author: Me. Justice Baker

text:
    Richard L. Tuthill, Appellee, v. Belt Railway Company of Chicago, Appellant.
    Gen. No. 14,186.
    1. Appeals and errors—scope of appellant’s right to urge errors in denying peremptory instruction. The fact that an appellant in the trial court urged only one ground in support of a motion to direct a verdict does not affect his right upon appeal to urge other grounds as to why such motion should have been granted.
    2. Evidence—when disregarded though not stricken out. Evidence clearly incompetent and so treated upon the trial will be disregarded upon appeal though not formally stricken out.
    3. Evidence—when circumstantial, will not support verdict. Circumstantial evidence alone will not support a verdict where, assuming all to be proved which such evidence tends to prove, some other hypothesis may still be true, inasmuch as it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of proof.
    4. Evidence—what not failure to produce. A party is not bound to produce a witness who is no longer in its employ and its failure so to do does not entitle the jury to draw unfavorable inferences— the ability of such party so to produce not appearing.

      5. Negligence—what not competent to sustain. Proof of previous acts of negligence or a bad reputation for the exercise of care is not admissible as tending to show that a particular employe was negligent at the time of the accident in question.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed December 4, 1908.
    Statement by the Court. In an action on the case for personal injuries plaintiff had judgment for $15,000 and defendant appealed.
    Plaintiff, when injured, was the conductor of a switching crew of defendant, consisting of himself, Beckler engineer, Pflaeger head brakeman, Kelner rear brakeman, and a fireman.
    The declaration alleged that through the negligence of Pflaeger, plaintiff lost his arm, and that the defendant negligently, etc., employed and retained Pflaeger, a negligent, incompetent, unfit switchman.
    At the close of plaintiff’s case, defendant moved the court to direct a verdict of not guilty; the motion was denied and exception taken. Defendant offered no evidence, and on the coming in of the verdict for the plaintiff, moved for a new trial, on the grounds, among others, that the court improperly refused to direct a verdict for the defendant, and also that the verdict was contrary to the evidence; the motion was denied and defendant excepted.
    The train of which plaintiff was conductor when injured had in it more than forty freight cars. It stopped at a station on defendant’s road, and it became necessary to cut. the train into two sections. Plaintiff told Pflaeger, in the presence of the engineer, that he was going back to cut the train. He went back and made the cut about the middle of the train, gave the signal, and the front section started forward. When the train moved, plaintiff discovered that something was wrong with the coupling between the rear car of the head section and the car next in front, and gave the signal to stop. Before the train stopped, the rear car became uncoupled, and when the train stopped that car was two or three car lengths in front of the rear section, and three or four car lengths behind the head section of the train. Plaintiff then saw that a certain plate attached to the draw bar at the front end of said rear car was broken, causing the cars to uncouple. He got another plate and then gave a signal which meant “stand still until you get another signal”. He testified that Pflaeger answered the signal, that the engineer did not, but that the engineer could have seen the signal if he was looking, as the track was straight. Plaintiff and Kelner, the rear brakeman, then began to put in the new plate. They had been so engaged about ten minutes when, without any notice or warning, the front section of the train came back against the standing car, and plaintiff’s arm was caught between the cars and so injured that it was necessary to amputate it.
    William L. Reed and E. P. H. West, for appellant; Wm. J. Henley, of counsel.
    James C. McShane, for appellee.
   Me. Justice Baker

delivered the opinion of the court.

The contention of appellee that as the defendant urged but one ground in support of its motion to direct a verdict, it should, as appellant here, be confined to that ground, cannot be sustained. The motion was denied, the cause submitted to the jury and a motion for a new trial, on the ground, inter alia, that the verdict was contrary to the evidence, was overruled. The error assigned here, that the trial court erred, “in denying defendant’s motion for a new trial”, brings before us for review the question of the sufficiency of the evidence to support the verdict.

From the evidence the jury might, in our opinion, properly find that the plaintiff was not guilty of contributory negligence, and had not assumed the risk of injury from the negligence of Pflaeger.

The members of the switching crew were fellow-servants. To recover the plaintiff was bound to prove: that Pflaeger was an incompetent and unfit switch-man; that defendant was negligent in retaining him in its service; that Pflaeger was guilty of negligence, and that his negligence was the proximate cause of plaintiff’s injury.

We think that, from the evidence, the jury might properly find, that the backing of the front section of the train against the standing car, under the circumstances shown by the evidence, was an act of negligence; that such act of negligence was the direct and proximate cause of plaintiff’s injuries; that Pflaeger was an incompetent and unfit switchman, and that defendant was negligent in retaining him in its service as a switchman.

The case turns on the question, whether from the evidence, the jury might properly find that it was through the negligence' of Pflaeger, that the head section of the train was backed against the standing car.

Plaintiff was the only one of the switching crew who testified at the trial. In the course of his examination he stated that Pflaeger gave a signal to back up; counsel for defendant said, “I object”; counsel for plaintiff asked: “Did you see the signal?” Plaintiff answered “No, sir”. Counsel for plaintiff then said “Well, of course, you only know from hearsay what happened.”

We think the statement of plaintiff that Pflaeger gave a signal to back up must be disregarded, although there was no formal motion to strike it out.

There is in the record no competent direct evidence tending to show that Pflaeger gave any signal or other direction to the engineer to back up. For appellee it is contended that from the facts and circumstances proved the jury might infer that Pflaeger gave such signal or direction. But the hypothesis that the engineer backed up without a signal from Pflaeger, is as consistent with all that the evidence proved or tended to prove as the hypothesis that Pflaeger gave him a signal to back up.

