in order to recover, as is required under the Mines and Miners’ Act. A negligent violation of the Factory Act was all that was charged and all that she was required to prove, and in this respect the two statutes aforesaid differ. Where wilfulness, or guilty knowledge or malice is charged and proof thereof required, collateral facts or proof of other similar offenses than those charged in the pleadings may be proved to show the knowledge or intent of the defendant. Joseph Taylor Coal Co. v. Dawes, 220 Ill. 145.

The same rule, however, does not apply where the charge is negligence simply. It was, therefore, error in the court to admit the evidence of appellee that appellant had violated the statute in question on other occasions than the one relied on for recovery, that is, that on other occasions it was dark and an artificial light was required and not furnished. Chicago, B. & Q. R. Co. v. Lee, 60 Ill. 501.

The remark of counsel for appellee to the court complained of by appellant was improper and the court so held, but as the case will be remanded for further trial, it will not be necessary to further consider this objection, or the objection that the verdict is excessive.

We would not be disposed to reverse the judgment upon those grounds, if the record was otherwise freé from error, and not lacking in evidence as already indicated.

The artificial light in the elevator was not a full compliance with the statute, even had it been burning, as the statute also requires a light when necessary to be placed in front of the elevator. A light in the elevator when hoisted to an upper floor would give little or no light at the foot of the elevator.

The death of appellee has been suggested on the record since this cause was taken, but the record does not disclose whether she died from the effects of the injury or from other causes.

The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Staver Carriage Company, Appellee, v. American & British Manufacturing Company, Appellant.
    Gen. No. 18,810.
    1. Accobd and satisfaction, § 1

      —when agreement does not constitute. A subsequent agreement by the seller of goods which amounted to a mere promise to adjust the differences that had arisen over a breach of a warranty in a prior contract of sale, held not to amount to a settlement and satisfaction of all claims for damages resulting from a breach of the contract of warranty, where the agreement was not performed.
    2. Sales, § 387

      —what not waiver of right to sue for breach of warranty. Failure of the buyer to pay for goods that, after delivery, have been found to be defective and not suitable for the purpose for which they were purchased, or that in other respects are not as warranted, held not a waiver of the right to sue for breach of the warranty.
    3. Sales, § 404*—measure of damages for breach of warranty where article is sold for specific purpose. Where an article is sold for a specific purpose, and the seller knows it, and warrants it to be of a particular quality and suitable for the purposes for which it is sold, and it is not as warranted and articles of the kind and quality contracted for cannot be purchased in the open market, the value of the article for such specific purpose is the basis of estimating damages, and if the special purpose for which it is to be used is a resale, or the production of some other article to be sold, then prospective profits are proper elements of damage, provided it is established by the evidence to a reasonable certainty that the article would have been sold as contemplated and how much profit would have been realized.,
    4. Damages, § 61*—when evidence of loss of profits admissible. Where motors were purchased for the purpose of being installed in automobiles and sold and were warranted to be free from defects of material and workmanship and to be fit for the purpose for which they were purchased, held in an action for a breach of the warranty that it was not error to admit evidence of the loss of. prospective profits.
    5. Sales, § 402*—when instruction authorizing recovery for loss of prospective profits not warranted by the evidence. In an action for a breach of a warranty in a sale of motors, submitting to the jury by instructions the question of loss of prospective profits, held improper where there was no evidence from which the jury could determine the amount of profits, and no evidence on the question whether other motors of the same kind and quality were obtainable in the market at the time of the breach.
    6. Sales, § 400*—admissibility of defective parts of article sold. In an action for a breach of a warranty in the sale of motors, the admission in evidence of the several parts of the motors held largely a matter of discretion with the trial court, and unless such discretion is abused its admission will not constitute reversible error.
    7. Sales, § 400*—preliminary proof necessary to introduction of defective parts of article sold. In order to render admissible in evidence the several parts of a motor in an action for breach of a warranty, the preliminary proof should show that the parts are substantially in the same condition that they were when such condition was material to the issue, or if they have been broken, worn, altered or marred since such time, the court should require evidence to show in what particular they have been changed, the use to which they were put, and, if material, the test or circumstances under which they were broken or marred, and this whether they are introduced to prove a fact or for the purpose of illustration.
    8. Evidence, § 223

      —when letters, inadmissible as hearsay evidence. In an action for breach of a warranty as to motors furnished plaintiff to be installed in automobiles, letters written by persons who were purchasers of the automobiles condemning the motor, held improperly admitted for the reason they were hearsay evidence.
    9. Sales, § 402*—when instruction in suit for breach of warranty improper. In an action for breach of a warranty that motors furnished should be free from defects of material and workmanship, and that the motors should be fit for the purpose for which they were furnished, an instruction given for plaintiff which told the jury that the seller was required by its contract to furnish motors that‘would render automobiles in which they were installed reasonably saleable, if not otherwise defective is erroneous.
    10. Sales, § 402*—when instruction erroneous as assuming facts. In an action for breach of a warranty in a contract for the sale of motors, an instruction held bad for the reason it assumed there was a market value for motors in the condition they were when received by the plaintiff.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1914.
    Rehearing, denied October 14, 1914.
    Montgomery, Hart & Smith, for appellant; Louis E. Hart and Jaspersen Smith, of counsel.
    Bulkley, Gray & More, for appellee.

       Seo niinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic .and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Appellant, American & British Manufacturing Company, of Bridgeport, Connecticut, manufacture, among other things, gasoline motors. Appellee, the Staver Carriage Company, manufacture automobiles at Chicago, Hlinois. On July 7, 1909, these parties entered into a written contract, whereby appellant was to manufacture and deliver to appellee at stipulated times 500 four-cylinder gasoline automobile motors of a specified size and kind for the sum of $203 each. This contract contained the following stipulations:

“Whereas, the Manufacturer desires to manufacture for and sell to the Purchaser five hundred (500) automobile gasoline motors, and Purchaser, being a manufacturer of automobiles, desires to purchase said motors for use in the manufacture of motor cars. * * *
‘ ‘ Third, that each and every one of said motors will be thoroughly inspected and tested by manufacturer before shipment, and will be furnished complete, as per specifications, and ready to assemble in chassis. * * *
“Seventh, The Manufacturer guarantees and warrants to Purchaser that all motors manufactured and sold as aforesaid, shall be free from all defects of material and workmanship, that the workmanship and material thereof shall be thoroughly high class, and that said motors shall be fit for the purpose for which they are furnished.
“Eighth, That during fifteen months from the date of shipment of motors the manufacturer shall and will, upon notice, promptly replace, without cost to the Purchaser, or give credit for, at Purchaser’s option, any defective motors or parts that shall be defective either in workmanship or material.”

