text:
    Elizabeth Swalm, Appellee, v. City of Joliet, Appellant.
    Gen. No. 6,827.
    1. Trial, § 191

      —what is test for talcing case from jury. The determining test upon a motion to instruct the jury to find for the defendant is whether or not the evidence, with all reasonable inferences to be drawn therefrom taken most strongly in favor of the plaintiff, fairly tended to prove the plaintiff’s case and was sufficient to warrant a verdict in plaintiff’s favor,
    2. Municipal corporations, § 1107*—when negligence is question for jury. In an action against a city to recover for personal injuries alleged to have been received by a fall on the sidewalk occasioned by plaintiff’s foot being caught in a wire, refusal of the trial court to instruct the jury to find defendant not guilty, held, upon the evidence, not error.
    3. Evidence, § 148*—when exhibition of injured hand is not error. In an action to recover for personal injuries, it is not error to permit plaintiff, who alleged that her hand had been injured, to exhibit it to the jury and demonstrate how far she could open and close it.
    4. • Evidence, § 423*—when physician may testify as to cause of injury. In an action to recover for personal injuries alleged to have been received by falling on a sidewalk, where an osteopathic physician has just testified that there was some displacement of plaintiff’s spine, it is proper to allow" such physician to answer affirmatively a question as to whether the displacement was such as could have been caused by falling on a sidewalk.
    5. Evidence, § 423*—when testimony of experts as to cause Of injury is improper. In an action against a city to recover for personal injuries alleged to have been received by falling on defendant’s sidewalk, where defendant denies that plaintiff was injured in the manner claimed, it is improper to allow plaintiff’s experts to testify that her ailments are the result of the accident.
    6. Damages, § 209*—when instruction as to amount of recovery is not erroneous. In an action against a city to recover for personal injuries alleged to have been caused by falling on its sidewalk, an instruction as to the measure of recovery held not subject to the objection that it authorizes the jury to award damages in such sum as is claimed in the declaration without specially limiting them to the evidence in the case bearing on plaintiff’s injuries.
    7. Forms, § 185

      —what is proper instruction as to damages. Form of instruction as to measure of recovery in action for personal injuries, held improper.
    8. Instructions, § 151*—when refusal of requested instructions is proper. Where counsel asks the court to give many and voluminous instructions containing repetitions and the court in selecting the instructions therefrom, fails to select one which counsel would have preferred, the court’s action will be sustained, when the jury were fully and fairly instructed and the material elements in the refused instructions were given in other instructions.
    9. Municipal corporations, § 1048*—what care must be used on street. One who uses a public street and is familiar with its condition must use a degree of care which is reasonable in pro-* portion to the danger, if any, known to him.
    10. Municipal corporations, § 1048*-—what degree of care is required in using street. The amount of care which is required of one using a public street varies with the circumstances of each particular case, but the degree of care exacted is unvarying and must always amount to reasonable care.
    11. Municipal corporations, § 1106*—when instruction as to contributory negligence is proper. In an action against a city to recover for personal injuries received from a fall on its sidewalk, an instruction that plaintiff must, at the time of and before the injury, have been in the exercise of ordinary care for her own safety, held proper.
    12. Municipal corporations, § 1063*—what care is required when sidewalk is dangerous. A greater amount of care is required of one using a sidewalk which he knows to be dangerous than is required of pedestrians ordinarily.
    13. Municipal corporations, § 1107*—when contributory negli* gence is question for jury. In an action against a city to recover for personal injuries alleged to have been received from a fall caused by a wire on the sidewalk, the question whether plaintifl was, under the circumstances shown, in the exercise of ordinary care, held to be a question for the jury.
    14. Municipal corporations, § 1107*—when question of city’s negligence is for jury. In an action against a city to recover for personal injuries alleged to have been received by falling over a wire on the sidewalk, where the evidence as to whether or not the wire 'was on the sidewalk was conflicting, the question of defendant’s negligence is for the jury.,.
    15. Damages, g 109*—when damages are not excessive. In an action against a city to recover for personal injuries received from falling on a sidewalk, damages .held not excessive in view of the nature of plaintiff’s injuries.
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 12, 1920.
    Rehearing denied November 4, 1920.

      Certiorari denied by Supreme Court (making
    opinion final).
    Edward R. Nadelhoffer, for appellant.
    Barr, McNaughton & Barr and Frank J. Jones, for appellee.

      See Illinois Notes Digest, Vols. XI to 2£V, anti Cumulative Quarterly, same topic anti section number*

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

   Mr. Justice Heard

delivered the opinion of the court.

This is an appeal from a judgment for $6,200 recovered by appellee against appellant in an action brought by her against appellant to recover damages for personal injuries which she claimed to have sustained from falling upon a sidewalk on a public street of appellant by reason of one of her feet having been caught in a loop or coil of wire on the sidewalk.

Appellant has assigned twenty-one errors upon the record. Most of these assignments are either repetitions or not argued and so will not be commented upon in this opinion.

It is contended by appellant that the court should have instructed the jury to find the defendant not guilty. We have repeatedly held that the determining test upon á motion to instruct the jury to find for the defendant is whether or not the evidence with all reasonable inferences to be drawn therefrom taken most strongly in favor of the plaintiff fairly tends to prove the plaintiff’s case and was sufficient to warrant a verdict in plaintiff’s favor. Without, at this time, going into a review of the evidence we are of the opinion that applying this rule to the evidence in the case the court did not err in refusing to instruct the jury to find the defendant not guilty.

It is claimed that the court erred in permitting appellee while testifying as a witness, to exhibit to the jury the hand, which she claimed had been injured, and to make demonstrations to the jury as to how far she could open and close it. This question was before this court in Tindall v. Chicago & N. W. Ry. Co., 200 Ill. App. 556, and we there held after a review and citation of the authorities upon the question that allowing such demonstration was not erroneous.

One of the points for reversal set up in appellant’s brief is that appellee’s medical experts testified that her present injuries were the result of the fall and of her accident. Appellant does not point out the testimony of which it complains and a. search of the abstract fails to substantiate appellant’s claim. The only question to an expert witness to which objection was made, so far as shown by the abstract, was the question, “Was that such displacement as could have been produced as by a fall on a sidewalk?” asked the witness Tena M. Gross, and osteopathic physician who had just testified that there was some displacement of appellee’s spine. The court properly allowed the witness to answer this question affirmatively over appellant’s objection. In this case it was denied that appellee was injured in the manner claimed by her and it therefore would have been improper to have allowed her experts to testify that her present ailments were the result of the accident, as pointed out in Ehrhardt v. Connecticut Fire Ins. Co., ante, p. 48, where there is a full review of the authorities on the subject. Where there is a dispute as to the manner and cause of the injury, a physician may be asked whether the facts stated in the hypothetical question are sufficient from a medical viewpoint to cause a certain condition or disability; or he may be asked whether or not a given condition or disability may or could result from or be caused by the facts stated in the hypothetical question. Appellee’s counsel followed this rule in framing his question and it was therefore not improper.

It is claimed by appellant that the court erred in giving to the jury the following instructions:

“The court instructs the jury that if they find for the plaintiff they will be required to determine the amount of her damages. In determining the amount of damages the plaintiff is entitled to recover in this case, if any, the jury have a right to, and they should take into consideration all the facts and circumstances as proven by the evidence before them, the nature and extent of plaintiff’s physical injuries resulting from the fall on the sidewalk in question, if any, so far as the same are shown by the evidence; her pain and suffering, if any, resulting from such physical injuries, if any, as the jury may believe from the evidence before them in this case she has suffered, by reason of such injuries; her loss of time and inability to work, if any, on account of such injuries, and may find for her such sum as in the judgment of the jury, under the evidence and instructions of the court in this case, will be a fair and just compensation for the injuries she has sustained, if any, so far as such damages and injuries, if any, are claimed and alleged in the declaration.” Appellant’s contention is that it tells the jury that they can award damages for injuries sustained in such sum as claimed in the declaration without specially limiting them to the evidence in the case bearing on plaintiff’s injuries. This instruction is not subject to that criticism as it specifically limits the judgment of the jury to the evidence in the case. This instruction is however defective in the second sentence in not beginning the sentence with the words “In-such event,” and in the latter part of the instruction in not containing the words “If you find for the plaintiff” between the words “and” and “may find.” These objections are not raised by appellant, and so far as we can ascertain never have been heretofore raised in a court of appeal in this State. In Chicago & M. Elec. Ry. Co. v. Ullrich, 213 Ill. 170, the Supreme Court sustained the giving of an instruction almost identical in language with the instruction in question here.