In his work on evidence Starkie, speaking of circumstantial evidence, says: “Such evidence is always insufficient, where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of proof”. 1 Starkie Ev., 444. In Cotton v. Wood, 8 C. B. N. S., 98 E. C. L. 568, Mr. Justice Williams said, p. 573: “There is another rule of the law of evidence which is of the first importance, and is fully established in all of the courts, viz.: that where the evidence is equally consistent with either view—with the existence or non-existence of negligence—it is not competent for the judge to leave the matter to the jury. The party who affirms negligence has altogether failed to establish it. That is a rule which ought never to be lost sight of”.

Appellee contends that if the engineer started to back his engine, without receiving a signal from Pflaeger, Pflaeger was negligent in failing to give him a signal to stop, or warning plaintiff that the train was coming towards him. The facts proved do not exclude the hypothesis that if the engineer started to back his engine without receiving a signal from Pflaeger, he might have refused or neglected to obey a signal to stop, if Pflaeger gave one.

There is no evidence from which the jury might properly find that if the engineer backed up without any signal, Pflaeger could have warned the plaintiff that the train was coming towards him in time to avoid injury. He could not have warned him by signal with his lantern, for plaintiff and Kelner were not looking towards the head of the train, but were at work, and the first that either saw of the approaching train was when Kelner saw a reflection of his lantern in a wheel of the approaching car; nor by calling to him, for Pflaeger was twenty or more car-lengths away from plaintiff, and a train was passing by on another track.

Appellee further contends that as the evidence tended to prove that either Pflaeger or the engineer was guilty of negligence which directly caused plaintiff’s injury, and further tended to prove that Pflaeger was an incompetent and unfit switchman, and there was no evidence tending to show that the engineer was incompetent or unfit, the jury might from such evidence draw the conclusion, or inference, that on the occasion in question Pflaeger, and not the engineer, was negligent. The cases cited do not support this contention.

Proof of previous acts of negligence, or of the bad reputation of Pflaeger, was not admissible as tending to show that he was negligent at the time in question, nor could the jury, from such proof, properly draw the conclusion that he was then guilty of negligence. 1 Bailey M. & S., Sec. 1507; P., F. W. & C. Ry. Co. v. Ruby, 38 Ind. 294, 312.

The proof shows that the engineer was in the office of defendant’s counsel during the first day of the trial, and that at the close of the day he was not directed to return. The second day plaintiff’s counsel requested defendant’s counsel to produce the engineer, and they declined to do so and stated that he was not then at their office. The engineer was not then in the service of the defendant. We.do not think that from this evidence any inference of fact unfavorable to the defendant could properly be drawn by the jury.

A careful examination of the evidence leads us to the conclusion that the evidence is not sufficient to support the verdict, and the judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    George H. Flanagan, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,190.
    1. Instructions—when refusal to give, not error. It is not error to refuse a correct instruction the substance of which is contained in another given.
    2. Negligence—when motorman guilty of. Held, under the evidence in this case that the jury were justified in finding that the motorman in charge of the car which came into collision with the plaintiff’s wagon was guilty of negligence.
    3. Verdict—when not excessive. A verdict for $5000 in an action for personal injuries held not excessive where it appeared that the plaintiff at the time of his injury was 29 years of age, was strong and well and was then earning $15 per week, and that from the time of such injury to the trial, four years later, he had been unable to do but very little work, had earned only $200, had lost 20 pounds in weight, and had suffered as a result of the accident an injury to his spine, etc.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed December 4, 1908.
    Statement by the Court. This is an appeal by the defendant from a judgment for $5,000 for personal injuries alleged by the plaintiff to have been sustained by him through the negligence of the defendant. Defendant operated a double-track electric street railway in Forty-seventh street, and plaintiff was the driver of a baker’s wagon. A west-bound car of defendant, running in the north track, in Forty-seventh street, between half past three and four o’clock in the morning of April 26, 1903, struck the wagon which plaintiff was driving, and in such collision the plaintiff sustained the injuries complained of.
    Calhoun, Lyford & Sheean, for appellant; W. J. Hynes, of counsel.
    Bulkley, Gray & More, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

The defendant put in evidence an ordinance making it unlawful for the driver of a wagon to use the streets after 8 p. m., “without having displayed” one or more lights or lanterns. Plaintiff testified that he had a light on his wagon, and the motorman that he saw no light on the wagon.

The court refused to give for the defendant the following instruction:

“B. The court further instructs the jury as a matter of law, that under the ordinance of the City of Chicago which is in evidence in this case, it was negligence as matter of law for the plaintiff to drive upon 47th street at the time and place in question without having displayed upon his wagon one or more lights or lanterns. If, therefore, you believe from the evidence that the plaintiff, at the time and place in question, did not have displayed one or more lights or lanterns upon his wagon, and if you further believe from the evidence that such failure, if any, on the part of the plaintiff contributed in any degree to bring about the collision in question, it is your duty to find the defendant not guilty.”

The instruction assumes that plaintiff had no light displayed on his wagon, and for that reason it was not error to refuse it. Whether plaintiff had a light displayed on his wagon was, we think, on the evidence a question of fact for the jury which must be regarded as settled by the verdict.

The substance of refused instruction D was given in defendant’s instruction 8, and the defendant therefore was not prejudiced by the refusal to give instruction D.

The court also refused to give for the defendant the following instruction:

“G. The court further instructs the jury that it is not every accident that makes a street railway company liable for damages to the person injured. If an accident is unavoidable, then no liability is incurred; and if the jury believe from the evidence in this case that so far as the street railway company is concerned the collision proved was unavoidable, then the plaintiff cannot recover, and the jury should find the defendant not guilty”.

