text:
    C. E. Freet, Appellant, v. American Electrical Supply Co., Appellee.
    Gen. No. 14,756.
    CONTRACTS-how covenants construed as to being conditions precedent or independent. The general rule is that covenants, like any other agreements, should be construed in accordance with the intention of the parties; and where it is doubtful whether the covenant or agreement was intended by the parties to be a condition precedent or an independent covenant or agreement, courts will construe it as an independent covenant or agreement, especially where the defendant has derived some benefit from the contract.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. FREEMAN K. BLAKE, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 21, 1909.
    ~tatemeut by the Court. On March 19, 1907, appellant, plaintiff below, a manufacturer of fire extinguishers in New York, entered into a written contract with appellee, defendant below, by the terms of which it was agreed:
    1. To appoint appellee general agent for his goods for the State of Illinois, for a period of one year, and pay appellee a salary of $125 per month, dating from the payment by appellee for the first shipment of fire extinguishers.
    2. To canvas the allotted territory three times a year, at his own expense, and turn over to appellee any orders that he might have on hand, or might thereafter receive, within said territory.
    3. To sell and deliver to appellee $1,000 worth of extinguishers, "terms, net cash on delivery", and furnish such additional stock as appellee's trade would require.
    4. At the end of the year, if all the terms of the contract had been complied with, repurchase, at cost price, whatever stock appdllee might have on hand.
    Appellee on its part agreed:

      1. To accept the agency, devote a reasonable amount of time to the sale of appellant’s goods, and do whatever might be in its power to promote the success of the agency.
    2. To buy of appellant at the outset 800 extinguishers at $1.25 apiece, “terms, net cash on delivery,” and as fast as it sold any of them, order a corresponding number from appellant so as to always carry a stock of 800 extinguishers, or $1,000 worth.
    3. To sell a minimum average of $450 worth of extinguishers per month; in default whereof appellant could at the end of six months cancel the contract; retail price of extinguishers to be $3 apiece.
    4. To collect the money for all extinguishers sold, deduct therefrom its salary and the difference between the billing price and appellee’s selling price, and transmit the balance to appellant, who upon the receipt of such payment should replenish appellee’s stock with a corresponding number of extinguishers to those thus sold.
    The record further shows that the same day as the contract was executed appellee sent to appellant an order for 800 fire extinguishers at a price of $1.25 apiece, or a total of $1,000, and that a few days later it sent in further orders for some $800 worth of extinguishers, to be shipped direct to certain of its customers in Elgin, Rockford and Peoria. The record further shows that all of these goods were promptly shipped and duly received and have not been paid for, though payment has repeatedly been demanded. This suit was then commenced, in September, 1907, to recover for goods sold and delivered at the contract price.
    Having proved these facts at the trial, the plaintiff rested, whereupon the court, on motion of defendant’s counsel, peremptorily instructed the jury to find the issues for the defendant, on the ground that there was no proof that the plaintiff had canvassed the allotted territory three times a year. Motions for a new trial and in arrest of judgment having been overruled and judgment entered on the verdict, this appeal is prosecuted to this court to reverse the judgment.
    Hoyne, 0’Cora*ob & Ibwikt, for appellant; Gael J. Appell, of counsel.
    H. P. Simonsoe, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

No question of fact is here involved. The controversy as presented on this record arises from the construction of the contract between the parties by the trial court in instructing a verdict for the defendant.

The trial court held, and it is here contended on behalf of appellee, that the contract sued on in this case is not a severable contract for the purchase of fire extinguishers by appellee, the American Electrical Supply Company, and that, therefore, the plaintiff could not maintain an action for the goods sold and delivered under the contract, without proof that he had kept and fulfilled his covenant to canvass the territory allotted to the defendant three times a year.

The record shows that the parties to this action had entered into a written contract by the terms of which the plaintiff was to give the defendant the exclusive sale of his goods in Illinois for one year, and pay the defendant, in addition to a profit on the sale of the goods, a monthly salary of $125 for promoting the sale of such goods. Plaintiff also covenanted to assist in promoting the business by canvassing the territory three times a year at his own expense and by turning over to the defendant any orders on hand at the making of the contract, or after-wards secured. The defendant agreed to buy, at the outset, at least $1,000 worth of fire extinguishers on terms of net cash on delivery, and fill all orders from his stock.

The evidence further shows that within a few days after the contract was signed the defendant ordered $1,800 worth of extinguishers, $1,000 worth to be shipped to Chicago and $800 worth to be shipped direct to customers from whom defendant had received orders. These goods were duly shipped as ordered and were received, but have not been paid for.

By defendant’s notice filed with its plea it says that shortly after the goods in question were ordered and received it declared the contract canceled and notified the plaintiff it would not pay for the goods, because of certain misrepresentations made by plaintiff’s agent, but what misrepresentations were made is not stated.

On this state of the evidence the court, at the close of plaintiff’s evidence, peremptorily instructed the jury to find the issues for the defendant.

The question above stated is thus raised on the record: Was it necessary for the plaintiff, in order to recover, to offer evidence tending to show that he had canvassed the territory as provided in the contract? If this covenant is a condition precedent, it is conceded in argument that such proof was necessary. If, on the other hand, it is an independent covenant, as contended by the plaintiff, it was not necessary for the plaintiff to offer the proof.