Appellant began the manufacture of these motors and on February 26, 1910, had delivered 331 of them to appellee. Of these, 36 were shipped on that day. On that day there were outstanding the promissory notes of appellee, of the face value of somewhat over $40,000, which had been given to appellant in settlement for motors delivered. The 36 motors shipped February 26, 1910, were not settled for promptly and appellant on March 22, 1910, wrote to appellee requesting a cash payment therefor. Appellee had previously complained to the representatives of appellant that the motors were defective and on March 28, 1910, wrote to appellant at Bridgeport, Conn., in substance, that its representative, Mr. Hill, had admitted that the complaints made by appellee about the motors were justified and had promised that Mr. Grulick, the vice-president and general manager of appellant, would come to Chicago, but that he had not done so, and notifying appellant that it would refuse to pay the notes given for the motors as the same matured and that it had picked out about 100 motors which it proposed to return to appellant, and asking for shipping directions. This letter concludes as follows:

“To us, it looks as though Mr. Grulick did not care to come and see us, after knowing the truth as to the situation here. The engines which we will ship back to you, you may not return to us after you have repaired them as we cannot use them in our cars, as our customers will not take that kind of goods, and we have made a contract for other engines, which we shall put in our cars to replace those of yours which we cannot use; and if any more engines are shipped us, we shall refuse to accept them.
Tours very truly,
H. B. S.”

Very shortly after this letter was received by appellant Mr. Grulick and a Mr. Hilfrey, the chief inspector of appellant, and a mechanic or two in its employ came to Chicago to investigate the complaints made by appellee concerning the motors. On April 1, 1910, the following writing was executed by the parties :

“Memorandum of Agreement made and entered into this first day of April, 1910, between the American & British Mfg. Co., party of the first part, and Staver Carriage Co., party of the second part.
“Witnesseth: Whereas the parties hereto made and entered into a contract bearing date the seventh day of July, 1909, by which it was agreed that party of the first part should sell and deliver to party of the second part five hundred (500) automobile gasoline motors as specified therein, deliveries and payments to be made as specified therein.
“And whereas it has also heretofore been agreed, subsequent to the making of aforesaid contract, that the purchaser, Staver Carriage Co., was only obligated to take four hundred (400) of the said five hundred (500) automobile gasoline motors.
“And whereas party of the first part has heretofore shipped and party of the second part has received three hundred thirty-one (331) of said motors, and that there now remains under said contract as amended, to be shipped by party of the first part and received by party of the second part sixty-nine (69) automobile gasoline motors.
“And whereas of the three hundred thirty-one (331) motors heretofore delivered many have proven defective, and party of the first part is now hereby ready and willing to repair such defects and put all said motors in first-class condition, and compensate party of the second part for expenses occasioned by such defects.
“Now, therefore, in consideration of one dollar in hand paid, the party of the first part releases party of the second part from the obligation to take and receive said sixty-nine (69) gasoline engines.
“It is hereby however mutually agreed between the parties hereto that party of the first part does hereby sell and agree to deliver any number of automobile gasoline motors, 4x4, 4 cylinder, prior to May 15, 1910, not exceeding sixty-nine (69) in number, which party of the second part may order from party of the first part, deliveries to be mutually satisfactory, and to be sold and delivered upon the same specifications, terms, conditions and warranties as contained in contract of July 7, 1909, no motors to be shipped without shipping instructions therefor in writing, and to be shipped as promptly thereafter as may be mutually agreed upon.
“It is further hereby agreed that party of the first part will furnish immediately the necessary material and men to adjust and put in first-class condition any and all engines heretofore delivered under contract dated July 7, 1909, subject to the acceptance of party of the second part upon its inspection, and party of the first part hereby further agrees to pay, or allow credit, to party of the second part on rendering statement any and all expenses, such as, freight on cars which have been returned by agents on account of motor trouble, expenses incurred in plant of party of the second part, and any and all traveling expenses or other expenses which have been paid or incurred by party of the second part to make good with its respective customers on account of motor engine troubles, and where cars have been returned for motor and other car defects, the expense chargeable against party of the first part is to be prorated.
“It is further hereby mutually agreed that the party of the first part will supply sufficient helical cut gears to replace such fibre faced gears, at no charge, as may be found noisy or defective.
“It is further hereby agreed that should any of the motors now or hereafter repaired become defective that party of the first part will make the same good, or pay to party of the second part the expense of so doing, and pay in addition any expenses occasioned to party of the second part on account of defective motors. This clause of this agreement to continue for three (3) months from date of shipment of car by party of the second part.
“It is further hereby mutually agreed that party of the second part will pay any and all notes heretofore given as they mature; that any further indebtedness on account of motors which have been delivered will be paid either in cash, less discount, on June 1, 1910, or by party of the second part giving sixty (60) day note, with interest, therefor, as it may elect.
“In witness whereof the parties hereto, by their duly authorized officers, have executed this agreement in duplicate.
American & British Mfg. Co.
By Chas. L. Gulick (Signed) Vice-President.
Staver Carriage Co.
By H. B. Staver (Signed) General Manager.
Witness L. P. Halladay (Signed)
C. D. Hilferty (Signed).”

After the foregoing writing was executed by the parties appellant sent several more skilled mechanics in charge of a foreman to the factory of appellee in Chicago, and put them at work there testing the motors and correcting the defects found therein. The most of these men were so engaged all summer, and at least one of them remained there until December 1,1910. Appellee paid the notes mentioned, but did not pay any part of the bill for the 36 motors shipped February 26, 1910., During the summer of 1910, appellee still being dissatisfied with the motors made various complaints concerning them to appellant and on August 4, 1910, rendered an account to it for work and expense of repairing them and for damages on account of its claimed default in failing to furnish the motors according to the terms of the contract. No satisfactory adjustment of the differences between the parties being accomplished, appellee brought suit in the Circuit Court, and on January 6,1911, filed its declaration consisting of three special counts and the common counts. The first and second counts were later amended. To the declaration as amended appellant filed the general issue and other pleas. By a plea of set-off appellant alleged that appellee made false statements to it as to the condition of the motors, which appellant relied on and expended large sums of money on the motors, and that appellee had refused to pay for the motors delivered prior to June 1, 1910, and that by reason thereof appellee was indebted to appellant in a sum in excess of that sued for by appellee. Issue was joined on the pleas. A trial resulted in a verdict for appellee for $5,000. After a motion by appellant for a new trial was overruled, judgment was entered on the verdict.