If, “so far as the defendant was concerned the accident was unavoidable”, then the defendant was not guilty of negligence. The court, in instruction 11, given for the defendant, told the jury that the burden of proving that the defendant was guilty of negligence was on the plaintiff and if, “by said rule he has failed to establish his case, it is the duty of the jury to find the defendant not guilty”. We do not think that the judgment should be reversed because of the refusal to give said instruction.

Appellant insists that the evidence fails to prove, either that the defendant was guilty of negligence, or that the plaintiff was in the exercise of reasonable care for his own safety, and that the verdict is therefore against the evidence. One of the acts of negligence averred in the declaration, was that the defendant failed to have a headlight at the front end of the car. Plaintiff and two witnesses called by him testified that soon after the collision the motorman took a headlight fromsthe rear end of the car in question and placed it at the front end. Heise, a passenger on the car, called by the defendant, testified that soon after the collision he found a broken headlight lantern under the front end of the car; that he saw the motorman take a headlight from the rear end of the car and place it at the front end. The conductor and the motorman, also called by the defendant, testified that as was the custom on that run, there was a headlight at each end of the car; that in the collision the front headlight lantern was broken; that the motorman then took the headlight which was at the rear end of the car and placed it at the front end. The testimony of the conductor and motorman does not conflict with the testimony of the plaintiff and his witnesses. The conductor and motorman state additional facts, viz.: that before the collision there was a headlight at each end of the car; that the front headlight was broken in the collision and the rear headlight was then put in its place. Heise’s testimony tends to corroborate the testimony of the conductor and motorman. There is nothing in the testimony of plaintiff’s witnesses, that tends to contradict the testimony of the conductor and motorman as to the additional facts stated by them. Their testimony, that before the collision there was a headlight at each end of the car, is uncontradicted either by positive testimony, or by circumstances, is not inherently improbable, and the jury could not properly reject it. Larson v. G-los, 235 Ill. 584.

We think that the jury could not, from the evidence, properly infer or conclude that at the time of the collision there was no headlight at the front end of the car.

Other counts of the declaration aver that the defendant so negligently ran, managed and operated its said car that it struck plaintiff’s wagon, etc. Plaintiff testified that when he made his last stop before the collision, his wagon was on the south side of Forty-seventh street, south of the south track and about seventy feet west of Wallace street, headed west; that his next stop was to be on the north side of that street some distance farther west; that as he got into his wagon he looked both east and west and saw nothing-in the street; that he did not look again to the east before the collision; that he started to drive across the street diagonally, northwesterly, and drove in that direction until his horse was across the north track, his wagon on that track, when it was struck by the car; that he had gone sixty feet west, and nearly across the street diagonally, before the collision occurred; that his horse was walking; that the street was forty-two feet wide; that it was thirteen feet from the curb to the south rail of the south track, about five feet between rails and about that distance between the tracks.

The motorman testified that when he first.saw the wagon it was thirty-five or forty feet away, going west in the south track; that he then sounded his gong; that when the car was fifteen or twenty feet from the wagon, the horse turned to the north; that he then applied his brakes and was unable to stop in time to avoid striking the wagon; that the speed of the car was about twelve miles per hour; that at that speed he could stop his car in forty or fifty feet.

But one car ran in said street at that hour of the night, and it made two trips per hour. Plaintiff testified that he had seen a car pass by about that time of the night, but did not know at what time it passed. Whether plaintiff drove northwesterly, diagonally across the street from the time he started, as he testified, or drove some distance west in the south track and then turned to the north, as the motorman testified, was a question for the jury. Plaintiff looked both east and west just before starting, and saw nothing in the street. Whether under the circumstances shown by the evidence, he was guilty of contributory negligence in driving on to the north track; without again looking to the east, was, we think, a question for the jury on which their finding should not be disturbed.

The collision occurred in the night. No witness testified as to the distance at which a wagon could be seen at that time. The motorman testified that when he saw the wagon, it was thirty-five or forty feet away. If the night was so dark that he could not see a wagon until it was within thirty-five or forty feet and, at the rate he was going, his car could not be stopped in less than forty or fifty feet, from such facts the inference might be drawn that the rate of speed was so high as to be dangerous. Chicago City Ry. Co. v. Bennett, 214 Ill. 26.

From the evidence, as has been said, the jury might properly find that the wagon at no time went west in the south track, but from the time it started until the collision, went northwesterly, diagonally across the street. The motorman, according to his testimony, did not apply his brakes when he first saw the wagon, but rang his gong and went forward twenty feet before he applied his brakes. The motorman’s testimony as .to the distance his car was from the wagon, when he first saw the wagon, and the distance his car ran after he saw the wagon before he made an effort to stop the car, were necessarily only estimates of such distances. He estimated the distance between the car and wagon at about forty feet, “thirty-five to forty feet”, and testified .that he could stop his car in forty to fifty feet.

We cannot say that on the evidence in this record, the jury might not properly find that the defendant negligently ran and operated said car, and that by such negligence plaintiff was injured.

The trial took place in May, 1907, four years after plaintiff was injured. He was, when injured, twenty-nine years old, was strong and well and was then earning $15 per week. He testified that from the time of his injury to the trial, he had been able to do very little, had earned only $200, and lost twenty pounds in weight; that in December, 1906, he went to work for Siegel, Cooper and Co., and worked there until three weeks before the trial; that he was compelled to give up that position on account of his condition.