Appellant’s counsel tendered to the court thirty-nine instructions, many of them extremely lengthy and many of them repeating principles announced in other instructions. Complaint is made of the refusal of the court to give one of these instructions. The court gave twenty instructions fully and fairly covering all the principles material to the issues in the case. Where counsel requests the court to give many voluminous instructions containing repetitions and the trial judge in malting his selections therefrom fails to select an instruction which counsel would have preferred, the action of the court will be' sustained where the jury have been fully and fairly instructed and all the material elements in the refused instructions are given in other instructions.

Appellant contends that when appellee entered upon the sidewalk in question she had knowledge of the dangerous condition of the sidewalk over which she was. about to walk and that the court in the instruction given for appellee did not correctly state the degree of care to be required of her under such circumstances. The instruction of which complaint is made required appellee at and prior to the time of the alleged accident to have been in the exercise of ordinary care for her own safety. It is undoubtedly the law that one who uses a public street and is familiar with its conditions must use reasonable care in proportion to the danger, if any, known to him. What constitutes reasonable care in any given case depends on the circumstances of that particular case. If one knows of the dangerous condition of a sidewalk that fact would call for the exercise of a greater amount of care than would he required in the absence of such knowledge. The amount of care required of pedestrians on public streets varies and depends on the circumstances of each particular case, but the degree of care required never varies and is always reasonable care. City of Spring Valley v. Gavin, 182 Ill. 232; Village of Jefferson v. Chapman, 127 Ill. 438. That appellant, in the trial court, recognized that reasonable care was the degree of care required of appellee is evidenced by the fact that in six of appellant’s given instructions the degree of care required is stated to be reasonable care.

Appellant contends that appellee was guilty of contributory negligence, barring her from a recovery in this case.

Appellee claims she was injured about 9 a. m. May 19, 1915, while walking west on the north sidewalk of Clinton street, in the City of Joliet, by one of her feet becoming entangled in a coil or loop of wire extending from the fence out upon the sidewalk. The fence built near the sidewalk extended along the south side of what is known as the Munroe property and was originally constructed of posts, a 2 by 4 scantling nailed on the top of the posts and a 3 or 4 inch board lower down. To this framework two kinds of wire had been attached by staples, a barbed wire on the 2 by 4, and woven wire lower down. In the course of time some of the posts and 2 by 4’s had rotted and were replaced. The barb wire and the woven wire rusted, became rotten and brittle, and was at times repaired, and it is claimed by appellant’s witnesses that it had been entirely removed from the fence 2 years prior to the accident. The sidewalk was 7 feet in width and rested on two walls running parallel with and constructed along either edge of the sidewalk. Between the walls supporting the flagging and underneath the same, there was a void of the depth of about 3 feet. At a point about 110 or 115 feet west of the place where appellee fell, one of the flags broke along a seam near the center and running parallel with the walk, so that the broken flag collapsed by caving in between the walls supporting the same. To protect the traveling public from injury, the city authorities caused a barricade to be constructed over the broken stone. .The barricade consisted of two wooden “horses”—one on either side of the walk—supporting a heavy plank extending across the walk at an elevation of several feet. There was only one barricade erected for the protection of the public. Appellee was a music teacher and on the morning of May 19 left her home at about half-past seven and went to the home of one of her pupils to give a music lesson. After leaving the home of her pupil, she proceeded to Clinton street. Appellee testified that for about 2 years prior to the accident she had been afraid to walk on that particular sidewalk; that the woven wire had a barb about every 4 or 5 inches and that it was rotten and rusty so that the barb would break off in about 3 or 4-inch lengths of wire and that she had often seen barbs on the sidewalk as she walked along there; that she did not know how often she had seen them, but said she had seen them often enough so that she was very much afraid of stepping on one of them and for that reason she always took the middle of the sidewalk when walking on the north side of the street along the Munroe property, feeling that it was the safest; that she had never seen a strand of wire extending to the middle of the sidewalk prior to the accident and that her one care was to avoid stepping on the small pieces of broken wire; that on the morning in question, as was her custom, she took the middle of the sidewalk; that after turning west on Clinton street she observed the barricade which she had never seen before; that she noticed there was only one barricade and thought there ought to be two to show where the dangerous part of the pavement was; that she would judge the barricade was about 30 feet from where she fell, at a rough guess; that she was about 56 years of age and her eyesight was good; that she was used to walking; that the sidewalk was light in color and that as she approached the place in question she saw no wire extending out to the middle of the sidewalk; that she did not keep off the sidewalk on account of being-afraid of the barbs because she felt able to protect herself and that she took precaution, such as one ordinarily would, not to step on a loose piece of wire; that she was walking rapidly and felt herself crashing down to the sidewalk; that this was caused by her stepping her left foot in a loop or coil of wire which she did not see before stepping into it; that this loop or coil of wire got around her left leg between her ankle and shoe top and when she went to take the next step she was thrown to the pavement; that she saw the wire while she was on the pavement; that it was removed from her ankle by an unknown man; that the coil or loop consisted of two wires, one a barb wire and one a plain wire; that the barb wire was rusty and very old and bad looking; that the barb wire came down from the top of the post; that the plain wire was fastened to the posts and about 5 or 6 inches from the top of the post it began to weave in with the barb wire.

We have quoted this extensively from appellee’s testimony for the reason that she is the only witness whose testimony has a direct bearing upon the question as to whether or not she was using ordinary care for her safety at and just prior to the time of the accident. While it is true that when one walks over a walk which he knows to be dangerous he must use care commensurate with the known danger and that a greater amount of care is required under such circumstances than is required from pedestrians ordinarily, yet in the present instance the danger encountered by appellee was not the exact danger known and feared by her and it occurred in that portion of the sidewalk which she had considered safest and where she had never experienced trouble. Her attention was called to the fact that a few feet ahead was a part of the sidewalk sufficiently dangerous to be barricaded and to the fact that there was only one barricade, where she thought there ought to be two, to show where the dangerous place was and that while her attention was thus attracted the accident occurred. The question as to whether or not she had exercised ordinary care for her own safety was a question for the jury and under the evidence we would not . he justified in setting aside their finding.

It is earnestly contended by appellant that the evidence does not show any negligence on the part of appellant. Upon this question the evidence is irreconcilably conflicting. A half owner of the property and five former employees, only.one of whom was an employee at the time of testifying, testified that the wire had been entirely removed from the fence 2 years prior to the accident and that from that time to the time óf the accident there had been no wire of any kind upon the fence. Several persons living or working in the vicinity testified to walking over the sidewalk, in question daily for some time prior to the accident and that they never saw any wire on the sidewalk at or near the place in question. On the other hand, in addition to the testimony of appellee, an assistant in the public library, who came upon the scene while appellee was yet upon the pavement, testified to seeing a wire on the- sidewalk near appellee;, that the wire was not a loose wire, but seemed to be attached to the fence; several other witnesses testified to seeing a wire, one end of which was fastened to the fence extending out over the sidewalk in question, at various times shortly before the accident. It was peculiarly the province- of the jury to pass upon this conflicting testimony. If the testimony produced by appellant was true, then appellant was not guilty of negligence, If the testimony of appellee’s witnesses was true, then appellant was guilty of negligence. The jury found in favor of appellee upon this question and we would not be justified in disturbing their finding.

Appellant contends that the damages allowed by the jury are excessive. If the jury believed the testimony of appellee and her physicians, and they evidently did, then the damages awarded were not excessive.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Heard

license: Public Domain

text:
    J. B. Bartholomew, Appellee, v. I. J. Case, Appellant.
    Gen. No. 6,818.
    Sams, § 269

      —when breach of warranty in selling cattle is shown. A purchaser of a bull, which was more than six months old, at a sale of cattle was given, before bidding, a sale catalogue containing the following; “Tuberculin Guarantee. All animals over six months of age have been, tested by authorized State veterinarians whose tests are approved by the authorities having charge of the live stock interests in the State and are believed to be free from tuberculosis. As further proof in the belief of the test, the following specific warrant and agreement is made between the owner and each purchaser at this sale. First: The owner of animals in this sale where said animals are upwards of six months of age does represent and warrant that said animals have been tuberculin tested within 20 days of sale and found free from tuberculin, certificate of which will be furnished with each animal. * * * All entries made in this sale are according to the printed terms and conditions. Certificates of registry, transfer and tuberculosis tests will be furnished free of charge.” After the sale, the State veterinary notified the seller, who had permitted the purchaser to leave the bull on the premises for 5 or 6 days, that the bull should be held in quarantine for 60 days on the ground that it was infected with, or had been exposed to, tuberculosis. Twice within 60 days the purchaser demanded delivery of the bull from the seller, but delivery was refused by reason of the quarantine order. It was helé that the seller had been guilty of a breach of warranty and the purchaser had the right to rescind the contract within a reasonable time and to recover back the i 'ice or any part thereof which he had paid.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehahs, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 12, 1920.
    Stevens, Milleb & Elliott, for appellant.
    Dailey, Milleb, McCobmiok & Radley, for appellee.