The general rule is that covenants, like any other agreements, should be construed in accordance with the intention of the parties; and where it is doubtful whether the covenant or agreement was intended by the parties to be a condition precedent or an independent covenant or agreement, courts will construe it as an independent covenant or agreement, especially where the defendant has derived some benefit from the contract. Rubens v. Hill, 213 Ill. 523. And, as said in Palmer v. Meriden Britannia Co., 188 Ill. 508, at page 522: “Where the plaintiff’s covenant goes to only a part of the consideration, and a breach of the covenant can be compensated in damages, the defendant can not rely upon the covenant as a condition precedent, but must perform the covenant on his part, and then rely upon his claim for damages for any breach of the covenant by the other party, either by way of recoupment, or in a separate action.” This is an old doctrine of the common law. Boone v. Eyre, 1 H. Black. 273; Cole v. Shallet, 3 Levinz Rep. 41; Fothergill v. Walton, 8 Taunt. 574; Havelock v. Geddes, 10 East. 555; Campbell v. Jones, 6 Tenn. Rep. 570; Ritchie v. Atkinson, 10 East. 295; and many other cases which might be cited. Many other decisions of our Supreme Court holding the same doctrine might be cited, and among them are Nelson v. Oren, 41 Ill. 18; White v. Gillman, 43 id. 502; Prairie Farmer Co. v. Taylor, 69 id. 440.

The contract before us provides for a canvass of the territory by the plaintiff three times a year, without specifying the times when the canvasses should be made. But, another covenant provides that the plaintiff shall sell and deliver to the defendant $1,000 worth of extinguishers on terms of “net cash on delivery,” and shall furnish such additional stock as the trade of the defendant may require from time to time. Under this covenant the goods were sold to the defendant, for the price of which this action was brought. This covenant contemplates that this sale to the defendant should be made at the outset of the business contemplated by the contract in order to provide the defendant with the stock necessary to start the business and supply its customers. It therefore was not and could not have been contemplated by the parties that the canvassing was a condition precedent to the payment for the goods to be sold to the defendant for cash on delivery. The very terms of the contract forbid the construction contended for by the defendant. Thus, apart from the principle of construction laid down in the authorities cited above, the contract. with which we are concerned by its very terms requires us to construe these covenants as independent covenants.

For that reason, and for the further reason that it is clear that the breach of the covenant by the plaintiff to canvass can be compensated for in damages and the covenant of the plaintiff does not go to the whole of the consideration of the contract, it is not a condition precedent, and the plaintiff may maintain his action for the price of the goods sold, without proof of the fulfilment of the covenant to canvass, on the proof in the record and the statements in the notice filed with the defendant’s plea.

"The court therefore erred in peremptorily instructing the jury to find the issues for the defendant, and for that error the judgment is reversed and the cause is remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Thomas R. Wilson, Plaintiff in Error, v. John L. Bolen, Defendant in Error.
    Gen. No. 14,761.
    1. Contracts—when for purchase of real estate properly rescinded. A party agreeing to purchase real estate is justified, in refusing to proceed if the abstract furnished does not show a merchantable title in the vendor.
    2. Real property-—tohen unpaid taxes constitute liens. Held, that the unpaid taxes in question in this case constituted valid existing liens against the real property involved.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed December 21, 1909.
    John Stelk, for plaintiff in error.
    Bolen & Stewart, for defendant in error; Park Phipps, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

An action was brought in the Municipal Court of Chicago by the plaintiff in error against the defendant in error and it was submitted to the court for trial, without a jury, upon an agreed state of facts as follows:

Thomas R. Wilson, the plaintiff, agreed to purchase a house and lot in Berwyn, Cook county, Illinois, from the defendant Bolen, and paid M. M. Hitchcock, as agent for Bolen, the sum of one hundred dollars and received therefor a receipt reading as follows: “Berwyn, Illinois, September 27th, 1907. Received of T. R. Wilson, One Hundred Dollars for deposit on house now occupied by O. G. Hutchins, belonging to John L. Bolen, situate in Sinclair Ave., Berwyn, Purchase $3,250. Cash payment $500. Payments for balance, $30 or more monthly including interest. M. M. Hitchcock. ’ ’

No other express agreement was entered into by the parties. It was contemplated that upon the examination and acceptance of the title the further sum of $400 should be paid, and a contract executed providing for the delivery of warranty deed upon the payment of the balance of the purchase money less $1,800 secured by first mortgage on the premises. About October 10, 1907, an abstract of title covering the property purchased from the United States Government to October 2,1907, was delivered to the plaint- , iff and by the plaintiff handed to his attorney for examination. On October 15, 1907, plaintiff’s attorney rendered to the plaintiff a written opinion on the abstract submitted, as to the title shown thereby. In the opinion of this attorney the defendant Bolen had a good title to the premises in question on October 2, 1907, subject to liens and other rights in favor of the State and other tax beneficiaries, for certain unpaid back taxes and forfeitures hereinafter mentioned.

As to the taxes it was stipulated and agreed the facts were as follows:

First. In a continuation of the abstract, dated July 15, 1882, is shown the following: “Judgment was rendered at the July term 1873 of the County Court of Cook County, Illinois, for the State, County, etc., taxes of 1872, levied on Ex. R. R. N. of Rd. E. 1/2 N. E. 1/4 Sec. 31, T. 39, R. 13, amounting to $314.36, from which judgment an appeal was taken.”