A physician who treated plaintiff for about two months after his injury, testified that his symptoms indicated an injury to the spine; that in his opinion the effect of such injury would incapacitate him to a great extent from performing manual labor, by weakening his spine. Another physician who examined plaintiff in June, 1903, and again just before the trial, testified that in his opinion the effect of plaintiff’s injuries was to diminish his ability to follow the ordinary vocations of life; and that he was then able to do manna! labor only to a limited extent.

We do not think on the evidence the damages awarded plaintiff can he held excessive. We think that the record is free from error, and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Philip C. Dyrenforth et al., Appellees, v. The Palmer Pneumatic Tire Company, Appellant.
    Gen. No. 14,198.
    1. Contracts—what sufficient consideration to support novation. The making of a concession and the incurring of a new obligation is a sufficient consideration to support a novation.
    2. Sales—when transaction within legal definition of. A transfer by one company of its business and assets to another, the same to be paid for in quarterly instalments, is a legal sale even though a provision is made that in the event of the happening of a particular contingency the obligation to make further payments becomes extinguished.
    3. Attorney and client—what not threat to disclose confidential communications. Held, that the letter in evidence in this case was not a threat to disclose confidential communications.
    4. Statute oe Frauds—what tolees case out of. Part performance of a contract not to be performed within a year, takes the same without the Statute of Frauds.
    Bill in chancery. 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, 1907.
    Affirmed.
    Opinion filed December 4, 1908.
    Statement by tie Court. Appellees, complainants in the Circuit Court, are patent lawyers in Chicago. The Palmer Pneumatic Tire Company, the appellant, was organized in 1892, and from the time of its organization appellees were its patent lawyers. It was the owner of a number of patents relating to pneumatic tires which had been issued to John F. Palmer, and by him assigned to said company, and of some unimportant patents assigned to it by other persons. The business of the company was the sale of pneumatic tires which were manufactured for it, under said patents, by the B. F. Goodrich Company.
    September 26, 1898, said Palmer company transferred all of its property, patents, business, good-will, etc., to the Goodrich company, in consideration of an agreement by that company to pay to it $394,750, payable in quarterly installments of $8,750 each, on the first days of October, January, April and July in each year for the next eleven years, beginning October 1, 1898, and ending October 1, 1909, and a further sum of $1,000 January 1, 1910.
    The relief demanded by complainants in their bill was based on their allegations that the Palmer company, in October, 1898, made with them an arrangement to pay to them, as their compensation for their services in negotiating such agreement with the Goodrich company, ten per cent, of the amounts paid by the Goodrich company, one-half, five per cent., payable as said installments were received by the Palmer company from the Goodrich company, and the remaining one-half, five per cent., on the whole amount so received by appellant from the Goodrich company when the final payment was made by the Goodrich company. The Goodrich company paid to the Palmer company each installment as it fell due. The Palmer company paid to complainants five per cent, of each installment so received by it, down to and including the installment due July 1, 1905. On its refusal to make any further payments, the bill in this case was filed by complainants against the Palmer company, the Goodrich company, John F. Palmer, and John S. Driver, defendants, to compel the Palmer company to make the payments it had agreed to make to complainants. The Palmer company answered the bill and filed a cross-bill against complainants, which was answered by them. After replications the cause was referred to a master to take and report the proofs with his conclusions. To the master’s draft report the Palmer company filed ninety-seven objections, which were all overruled by the master. The objections were ordered to stand as exceptions to the report. The decree overruled said exceptions and decreed, in accordance with the findings and recommendations of the master, that the Palmer company pay to complainants $2,739.05, being’ five per cent, on the six installments paid to the Palmer company by the Goodrich company from and including October 1,1905, to and including January 1, 1907, with interest to May 20, 1907, the date of the report, and that it pay five per cent, of each installment paid by the Goodrich company after January, 1907, from time to time as such payments are made, and that, on the final payment being made by the Goodrich company to the Palmer company, that company pay to complainants five per cent, of the total payments which shall have been made by the Goodrich company to the Palmer company under said contract. The decree dismissed the bill as to the defendants Palmer and Driver, and dismissed the cross-bill of the Palmer company for want of equity.
    From this decree the Palmer company prosecutes this appeal.
    Hiram T. Gilbert, for appellant.
    George A. Chritton, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

This dispute between the parties on their appeal is thus stated in the brief of counsel for appellant :

“That Palmer and Driver,.in October, 1898, made an oral agreement with the complainants by the terms of which the complainants were to receive five per cent, on each payment made by the Goodrich company, as made, and an additional five per cent, of the total payments when completed, and were to perform, without charge, all necessary professional services for the Palmer company in any litigation which might arise between that company and the Goodrich company growing out of the contract between them, is not disputed. The dispute between the parties is as to whether that oral agreement is binding upon the Palmer company”.

The first reason why that agreement is not binding-on the Palmer company, stated in appellant’s brief is that: “The compensation agreed upon was exorbitant.” There is no direct evidence in the record as to the usual rate of commissions charged and paid for negotiating .transactions of the nature of the transaction between the Palmer company and the Goodrich company. Douglas Dyrenforth, one of the complainants, told Driver, at the outset, in answer to his question as to what would be a fair compensation, that he had found on inquiry that the commissions for that kind of work varied all the way from a half downwards ; that 33% per cent, was a very common commission. We do not think that in the absence of any evidence that a commission of ten per cent, was greater than the usual and customary commissions for such transactions,, that the compensation agreed on by the parties can be held exorbitant.

Appellant next insists that: “The settlement cannot be supported as being a compromise of a disputed claim” and also that: “The settlement cannot be supported as being based upon a consideration in addition to the services in respect to the sale to the Goodrich company”.