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

   Mr. Justice Heard

delivered the opinion of the court.

Appellant was engaged in the business of raising and selling pedigreed live stock and on October 29, 1918, had a public auction for the purpose of disposing of some of his stock. Appellee’s son attended the sale and purchased and paid for a bull called King Rose Sadie Yale, the purchase price being $1,050. After the sale appellee’s agent stated to appellant that the bull was going to appellee’s farm about 20 miles away and that he would send a truck out for the bull in a few days if that was satisfactory to appellant. Appellant replied that it was and the bull was left at appellant’s farm.

Appellee did not send for the bull for 5 or 6 days after the sale. On October 30 or 31, appellant received a notice in writing from the State veterinarian, issued October 29, that the bull and two other animals should be held in quarantine on the ground that he had good and sufficient reasons to believe that the animal was diseased with tuberculosis or had been exposed to the contagion thereof. When appellee sent for the bull appellant informed the truckman that he could not deliver the bull because of the quarantine and that he would have to hold the bull 60 days for a retest. Some time later and before the expiration of the 60 days, appellee’s son and agent called upon appellant and demanded the bull. Appellant refused to deliver it by reason of the quarantine being still in force. Appellee’s agent then demanded the return of the purchase price, which being refused this suit was brought. The trial resulted in a judgment for appellee against appellant for $1,050 damages and the costs of suit, from which judgment this appeal is prosecuted.

One of the terms and conditions of the sale catalogue issued by appellant was.that “all animals are at the purchaser’s risk as soon as sold.” It is contended by appellant that upon the payment of the purchase price by appellee to appellant the sale was complete and that the title then passed to appellee; that the bull was thereupon constructively delivered to appellee and that the bull was on appellant’s farm as an accommodation to appellee and that appellee had the constructive possession of the bull and that the only question involved in this case is whether under the provisions of the statute of the State of Illinois it was the duty of appellant to hold the bull for retest after having received notice from the State that the animal must be held as suspicious and for retest.

"When appellee’s agent attended the sale and prior to his bidding upon the animal in question he was handed a sale catalogue by appellant. This catalogue contained the following tuberculin guarantee:

“Tuberculin Guarantee.
“All animals over six months of age, have been tested by authorized State veterinarians whose tests are approved by the authorities having charge of the live stock interests in this State and believed to be free from Tuberculosis.
“As further proof in the belief of the test the following specific warrant and agreement is made between the owner and each purchaser at this sale:
“First: The owner of animals in this sale where said animals are upwards of six months of age does represent, and warrant, that said animals have been tuberculin tested within 20 days of sale and found free from tuberculin, certificate of which will be furnished with each animal.
* * * # # * *
“All entries made in this sale are according to the printed terms and conditions.
‘‘ Certificates of registry, transfer and tuberculosis tests will be furnished free of charge.”

King Bose Sadie Vale was over six months of'age and the representations and warranty contained in the sale catalogue applied to him.

It does not appear from the evidence that'the bull had within 20 days of the sale been tuberculin tested and found free from tuberculin by an authorized State veterinarian whose tests are approved by the authorities having charge of the live-stock interests of the State. The bull was tested October 25, 1918, by Dr. Burton Allen, a local veterinarian, who was not examined as a witness in the case. He made a report of such test to the State veterinarian. No certificate as required by the warranty was made by any one authorized by law to make such certificate until after the commencement of this suit and after a retest made by the State authorities in January, 1919. It is true that Dr. Allen, who does not appear from the evidence to be authorized to issue health certificates, made a certificate which appellant saw for the first time after notice of the quarantine. Even this certificate did not comply with the warranty and show that King Bose Sadie Vale had been “Found free from tuberculin.” While this certificate of Dr. Allen does contain this statement: “I hereby certify that I have this day physically examined and tested with tuberculin the above described animal and in my opinion said animal is free from Tuberculosis as far as can be determined by physical examination and Tuberculin test,” it stated other facts which instead of showing that the animal was free from tuberculin was the basis upon which the State veterinarian ordered the bull quarantined.

Whether the title to the bull in question had passed to appellee or not and whether there had been a constructive delivery of the bull or not, there was a breach of warranty of the bull by the seller, appellant, and upon the discovery of such breach of warranty, appellee, the buyer, had a legal right, within a reasonable time, to rescind the contract to sell or the sale and refuse to receive the goods, or if the goods had already been received return them or offer' to return them to the seller and recover the price or any part thereof which had been paid. Rev. St. Ill. 1917, ch. 121a, sec. 69d [Callaghan’s 1916 Stat. [¶] 10021(72) ]. ‘

Appellant complains of the refusal of the court to give instructions asked by appellant. Appellant’s refused instructions were all inconsistent with the views herein expressed and were properly refused.

The judgment is affirmed.

Affirmed.

Niehaus, J., took no part.


author: Mr. Justice Niehaus

text:
    M. Steinberg, Appellee, v. Samuel Schwartz, trading as Schwartz Bedding Company, Appellant.
    Gen. No. 6,817.
    1. Pleading, § 153

      —when contract must be pleaded in affidavit of defense. A new contract claimed as a defense in an action of assumpsit which is not set up in the affidavit of defense is not an issue in the case.
    2. Pleading, § 455*—when objection to affidavit of merits is not waived. An objection that a new contract not set up by defendant in his affidavit of merits is not an issue in the case is not waived by the fact that plaintiff introduced on the trial evidence of such contract, where such proof was not introduced by plaintiff to sustain a recovery but merely to show that defendant admitted that the weight of the goods for the purchase price of which the action was brought was correct and to show also that defendant recognized the fact that the goods were of the character which plaintiff claimed them to be.
    3. Sales, § 329*—when evidence shows sale. In an action of assumpsit to recover the purchase ,, price of cotton mattresses in which defendant claimed that he purchased the cotton batting only and not the ticking, evidence of defendant, on direct examination, that he bought “these felt mattresses” from plaintiff, and of defendant’s bookkeeper that defendant told him “the mattresses” were coming and showed him where to have them placed, held to present a question of fact for the jury and to support a finding that defendant bought mattresses.
    4. Sales, § 331*—when judgment is not erroneous. That, in an action of assumpsit for the purchase price of malttresses, plaintiff admits that he agreed to buy back the ticking at the same price per pound, does not give defendant any right to complain because the judgment for plaintiff included a certain number of pounds of ticking, where the evidence does not show that any ticking was tendered back to plaintiff.
    5. Cancellation of instruments, § 1*—what is extent of right of rescission. One will not be permitted to affirm his contract in part and rescind it in part, but if he rescinds at all, must rescind in toto.

    6. Accord and satisfaction, § 1*—when agreement is nudum pactum. An agreement by a creditor whose demand is due to take a less sum in satisfaction thereof is nudum pactum.

      7. Witnesses, § 283

      —what cross-examination to impeach witndSs is proper. In an action of assumpsit, where plaintiff, to explain his awkwardness in testifying, states that he has never been in court before, it is not error to refuse to permit defendant to show, on cross-examination, that plaintiff has had another suit and that his attorney therein withdrew from the case because plaintiff sought to have a witness lie.
    8. Sales, § 330*—when instruction as to examination of goods delivered is not erroneous. Even though an instruction, in an action of assumpsit for the purchase price of mattresses, as to the duty of the purchaser to make within a reasonable time any objection he finds to the quality of the goods, is objectionable as failing to include the element of the purchaser’s having had a reasonable time to examine the mattresses, it is immaterial where it appears that the purchaser exercised acts of ownership over the mattresses and sold a part of them before objecting.
    9. Sales, § 330*—what instruction as to right to recover for goods sold is not erroneous. In an action of assumpsit for the purchase price of goods, it is proper to give an instruction that, “so far as defendant relies upon a breach of warranty as a defense, or by way of set-off, the burden of proof is upon the defendant as to such breach and as to any damages, if any, arising therefrom, and unless the defendant has proven such breach and damages resulting therefrom, by preponderance or greater weight of evidence, then the defendant is not entitled to any benefit therefrom.”
    10. Set-oef and recoupment, § 38*—when burden of proof is on defendant. The burden of proof is on the defendant to establish the existence and validity of his claim of set-off by a preponderance of the evidence.
    11. Instructions, § 132*—when instruction is erroneous. An instruction ignoring evidence upon the matter to which it relates is properly refused.
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 12, 1920.
    Rehearing denied November 11, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Cooke, Pope & Pope, for appellant.
    Ralph J. Dady, 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 Niehaus

delivered the opinion of the court.