“Note. The amount of the above noted taxes has not been extended on any subsequent tax warrant prior to 1881, and at the date of this examination remains unpaid.”

Second. With regard to this same tax the continuation of July 15, 1882, shows:

“People ex rel. Julian Rumsey vs. Thomas F. Baldwin. In the Circuit Court of Cook County, Illinois. Case 9167, Appeal. Judgment rendered December 17, 1874, against defendant for taxes for the year 1872 on the premises in question with other property $314.78. Appeal allowed.”

Third. With regard to these same taxes, a subsequent continuation of abstract, dated November 14, 1890, shows:

“Note. Application was made to the County Court of Cook County, Illinois, at the July Term A. D. 1883 thereof, for judgment against Ex R. R. N. of Road, E. 1/2 N. E. 1/4 Sec. 31, T. 39 R. 13, for the State, County, etc., taxes of 1872, levied thereon by Town of Cicero, amounting to $314.36. Said taxes have not been extended on any subsequent tax warrant, and remain unpaid of record.”

Fourth. The continuation of July 15, 1882, shows:

“Note. The premises in question with other property were forfeited to the State of Illinois August 25, 1879, (at the sale commenced July 21, 1879) for the State and County taxes of 1871, amounting to $133.80, which amount had not been extended on any subsequent tax' warrant prior to 1881 and remained unpaid.”

Fifth. The continuation dated November 14, 1890, shows:

“Note. Application was made to the County Court of Cook County, Illinois, at the July Term A. D. 1883, thereof, for judgment against the premises in question, with other property for the 'State, County, etc., taxes of 1871, (ex School Tax) amounting to $138.70. Said taxes have not been extended on any subsequent tax warrant and remain unpaid of record.”

Sixth. That the premises involved in the foregoing tax matters were from 1856 to 1876 the property of Thomas F. Baldwin, and constituted an undivided tract of approximately 70 acres of land, but which has since 1876 been subdivided into lots and blocks, with streets and alleys, and for more than fifteen years has had macadamized streets, cement sidewalks, water and sewer, and the district included in the 70 acres is largely improved with buildings and the ownership now vested in many individuals, and since the subdivision as aforesaid has been assessed as lots and not as lands.

Seventh. That the taxes on the premises in question were duly paid to the proper authorities, by the persons whose duty it was to pay the same, for all of the years preceding 1871, and for all the years succeeding 1872, down to the present time, but the 1871 and 1872 taxes were not paid.

Eighth. The defendant Bolen can show by evidence of various attorneys, including the attorneys of the Chicago Title & Trust Company (all of which evidence the plaintiff insists is inadmissible, on the ground of immateriality and irrelevancy, and moves to strike it out) that a great many persons have purchased lots in the tract of land involved in these tax questions, and have borrowed large sums of money thereon to build houses and otherwise, and that the - Chicago Title & Trust Company has issued numerous owners as well as mortgage guarantee policies on lots in said tract, without making any objection on account of said tax matters.

Ninth. Defendant offered to pay plaintiff the pro rata part of said unpaid taxes, but did not, and confessed he could not, produce official figures showing what that part amounted to, and plaintiff declined to accept such money, and insisted on having such tax satisfied of record.

Tenth. The defendant Bolen is a lawyer, and was notified of the objection of the attorney for the plaintiff, and took the position that the objection was not tenable, and that, the tax matters in question were not liens and could not be paid even if desired.

The plaintiff refused to accept the title as shown by the abstract in respect to the tax matters above stated, and demanded the return of the $100 deposited, and on defendant’s refusal to return the $100 the present suit followed.

Eleventh. The only question involved in this case is whether or not the title as shown by the abstract with regard to the tax matters above mentioned justifies the purchaser in declining to accept the title and complete his purchase.

The court sustained the objection made by plaintiff to the offered evidence of defendant contained in item eight above, and disregarded such evidence.

The Municipal Court held, as appears from the propositions of law in the record, that an agreement to make good title is always implied in executory contracts for sale of land; that a purchaser is never bound to accept a defective title unless he expressly'stipulates to take such title knowing its defects; that the title to which a purchaser is entitled is one that is good beyond a reasonable doubt, such a title to which no reasonable man would object, such a one as a prudent man would not hesitate to invest his money upon at a full market price, such a one as will bring in the market as high a price with as without the objection; and further that the vendor is bound to render to the vendee an abstract of title which cannot he reasonably questioned, which in and of itself without regard to extraneous circumstances should show a good title; that it is not incumbent upon the vendee to expend time, labor and money in ascertaining and adding to such abstract matters which might cure defects shown thereby, and that a vendee in passing upon the title of the vendor is not hound to assume or search for any evidence or state of facts in favor of the title not shown by the abstract of title tendered to him by the vendor.

To these holdings of the presiding judge no exceptions were taken and there are no cross errors assigned on this record calling them in question.

The lower court also held, as appears by the propositions of law tendered by the defendant, that the tax matters in question were not liens on the property, for the reason that the taxing and tax collecting bodies had not proceeded in a statutory manner to collect the same, and because the same had not been extended from year to year on the tax warrants for the current years, as provided by law, and collected prior to the subdividing of the tract covered by such tax matters and the assessing thereof on individual lots, and because a levying and collecting of taxes being a purely statutory function unless such tax was levied and collected in the manner provided by law, the tax was void and ceased to be a lien.