The contention of complainants was, that in April, 1898, the Palmer company agreed to pay complainants, in case Douglas Dyrenforth succeeded in effecting a sale of the property of the Palmer company, a commission of ten per cent.; in case he succeeded in effecting a license, a commission of five per cent.; that the transaction between the two corporations was in effect a sale; that Douglas Dyrenforth had taken part in negotiating and effecting such sale; that complainants were entitled to receive ten per cent, of each payment when made to the Palmer company, and were under no obligation to render any services in case of litigation in relation to the transaction. Under the new agreement the time of payment of one-half of their compensation was postponed until the final payment should be made, and they agreed to perform, without charge, all necessary professional services for the Palmer company in any litigation that might arise between that company and the Goodrich company growing out of that contract. The complainants made a substantial concession from their claim, in favor of the Palmer company in agreeing to postpone the payment of one-half of their compensation, and incurred a new obligation by their agreement, in a certain contingency, to render to the Palmer company professional services without charge. We think that the making of such concession and the incurring of such new obligation constitute a sufficient consideration to support the new agreement made by the parties.

The next reason stated is that: “The settlement was not binding upon the Palmer company because the complainants misrepresented the legal effect of the contract between the Palmer company and the Goodrich company”.

The misrepresentation alleged is that complainants represented to Palmer and Driver that the transaction between the two corporations constituted a sale. One question in dispute was, whether said transaction amounted to a sale , or only a license. Appellant’s counsel- say that: “Instead of being a sale as that term is ordinarily understood, the transaction between the Palmer company and the Goodrich company was a contract by which the Palmer company agreed to transfer and convey its property to the Goodrich company and the latter agreed to accept the transfer and conveyance and, in consideration thereof, to pay to the Palmer company $35,000 per annum in quarterly payments during a period of eleven years, and an additional $1,000 on January 10, 1910, if there should in the meantime be no decision of the United States Circuit Court of Appeals declaring patent No. 489,714 and re-issue No. 11,677 invalid.”

The instruments executed by the Palmer company in terms state that said company had sold, assigned, transferred and set over to the Goodrich company the patents and other property of said company. There is, it is true, in the contract between said corporations a provision that, in case a certain patent should be declared, “void or invalid”, then the Goodrich company, “may refuse to make and be released from further payments ’ ’, under said contract.

We do not think that the complainants misrepresented the nature of the transaction in stating that it amounted to a sale rather than a license.

Again it is clear that Palmer and Driver were not led or influenced to make the agreement by the statements of complainants that the transaction between the two corporations amounted to a sale. Philip C. Dyrenforth, one of the complainants, testified that at the meeting between complainants and Palmer and Driver at which the agreement was made, he stated his opinion that the transaction was in effect a contract .of sale, and Palmer and Driver stated that it was a license, and further testified as follows: “I said to Mr. Driver and to Mr. Palmer: ‘Gentlemen, I think I have a suggestion which may overcome all of this difficulty.’ I said: ‘The issue seems to be only whether this document, the contract with the B. P. Goodrich company, constitutes an out-and-out sale or merely a license.’ I said: ‘Now, that has been discussed between us and you have said what you have to say in the matter; we have said what we have to say in the matter’, and I said, ‘There is no desire apparently to submit this matter to a court for consideration,’

“Q. Had that been suggested? A. There had been some suggestion of that kind, and Mr. Driver was particularly opposed to anything of that kind. I said, ‘Whether this is a sale or a license, due to the contingency, the event will prove.’ I said, ‘If the B. F. Goodrich Company continues, throughout the life of the patent, to pay The Palmer Pneumatic Tire Company what it has agreed to pay, or in any other event, The Palmer Pneumatic Tire Company gets from the B. F. Goodrich Company all that the contract calls for, it is perfectly obvious that it is a sale; it has that effect.’ I said, ‘I have therefore suggested to my brother, W. H., and he has acquiesced in it, that you pay from now on five per cent, instead of ten per cent, of the contract price, and if at the time of the expiration of the patent, the full purchase price has been paid, then you pay us, in a lump sum, the other five per cent.’ Mr. Driver spoke up and he said: ‘I think that is a very fair proposition.’ He said: ‘I am in favor of that; what do you say, Mr. Palmer?’ And Mr. Palmer said that he thought that was satisfactory, too. That was the agreement that was entered into then and there.”

William H. Dyrenforth testified substantially to the same effect, and their testimony was not contradicted. If it be assumed that the transaction between the two corporations was in effect a license and not a sale, still as Palmer and Driver were not led or influenced to make the new agreement by the statement of com- • plainants that said transaction was a sale and not a license, the new agreement cannot be held invalid because of such statements.

The fourth reason stated in the brief of appellant, why the new agreement should be held invalid, is that: “The relation of attorneys and clients existing between the complainants and the Palmer company, Palmer and Driver, rendered it impossible for the complainants to enter into a contract with their clients unless such contract was equitable and just.”

The finding of the decree is that the said compromise agreement between the complainants and the Palmer company was entered into by Palmer and Driver on behalf of said company: “freely and voluntarily with a full knowledge of all the facts, and the said complainants used no influence or duress of any kind whatsoever * * * , that the amount so agreed to be paid was reasonable, equitable and just under all the circumstances.” Substantially the same conclusions are stated by the master in his report.

We think that the conclusion thus reached and stated by the master and the chancellor are just and proper on the evidence, and that conceding that the rule of law stated by appellant was applicable to the parties when, late in October, 1898, the compromise agreement was made, that agreement is valid and binding on the Palmer company.