This is a suit in assumpsit which was commenced by M. Steinberg, appellee, against the appellant, Samuel Schwartz, doing business as the Schwartz Bedding Company, to recover for 31,410 pounds of cotton mattresses which appellee claims to have sold and delivered to appellant at 5% cents per pound, and which were not paid for. A trial by jury resulted in recovery by the appellee of the amount of his claim, for which judgment was rendered, and this appeal is prosecuted from the judgment.

The declaration consists of the common counts, and appellee filed with his declaration an affidavit of his claim, stating that his demand was for 31,410 pounds of mattresses at 5% cents per pound, and that there was due him the sum of $1,806.07, with interest. Appellant filed a plea of the general issue, with an affidavit of merits, stating that the appellee’s cause of action was for 28,080 pounds of cotton batting at 5% cents per pound; that no weight tickets were ever given to appellant; that the cotton came in the form of mattresses, worth not to exceed 2 cents per pound, which fact was unknown to appellant until a large portion of the mattresses had been ripped open, and, upon discovery, he tendered them back to appellee; and that the correct amount due appellee, after deducting batting on hand, incased in mattresses, and tendered back to* appellee, and after deducting ticking weighing 2,646 pounds, was the sum of $499.04; and that it cost appellant $100 to rip open the mattresses, which should also be deducted, leaving a balance due appellee of $399.04.

One of the grounds urged for reversal of this case is that the verdict and judgment disregarded a new contract subsequently made by- the parties. But the alleged new contract was not set up by appellant, in his affidavit of defense, which limits the issues for trial, and was therefore not an issue in the case. This court so held in Reddig v. Looney, 208 Ill. App. 418. In that case it is said: “That when the nature of the defense was required to be seated in an affidavit, all the defense the party had should be so stated, and that he would not be permitted to give in evidence any matter of defense not so stated in the affidavit. If a defendant might at the trial give in evidence substantial matters of defense not stated in his affidavit of merits, the requirement that he should set forth the nature of his defense would be of no avail and would operate as a snare to the plaintiff.” Counsel for appellant in their reply brief concede that this is the law, but contend that the evidence of the new contract was first introduced by appellee, and, therefore, any objection to it was waived, because not specifically raised in the court below. But it appears that this proof was not introduced by appellee for the purpose of sustaining a recovery, but merely to show that the weights were conceded by appellant to be correct, since appellant’s bookkeeper made out and delivered a memorandum of a new agreement to appellee, which showed 31,410 pounds of mattresses, thereby recognizing correctness of the weights; also recognizing the fact that mattresses were bought by the appellant and not merely cotton batting.

On the point contended for by appellant, that he purchased cotton batting only, and not the ticking, it should also be noted that appellant testified, on direct examination, “I bought these felt mattresses for him.” And appellant’s bookkeeper testified, that “he (appellant) told me that the mattresses were coming that day and he showed me where to have them placed.” This, therefore, fairly presented a question of fact for the jury, and they were warranted in finding that appellant bought mattresses. Appellee admitted that he had agreed to buy back the ticking at the same rate per pound, but the evidence does not show that any ticking was tendered back to him, hence appellant is not in position to complain because the judgment im eluded a certain number of pounds of ticking. Appellant admitted that he was to pay 5% cents per pound, but having become dissatisfied with some of the mattresses, tried to get out of paying for them. Appellant testified on this point: “I can’t say how much we have used when I offered to pay him up for what we had used, and turn the rest back.” He made no attempt to rescind the whole contract and he could not rescind as to a part only. The rule of law is well settled that a party will not be permitted to affirm a contract in part and rescind as to the residue. If he rescinds at all he must do so in toto. Wolf v. Dietzsch, 75 Ill. 210; Harzfeld v. Converse, 105 Ill. 534; Bollnow v. Novacek, 184 Ill. 465.

After appellee had repeatedly called on appellant for hisx.pay, and had not received it, he offered to settle at 4% cents per pound upon appellant’s promise to pay cash the next day. No cash was paid by appellant tlie next day, nor at any time. There was no consideration for this new promise, and the law is that an agreement by a creditor to take a less sum, in satisfaction of his demand, than is due, is a mere nudum pactum and void. Hart v. Strong, 183 Ill. 355.

It is also, contended that the court erred in sustaining objections to some interrogatories at the cross-examination of appellee. Appellee having testified that he had never been in court before, as an explanation of his awkwardness in testifying, appellant sought, upon cross-examination, to prove that he had a suit in court before, and that his attorney withdrew from the case because he (appellee) was trying to have a witness tell a lie. The court refused to permit cross-examination concerning this matter. We are of opinion that the objections to the cross-examination were properly sustained. Benedict v. Dakin, 243 Ill. 385,

Appellant contends that there was error in the giving of the following instructions for appellee:

“1. The court instructs the jury that where a vendee has a right to object that goods delivered are different in quality from those he purchased, he must do so within a reasonable time, and before exercising acts of ownership over them. If, before objecting to their quality, he exercises any act of ownership over them, he cannot afterwards repudiate the contract so as to wholly defeat the vendor’s claim for the price.
“2. The court instructs the jury that, so far as the defendant relies upon a breach of warranty as a defense, or by way of set-off, the burden of proof is upon the defendant as to such breach and as to any damages, if any, arising therefrom, and unless the defendant had proven such breach and damages resulting therefrom, by preponderance or greater weight of the evidence, then the defendant is not entitled to any benefit therefrom in this suit.”

The first instruction was based upon the rule laid down in the case of Wolf v. Dietzsch, 75 Ill. 205. Apparently the instruction is incorrect as a statement of the law concerning the matters involved, in that it does not include the element of appellant’s having had a reasonable time to examine the mattresses; but inasmuch as appellant had exercised acts of ownership over them, and had sold a part of the mattresses, this deficiency in the instruction cannot be regarded as material.

We think the second instruction correctly stated the law as to the burden of proof. The rule is well settled that the burden of proof is upon the defendant to establish the existence and validity of his claim of set-off by a preponderance of the evidence. Mazzarella v. Kamberos, 184 Ill. App. 62; Burt v. Garden City Sand Co., 237 Ill. 473.

Error is also assigned by appellant upon the refusal of the court to give,instructions No. 2 and No. '3 for appellant. We are of opinion that each of the instructions requested were properly refused. Instruction No. 2 ignored the proof that the bed ticking had never been tendered back and that the appellee had agreéd to buy it back, at the same price per pound, but had never received it, and that it had been retained by. appellant. It was conceded by counsel for appellant, upon oral argument, that instruction No. 3 had been properly refused.

For the reasons stated the judgment is affirmed.

Judgment affirmed. .


text:
    Charles Sacks and L. A. Cazanov, copartners, Appellants, v. Howard J. Legg, Mayor of City of Pontiac, Appellee.
    Gen. No. 6,840.
    1. Words and phrases—what is a “building.” A building is a fabric or edifice, such as a house, church, or the like, and designed for the habitation of men or animals, or for the shelter of property. In its broadest sense it can .mean only an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, a store, a church, a shed; it is a fabric or edifice constructed for use or convenience, and it must be permanent and designed for the habitation of men or animals, or the shelter of property.
    2. Municipal corporations, § 83

      —how ordinances are construed. In construing a municipal ordinance, words must be given their usual and popular meaning, when the sense will bear it.
    3. Municipal corporations, § 83*—how particular words in ordinances are construed. The same words occurring in different parts of a municipal ordinance must be given the same meaning, unless the context requires different meanings.
    4. Municipal corporations, § 847*—what is a “radius” A radius is a straight line from the center of a circle or sphere to its periphery or surface, and the periphery is the circumference of a circle.
    5. Words and phrases—how particular ordinance- is construed. In an ordinance prohibiting the maintenance of junk yards, where two-thirds of the buildings “within a radius” of 300 feet are used exclusively for certain purposes, the word “within” is used as a preposition and means “inside the limits of.”
    6. Municipal corporations, § 847