Appellant urges several reasons why the judgment should be reversed. The first ground assigned is,1 that appellee, plaintiff below, had no right of action upon the contracts upon which it specially declared, and which contracts were permitted to be introduced in evidence over the objection of appellant.” Under this head it is argued that the court erred in overruling the demurrer to the first and second count of the amended declaration and in admitting in evidence the contracts of July 7, 1909, and of April 1, 1910. After the demurrer was overruled appellant elected to and did plead to the counts demurred to. The action of the court in overruling the demurrer" cannot, therefore, now be reviewed. Under the issues as framed, these two writings were not only competent but necessary evidence, not only to establish the right of action of appellee, but also to sustain appellant’s claim of set-off. The argument on this point has been broadened into a discussion of the question whether under the facts as disclosed in this record appellee has a cause of action on the contracts, or either of them, for the reason, as claimed by appellant, that appellee failed to perform its part of the agreement of April 1, 1910, wherein it agreed to pay by June 1, 1910, for the 36 motors shipped February 26, 1910. In support of that contention appellant cites Harder Brothers Co. v. Moffat Cycle Co., 151 Ill. 84, as holding that where a vendee who has accepted goods delivered under an express contract fails to pay therefor according to the terms of the contract, such vendee cannot maintain an action against the vendor for damages resulting from his failure to perform his contract. The opinion of the court in that case does not support the contention of appellant. What is there said is:

“The question here distinctly presented as the controlling one, is whether a vendee who has accepted goods delivered under an express contract, but not at the time or in the quantity required by it, with knowledge of the default of the vendor in those respects, but has himself failed, without legal excuse, to pay for them according to it, can maintain an action on the contract for such a default of the vendor. We think the general rule, everywhere recognized, is against it, and has been specifically so applied in analogous cases in Illinois.”

It will be observed that the default of the vendor in that case was a failure to deliver the goods “at the time” and “in the quantity” specified in the contract. There was in that case nothing predicated on a failure of the seller to furnish goods of the quality or hind contracted for.

It cannot be doubted that the unconditional acceptance of goods that have been delivered at a later date or in a less quantity than stipulated for is a waiver of such breach of the contract, but we think no Illinois authority can be found holding that the failure to pay for goods that, after delivery to the purchaser, have been found to be defective and not suitable for the purpose for which they were purchased, or that are in other respects not as they were warranted to be, is a waiver of the right to sue for damages resulting from a breach of the warranty. On the contrary, we believe it to be the settled rule in this State that where the subject-matter of the contract is something that is to be manufactured for a special purpose and the manufacturer undertakes that when it is completed and delivered it shall be of a certain quality and suitable for a certain purpose, the performance of that undertaking is a condition precedent to any obligation on the part of the purchaser to pay for the article purchased. Forbes v. Pausinsky, 14 Ill. App. 17; Stein v. Metzger, 18 Ill. App. 251; Underwood v. Wolf, 131 Ill. 425.

Appellant next contends that the contract of April 1, 1910, amounted to a settlement and satisfaction of all claims for damages appellee had resulting from any breach of the contract of July 7,1909; that by the making of the contract of April 1, 1910, the contract of July 7,1909, and all rights of the parties under it were extinguished, and that the court erred in instructing the jury that the original contract was or could be the basis of a right of action.

This contention is untenable for several reasons. The contract of April 1, 1910, does not purport on its face to supersede the contract of July 7, 1909, but is supplemental to it and dependent on it. It does not purport to be an adjustment of any rights of action by either party ag'ainst the other growing out of a breach of the contract of July 7, 1909. It is a mere promise to adjust the differences that have arisen. While the contract of April 1, 1910, is a formal admission on the part of appellant that the motors furnished by it under the contract of July 7, 1909, were defective and not suitable in the condition in which they were delivered for the purposes for which they were purchased, and while it contains a promise to adjust, perfect and put in first-class condition, the motors delivered under the contract of July 7, 1909, and to allow credit to appellee for “all expenses, such as (the italics are ours) freight on cars which have been returned by agents on account of motor trouble, expenses incurred in plant of party of the second part (appellee), and any and all traveling expenses or other expenses which have been paid or incurred by party of the second part to make good with its respective customers on account of motor engine troubles, and when cars have been returned for motor and other car defects, the expense chargeable against party of the first part is to be prorated.” There is no reference to damages “such as” loss of profits, or any other damage except “expense,” and the covenant to allow credit for the expense is executory. An agreement to do a thing in consideration of the settlement of a controversy or claim is not a satisfaction. It is the doing of the thing agreed upon that has that effect. As Mechem in his work on Sales, vol. 2, page 678, sec. 806, says:

“It is not the second contract but the performance of it which discharges the original contract.”

In First Nat. Bank of Arkansas City v. Leech, 36 C. C. A. 262, 94 Fed. 310, the Court said:

“An agreement or accord which is to operate as a satisfaction of an existing liability must, before it can have that effect, be fully executed. It is not enough that there be a clear agreement or accord and a sufficient consideration; but the agreement or accord must be executed before it can be pleaded as an accord and satisfaction. If part of the consideration agreed on be not performed, the whole accord fails.”

. See also City of Memphis v. Brown, 20 Wall. (U. S.) 289, 308, 309, 22 L. Ed. 264; Clifton v. Litchfield, 106 Mass. 34, 40, 41; Crow v. Kimball Lumber Co., 16 C. C. A. 127, 69 Fed. 61; Coblentz v. Wheeler & Wilson Mfg. Co., 40 Ark. 180; Ogilvie v. Hallam, 58 Iowa 714; 1 Smith, Lead. Cas. (5th Am. Ed.) 445, 446, and cases there cited; Henderson v. McRae, 148 Mich. 324.