The court accordingly made a finding in favor of the defendant and against the plaintiff, and entered judgment'upon such finding.

In our opinion the taxes shown in the stipulation of facts as unpaid are liens upon the premises in question and are clouds upon the title of the defendant, and the plaintiff was not bound, under his contract, to accept a title so encumbered. We think the abstract of title did not show a merchantable title and that the plaintiff was justified in rejecting the title and demanding the return of the money which he had paid.

The judgment of the Municipal Court is therefore reversed and judgment will be entered here in favor of Thomas E. Wilson, plaintiff, against John L. Bolen, the defendant, on a finding of fact, for $100 and interest, amounting to $108.

Reversed and judgment here.


text:
    Grossfeld & Roe Co., Appellant, v. Benny Marks and Isaac Marks, Appellees.
    Gen. No. 14,775.

      Instbuctions—when error to give peremptory. It Is error peremptorily to instruct in favor of the defendant if there is evidence tending to support the plaintiff’s action.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 21, 1909.
    Grossberg & Kompel, for appellant.
    Levy & Levy, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court in an action brought by Grossfeld & Eoe Co., a corporation, against Benny Marks entered on a directed verdict for the defendant.

The record shows that the plaintiff below, Grossfeld & Eoe Co., was engaged in the wholesale grocery business. The action was brought against the defendants, Benny Marks and Isaac Marks, for a bill of goods sold by the plaintiff company in 1901 to a concern known as Marks Brothers, which the plaintiff claims was a partnership consisting of Benjamin Marks, Abraham Marks and Isaac Marks. Benny Marks, a son of Isaac Marks, was made defendant as a member of the co-partnership, or because he had assumed and agreed to pay the debt of Marks Brothers to plaintiff. Subsequently Isaac Marks was dismissed out of the case, leaving Benny Marks, appellee, the sole defendant. Abraham Marks and Isaac Marks had filed a petition in bankruptcy as a co-partnership under the name of Marks Brothers, and scheduled an indebtedness to G-rossfeld & Roe Co. of $50.75, on which a dividend ■was paid on composition of $7.60. The plaintiff’s claim in the case is for the balance left after the payment of the composition of $7.60, and $14.50 interest, or $57.65.

The evidence shows that Roe, vice-president of the plaintiff company, testified that Benny Marks prior to the sale in question exhibited to him a business card with the name of the three Marks printed on it as co-partners, and discussed with him in a friendly way his membership in the firm. The defendant admitted exhibiting such a card, but claimed that it had been printed by mistake, little if any explanation being made as to how the mistake occurred; and further stated that he told the witness Roe of the mistake and Roe advised him to destroy the cards, which he said was done.

It appears from the evidence that after the bankruptcy proceedings, one of the places of business which had been run under the name of Marks Brothers was run under the name of Benny Marks. There is testimony tending to show that before the bankruptcy proceedings Benny Marks was an employe of the firm; and further the evidence on behalf of the plaintiff tended to show that subsequent to the bankruptcy Benny resumed or continued buying of the plaintiff, but the plaintiff only consented to sell him goods on credit upon the express condition that the whole account of Marks Brothers should be paid by him, and that Benny Marks promised to pay it. Upon the plaintiff resting its case, the court peremptorily, of its own motion, instructed the jury to find the issues for the defendant, and entered judgment on the verdict, from which judgment this appeal is prosecuted.

In our opinion there was evidence tending to support the plaintiff’s action, and sufficient to require the court to submit the cause to the jury, under proper instructions.

For the error of the court in peremptorily instructing the jury to find the issues for the defendant, the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: Mr. Presiding Justice Holdom

text:
    Thomas C. Ruddell, Defendant in Error, v. The Baltimore and Ohio Railroad Company, Plaintiff in Error.
    Gen. No. 14,803.
    1. Instructions—when should be accurate. If the case Is close on the facts the Instructions should be accurate.
    2. Common carriers—when cannot complain of non-production of bill of lading. In an action for damage for the negligent transporting of merchandise, the carrier cannot complain of the failure of the plaintiff to put in evidence the bill of lading from the primal point of shipment, when he did not produce such evidence or show its inability to produce the same.
    3. Common carriers—basis of liability of connecting carrier. The presumption is that merchandise delivered to a carrier is in good condition at the time of receipt, and the further presumption is indulged, in an action against a connecting carrier, that when the merchandise was delivered to it it was in good condition.
    4. Common carriers—extent of liability for negligent transportation. A carrier of merchandise is only liable for such deterioration in merchandise carried as is attributable to its negligence.
    5. Common carriers—-measure of damage for negligent transportation. The true measure of damages is the difference between the market value of the merchandise at the point of destination in the condition in which it-would have arrived but for the negligence of the carrier, and its market value in the condition in which it did arrive.
    Tort. Error to the Municipal Court of Chicago; the Hon. Akttold Heap, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 23, 1909.
    Calhoue", Lyford & Sheeae-, for plaintiff in error; C. D. Clark and Edward W. Bawdier, of counsel.
    Charles A. Butler, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff recovered a verdict and judgment for $602.75 against defendant as damages for negligence in transporting a car of oranges from McPherson, California, to Baltimore, Maryland. The action was originally brought against three other railroads over whose lines the oranges were carried before connecting with the road of defendant and its taking possession of the car. The jury by their verdict found these three defendants not guilty, and the remaining defendant seeks this review and asks a reversal of the judgment.