      —how ordinance prohibiting junk yards is construed. In an ordinance prohibiting the maintenance of any junk yard where two-thirds of the buildings “within a radius of 300 feet” of the proposed site are used exclusively for certain purposes, the quoted phrase is to be read as including all. buildings located at all points inside of the limits of 300 feet of the proposed site.
    7. Municipal corporations, § 847*—what structures are “buildings.” Certain enumerated structures considered and held “buildings” and to be counted as such in passing upon an application for a license to maintain a junk yard under an ordinance prohibiting such maintenance, where two-thirds of the buildings within a specified radius of the proposed site are used exclusively for certain purposes.
    8. Appeal and error, § 1802*—when remand for writ of mandamus not refused because matter moot. Where an ordinance regulating the licensing of junk dealers merely provides that a license may be issued for one year, without making reference to the city’s fiscal year, the fact that the fiscal year during which the application for a license was made has expired will not prevent the Appellate Court from ordering the lower court to issue a writ of mandamus to compel the issuance of the license, especially where the year for which the license would have run, if issued as requested, has not expired.
    Appeal from the Circuit Court of Livingston county; the Hon. G-. W. Patton, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded with directions.
    Opinion filed October 12, 1920.
    E. A. Simmons and Neil Kerr, for appellants.
    Robert M. Niven, 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, eame topic and section number. ,

   Mr. Justice Niehaus

delivered the opinion of the court.

Appellants having purchased Lots 1 to 8 in Block 8, of Fell’s Addition to Pontiac, petitioned the City of Pontiac for a license to conduct a junk yard on the site, and presented to the City Council their bond in the penal sum of $500, which was approved and accepted by the City Council; and thereupon tendered the sum of $25 to the city clerk of Pontiac, this being the required license fee, which was accepted. The Mayor refused, however, to issue the license on the ground that said site did not ‘comply with the ordinance of the city in reference to junk yards. Appellants then filed a petition in the circuit court of Livingston county for a writ of mandamus to compel appellee to issue a license to appellants to conduct a junk yard on their premises. Issue was joined upon the petition, a jury waived and the case heard by the court, who denied the prayer of the petition, and appellants have appealed to this court.

Section 1 of the city ordinance of the City of Pontiac is as follows: “It shall be unlawful for any person, firm or corporation to locate, establish, conduct or maintain any junk shop or junk yard in the City of Pontiac, either at wholesale or retail, within three hundred (300) feet of any church, hospital, public or parochial school, or the grounds thereof. Nor shall any junk shop or junk yard be located, established, conducted or maintained on any site where two-thirds of the buildings within a radius of three hundred (300), feet of the proposed site are used exclusively for residence and retail store purposes, or used exclusively for residence purposes, without the written consent of a majority of the property owners, according to the frontage, within a radius of three hundred (300) feet of the proposed site of said building or yard.”

It was stipulated by the parties previous to the trial that buildings on the plat, which were marked by numerals from 1 to 25 inclusive, were either residences or retail stores, concerning which there is no contest, and should be counted for appellee; and that the buildings indicated on the same plat, lettered A, B, C, D, E and I, were neither residences nor retail stores, and should be counted for appellants, making 25 buildings which it is conceded should be counted for appellee and 6 for appellants.

On the trial the court found that the buildings marked M and S, being two bams, should be counted for appellants; that FI, F2, F3, F4 and F5, being the Kipp lumber yard and buildings, should be counted as one building for appellants; that U, Y, and W, being the Sacks’ storehouse and bams, should be counted as one building for appellants; that Grl and G2, being the Kipp cement and coal sheds, should be counted as one building for appellants, and held that none of the other places designated on the plat by letters and circles were buildings, and should not be counted for the appellants ; and also finding’ that there were 25 residences and retail stores which should be counted against appellants and 11 buildings, which were neither residences nor retail stores, which should be counted for appellants.

Appellants have assigned error, on the refusal of the trial court to count certain places designated on the plat by letters and circles as buildings. This brings us to consider what is a building. A building is defined in Corpus Juris to be “a fabric or edifice, such as a house, church, or the like, and designed for the habitation of men or animals, or for the shelter of property.” Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation, or for some purpose of trade, manufacture, ornament or use, constituting a fabric or edifice, such as a house, a store, a church, a shed. 9 Corpus Juris 685. Our Supreme Court has defined a building to be “a fabric or edifice constructed for use or,convenience; as a house, a church, a shop. It must be permanent and designed for the habitation of men or animals, or the shelter of property.” Bruen v. People, 206 Ill. 423; 2 Am. & Eng. Encyc. of Law (1st Ed.) p. 601; Woodburn v. Russell, 213 Ill. App. 553.

The court refused to count the building lettered 0 for the reason that it was a building on the proposed site. The building lettered 0 is locáted on the extreme south side of the proposed site, and at the time of the application for a license was used as a flour warehouse and since has been converted into a repair shop. In the construction of an ordinance of a municipal corporation, when the sense will bear it, the usual and popular meaning must be given to the words, and the same words occurring in different parts of the ordinance are to be given the same meaning unless the context requires different meanings. J. Burton Co. v. City of Chicago, 236 Ill. 383; Culver v. Waters, 248 Ill. 163. The ordinance in question prescribes that no junk yard shall be maintained where two-thirds of the buildings within 'a radius of 300 feet are used exclusively for residence and retail store purposes, etc. A radius, as defined by Webster, is a straight line from the center of a circle or sphere to its periphery or surface, and a periphery is the circumference of a circle. The word “within,” as here employed, is clearly used as a preposition, and in the sense that the whole territory embraced in the limits of such 300 feet should be included. The third definition given" by Webster is “inside the limits of”; “not going outside of”; “not beyond or exceeding.” Cary-Lombard Lumber Co. v. Fullenwider, 150 Ill. 634. And it seems too clear for argument that the phrase in the ordinance referred to is to be read as including all buildings located at all points inside of the limits of 300 feet of the proposed site; and it was therefore error not to count the building lettered O for appellants. The building lettered P, being the G. and A. signal tower, and Q the section house, are both structures that come within the definition given and are within the required radius, and should therefore be counted for appellants as two buildings. The building lettered M is a brick structure of considerable size and is used for a different purpose, than the elevator building itself, and is constructed of different material. It should have been counted for appellants. The structure lettered X, being the Snell junk house, is a building which at one time had been used as a residence, but laterally used for storing junk, and at the time of the application for the license was not used as a residence. It should also have been counted for appellants. The structure lettered HI, being the Buell coal office, meets all the requirements of a building, and should have been counted for appellants. The structures lettered H2, H3 and H4, being the Buell coal sheds, are separate and distinct. from the building HI and should have been counted as at least one building for appellants. The structure lettered T, being known as the Sacks’ garage, is used for a storage of automobiles and should have been counted for appellants. The structures lettered J1 and J2, being Lobb’s office and coal shed, respectively, are buildings within the meaning of that term, and should have been counted at least as one building for appellants. Counting the structures referred to as buildings, it is clear that the appellants were entitled to a license to operate a junk yard on their proposed site for one year.

It is urged by appellee that although this court may come to the conclusion that there has been a technical compliance with the letter of the law, still the writ-should not issue because the fiscal year of the City of Pontiac having ended April 20, 1920, the question has become merely academic, and a writ of mandamus should not issue in any case where it will prove unavailing or fruitless. But the ordinance in question provides that a license may be issued for one year, and makes no reference to the .fiscal year of the city. Moreover, the application for a license was made to the Mayor on the 2nd day of July, 1919, and the year which applicant’s license would have covered if it had been issued had not expired when the same was heard in this court. We do not therefore regard the point as well taken.