It is next insisted that the court erred in permitting evidence to be introduced as to alleged damage by reason of prospective profits and in instructing the jury on that subject. As a general proposition the measure of damage in case of a breach of a warranty of the quality of an article of property sold is the difference between the value of the article delivered and what it would have been worth if it had been as warranted. If, however, the article is sold for a certain specific purpose, and the seller knows it,, and warrants it to be of a particular quality and to be suitable for the purposes for which it is sold, if it is not as warranted, and articles of the kind and quality contracted for cannot be then purchased in the open market, the value of the article for such special purpose is the basis of estimating damage. If the special purpose for which the article is to be used is a resale, or the production of some other article to be sold, then the profits that would have been made thereby are proper elements of damage in case of a breach of the warranty, provided it be established by the evidence to a reasonable certainty that the same would have been sold as contemplated and how much profit would have been realized from the transaction. Mechem on Sales, vol. 2, sec. 1821; Vickery v. McCormick, 117 Ind. 594; Loescher v. Deisterberg, 26 Ill. App. 520; Armeny v. Madson & Buck Co., 111 Ill. App. 621; Sutherland on Damages, vol. 1, p. 91; McHose v. Fulmer, 73 Pa. St. 365; Carroll-Porter Boiler & Tank Co. v. Columbus Mach. Co., 5 C. C. A. 190, 55 Fed. 451; McKay v. Riley, 65 Cal. 623; Bluegrass Cordage Co. v. Luthy, 98 Ky. 583; Kenney v. Knight, 127 Fed. 403; Guenther v. Taylor, 23 Ky. Law Eep. 536; More v. Knox, 52 App. Div. (N. Y.) 145; Beeman v. Banta, 118 N. Y. 538; Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 147; Swain v. Schieffelin, 134 N. Y. 471; A. J. Anderson Elect. Co. v. Cleburne Water, Ice & Lighting Co. (Tex. Civ. App.), 44 S. W. 929; Consumers’ Ice Co. v. Jennings, 100 Va. 719; Border City Ice & Coal Co. v. Adams, 69 Ark. 219; Burr v. Redhead, Norton, Lathrop Co., 52 Neh. 617; Chapman v. Kirby, 49 Ill. 211; Roberts, Wicks & Co. v. Lee, 31 Ky. Law Rep. 266; Rhodes v. Holladay-Klotz Land & Lumber Co., 105 Mo. App. 279; Reagan Round Bale Co. v. Dickson Car Wheel Co., 55 Tex. Civ. App. 509; Wilson v. Wermuag, 217 Pa. St. 82; Richner v Plateau Live Stock Co., 44 Colo. 302; Carlson v. Stone-Ordean-Wells Co., 40 Mont. 434; Kavanaugh Mfg. Co. v. Rosen, 132 Mich. 44; Talcott v. Freedman, 149 Mich. 577; Lissberger v. Kellogg, 78 N. J. Law, 85; Thorn v. Morgan & Whateley Co., 135 Mich. 51; Fred W. Wolf Co. v. Calbraith, 35 Tex. Civ. App. 505; Accumulator Co. v. Dubuque St. Ry. Co., 64 Fed. 70; Johnson v. Faxon, 172 Mass. 466; Moody v. Peirano (Cal. App.), 84 Pac. 783.

The motors here involved were purchased for the express purpose of being installed in automobiles and sold, and were warranted to he free from defects of material and workmanship; that the material and workmanship should be thoroughly high class, and that they should be fit for the purpose for which they were purchased. It was not error to admit evidence of the loss of prospective profits.

It was error, however, to submit to the jury by instructions the question of loss of prospective profits until there was evidence from which the jury could determine how much such profits would have been. There was proof amply sufficient to warrant a jury in finding that some automobiles equipped with the motor in question were sold that were not accepted or that were returned because of defects in the motor, but there is no proof to which our attention has been called, or that we have found in this record of nearly 1800 pages, even tending to show how much profit would have been realized on such sales. There is also a dearth of evidence on the question whether other motors of the kind and quality of the ones contracted for by appellee were obtainable in the market at the time of the breach of the contract of July 7,1909.

During the trial several parts of the motors furnished by appellant under its contract were introduced in evidence by appellee. It is claimed by appellant that no sufficient foundation was laid for their introduction.

In view of the fact that this judgment must be reversed for other reasons, it would serve no useful purpose to go into a detailed analysis of the proof offered in connection with the introduction of those parts. It is enough to say that the admission of that class of exhibits is largely a matter of discretion with the trial judge, and unless such discretion is abused its admission will not constitute reversible error. American Exp. Co. v. Spellman, 90 Ill. 455; Goodrich v. Chicago Great Western Ry. Co., 148 Ill. App. 579. When exhibits of that character are offered, there should be proof that they are at the time they are admitted in evidence in the same or at least in substantially the same condition that they were when such condition was material to the issues being tried, or if they have been broken, worn, altered or marred since such time, the court should require evidence to show in what particular they have been changed; the use to which they were put to produce the wearing, and where material, the test or circumstances under which they were broken or marred, and this should be done whether they are introduced to prove a fact or for the purpose of illustration. While the preliminary proof concerning these exhibits is not in all respects very satisfactory, we are not inclined to hold that their admission was an abuse of the discretion vested in the court.

Among the customers of appellee to whom were sold automobiles into which motors furnished by appellant under the contract of July 7, 1909, were installed, and who found them not satisfactory, were L. S. G-antz of Marshalltown, Iowa, and Frank L. Haller of Omaha, Nebraska. Each of these gentlemen wrote letters to appellee concerning the Staver car in general and the motor furnished for it by appellant in particular, in which they condemn the motor in unstinted terms and in which they praise the car in all respects, except the motor. The letter written by Gantz was dated April 9, 1910. The letter written by Haller was dated five days later. These letters were offered in evidence by appellee and were admitted by the court over the objection of counsel. This was clearly error. The letters were hearsay evidence. They were mere declarations of strangers to the record made out of the presence of the party against whom they were offered and were clearly incompetent under all rules of evidence. We are satisfied from the character of these letters that their admission could not be otherwise than harmful.

The first instruction given at the instance of appellee is, in part, as follows:

“ * * * And you are further instructed, that under said provisions of that contract, the fact (if the jury find it from the evidence to be a fact) that the motors in question corresponded to the specifications as to size, dimensions, style and type would not alone be sufficient to fulfill the requirements of the contract, but said motors should have been free from defects of material and workmanship should be high-class and fit for use in such Staver automobiles as they were furnished for, and of such a character as to make said automobiles, if not otherwise’ defective, reasonably saleable and marketable and usable ivhen subjected to such use as automobiles are ordinarily put. * * * ” (The italics are ours.)

The language in italics is complained of and is not defensible. By it the jury were told that appellant was required by its contract to furnish motors that would render the cars in which they were installed reasonably saleable, if not otherwise defective, no matter how ungainly in appearance; what price was charged for them; how ancient the model, or how well or how poorly they were equipped with modern improvements. It is a matter of common knowledge that there are many things that tend to make a car saleable or unsaleable besides the quality of the motor or “defects” in other parts. Appellant did not contract to deliver a motor that would render the cars in which they were installed saleable, but that all motors manufactured and sold should be free from all defects of material and workmanship; that the workmanship should be thoroughly high class, and that the motors should be “fit for the purposes for which they are furnished.” Instruction number fifteen, given at the instance of appellee, is objectionable for much the same reason as instruction number one just commented on. Instruction number twenty-three is bad in that it assumes'that there was a market value for motors in the condition the motors in question were when they were received by appellee.

• Inasmuch as it is unlikely that the evidence upon the next trial will be in all respects identical with that contained in this record, we refrain from a discussion of the question whether the verdict is contrary to the weight of the evidence, as well as all other questions involving purely questions of fact.

For the reasons suggested the judgment of the Circuit Court is reversed and the cause is remanded to that court for a new trial.