The car contained 360 boxes of oranges, all in good condition when shipped, but on arrival in Baltimore they were found to be in bad condition, some of them being spoiled and the boxes broken and in such a condition as to indicate that the car had been in a wreck or severely bumped at some point in the long journey from McPherson to Baltimore. The oranges were shipped at McPherson in C. P. X. car 10,034, but were received by the Baltimore & Ohio Bailroad Company in C. P. X. car 10,991 at Chicago, and in that car arrived at Baltimore. The damages were assessed upon the theory that the value of the oranges at destination, if in as good condition as when shipped, would have been $1,375.60; that their value in the condition in which they actually arrived was $787.05, making a difference in value of $588.55, to which was added a charge for labor ha sorting and handling the damaged oranges on arrival, making together the amount of the verdict and judgment. At some time and some place between McPherson and Chicago, for some reason not shown by the proofs, the oranges were transferred from car 10,034 to car 10,991. The oranges were proven to be in good condition when shipped at McPherson, but what their condition was at the time of transfer the proof does not show. It was stipulated by the parties, and read on the trial as evidence by defendant, that the conductors having charge of the car from Chicago to Baltimore would testify that, so far as they could recall, no accident happened to the car or the trains in which it was carried.

The right of recovery being a close question on the facts in proof, made it incumbent upon the trial judge to be exact in his instructions to the jury upon the law. It may be said to be at least doubtful whether plaintiff, by simply proving the condition of the oranges at the point of shipment (in light of the admitted fact that the oranges were trans-shipped at some point en route before delivery to defendant), made a sufficient case to raise a presumption of negligence in defendant because the oranges arrived in Baltimore in bad condition, calling upon defendant to rebut such presumption by affirmative proof. There is a total lack of proof of any specific act of negligence on the part of defendant which caused damage to the oranges, so that the right to recover rests in the presumption of negligence arising from the fact of delivery at the starting point in good condition and arrival in a damaged condition at destination.

Defendant complains that plaintiff did not put in evidence the bill of lading from the point of primal shipment, which, it argues, would have shown whether or not the shipment was one through from place of shipment to Baltimore; but be this as it may, we can understand how, in such cases, the shipper or consignee might be unable to show such fact, while in every case the evidence regarding the terras of shipment, if not in the actual possession, is at least within the control of the carrier. We think if such evidence becomes important to a rightful solution of the dispute, a carrier cannot be heard to complain of its non-production by the plaintiff when it is within its power to produce such evidence, and to excuse its non-production should show by proof its inability to produce it. It does not seem to us that defendant’s contention that the case rests on a presumption based upon a presumption is well taken. The presumption to sustain a recovery, rests in that primary presumption, if in any, that the initial carrier received the oranges in good condition. Such presumption is but an inference or conclusion of law from the facts in proof. The rulé of law is that the liability of a connecting carrier for loss of or injury to goods in transitu is based upon a presumption, inferable from the fact that the goods being received in good order have been transmitted in like condition to the carrier held liable, such presumption being necessary to preserve the shipper’s rights, since the carrier, not the shipper, has control of the goods. Sheble v. Oregon, etc., 98 Pac. Rep. 745. In the case at bar it may not be within the power of plaintiff to prove the cause which resulted in the oranges being taken from one car and placed in another. If it was occasioned through the wrong of the carrier, proof by plaintiff may be impossible; if at the direction of the consignor or consignee, that fact is readily susceptible of proof by the carrier. Moreover, the carrier can inspect the contents of the car when received from the connecting road and thereby preserve evidence of the fact.

The trial court gave the following instruction at the instance of plaintiff:

“The court instructs the jury that in the event you find from all the evidence in this case that the oranges in question, when delivered, if at all, to the Southern Pacific Company for transit in question, were in good, sound, merchantable and shipping condition, and that upon arrival of said oranges at the destination of said transit, they were not in sound, merchantable and shipping condition, then and in that event, as a matter of law the measure of damages herein will be the difference between the fair and reasonable market value of said oranges in sound condition at said destination at the time of their arrival thereat and the fair and reasonable market value of said oranges at said time and place in the condition in which they arrived thereat; plus the reasonable value of any labor invested in said oranges at destination after the time of arrival thereat, if you find such labor was so invested. ’ ’

This was clearly erroneous in not restricting the measure of damages to such damages caused by the negligence of the carrier. The instruction as given was too broad, for it made the carrier liable for all deterioration in the condition of the oranges during transit, from whatever cause, whether attributable to the negligence of the carrier or to causes beyond its control and for which the law does not make it liable.

The rule for the assessment of damages in this and like cases is well stated in M. C. Ry. Co. v. Osmus, 129 Ill. App. 79, where the court say: 11 The true measure of damages is the difference between the market value of the cattle at the point of destination in the condition in which they would have arrived but for the negligence of the carrier, and their market value in the condition in which they did arrive.” The liability of the carrier, in all cases, is restricted to damages attributable to such carrier’s negligence or want of care, and want of care, where the law re: quires such care, is negligence. C. C. C. & St. L. Ry. Co. v. Patton, 104 ibid. 550; N. Y. L. E. & W. Ry. Co. v. Estill, 147 U. S. 591.