For the errors indicated, the judgment' of the circuit court is reversed and the cause remanded with directions to order the writ of mandamus. ‘

Reversed and remanded with, directions.


author: Mr. Presiding Justice Dibell

text:
    Black Diamond Fuel Company, Appellee, v. Illinois Fuel & Phosphate Company, Appellant.
    Gen. No. 6,826.
    1. Sales, § 376

      —measure of damages for nondelivery. Ordinarily the measure of damages for failure to deliver coal to a retail dealer according to contract would be the difference between the contract price and the market price at the place of delivery.
    2. Sales, § 379*-—right to recover for loss of profits on nondelivery. On breach of contract by a wholesale coal dealer ■ to supply coal to a retailer", the latter is entitled to recover for the loss of profits on coal which the seller failed to deliver according to contract if he was unable, by the exercise of reasonable diligence after breach of the contract, to procure coal elsewhere to supply his customers.
    3. - Pleading, § 246*—effect of amendment of- hill of particulars hy giving credit for item. In an action to recover the price of coal delivered, where defendant pleaded certain payments made to plaintiff in addition to the contract price upon representations that such payments were necessary in order to procure certain carloads of coal, plaintiff, by amending its bill of particulars so as to give credit for those amounts, conceded that it had no right, to extort such sums from defendant.
    4. Sales, § 130*-—when nondelivery not due to governmental interference. In an action to recover for coal delivered to defendant, where defendant sought to recoup for damages sustained by reason of plaintiff’s failure to deliver the full amount of coal contracted for, evidence held to show that plaintiff’s failure to deliver such coal was due to the fact that it became unprofitable to do so and not because of governmental interference as claimed by plaintiff.
    5. Sales, § 320

      —remedies in case of breach by both parties. In an action for the price of coal delivered to a retail coal dealer, where it appeared that plaintiff first defaulted in the delivery of coal according to contract, which default was followed by a default on the part of defendant in making payment for coal delivered, neither party threatening to cancel the contract and each promising performance, and defendant retaining such coal as was delivered, plaintiff was entitled to recover for the coal which was delivered and defendant was entitled to recoup for damages sustained by reason of plaintiff’s failure to deliver the remainder of the coal according to contract.
    6. Set-off and recoupment, § 43*—propriety of refusing instructions on set-off where recoupment set up. In an action for the contract price of coal delivered to defendant where there was no plea of set-off and no notice of set-off with the plea of the general issue, and a stipulation stated that the only question submitted to the jury was whether defendant was entitled to damages by way of recoupment, instructions relating to set-off were properly refused.
    7. Set-off and recoupment, § 45*—limitation on amount recoverable by recoupment. A verdict for defendant for more than plaintiff’s claim is not permissible in recoupment.
    8. Instructions, § 126*—refusal of abstract instructions. An instruction containing a general proposition of law, not applied to the case, is properly refused.
    9. Damages, § 200*—when instruction properly refused. An instruction which includes an element of damages too vague and general, and not proper under the evidence, is properly refused.
    10. Stipulations, § 24*—how instructions affected by. In an action for the purchase price of coal in which defendant claimed recoupment, an instruction which required a verdict for defendant if the evidence was evenly balanced was properly refused where a stipulation required a verdict for plaintiff unless defendant established damages in recoupment, as to which the burden of proof was upon defendant.
    Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Selm, Judge, presiding. Hear.d in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed October 27, 1920.

      Luther B.. Bratton and Werner W. Schroeder, for appellant.
    J. Harvey Bobillard, for appellee.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The Zerler Coal Company was engaged in the wholesale coal business at Chicago and was managed by Charles T.. Zerler. The Illinois Fuel & Phosphate • Company was engaged in the retail coal business at Kankakee and was managed by C. H. Burnley. In August or September, and on" October 1,1917, arrangements were made between these managers, by which the Zerler Coal Company agreed to supply the Kankakee Company with coal for the winter months for its retail business in Kankakee. Thereafter the Zerler Coal Company accepted orders from the Kankakee Company for coal in various amounts and of various kinds. Zerler left the Zerler Coal. Company on the 1st of. January, 1918, and the name of that company was changed to Black Diamond Fuel Company. The Kankakee Company paid for or to apply upon various consignments of coal and did not pay for others, and this shit was brought by the wholesale company ^gainst the retail company to recover the amount alleged to be due plaintiff. Plaintiff filed an amended declaration containing only a common count for goods, wares and merchandise sold and delivered, with an affidavit of claim, stating that the amount due to plaintiff from defendant, after ■ allowing all just credits, deductions and set-offs, was $1,043.40. To this defendant filed a plea of nonassumpsit, with an affidavit that two payments of $25 and $50 had not been credited on account, and also that plaintiff failed to deliver coal as required by its contracts and thereby defendant was not able to supply a large portion of its customers with coal, and suffered great loss thereby, etc.' Plaintiff also filed a bill of particulars. During the trial plaintiff amended its bill of particulars, .so as to give defendant credit for said payments of $25 and $50 and thereby reduced the total amount due to $968.40. At the close of the evidence the parties stipulated that the statement of account in the bill of particulars was true and correct, and that the only issue to be decided by the jury was whether or not . defendant was entitled to damages by way of recoupment. The jury returned a verdict for plaintiff for $968.40, thereby defeating defendant’s claim in recoupment. There was a judgment on the verdict. Defendant appeals.

Under date of October 1, 1917, plaintiff issued a paper on its form, showing that it had sold to defendant 25 cars of Panama No. 8 lump coal, at a price of $2.35 per ton of 2,000 pounds, f. o. b. cars at the mine, and that the present rate of freight from the mine was $.85 per ton, and that 2 cars, per week were to be shipped., No. 8 lump coal is coal that has passed over and 8-inch screen, and it is free from impurities and is the best grade of soft coal. A delivery of 2 cars per week would have carried the deliveries practically to January, 1918. Five cars only were delivered. The ordinary rule for damages in such a case would be the difference between the contract price and the market price in Kankakee, but the proof is clear that when plaintiff failed to deliver on this order, it was then too late for defendant to make any other arrangements by which it would get the coal contracted for. Each wholesale dealer in coal had made his agreements with his customers, and had all he could do to supply the orders of his customers, and could not send coal to defendant. Defendant clearly showed that there was no market in which defendant could buy this coal after plaintiff ceased delivering on the order. Defendant proved that.it had constant orders from its regular customers for all this coal; that it cost it from fifty cents to $1.00 or $1.25 per ton to deliver this coal to its customers in Kankakee, and the freight rate to Kankakee appeared, and it showed that the regular retail price of this coal in Kankakee was from $5.50 to $6.00 per ton. Coal cars are of different capacities, but it was proved that the average capacity of coal cars used in this trade was 45 tons. Therefore the amount that should have been shipped in these 20 cars which plaintiff did not deliver was approximately 900 tons, and the loss to defendant because of not receiving these 20 cars of coal could be approximately determined by the jury from the evidence. A very similar ease was presented in Armeny v. Madson & Buck Co., 111 Ill. App. 621. The ordinary rule as to the measure of damages was recognized, but it was held that that rule does not apply when the article purchased cannot be had in the place when and where it should have been delivered, and that in such case profits are recoverable. It was there said:

“If notwithstanding the use of reasonable diligence he cannot procure the article in the market, the measure of damages is the actual loss sustained by him, and if he had resold the article purchased to another, he is entitled to recover the difference between the price he agreed to pay and that at which he resold, subject to all proper allowances for expenses of carrying on the business of the vendee and similar items. * * * Appellants knew when they sold the pens to appellee that its intention was to sell them again and at a profit. That is what it was ip business for and the object for which it bought them. Appellants must therefore be regarded as having contemplated resales by appellee at a profit and cannot complain at being compelled to make good to it the loss on the resales if it was unable to supply its customers by buying the goods in the open market.”

Numerous authorities are there cited in support of these propositions. It was held in Van Arsdale v. Rundel, 82 Ill. 63, that on the breach of a contract to deliver goods, the measure of damages is the loss sustained by reason of the failure to deliver. In Barnett v. Caldwell Furniture Co., 277 Ill. 286, it was held that a recovery could be had for prospective profits if there are any criteria by which probable profits can be estimated with reasonable certainty. As defendant could obtain no coal by wholesale delivered at Kankakee, we conclude that the loss of its profits on these 20 cars under the special facts of this case and the foregoing authorities should be allowed it as damages, if a proper case therefore otherwise appeared. What other failures there were to deliver on small orders need not be considered as the failure under the order of October 1, 1917, is sufficient for the present purpose. It follows that defendant was entitled to recoup unless the proofs show some sufficient defense against the claim for recoupment.