Judgment reversed and cause remanded.


text:
    Esther Mercy, Appellee, v. Marion Talbot, Appellant.
    Gen. No. 18,835.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1914.
    Rehearing denied October 19, 1914.
    Statement of the Case.
    Action by Esther Mercy against Marion Talbot to recover damages for slanderous words spoken by defendant concerning plaintiff. To reverse a judgment entered on a verdict in favor of plaintiff for twenty-five hundred dollars, defendant appeals.
    At the time it is charged the slanderous words were spoken, plaintiff was a. student at the University of Chicago, and defendant was “Dean of Women” of that institution. Although it is charged in the declaration that a variety of slanderous words were spoken by defendant of and concerning plaintiff at various times, the only words relied on by plaintiff as a basis of recovery are: “We know very well yon are getting your money from men. We do not consider you any more than a woman of the streets.” It is alleged that these words were spoken by defendant of and concerning plaintiff on two different occasions; that the first of these occasions was on December 8, 1910, and that the second occasion was on January 9, 1911. Plaintiff claims that on December 8, 1910, Dean Vincent of the University of Chicago and a Miss Robinson, who was also connected with the University as “Head of the Housing Bureau” and teacher, were present, and heard the slanderous words spoken, and that on January 9, 1911, her brother, Henry D. Mercy, and her fiance, Warren E. Reynolds, were present and heard the slanderous charges repeated. By innuendo it is alleged that by the words spoken it was meant and intended to charge plaintiff with being a common prostitute and with being guilty of fornication. Defendant pleaded the general issue.
    Abstract of the Decision.
    1. Libel and slander, § 38

      —when imputation of unchastity actionable per se. The words: “We know very well you are getting your money from men. We do not consider you any more than a woman of the streets,” held to charge the plaintiff with being a common prostitute and to be actionable per se.

    2. Libel and slander, §. 96

      —pleading and proof when words actionable per se. Where slanderous words were actionable per se
      there was no necessity for inducement, colloquium, innuendo or proof of the meaning that was intended to be conveyed or what was understood by the hearers.

      Francis W. Walker, for appellant; Horace K. Tenney and Kenner S. Boreman, of counsel.
    Everett Jennings, for appellee; Harry L. Strohm and Jennings & Fifer, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

3. Libel and slander, § 49 —when defense of privilege not available. The defense of privilege is not available where the speaking of the slanderous words was actuated by express malice.

4. Libel and slander, § 21 —when malice inferred. Where the words charged are actionable per se and were not spoken under circumstances rendering the speaking privileged, malice is inferred upon proof that the words were spoken and that they were false.

5. Libel and slander, § 161 —questions of law. Whether a slanderous communication was made on an occasion which was privileged is a question of law.

6. Appeal and error, § 1241 —when appellant cannot complain of inconsistent instructions. Appellant cannot complain that instructions given were inconsistent where the inconsistency arises from the giving of an improper instruction at her instance.

7. Damages, § 93 —rule in determining whether damages excessive. Where a plaintiff entitled to vindictive damages offered no proof of the financial worth of defendant, the question whether the verdict is excessive must be determined as if defendant were known to be penniless.

8. Libel and slander, § 155 —when damages awarded grossly excessive. In an action for slander, a verdict for twenty-five hundred dollars held grossly excessive, where it appeared that the suit was prosecuted in the hope of gain rather than to recover recompense for lacerated feelings, and there was no proof offered as to the financial worth of defendant.


text:
    Mary L. Reardon v. Carl O. Youngquist et al. On Appeal of Maurice Nelson, Receiver, Appellant, v. Emmet G. Morris, Appellee.
    Gen. No. 18,872.
    1. Judgment, § 96

      —conclusiveness of order entered by consent. Parties who have consented to the entry of court orders, in pursuance of which moneys were paid out by a receiver, cannot be heard to say either that the orders were improvidently entered or that the money was improperly paid out.

      2. Receivers, § 52

      —when not personally responsible for errors of court in directing distribution of money. A receiver in obeying orders of a court does not become a guarantor of the correctness of the court’s rulings and become personally responsible for any error of court made in directing how he shall distribute the money that comes into his hands.
    3. Receivers, § 30

      —when parties estopped to complain of acts done in pursuance of court order. Where parties are given notice of various petitions of a receiver for direction and authority to pay out money for various items, they are chargeable with notice of the orders entered, and if they acquiesce in what is done by absolute silence, they are estopped from complaining that the receiver should not have credit for the money thus paid out.
    4. Receivers, § 51

      —when allowance for solicitor’s fees improper. An allowance to a receiver of a certain lump sum paid by him to certain attorneys for services rendered by them as his solicitors, held improper where the bill rendered by them for services was itemized but the charges were not, and it appeared that some of the items were for services rendered the receiver and others were not.
    5. Receivers, § 50

      —when forfeits right to compensation. A receiver held to forfeit his right to compensation for services where, owing to his negligence, he failed to account for more than $480 in his report which, but for objections thereto, he would have improperly retained.
    6. Costs, § 21

      —when improperly taxed against receiver. The costs of a reference to a master of a receiver’s report held improperly charged to the receiver, where the only respect in which the report was incorrect were certain credits the receiver took for commissions and attorneys’ fees and a failure to charge himself with certain moneys received; and the evidence taken and time expended on the hearing regarding those matters was a trifle as compared with that involved in determining exceptions which were not well taken.
    7. Mortgages, § 538

      —when direction of payment to solicitor of party erroneous. A decree in a foreclosure proceeding directing the payment of an amount found due .to the holder of the legal title and the amount of the cost of a reference to his solicitor, held erroneous.
    8. Appeal and error, § 340

      —when receiver entitled to appeal. A receiver is entitled to appeal from a decree requiring him to pay out of his own funds to replace trust funds that had been distributed by him pursuant to orders of the court and denying him compensation for his services.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 7, 1914.