That oranges are in their nature perishable is common knowledge. The oranges which were the foundation of this dispute were seventeen days in transit, and no claim is made of delays in such transit. It is apparent, therefore, that so long a journey, occupying so many days, may have caused a natural deterioration in the condition of the oranges, attributable to natural causes and not to the negligence of the carrier. By instruction B the carrier was made liable for all deterioration in the condition of the oranges, whether from natural causes beyond the control of the carrier, or attributable to its negligence. The liability of the carrier goes no farther than for damages occasioned by its negligence, and the instruction under discussion was erroneous in not so indicating. The jury evidently assessed the damages upon the assumption that the oranges would arrive in Baltimore in the same good condition in which they left McPherson, and rendered their verdict upon this erroneous theory.

The judgment of the Municipal Court is reversed and the cause will be remanded.

Reversed and remanded.


text:
    Mystic Workers of the World, Plaintiff in Error, v. United States Fidelity & Guaranty Company, Defendant in Error.
    Gen. No. 14,811.
    1. Suretyship—Tiow surety bonds construed. A surety bond is a contract between the parties and their legal rights must be determined from the conditions of the bond forming such contract, for by such conditions are the parties bound. Such contract having been freely entered into, the respective rights of the parties are confined within the limits of its terms and provisions.
    2. Suretyship—particular indemnity bond construed. Held, that the surety bond in suit covered only future defalcations; that the company was not liable for defalcations taking place prior to its execution and delivery.
    Action in debt. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 23, 1909.

      Bertrand Lichtenberger, for plaintiff in error.
    Judah, Willard, Wole & Reichmann, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This case was tried before a judge of the Municipal Court, without the intervention of a jury, upon an agreed statement of facts, which appears in the record. Defendant was sued upon a surety bond known as a schedule bond, which indemnified plaintiff against certain delinquencies, among others, of the financial officers of subordinate lodges, called “Bankers,” among which was the Blue Island Lodge No. 369, of which one Ernest Boermel was at the time banker. The condition or operative words of the bond are to “make good and reimburse to the insured any and all pecuniary loss sustained by the insured by reason of the fraud or dishonesty of the * * * banker of any one of the aforesaid subordinate lodges mentioned in the schedule hereunto annexed * * * in connection with his duties as such * * * banker, * * * and which shall have been committed at any time after the first day of October, 1906.” The maximum of indemnity is $400. Boermel had been successively elected banker of the Blue Island Lodge commencing with December 1, 1904, and went out of office finally by resignation November 15, 1906. The bond sued upon covered a period of time commencing October 1 to October 21, 1906, the bond being cancelled on the latter date. On January 5, 1905, there was turned over to Boermel as such banker $729.94. On December 7, 1905, he was re-elected and continued in such office, performing its duties, until November 15, 1906. There had been placed in his hands as such banker, after deducting all lawful disbursements to and including October 1, 1906, $891.68. After the last mentioned date and before the 21st day of October, 1906, there came to his hands as such banker, plus disbursements made by him for the Lodge, $16.90. We quote the following from the agreed statement of facts: “that he, the said Ernest Boermel, was the banker of the Blue Island Lodge No. 369 Mystic Workers of the World located at Blue Island, Cook county, Illinois, from January 4, 1905, to and including November 15, 1906; that the funds of said lodge received by him upon his taking his office as aforesaid and up to and prior to the 1st day of July, 1905, were appropriated to his own use; that all of the funds of the lodge coming into his hands after July 1, 1905, and until October 1, 1905, were used for the payment of the proper current lodge expenditures, and the balance applied to his own use as fast as said funds were placed in his possession; that on and immediately prior to the 1st day of October, 1906, he had no moneys whatsoever belonging to said lodge 369 of the Mystic Workers of the World in his possession, either as banker or individually, or in any other capacity, all funds received by him previous to said October 1, 1906, having been applied by him as aforesaid either to the proper expenses of the lodge or appropriated to his own use; that from and including the first day of October, 1906, up to and including the fifteenth day of November, 1906, he applied to the proper expenses of said lodge all sums of money received by him, with the exception of $16.90, which he appropriated to his own use; that he notified the members of said lodge when he was called upon for his resignation * * # that he had not had in his possession on or since the thirtieth day of September, 1906, said sum of $891.68, or any of the moneys which the books showed he had received as banker of said lodge, as aforesaid, on or before said date or on or before said October 1, 1906; that he had not on said October 1, 1906, nor at any time since nor at any time during his term of office as banker as aforesaid the said sum of $891.68, or any other sum on deposit in * * ° Illinois Trust & Savings Bank, or any other bank. ’ ’ The court found the issues for the plaintiff, assessing its damages at $16.90, the amount of Boermel’s defalcation as banker subsequent to October 1, 1906, and entered judgment thereon, which judgment plaintiff asks this court to reverse on review and enter one here for the maximum amount recoverable, viz.: $400 with interest.