The sale bill or acceptance of October 1, 1917, has at the top of the document at the upper right-hand comer, evidently in print, these words:‘ ‘ Terms cash— payable in current exchange. ” It is evident from the proof on both sides that the provision just quoted was not intended to be observed by either side. There is proof from which the jury could reasonably find that the payments for each month’s shipments were intended to be made on the 10th day of the following month, or about that time. Plaintiff contends defendant cannot recoup because defendant did not pay as required by the contract, relying on Harter Brothers Co. v. Moffat Cycle Co., 151 Ill. 84; W. H. Purcell Co. v. Sage, 200 Ill. 342; and Chicago Washed Coal Co. v. Whitsett, 278 Ill. 623. These were cases where a forfeiture had been declared. Herein, both parties were delinquent. The acceptance of October 1 required plaintiff to ship 2 cars of Panama No. 8 lump coal each week. Assuming Saturday as the close of each week, it should have delivered 2 of those cars on Saturday, October 6, 1917. Defendant was not then in default of any payment. Plaintiff did not deliver them. If the acceptance of October 1 be treated as a contract by itself, plaintiff was also required by the contract to deliver 2 cars on each of the Saturdays, October 13, 20 and 27, and November 3. Defendant owed nothing under the order of October 1 until November 10. At that time plaintiff had delivered only 5 cars and was in default 5 cars and the time had not arrived when defendant should make any payment therefor. On October 10 defendant owedi for the September shipments and did not make that payment, until October 22. On November 10 it owed for the October bills, including said 5 cars, and paid none of this until November 1, and then paid only $300, but with a promise that a further remittance would follow shortly. Defendant paid nothing further and never paid on the November shipments, and plaintiff, while it shipped other kinds of coal on other orders in November, never shipped anything further under its acceptance of October 1. Plaintiff never rescinded the contract or threatened to do so because of the nonpayment. Its delay in shipment of coal was placed on other grounds. Plaintiff claimed the United States government interfered with its getting the coal. We are of opinion that the evidence does not show that that was the cause of its suspension of shipments. Shortly after the middle of October, Zerler told Burnley that he could get a car of coal for him by paying $25 as a bribe and defendant paid it, and early in November Zerler offered to get 2 cars of coal if he would pay $50 extra therefor, but that the check must not be made to the corporation but to Zerler himself. An increase in the price of $25 per car is a little more than fifty cents a ton, and the real meaning of these transactions appears to be that plaintiff could get the coal but would have to pay more for it than it anticipated when it accepted this order and that plaintiff was unwilling to pay that extra price. By amending its bill of particulars, so as to give credit for those two payments, plaintiff conceded that it had no right to extort these sums from defendant for getting that coal. From the evidence we conclude the real reason why plaintiff ceased shipping coal was because plaintiff could not get the coal at a price which would make it profitable to plaintiff to keep its contract with defendant. On January 1, 1918, it abandoned the wholesale business, and went into the business of selling coal at retail at South Chicago. That meant that plaintiff could get coal but not a price which would make it profitable to fill its contract with defendant. Under these circumstances, with plaintiff first in default and then defendant in default and neither party threatening to cancel the contract and each party promising performance, which it did not keep, we conclude that the cases relied upon by plaintiff to defeat recoupment ought not to be followed. In Evans v. Chicago & R. I. R. Co., 26 Ill. 189, Evans sued the railroad company to recover for wood delivered by him to the company at its request. He had not delivered all the wood called for by the contract. The court said:

“Even if the road was not in default, and they received arid appropriated the wood to their own use, so that plaintiff in error could not be repossessed of his property, he might recover for the portion delivered by him, and used by the company. But in that case the price agreed upon in the contract would be taken as to the measure of damages, but from these damages the company would have the right to recoup such amount as they had been damaged by a nonperformance of the agreement by plaintiff in error. * * * By retaining this sum, the company had, at all times in their own hands, a sufficient sum to cover any damage they might sustain by a breach of the contract, and consequently were relieved from all necessity of bringing suit on a failure to perform by the other party, arid if sued they would then have the right to recoup from that sum the damages thus sustained.”

In Richards v. Shaw, 67 Ill. 222, the court said:

“It is a rule, supported by a very respectable weight of modern authority, that, if the vendee of a specific quantity of goods sold under an entire contract receive a part thereof, and retain it after the vendor has refused to deliver the residue, this is a severance of the entirety of the contract, and the vendee becomes liable to the vendor for the price of such part; but he may reduce the vendor’s claim by showing that he has sustained damage by the vendor’s failure to fulfill his contract. Although this rule may be a relaxation of the earlier and more generally received doctrine, that the entire performance, on the part of the vendor, of such a contract as the one in question, is a condition precedent to the payment of the price, and the maintenance of an action for its recovery, the rule seems to be a fair and just one, and we are disposed to give it our acquiescence. It seems heretofore to have received recognition by this court.” We applied this rule in Rime v. Klasey, 9 Ill. App. 166, where there was a suit to recover for goods delivered and defense of recoupment. because of the failure by plaintiff to perform in full and as agreed. It was held that plaintiff had not complied with his contract but that as the goods were received and used by defendant, the court properly held they should be paid for, and we there said:
“At the same time, we think that the appellant was entitled to recoup any damage he may have sustained by reason of the appellee’s failure to furnish the balance of the staves under the contract.”

We think these rules should be applied to this case. It follows that as defendant retained coal plaintiff did deliver it is bound to pay for it but defendant is entitled to recoup by reason of the failure of the plaintiff to complete the contract. We have not considered whether this applies to other contracts for other kinds qí coal not filled by plaintiff.

Complaint is made of the refusal of certain instructions requested by defendant. Some of them are on the subject of set-off. Set-off and recoupment are not the same. We pointed out the difference and cited authorities in Luther v. Mathis, 211 Ill. App. 596. There was no plea of set-off and no notice of set-off with the plea of the general issue. The stipulation said the only question submitted to the jury was whether defendant was entitled to damages by way of recoupment. Instructions relating to set-off were therefore properly refused. No.. 13 and No. 16 would have permitted a verdict for defendant for a sum over plaintiff’s claim. Such a verdict is not permissible in recoupment. No. 14 was a general proposition of law, not applied to the case, and was therefore properly refused. It also included an element of damages too vague and general and not proper under the evidence. No. 15 required a verdict for defendant if the evidence was evenly balanced. This was not proper under the stipulation which required a verdict for plaintiff unless defendant established damages in recoupment, as to which the burden of proof was upon defendant.

The judgment is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Edward Martens, by Henry Martens, Appellee, v. Public Service Company of Northern Illinois, Appellant.
    Gen. No. 6,789.
    1. Electbicity, . § 12

      -—when violation of ordinance shows negligence. In an action to recover for personal injuries received by coming in contact with the electric current in the wires in a street which were used by defendant in operating its electric lighting system in a city, a violation by defendant of an ordinance requiring that it cover its wires with a durable insulation of not less than two coatings is prima facie evidence of negligence.
    2. Electbicity, § 12*—what is duty of proprietor of electric lighting system. It is the duty of a company operating an electric lighting system, in which its wires are run through the streets of a city and carry an electric current of 2,300 volts, to anticipate any lawful use which can be made of the streets by the public, including children as well as adults.
    3. Municipal cobporations, § 1048*—what is lawful use of street. The lawful use of the public streets of a city, by the public, both adults and children, includes matters of business, convenience or pleasure.
    4. Electbicity, § 12*—what is duty of electric company using streets. A company maintaining wires in the public streets of a city through which it supplies an electric current is bound to know the dangers therefrom incident to the legitimate use of the streets by the public and to guard against such dangers by the exercise of care commensurate with them.
    5. Electbicity, § .27*—when negligence is established. In an action to recover for personal injuries received by plaintiff, a 7-year-old boy, by coming in contact with an electric current from defendant’s wires maintained by it in the public streets of a city in operating an electric lighting system, it appeared that a city ordinance required defendant to cover Jts wires with a durable coating of insulation; that the wires carried a current of 2,300 volts; that they had not been renewed or reinsulated since being installed 18 years before and the insulation was ragged and decayed, leaving bare spots which had been in such condition for 5 years at least; that the duration of such insulation was about 5 years; that the injury was received while plaintiff, with other boys, was throwing rocks or bolts with strings attached over defendant’s wire, and the string which he threw contained a copper wire, and that when he attempted to pull it away from' defendant’s wire, it slipped to an uninsulated spot causing him to receive the shock; and that the children of that neighborhood had long been accustomed to play in that manner at that place. It was held that the jury were justified in finding that the failure to insulate the spot was negligence and that such negligence was the proximate cause of the injury.
    6. Electricity, § 22

      —when child is not guilty of contributory negligence. A child amusing himself by throwing a rock with a cord attached over an electric wire in a public street cannot be held to have anticipated that the cord would contain a copper wire and that the cord would come in contact with a part of the wire which was uninsulated, though required by ordinance to be insulated, and he would be injured by a shock therefrom, and is, therefore, not guilty of contributory negligence in so using the cord.
    7. Appeal and ebbob, § 1548*—when judgment will not be reversed for erroneous instruction. A judgment will not be reversed because an instruction is subject to the criticism that it assumes a fact where the evidence is conclusive that the fact was as the instruction assumed it to be.
    8. Electbicity, § 22*—when child is not a trespasser. A 7-year-old child amusing himself in a public street by throwing a rock with a string attached over a wire maintained in the street by an electric power company is. not, in so doing, a trespasser upon the company’s property, in the absence of evidence that his pursuit was wrong or illegal.
    9. Appeal and ebbob, § 1514*—when impropér remarle of counsel will not reverse judgment. Improper remarks of counsel in his argument are not ground for reversal where objection was sustained to them and they were not of such a prejudicial character as that they could have affected the judgment or conclusions of the jury.
    10. Damages, § 133*—when verdict is not excessive. In an action to recover for injuries to a 7-year-old boy by an electric current, $5,000 is not excessive where his injuries were of such a severe character as to cause great pain and suffering from the terrible burns received, the fingers of his right hand were permanently injured, there being ankylosis of the joints of some of the fingers, as well as permanent injury to his nerves.
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.