The only other reason stated in the brief of appellant why said agreement was not binding on the Palmer company is that: “The court cannot permit the settlement to stand, in view of the letter of Douglas Dyrenforth of September 30, 1898.” The letter referred to is as follows:

“Sept. 30, 1898.

John F. Palmer, Esq.,

133 So. Clinton St., City.

Dear Sir:—After a day and a night’s consideration I have been unable to overcome the aversion of my partners to enter suit against a client. They fully agree with me, however, that your course in refusing to pay 10%, if adhered to, would evidence a shameless ingratitude. If you can enjoy your position you are welcome to it. For myself I need only to say that if you think it to your interest to sacrifice my good-will and friendship, both of which have been valuable to you in the past, so that you can increase your income 5%, why, make the most of it.

You ought to remember that the Astor House talk only settled that the original commission contract was in force and that I was not to be limited to a per diem. You thought that as you had done that work of carrying out my plans I should not be further recognized in the matter. This I resented and you came down. Then I did all the rest of the work myself, as originally contemplated, and am hence entitled to the compensation originally agreed upon.

I have caused my expenses to New York to be itemized, and herewith enclose a memorandum of same, the difference between which amount and $425 drawn by me from Mr. Griffith, please deduct from the first payment due us.

In behalf of the B. F. Goodrich Company this office will send to you for execution certain documents; and as soon as our clerks can arrange your papers they will be sent to you for such disposition as may be proper.

Yours respectfully,

Douglas Dyrenforth.

P. S. The matter may be too delicate for you to appreciate, but I will say that a controlling reason why my firm objects to litigation with you is that to succeed we would have to make public confidential matters ; and while their preservation is to your interest, we would rather sacrifice the money than alter our usual practice as professional men. D. D.”

The contention of appellant is that this letter contains, “a veiled threat”, to reveal confidential matters, and that Palmer did not then know and was not informed until just before his company ceased to make payments under said agreement in 1905, that an attorney was not permitted to reveal confidential matters. We find in this letter no language that can properly be construed to amount to a threat to reveal confidential matters. As to this letter we concur in the conclusion stated by the master in his report, and by the chancellor in the decree: “that this letter of September 30, 1898, was not a threat to institute litigation against said defendant, but that, on the contrary, it was a distinct statement that nothing further would be done by the complainants with respect to any such litigation, and that said five per cent, would be accepted; that this letter was not, under all the circumstances, such a letter as was calculated to arouse apprehension on the part of said John F. Palmer and E. A. Driver, representing The Palmer Pneumatic Tire Company, of injurious results from refusing to accede to the demands of the complainants, and could not, and as a matter of fact did not, arouse any such apprehension on their part.”

Neither in the subsequent correspondence nor in the interview at the time the compromise agreement was made was there any suggestion that the letter contained a threat.

The negotiations that resulted in the compromise agreement were conducted on the part of the Palmer company by Palmer and Edward A. Driver. That in making said agreement Mr. Driver took the leading part appears from the testimony of Palmer as well as from that of Philip C. and William H. Dyrenforth. On his cross-examination Palmer was asked why the additional five per cent, which it was agreed that the Dyrenforths should have, was made conditional on the payments being made by the Goodrich company, and answered: “On the principle of putting off the evil day as long as we could, I guess”, and further testified as follows:

“Q. Was it because of the suggestion of Mr. P. C. Dyrenforth that inasmuch as you thought this was merely a license and not a sale, that if all the payments were made you would he willing to concede that it was a sale and not a license? A. I never was willing to concede anything except the money.

Bead the question. (Question read.) Q. Ton can answer that yes or no? A. In view of my condition of mind that is a very hard question to answer with a yes or no. I had surrendered to Mr. Driver when I went to the office of Dyrenforth & Dyrenforth.”

There is nothing in the record tending to show that Mr. Driver found in said letter any suggestion of a threat to reveal confidential matters. He died in 1904, and it was not until after his death that the Palmer company refused to carry out said agreement. We think the compromise agreement cannot be held invalid because of said letter.

Appellant further contends that the compromise agreement was invalid under the Statute of Frauds, because it was not in writing and was not to be performed within one year. Conceding that the agreement is within the statute and that the letters of Palmer of November 18, 1898, and February 12, 1903, do not constitute a sufficient note or memorandum in writing of said agreement, there was, in our opinion, a sufficient part performance of said agreement by the Palmer company to take it out of the statute.

On the proofs the complainants, in our opinion, are entitled to the relief granted by the decree, and the decree will be affirmed.

Affirmed.


text:
    Gust Kavooras, Defendant in Error, v. E. L. Hasler Co., Plaintiff in Error.
    Gen. No. 14,206.
    1. Amendments and jeofails—what authorizes nunc pro tunc order. If a party upon a trial has been permitted to make an amendment, there is sufficient justification for the entry subsequently of a nunc pro tunc order formally authorizing such amendment.
    2. Verdict—when not disturbed as against the evidence. A verdict not manifestly against the weight of. the evidence will not be set aside on appeal.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed December 4, 1908.
    George J. Kappes, for plaintiff in error.

      No appearance by defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This is a writ of error by the defendant to reverse a judgment recovered against it by the defendant in error for $37.50 in the Municipal Court, in an action of the fourth class. The original statement of claim is as follows: “Plaintiff’s claim is for money advanced for fruit condemned by the Health Inspectors of the City of Chicago as unfit for use on or about August 14, 1907.”