      Statement by the Court. Mary M. Shaw and James L. Shaw, her husband, being the owners of certain improved real estate in the city of Chicago, on January 26, 1909, conveyed the same to one S. W. Straus in trust to secure the payment of notes signed by them aggregating $30,000. On March 19, 1910, they conveyed the same premises to the Chicago Title & Trust Company in trust to secure the payment of two notes, each for the sum of $2,000, signed by them, payable to themselves and by them indosed. On April 11, 1910, they conveyed the same premises to Carl O. Youngquist in fee, subject to the two above mentioned trust deeds. The said Youngquist assumed and agreed to pay the obligations secured by such trust deeds. On November 11, 1910, Youngquist and wife in turn conveyed the same to Ormand B. Jacobson. Mary L. Beardon became the owner of the notes secured by the second trust deed and on January 6, 1911, default being made in the payment of the same, she filed her bill in the Superior Court of Cook county to foreclose the second trust deed and on January 18, 1911, procured an order appointing Maurice Nelson receiver of the property described in the bill of complaint, and the rents, issues and profits thereof. On January 24, 1911, the receiver filed in said cause his petition in which he represented to the court that there was on the premises in question a flat building then occupied by twelve tenants under leases providing for heat, janitor service, hot water, etc., and that in order to preserve the same and keep the same rented, it would be necessary to employ janitors, purchase coal and supplies for heat, and keep the premises in repair; that on January 26, 1911, ‘and every six months thereafter, there would be due $825 interest on the $30,000 obligation secured by the first trust deed, and that in order to prevent the foreclosure of that trust deed it would be necessary to pay the interest promptly as it became due, and asked for authority to pay such interest and make the other expenditures mentioned in the petition. The petition was heard on the day it was filed and an order was then entered authorizing the payment of the $825 interest instalment that would fall due January 26, 1911 and the making of the other expenditures mentioned in the petition. On April 12, 1911, a decree of foreclosure and sale of the premises under the second trust deed and subject to the first trust deed was entered, and on May 12, 1911, the premises were sold by the master in chancery to the complainant, Mary L. Bear-don, subject to the first trust deed. On May 15, 1911, the master’s report of sale was filed and approved and a deficiency judgment was entered against J-ames L. and Mary M. Shaw and Carl O. Youngquist for $94.62. On the same day the receiver filed a second petition for direction, in which he alleged that the general taxes for the year 1910, amounting to $524.32, and a special assessment against the premises for paving St. Lawrence avenue, amounting to $87.43, were due and unpaid and that unless they were paid the premises would be sold to pay the same, and asked for leave to pay the same and take credit therefor in his final account as receiver. This petition was immediately heard and an order was entered, whereby the receiver was directed to pay the taxes and special assessment mentioned in his petition. On July 18, 1911, the receiver filed his third petition for direction in which he represented to the court that an instalment of interest amounting to $825 on the debt secured by the first trust deed would fall due July 26, 1911, and that in order to preserve the property for the parties in interest and to prevent the foreclosure of the first trust deed this instalment of interest should be paid promptly when due. This petition closed with a prayer for authority to pay this instalment of interest out of the funds then in his hands. This petition was heard on the day it was filed and the prayer thereof granted, and afl. order then entered directing the" receiver to pay the instalment of interest mentioned in the petition and take credit therefor in his final account. On November 3, 1911, the receiver again petitioned the court for directions. This time he alleged in his petition that policies of insurance aggregating $24,000 on the buildings on the property in question had expired and that the same had been rewritten by the agent who first wrote the same and that the policies had been deposited with the trustee named in the first trust deed, and that unless the premiums thereon, amounting to $288, were paid at once the policies would be cancelled and the property would be left uninsured, and asked permission to pay the same. The prayer of this petition was granted on the same day the petition was filed and the receiver was ordered to pay the premiums mentioned. On January 22, 1912, the solicitors for defendants in the foreclosure suit obtained an order directing the receiver to file, within fifteen days thereafter, a report of his acts and doings as such receiver. On February 8, 1912, the receiver filed his report of receipts and disbursements from the time of his appointment to the date of the report. To this report Carl O. Youngquist and his wife and Ormand B. Jacobson and his wife on February 13, 1912, filed joint objections, and on their motion the report and the objections filed thereto were referred to a master in chancery to examine books and papers and the account and objections thereto, and take evidence “and state an account between the said receiver and said defendants.” On February 28, 1912, the deficiency judgment was paid by the defendants under protest and on that day on motion of the defendants the receiver was ordered to turn the possession of the premises over to Ormand B. Jacobson. On March 7, 1912, one E. G. Morris filed a petition in the cause in and by which he informed the court that he had become the owner of the fee of the premises in question, since the commencement of the foreclosure proceedings, through a deed from the defendants Ormand B. Jacobson and his wife Olephine Jacobson, dated November 6, 1911, and that he had become the owner by assignment from them of all the right, title and interest in and to the rents and claims affecting the premises in question and' prayed to be allowed to intervene in the foreclosure proceedings as a defendant, and that the objections of the Youngquists and Jacobsons to the report of the receiver be ordered to stand as his objections to that report as to all matters arising after February 29, 1912. The prayer of this petition was granted on March 7, 1912, and on that same day the appearance in writing of E. G-. Morris and of William Foster Burns as his solicitor was filed in said cause. Pursuant to the order of reference of February 13, 1912, the master in chancery took a large amount of evidence and on June 4, 1912, filed his report of the evidence taken and of his conclusions of law and fact as to the matters submitted to him by said reference. This report includes the account of the receiver as stated by the master from the date of the appointment of the receiver until his discharge. The part of the report stating the account is as follows:
    “16. I find that the account of the receiver should be stated as follows:
    He should be charged with total receipts amounting to........................$5,446.13
    He should be credited with expenditures as follows:
    For necessary repairs, janitor service, coal, water taxes, expenses which were reasonably necessary to preserve the property ...................$ 1,993.91
    For interest paid on the 27th day of January, 1911....... 825.00
    For attorney fees paid........ 250.00
    For premiums on insurance.... 100.80
    Total credits ......... $3,169.71
    Balance due to the owner of the equity of redemption...... $2,276.42.”

      To this report the defendants and the receiver excepted separately. The defendants excepted to the report in two particulars only: First, because the master allowed the receiver credit for $825 interest paid January 27, 1911; and second, because he allowed him credit for $250 paid for attorneys’ fees. The receiver excepted to the master’s report as a whole and particularly: First, because the master found that the payment of $825 interest on July 26, 1911, was without the consent of the defendants; second, because the master did not find that all the payments of interest, taxes and insurance made by him were made under the orders of court after due notice to the defendants through their attorneys, and because by his report and findings he set aside the orders of court authorizing such payments; third, because the master found that the payment of the general tax for the year 1910, amounting to $524.32, and the special assessment of $87.43, was without the consent of the defendants or their solicitors; fourth, because the master did not find that the taxes and special assessments paid were liens on the property at the time of the foreclosure sale; fifth, because the master found that the order entered November 3, 1911, authorizing the payment of $288 was entered without the consent of the defendants or their solicitorssixth, because the master found that the receiver insured the premises when the evidence showed that the trustee named in the first trust deed placed the insurance and requested the receiver to pay the premium under threat to foreclose the trust deed; seventh, because the receiver should have been credited with interest paid on first trust deed on July 26, 1911, $825; with general taxes levied for the year 1910 paid by him, $524.32; with special assessment levied against the property and paid by him, $87.43; and the balance of money paid on insurance, $259.20; eighth, because there was no evidence to support the finding of the master that the various orders of the court authorizing the receiver to pay interest, insurance and taxes were entered without the consent of the defendants; ninth, because the master had no authority to set aside the orders of the court authorizing the receiver to pay interest, insurance and taxes; tenth, because the master failed to allow him compensation as receiver; eleventh, because the master found that the premises were conveyed to E. G-. Morris when the evidence shows the conveyance to him was in the nature of an equitable mortgage.
    These exceptions were all overruled by the court and a decree confirming the master’s report in all respects was entered. The receiver has appealed from this decree. Errors and cross-errors were duly assigned on the record.
    Ela, Grover, March & Eckert, for appellant.
    William Foster Burns, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative. Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