      Certiorari denied by Supreme Court (making opinion final).

      Edgar B. Elder, for appellant.
    Ashbel V. Smith, for appellee.

      See Illinois Note# Bigreat, 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 Niehaus

delivered the opinion of the court.

In this case the appellee, Edward Martens, a boy about 7 years of age, by Henry Martens his next friend, sued the appellant, Public Service Company of Northern Illinois, in the circuit court "of Lake county, for injuries sustained coming in contact with the electric current of appellant’s wires. The declaration charges that the appellant, a public service corporation, owns, controls and operates the electric lighting system in the City of Waukegan, and maintained on the west side of North Butrick street in that city certain wires on poles over which the appellant transmitted electricity to its patrons; that in accordance with the provisions of the ordinances then in force- in the City of Waukegan, it was the duty of the appellant to cover the wires with a durable insulation of not less than two coatings; and that the appellant failed and neglected to maintain such insulation, and allowed the wires to become bare and unprotected in places, and to remain in that condition for a long period of time, in violation' of the ordinance; and that the appellee, while in the exercise of such care as a boy of his tender years, experience and knowledge would ordinarily use under these conditions, came in contact with the bare, uncovered and uninsulated part of a wire which was charged with electricity, and thereby received a severe shock, and was severely burned and permanently injured.

The evidence shows that the appellee was playing in the street with other boys, and on the lawn in front of his father’s home on North Butrick street; and that in course of their play the boys were throwing strings, which were attached to stones or bolts, over the wires of appellant’s line; and that the appellee took what appeared to be a green string, but which contained within it a fine copper wire thread, and threw it over one of appellant’s wires which carried an electric current of 2,300 volts; and that when he attempted to pull this wire string off, it slipped to a bare spot on the wire, and thereupon he received the injury in question. The evidence also shows that these wires had been upon the poles since the system had been put into operation in Waukegan, or about 18 years; that neither the insulation nor the wires had been renewed or repaired since they were put up; that the insulation was in a ragged and decaying condition, leaving bare spots on the wires; and that these bare spots had been there at least 5 years. According to the evidence of appellant’s electrical expert who was called as a witness, an insulated double weather-proof wire on an outside distribution line, such as the one in question, will begin to show real deterioration in about 5 years. There was a trial by jury, which resulted in a verdict in favor of the appellee for $5,000, and this appeal is prosecuted, from the judgment.

Appellant asserts that the verdict is contrary both to the law and the evidence; that the accident to the appellee could not reasonably have been foreseen or guarded against by the appellant; and that the accident would have happened even if the insulation had not been worn off "of the wires in spots; that the accident was not the natural, probable or proximate result of such defective condition, but that the proximate cause of the accident was put into motion by the appellee, by the light copper wire which was in the string he threw over the appellant’s wire, and that therefore appellant is not legally liable; that it appears from the testimony of two electrical experts, who were witnesses for appellant, that even if the wire had been properly insulated, the insulation would not have been a protection against the happening of the accident in question. We are unable to coincide with these contentions of appellant. The evidence is practically conclusive upon the question of appellant’s negligence in not maintaining the insulation of the wires required by the ordinance, and allowing it to decay and deteriorate at least in spots, one of the spots being the place where the injury to appellee occurred.. The. violation of the city ordinance concerning the maintenance of the insulation intact is of itself prima facie evidence of negligence. Rowe v. Taylorville Electric Co., 213 Ill. 318; True & True Co. v. Woda, 201 Ill. 315; H. Channon Co. v. Hahn, 189 Ill. 28; Maxwell v. Durkin, 86 Ill. App. 257; Wabash R. Co. v. Kamradt, 109 Ill. App. 203. Appellant is not in position to urge as an excuse for the violation of the ordinance that it had no reason to anticipate that the accident in question might happen, and therefore could not reasonably be expected to have guarded against it.

It was the duty of appellant, in the use of a dangerous agency such as an electric current of 2,300 volts? in the public streets of Waukegan, to anticipate any legal use of which could be made of the streets by the public, which included children; and the legal use of the streets included matters of business, convenience or pleasure. The streets of the city were not the private premises of appellant; they belonged to the public generally. Appellant was required to anticipate that the public would use the streets as they had a right to; and it was bound to know the dangers incident to the legitimate and legal use of streets and guard against such dangers by the exercise of care commensurate with them. Rowe v. Taylorville Electric Co., supra; Becker v. Sanitary District of Chicago, 194 Ill. App. 639; Trapp v. Rockford Electric Co., 186 Ill. App. 379. The evidence shows that the children of the neighborhood where the accident occurred had been in the habit for a long time prior to the date of the accident, and as a part of their play, to throw strings over the wires in question. While perhaps the appellant could not he charged with anticipating that one of the strings used might contain a copper wire thread, it is also true that the child using such string cannot lie held to have anticipated injury from the use of such a string, and therefore cannot be held to have been guilty of contributory negligence in using it; nor can it be regarded, under the circumstances, as a trespasser upon appellant’s property or premises—there being nothing wrong or illegal in the play of the children, so far as the evidence discloses. As to the contention of appellant, that' the injury to appellee would have resulted any way, even if the wire had been properly insulated in accordance with the requirements of the ordinance, it must be pointed out that this was a matter merely of opinion of appellant’s experts; while the evidence is clear that the appellee did not receive any shock or burn until the wire string, with which he was playing, came in contact with a bare spot on the wire. The jury under these circumstances were justified in finding from the evidence that the bare spot, which was on the wire in consequence of appellant’s neglect to maintain the required insulation, was the proximate cause of the injury to the appellee.

Appellant also contends that error was committed in the giving of appellee’s instruction No. 4, because it assumes the fact that the insulation of the electric wire in question was defective. It is true that this instruction does assume that fact and is subject to criticism on that account, but inasmuch as the evidence upon this point was conclusive, no harm resulted therefrom and it does not furnish a sufficient legal basis for the reversal of the judgment. Petersen v. Elgin, A. & S. Traction Co., 238 Ill. 403; Chicago Screw Co. v. Weiss, 203 Ill. 536; Citizens’ Ins. Co. v. Stoddard, 197 Ill. 330; Illinois Cent. R. Co. v. King, 179 Ill. 91; Morris v. O ’Brien, 81 Ill. App. 203.

Appellant also complains of the refusal of the court to give refused instruction No. 17. We are of opinion that this instruction was properly refused. A 7-year-old boy, who in playing in a public street throws what appears to be ■ a string over an electric wire, which does not in any way injure the wire, nor interfere with it nor its use, cannot be considered as a trespasser on appellant’s property or premises. The instruction was therefore properly'refused.

Complaint is also made of certain remarks made by counsel for appellee in the course of his argument to the jury. The remarks made were improper, and an objection was sustained to them by the 'Court. We do not regard the remarks to be of such a prejudicial character that they could have affected the judgment or conclusions of the jury upon the questions at issue; and the sustaining of the objections to the remarks under these circumstances sufficiently guarded the appellant against any injurious effect that they might have produced on the deliberations of the jury; they are not regarded therefore as reversible error. It is also insisted that the amount of damages fixed by the jury is excessive. The injuries to the. appellee, as described by the witnesses, were of such a severe character as to cause not only great pain and suffering from the terrible burns incurred, but also permanent injuries to the fingers of appellee’s right hand— ankylosis of the joints of some of the fingers as well as permanent injury to his nerves. We are of opinion that in view of these grave consequences, which will follow the appellee through life, that the amount fixed is not excessive.

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

iJudgment affirmed.