The bill of exceptions states that September 12, 1907, at the close of plaintiff’s case: “the defendant moved to dismiss the suit, for the reason that the plaintiff’s case, as proven, varied from his bill of particulars on file: whereupon the court permitted the plaintiff to amend”; and further states that at the next session of the court, September 14, 1907, the defendant moved to strike out certain evidence, and that the court then gave to the attorney of the plaintiff the bill of particulars, and he thereupon added the following amendment: “And for money advanced to the defendants for fruit which defendants refused and failed to deliver but substituted other fruit which was unfit for use.” No order giving leave to amend was entered until November 13, 1907, when an order was made giving: “plaintiff leave to amend his bill of particulars nunc pro tunc as of September 14, 1907”. We think that the action of the court during the trial, stated in the bill of exceptions, amounted to giving plaintiff leave to amend his bill of particulars; that the court, by reason thereof, had power and authority on November 13, to enter the formal order giving leave to amend nunc pro tunc as of September 14, and that the amendment to the bill of particulars, or statement of claim, is a part of the record..

August 14,1907, defendant had in front of its store, on a wagon, eighty crates of peaches. Mason, defendant’s salesman, told plaintiff that the first thirty crates from the rear end of the wagon had been sold, and offered him the remainder at $1.25 per crate. Plaintiff examined the peaches, told Mason that he would take thirty crates; told him to unload said crates, set them to one side in defendant’s store, and he would call for them in the afternoon. Mason made out a sales slip and plaintiff paid defendant the price, $37.50. Mason testified that the plaintiff bought the second thirty crates from the rear end of the wagon, and this testimony was not contradicted by plaintiff. Mason further testified that the peaches were unloaded, that he set aside, in defendant’s store, the thirty crates plaintiff had bought, and that said crates remained in the store until plaintiff returned in the afternoon. Plaintiff further testified that when he bought the peaches he marked each crate with his initial “K”. This testimony was not con-' tradicted by Mason. In the afternoon plaintiff returned to defendant’s store for his peaches, 'and was shown thirty crates, which were all the peaches then in defendant’s store. He testified that the crates then shown him did not have the mark he had put on the crates he had bought, and were not the peaches he had bought and marked.

The disputed question of fact in the case was, whether the thirty crates of peaches plaintiff found in defendant’s store in the afternoon were the peaches he had bought in the morning, as defendant contended, or whether defendant had sold that lot of peaches and offered to plaintiff another lot, as plaintiff contended. This question of fact the trial judge found in favor of the contention of the plaintiff. We cannot say that such finding is so manifestly against the evidence as to warrant a reversal of the judgment on that ground.

It is clear, we think, that the transaction in. the morning was an actual present sale of the second thirty crates of peaches from the rear end of defendant’s wagon. The price was agreed on, was paid, the specific crates sold were designated, agreed on and set aside. If defendant resold the thirty crates of peaches so bought by the plaintiff, then it became liable to the plaintiff, in trover, for their value, or plaintiff might waive the tort and recover in assumpsit their value. The trial court in effect found that the defendant resold the peaches it had sold to the plaintiff, and the plaintiff was therefore entitled to recover from the defendant the value of said peaches.

The original statement of plaintiff’s demand must be disregarded, for it states no demand, no cause of action against defendant. The amendment, though defective in form, informed the defendant that it was called on to defend a charge that it had refused and failed to deliver fruit to the plaintiff. We think it may be regarded as a statement of the demand which the court found was proven by the evidence, and sufficient to support the judgment.

Finding in the record no substantial error, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Elizabeth L. Nix, Appellee, v. Milton L. Thackaberry, Appellant.
    Gen. No. 14,165.
    1. Eminent domain—effect of judgment in condemnation upon lien of trust deed. A judgment in condemnation transfers the lien of the trust deed from the land to the fund awarded; a release by the trustee in the trust deed is not necessary; likewise, the owner of the debt secured can only be charged with the amount actually paid under the condemnation judgment.
    2. Foreclosure—what allowance of solicitor’s fees proper. Held, in a foreclosure proceeding that an allowance of $1,000 by way of solicitor’s fees was proper.
    3. Foreclosure—when decree directing particular order of sale proper. Held, that the decree or order of foreclosure entered in this case providing for the sale of the property foreclosed in a particular order as to lots, was proper.

      Foreclosure. Appeal from the Circuit Court of Superior county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed December 4, 1908.
    William B. Moak, for appellant.
    H. J. Rosenberg, for appellee; Max M. Grossman, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

The bill in this case is a bill to foreclose a trust deed in the nature of a mortgage dated January 13, 1904, given by appellant to secure his principal note of that date for $40,000, payable three years after date, with interest at six per cent., payable semi-annually until maturity, and with interest after maturity until paid, at the highest rate of interest it was then in such case lawful to contract for, and his six interest notes for $1,200 each, of the same date, one payable at the end of each successive six months after date, with the same provision as to the rate of interest after maturity as the principal note, all of which notes were payable to the order of the maker, and by him endorsed in blank. The cause was, on the motion of appellant, referred to a master to take and report the proof s and his findings. Appellant took a large number of exceptions to the draft report which were overruled by the master, and the decree approves the report and overrules all exceptions thereto. From the decree only the mortgagor appealed.

We think that the contention of appellant that complainant was not the owner of the notes secured by said trust deed cannot, on the proofs, be sustained.

Certain of the lots included in the trust deed were taken by the city of Chicago for school purposes; the value thereof ascertained by a jury; the money paid to the county treasurer; and by him paid to complainant and credited on said principal note. The trustee released said lots. Appellant contends that because, under the provisions of the trust deed, the trustee was not authorized to release said lots on the payment of any sum less than $12,000, that therefore the complainant should be charged with $12,000, because of such release, although the amount of the condemnation money, less certain taxes on said lots paid out of said money, was $7,688.79.