There is no doubt that the receiver was directed by orders of court to do everything he did do by way of the expenditure of the items of money appellees object to his being credited with, except the matter of attorneys’ fees and his own compensation. There is no doubt that those of the appellees who were then. defendants were notified of the applications of the receiver upon which such orders were entered. The master so found and his finding in that respect is amply supported by the record. It cannot be seriously questioned that those of the appellees who were then defendants consented through their solicitor, 0 ’Donnell, that those various orders be entered. Benjamin F. March, one of the solicitors of the complainant in the foreclosure suit, expressly so testified, and neither O’Donnell nor "any one else contradicted that testimony; No objections were made to it. There was no motion made to strike it from the record and the witness was not cross-examined on the subject. The testimony was rather in the nature of a conclusion of the witness than as a recital of a conversation, but it was not challenged for that reason. If it had been, the conversation would undoubtedly have been given. At the end of the witness’ statement that he “had discussed with Mr. O’Donnell, who was the solicitor for Youngquist and Jacobson, the advisability of the various orders and got his consent to them and explained it to him during the conversation,” counsel for appellee said: “I move to strike out the conversation.” To this the master aptly replied, ‘ He hasn’t given any yet. ’ ’ And the question was dropped. What was in the record remained in and its probative force was in no way then challenged. It is too late for appellee to complain in this court of the form of the answers of the witness.

If this evidence was not true, it was for the appellees to show its falsity. By it as it stands, the consent, through their counsel O’Donnell, of those of the appellees who were then defendants in the foreclosure suit, to the entry of the orders in question, is unmistakably shown. The finding of the master that these orders were entered without the consent of appellees or of their counsel was, therefore, manifestly against not only the weight of the evidence, but was against all the evidence in the record on that subject. We are convinced that the master must have inadvertently overlooked' that testimony or he would not have made that finding. Appellee, Morris, being an assignee of the rights of those who gave the consent took only such rights as his assignors had. One who consents to the entry of an order of court cannot impeach it on any ground that existed when the consent was given. Roby v. Title Guarantee & Trust Co., 166 Ill. 336; Brown v. Schintz, 98 Ill. App. 452; Sammis v. Poole, 89 Ill. App. 118; Armstrong v. Cooper, 11 Ill. 540; Smith v. Kimball, 128 Ill. 583; First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140. Having consented to the entry of the orders, in pursuance of which the various moneys were paid out by the receiver that appellees are now objecting to his haying credit for, they cannot be heard to say either that the orders were improvidently entered or that the money was improperly paid out.

Regardless of the matter of consent, we consider the contention of appellees that a receiver in obeying the orders of the court must, in effect, become a guarantor of the correctness of the court’s rulings and be personally responsible for any error the court makes in directing how he shall distribute the money that comes into his hands, as unsound.

A receiver is an officer of the court and subject to its orders. The real custody of the property in his hands is in the court, of which he is an officer. Coates v. Cunningham, 80 Ill. 467. As such officer, he has no discretion or personal control over the property in his hands. Fields v. United States, 27 App. Cas. D. C., 433. He must obey the orders of the court so long as they are unimpeached. People v. United States Mut. Acc. Ass’n., 88 App. Div. (N. Y.) 597. Expenditures made in pursuance to such orders cannot be questioned on the receiver’s accounting. People v. Manhattan Fire Ins. Co., 41 Misc. (N. Y.) 611; State v. Port Royal & A. Ry. Co., 45 S. C. 464; People v. United States Mut. Acc. Ass’n., 88 App. Div. 597. Neither can the propriety of entering the order be challenged on exceptions to the master’s report on the receiver’s account. Woolsey v. Cummings Car Works, 33 N. J. Eq. 432. Obedience to such orders is his sufficient protection. How & Co. v. Jones, 60 Iowa, 70; In re Home Provident Safety Fund Ass’n. 129 N. Y. 288; Id., 60 Hun 584; Willis v. Sharp, 124 N. Y. 406; Pfeffer v. Kling, 58 App. Div. 179, affirmed in 171 N. Y. 668; Pierce v. Lees, 17 App. Div. 346; State v. Port Royal & A. Ry. Co., 45 S. C. 464. And this is true even if the order is erroneous and is subsequently reversed. Platt v. New York & S. B. Ry. Co., 170 N. Y. 451; Coe v. Patterson, 122 App. Div. 76, and 123 App. Div. 914; Lesster v. Lawyers’ Surety Co., 50 App. Div. 181.

Having had notice of the various petitions of the receiver for direction and authority to pay the various items now objected to, they are chargeable with notice of the orders entered. It was clearly the duty of .appellees, if they desired to oppose the payment of those various items by the receiver out of the funds in his hands, to have opposed the entry of the order by showing to the court why it should not or could not legally be entered, or at least to have sought its vacation on motion and a showing. Failing in this they should have notified the receiver that they would hold him responsible for a misapplication of the funds, if he obeyed the order. Having done none of these things, but on the contrary having acquiesced in what was done by absolute silence, even if not by actual consent, their conduct savors of an attempt to entrap the receiver and should be and in our judgment is enough to estop them from now complaining. We think the receiver should have credit for all moneys paid out by him in pursuance to the orders of the court above, referred to.

Appellees insist that the allowance to the receiver of $250 paid by him to Ela, Grover, March & Eckert for services rendered by them as his solicitors is erroneous. He was appointed receiver on January 18, 1911. The bill rendered by them for services is itemized as to the character of the services and the dates on which the same were rendered. The charges for such services were not itemized, but were placed at the lump sum of $250 for all the items. The first of these items was for drawing bond of receiver and having the same signed and approved. The date given on which this service was rendered was January 9, 1911. That was nine days before this receiver was appointed and before he was thought of as a receiver, as is shown by the record which discloses that on that day one Howard Sweep was appointed receiver in this case, and that it was because Sweep did not qualify that on the 18th of that month Nelson was appointed. This charge, therefore, cannot have been made for services rendered this receiver. The next charge is dated January 20, 1911, and is for drawing and filing “bond of complainants” and having it approved. In what way the receiver was interested in a bond of the complainants is not disclosed. The next three items are dated respectively January 21, 23, and 24, 1911, and are for drawing a petition for leave to pay taxes, interest and incidental expenses, drawing and serving notices thereof, and drawing an order and appearing in court in that matter. These things were all such as, if done, would benefit the complainant and which, if left undone, would jeopardize her rights. Concerning this and other like petitions Mr. March, of the firm of Ela, Grover, March & Eckert, testified: “I had to do with the preparing of the petitions and notices and the serving of the notices on the various parties in the case of Reardon v. Youngguist. I prepared the notice in the matter of the order of January 24, 1911, * * * I had charge of the matter * * * I was attorney of record at the time. * * * Our firm was solicitors for Mary L. Reardon, the complainant,” Ela, Grover, March & Eckert were not then the attorneys of record for the receiver and did not become so until they entered their appearance for him on February 19, 1912, which was five days after the last charge made in their itemized bill for services. The same can be said of the charge of May 2, 1911, which was the petition heretofore referred to, signed by the receiver for leave to pay taxes and special assessments ; the charge of May 15, 1911, which was for an appearance in court filing petition and having order entered to pay taxes; the charge of July 11, 1911, which was for drawing petition for leave to pay interest on first mortgage coming due July 26, 1911, and drawing and serving notices on all parties; the charge of July 18, 1911, for appearance in court, having order entered to pay interest on first mortgage; the charge of November 1 and 3, 1911, for preparing petition and having an order to pay insurance premiums, and the charges of January 18, 20 and 24, 1912, for drawing petition and drawing and serving notice thereof and for looking up authorities regarding an order to pay interest to become due January 26, 1912, on the first debt. A further circumstance should be noticed. The notice of the filing of the petition of May 15, 1911, for which the attorneys charge the receiver, is signed Ela, Grover, March & Eckert, solicitors for complainant); the notice of the petition of July 18, 1911, is signed Ela, Grover, March & Eckert, without designating for whom they were acting; and the notice of the petition of November 3, 1911, is signed Ela, Grover, March & Eckert, attorneys for plaintiff. In none of these matters did these attorneys appear of record as acting for the receiver.