A surety bond is a contract between the parties and their legal rights must be determined from the conditions of the bond forming such contract, for by such conditions are the parties bound. Such contract having been freely entered into, the respective rights of the parties are confined within the limits of its terms and provisions. The infirmity in the contention of counsel for plaintiff rests in the invoking, as authority pertinent and controlling in this case, decisions of the courts rendered in the case of bonds, where the conditions are radically different from those m the case at bar. Roper v. Trustees of Sangamon Lodge, 91 Ill. 518, is said to be controlling. But we think the case at bar differs materially from that case. The operative words in the conditions of these bonds are dissimilar in the language used and necessarily in their legal import. In the Boper case the condition was that the treasurer should faithfully and honestly perform all the duties of his office; while in this case the operative words of the bond are that defendant will make good and reimburse plaintiff for any and all pecuniary loss sustained by it by reason of the fraud or dishonesty of its banker, Boermel, in connection with his duties as such banker, occurring any time after October 1, 1906. The Boper bond is similar in purport to the bonds of public officers, while the bond of defendant is expressly limited to pecuniary loss occasioned by fraud or dishonesty of the banker occurring after October 1, 1906. In the Boper case the condition was that the treasurer should faithfully and honestly perform all the duties ¡of his office, which included not only a faithful accounting, but a payment of the amounts shown by such accounting to be due from him during the life of the bond. We cannot agree with counsel that the bonds in this and the Boper case are either in fact or law identical or even similar, or that the decision in the Boper case is applicable to or controlling of this. From the statement of fact it clearly appears that Boermel, the banker, had embezzled the amount chargeable to him in his accounts prior to October 1, 1906, and had since that date embezzled $16.90, for which plaintiff recovered judgment. This plaintiff admits, but argues that while so conceding, yet such facts were inadmissible as evidence sufficient to exculpate defendant from the full amount of its liability on the bond. We think Schoeneman v. Martyn, 68 Ill. App. 412, and Stern v. People, 96 Ill. 475, are sufficient authority for the admission of this evidence. In the Sehoeneman case the court say; “The treasurer testified that at the commencement of his last term he did not have any money belonging to the lodge in his possession. An objection to this testimony was sustained, and the court refused to permit appellant to show that the treasurer, at the expiration of his first term, had spent all of the apparent balance on hand, and was then a defaulter to the extent of the entire amount which should have been on hand, and that nothing was received during his second term from transactions of the first term. The latest utterance of the Supreme Court touching the question here presented is in Stern et al. v. The People, 96 Ill. 475. Following this, we must hold that the bond covers future transactions only. The condition, after reciting his election, and when his term will begin, says: ‘By reason whereof divers sums of money will come into his hands.’ Its language is ‘shall’ pay over all money ‘which shall at any time have come into his hands as master of exchequer.’ The recitals show this to have reference only to what should come into his hands subsequent to the giving of the bond. All that came into his hands after the bond was given has been paid over. What was not in his hands when the bond was given and never thereafter came, the bond does not cover. The jury should not have been instructed to find for appellee, and appellant should have been permitted to show the actual state of the treasury when the bond was given. Stern et al. v. The People, 96 Ill. 475; Inhabitants of Rochester v. Randall et al., 105 Mass. 295; The County of Mahaska v. Ingalls, 16 Ia. 81.”

And in the Stern case it is said: “Under the view taken by a majority of the court it will only be necessary to notice the second special plea. That plea alleges that the bond upon which defendants were sureties was for the term commencing December, 1877; that Seiber was treasurer of the County of St. Clair for a term of two years, from December, 1875, to December, 1877; that he defaulted during that term, and that the sum of money alleged to have been in his hands on the day mentioned in the declaration had been misappropriated during that term. The court improperly sustained a demurrer to that plea. No reason is perceived why it does not present a full defense to the cause of action alleged against defendants. If the defaulting officer misappropriated funds that came to him in his official capacity during a term of office when defendants were not his sureties, they were under no legal obligation to make good such defalcation. That obligation rested upon his sureties on his bond for the term in which the misappropriation occurred. It is but stating a truism to say if the funds were misappropriated during a former term, it was not possible for him to deliver them to his successor. The fact such officer was his own successor can make no difference.”

Bonds of the character of the one here involved have, as a general rule, no retroactive effect, and therefore defendant having in direct terms made its surety bond prospective by restricting its liability to a date commencing October 1, 1906, it cannot be held liable for a defalcation existing previous to that date. U. S. v. Boyd, 15 Peters 187.

The other questions raised become unimportant in the view we take of the law of this case as above indicated. The judgment of the Municipal Court is therefore affirmed.

Affirmed.