The effect of the judgment was to transfer the lien of the trust deed from the land to the fund awarded. No formal release by the trustee was necessary. Stopp v. Wilt, 76 Ill. App. 531; S. C. 177 Ill. 620.

We think that appellant was only entitled to have the sum actually received by complainant credited on his notes.

In the brief of appellee it is stated, that appellee has: “Conceded from the beginning of this litigation that any defence which is good as against Charles H. Nix, the husband of appellee, is good as against appellee”.

The proofs do not, in our opinion, show that Charles H. Nix was indebted to appellant in any sum whatever.

Appellant testified that he and Charles H. Nix agreed at a certain time that the amount due complainant, in excess of the principal sum of $40,000, was $3,000. Nix testified that no such agreement was made. The master found, and the court has approved his finding, that no such agreement was made. If any such agreement was made, the $3,000 was not paid by appellant.

We do not think that, on the evidence, appellant is entitled to have the decree reversed or modified by reason of his claim that he made such an agreement with Charles H. Nix, as he testified that he made.

Appellant further contends that he made a deed conveying lots 18 and 19 in block 15, to William Eckhart, who was to pay $1,000 therefor, and gave said deed to. Charles H. Nix, to deliver on payment of said sum. The evidence fails to show that said deed was ever delivered to Eckhart, or that the purchase money was paid to Nix. The decree provides that: “Nothing in this decree contained shall in any way prejudice any right which Milton L. Thackaberry may have against Charles H. Nix, or any one else by reason of the execution by said Thackaberry of a deed in which William Eckhart is grantee to lots 18 and 19 in block 15”.

We do not think that appellant was, on the proofs, entitled to any credit on his notes on account of said transaction.

The trust deed gave the holder of the notes secured by the trust deed the right to declare all the notes due in case of failure to pay any note at maturity. Defendant made default in payment of certain interest notes; complainant declared all the notes due and filed this bill May 22, 1906. The $7,688.79 was paid to complainant May 26, 1906, and then indorsed on the principal note, leaving the balance then due on said note $32,311.21. Interest was computed by the master at the rate of six per cent, on $40,000 from. January 13, 1906, to May 22,1906, and at six per cent, on said sum from May 22 to May 26, 1906, and on $32,311.21 from that time until March 26, 1907, the date of his report. On the three interest notes for $1,200 each due respectively January 13, 1905, July 13, 1905, and January 13, 1906, interest was computed at seven per cent, from maturity to March 26, 1907, and at the same rate on amounts paid for taxes from time of payment to March 26, 1907.

The master found that the amount due March 26, 1907, was $40,407.61. The decree entered August 9, 1907, finds that sum is due with interest from March 26, 1907. We do not think that appellant has any just ground to complain of this computation of interest. While its effect is to allow interest on the interest found to be due March 26, 1907, its effect is also to reduce the rate of interest from seven to six per cent, from March 26, 1907, to the date of the decree, on the whole debt.

The contention of the appellant that the decree allows complainant amounts paid for taxes on lots not included in the mortgage, finds no support in the proofs.

The trust deed provides that the complainant shall be allowed, in case of foreclosure, a reasonable solicitor’s fee and expenses of bringing down the abstract. She was allowed by the decree a solicitor’s fee of $1,000, and for abstract $15.30. We think that both allowances, on the proofs, are proper.

June 14, 1907, appellant filed a cross .bill and a supplemental answer. August 8, 1907, after the court had announced the decision and directed that a decree be prepared, appellant moved for a rule on complainant to answer the cross-bill. The court denied his motion and dismissed the cross-bill. The facts stated in the cross-bill are also stated in the supplemental answer. The purpose of filing the supplemental answer was to make the answer correspond with the proofs. Appellant did not ask that the cause be again referred, or that he be permitted to introduce further proof. We do not think that appellant was prejudiced by the dismissal of his cross-bill.

April 24, 1906, appellant conveyed to Wickham the greater part of the lots included in the mortgage, subject to said trust deed which was assumed by Wick-ham.

May 18, 1906, appellee, by Charles H. Nix her attorney in fact, signed a paper reciting an agreement on her part, in case she received a deed to said real estate to convey the same, with the exception of certain lots which Wickham had conveyed, to Wickham on the terms therein stated. We are unable to see how or in what .manner appellant’s rights were affected by this instrument.

At the time the decree was entered, the title to the equity in the mortgaged premises stood as follows: One lot, 27 in Hock 16, in Foley, to whom it had been conveyed by appellant; certain other lots in appellant; certain other lots in Foley, to whom they had been conveyed by Wickham after the conveyance thereof to him by appellant, above mentioned; the remaining lots and blocks in Wickham.

The decree provides that the master shall sell: first, certain specified lots and blocks, mentioning and describing the lots andablocks so conveyed, to Wick-ham, which had not been reconveyed by him; second, certain other specified lots, mentioning and describing certain lots included in the said conveyance from appellant to Wickham and by Wickham conveyed to Foley; third, the lots which had not been conveyed by appellant; fourth, said lot 27 which appellant had conveyed to Foley. As between appellant and Foley, his grantee of lot 27, it was proper to sell appellant’s lots before lot 27 was sold, for Foley did not assume the mortgage. We think the court properly ordered that Wickham’s property be first sold, and that the lots he had conveyed to Foley be next sold. But however that may be, as between Wickham and Foley, appellant cannot complain, for both Wickham’s and Foley’s lots are ordered to be sold before appellant’s.

We think the record is free from reversible error, and the decree will be affirmed.

Affirmed.