There are a number of items in the bill rendered by the attorneys that might well be for services rendered either to the receiver or to the complainant, but there are no separate charges made therefor, and no evidence of the reasonable value of these separate services was offered. The services were all rendered before the appearance in court of these attorneys was entered for the receiver. From the face of this account for attorneys’ fees in connection with the other circumstances shown by the record and above referred to, we are forced to the conclusion that the services of the attorneys were rendered for and at the instance of the complainant; that she should pay therefor out of her own funds, and that the payment thereof by the receiver was unauthorized and improper. .

The receiver complains that he was not allowed $400.31 as his fees- or commissions. He says in his report that $150.31 of that amount was paid by him to agents for collecting rents, and that he retained five per cent, on $5,000 or $250, as his personal commissions. During the taking of the testimony before the master on the receiver’s report, it was admitted by Mr. Eckert, then representing the receiver, that no commissions had been in fact paid by the receiver to agents for collecting rents. At the same time he asked permission of the master to show that the receiver retained the whole $400.31 as his personal commissions. In refusing this request the master said:

" Since it has been explained to me that the item in the receiver’s report is erroneous, and that this witness did not pay any cash out for agent’s commissions and collection of rents, I will not let you go into that question. I sustain the objection.”

The receiver’s report was incorrect in another respect. By it he charged himself with $5,116.13. The master found that he had received funds which he had failed to account for, and which he had misappropriated, and that because he had failed to charge himself with all the money he had received and had denied under oath before the master that he had received the omitted sums, he had forfeited his right to any compensation for his services, and that his total receipts for which he must account were in fact $5,446.13." The receiver does not deny that his report was erroneous or that the true amount for which he must account is what the master and the court found it to be; he insists, however, that the omission was not wilful, but was a mere oversight and that he ought not, therefore, to be deprived of his compensation. The most charitable view to take of his misstatements in his report and in his testimony, to the effect that he had paid out $150.31 as commissions which it is now admitted he did not pay out, and that he had received but $5,116.13, when it is now conceded he had in fact received $5,446.13, is that it was the result of his negligence in failing to keep accurate accounts, but the fact remains that either wilfully or negligently his report was erroneous to the extent of $480.13, which but for the objections of appellees thereto, he would have improperly retained. It is as much the duty of a receiver to he careful and diligent in performing his duty and in the keeping of accurate accounts and making of accurate reports, as it is to refrain from premeditated dishonesty. When from either cause the trust funds in his hands are not properly accounted for and are prevented from reaching the hands of those entitled'thereto, the receiver should not be compensated for his services. It is only for such careful, diligent and honest service as the law contemplates that a receiver should he compensated. We think this record clearly shows an instance where the receiver should be denied compensation. Such a course has been pursued under a variety of circumstances which, while not in all respects parallel to the case at bar, serve to show the trend of judicial action. See Speiser v. Merchants’ Exch. Bank, 110 Wis. 506, 524. In Pangburn v. American Vault, Safe & Lock Co., 205 Pa. St. 93, 100, the Court said:

“The reckless and negligent manner in which the receiver conducted the affairs of the trust estate and the consequent loss to the creditors legally deprived the receiver of the right to commissions. The law does not compensate an officer for inefficiency and wilful neglect of duty.”

In State ex rel. Pope v. Germania Bank of St. Paul, 103 Minn. 129-144, the Court said:

“The question of negligence and mismanagement by the receiver should have an important bearing upon the amount of his compensation. If found guilty, the court would be justified in refusing to reward the neglect or misconduct * * *.”

The costs of the reference to the master of the receiver’s report was charged to the receiver. To this he objects. The only respects in which, in our opinion, the report was incorrect were the credits the receiver took therein for commissions and attorneys ’ fees, and the failure to charge himself with $330 of moneys received. The evidence taken and the time expended on those matters was exceedingly small, a mere trifle, compared with that involved in determining the other questions raised by the exceptions of appellees to the receiver’s report that we have seen were not well taken. The receiver certainly should not be charged with the costs and expenses of defending a correct report, nor for defending a report in respect to matters correctly charged. In our judgment, the costs of the reference to the master should be paid by the' appellees whose unwarranted exceptions consumed substantially all of the time and made practically all of the costs and expenses of the reference.

If the decree appealed from was in other respects correct, it is erroneous in that it directs the payment of the amount found due appellee, Morris, and the amount of the costs of the reference to Burns, the solicitor for Morris. Amounts found due should be paid to the party to whom the same is due and the decree should so provide. It is particularly inconceivable what business an attorney for one of the parties has with the costs in a case.

It is contended by appellees that the receiver had no right to appeal from this decree. The decree required of him that he pay out of his own funds about $2,500 to replace trust funds that had theretofore been distributed by him pursuant to the express order of the same court. He was a party to the decree complained of, he was aggrieved by it and was the only person who was adversely affected thereby, and was, therefore, entitled to appeal. Union Nat. Bank of Chicago v. Barth, 179 Ill. 83; Granat v. Kruse, 213 Ill. 328-332. Even if ho other part of the decree so affected him as to give him a right to appeal, the part denying bim compensation certainly had that effect. Sutton v. Weber, 100 Ill. App. 360; McAnrow v. Martin, 183 Ill. 467, 473.

For the reasons stated the decree of the Superior Court is reversed and the cause is remanded with directions to that court to restate the account of the receiver in accordance with the views here expressed and to enter a decree accordingly.

Reversed and remanded with directions.