text:
    J. Joerg, Defendant in Error, v. The Atchison, Topeka & Santa Fe Railway Company, Plaintiff in Error.
    Gen. No. 14,827.
    1. Statute of Limitations&emdash;what not new cause of action. A change in the form of the action does not constitute the setting up of a new cause of action where the claim is the same, governed and controlled by the same facts.
    2. Municipal Court&emdash;power to allow amendment. The Municipal Court is authorized during the trial of a cause to permit the form of the action to be changed.
    3. Municipal Court&emdash;of what will take judicial notice. The Municipal Court, as the custodian of the records of a justice of the peace, will take judicial notice thereof.
    4. Parties&emdash;when assignment does not bar right to sue. A party who has assigned merchandise but who has not thereby totally divested himself of all interest in such merchandise may sue for the negligent keeping thereof.
    5. Common carriers&emdash;extent of obligations as warehousemen. The obligation of a common carrier as a warehouseman is to exercise reasonable care.
    6. Common carriers&emdash;extent of liability for deterioration of merchandise. A carrier is only liable for that deterioration resulting from the failure to perform its obligations. Deterioration resulting from natural causes should not he charged against him.
    Tort. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 23, 1909.
    Statement by the Court. On May 24, 1903, the plaintiff shipped a carload of eggs from Peabody, Kansas, to Chicago. By the bill of lading the eggs were consigned to plaintiff, with instructions to notify Lepman & Heggie upon arrival. On May 28, 1903, the car with its load of eggs arrived in Chicago, and upon notification of that fact to Lepman & Heggie they refused to take charge of or receive the eggs. The car on arrival was placed upon defendant’s' team track and there remained until June 15, 1903, when it was delivered upon the order of an attorney representing the First National Bank of Peabody, the assignee and holder of the bill of lading, to C. H. Weaver & Co. The carload of eggs was delivered upon the first presentation to defendant of the bill of lading, although the attorney endeavored to obtain possession, without a surrender of the bill of lading, at a date prior to delivery. Plaintiff claims that through the negligence of defendant the eggs deteriorated in value while in its custody, and on that claim recovered a judgment of $662, the difference between the value of the eggs in the good condition in which they were when shipped, and their alleged inferior condition at the time of delivery. The suit was in tort, and during the trial changed to contract and an amended statement filed. Defendant offered as evidence the statutes of Kansas limiting the bringing of actions, which, on written contracts, such as a bill of lading, is five years. These statutes the trial court by its ruling excluded. By a transcript of proceedings had before one Max Wolf, at the time of such proceedings a justice of the peace for Cook county, defendant sought to show that it was a garnishee in a certain attachment suit instituted by Lepman & Heggie. This was refused, as also certain testimony that the bill of lading for the eggs was assigned by plaintiff to the First National Bank of Peabody, and that thereby plaintiff had divested himself of all interest in the eggs and the right of action regarding them.
    Defendant assigns the various adverse rulings of the trial court above referred to as error, and argues that they are of such a prejudicial character to its interests as to constitute cause for a reversal of the Municipal Court’s judgment.
    Egbert Dunlap, Lee F. English and James L. Coleman, for plaintiff in error.
    Charles A. Butler, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

There is no reason for concluding that the carload of eggs did not arrive in Chicago in good condition, or that the carrier as such had not discharged its duty in carrying the eggs safely to the point of destination. As a matter of fact plaintiff grounds his right of recovery on the negligence of defendant in not properly caring for the eggs between the time of their arrival in' Chicago and their delivery to the representative of the Bank, claiming that the duty which the law imposed upon defendant was that not of a carrier, but a warehouseman. Before further discussing and disposing of this, the controlling principle in the case, we will clear up the subsidiary questions raised.

The change in the form of action from tort to contract during the trial was not the statement of a new cause of action. It remained after the amendment the same claim, governed and controlled by the same facts. A recovery could be sustained in either form of action. Section 23 of the Municipal Court Act confers power upon the court to permit of amendments as broad as the one complained about by defendant. The exclusion of the statutes of Kansas, on the limitation of actions, such statutes having no relevancy after the ruling of the trial court permitting the change of the claim from tort to contract, was without error. While the transcript of the proceeding before former justice of the peace Wolf was not evidence, still if such proceedings .were relevant, the court, being the custodian of the papers and records of justice of the peace Wolf, could take judicial notice of such proceedings and receive the same in evidence when proffered as such.

Notwithstanding the assignment by plaintiff of the bill of lading to the Peabody Bank, he was not so divested of all interest in the eggs as to be debarred from maintaining an action for damages to them, chargeable to the negligence of defendant; There is, however, evidence in the record tending to sustain the claim that the $1,550 advanced by the Bank on such assignment was afterwards charged to the account of plaintiff, which, as between the parties, operated to reinvest plaintiff with that title to the eggs with which he parted by the assignment of the bill of lading and receipt from the Bank of the above sum of money. This is not seriously controverted by defendant. Section 197, Hutchinson on Carriers, Vol. 1. An assignment of a bill of lading for advances made upon the freight shipped vests in the assignee a special property in such freight, which ceases upon payment of such advance. So long as the shipper, retains any interest in the shipment his right to maintain an action for damages against the common carrier for its negligence in not delivering the goods carried in proper condition at the place of destination is preserved. It is held in Edgerton v. C. R. I. & P. Ry., 240 Ill. 311, that a consignor has .such special property in the goods shipped as entitles him to maintain an action of . tort or assumpsit against the carrier, either as carrier or warehousemán, to recover damages in respect to the goods carried. G. W. R. R. Co. v. McComas, 33 Ill. 186.

As this case must be remanded for a new trial we refrain from expressing our opinion upon the merits of the case or the ultimate right of plaintiff to recover. However, we judge from the evidence in the record that plaintiff’s right to prevail rests upon the liability of defendant as a warehouseman. Indeed the court in its instructions to the jury proceeded upon such theory. When the eggs arrived at Chicago the duty of defendant, pending their delivery, was to take reasonable care for their protection. The court say in I. C. R. R. Co. v. Carter, 165 Ill. 570: “It is well settled that the duty of a railroad company as a common carrier terminates when it has carried the goods to their destination and there placed them in its own safe depot or other warehouse.” Gregg v. I. C. R. R. Co., 147 Ill. 550, and Gratiot v. Railroad Co., 221 ibid., 425, are authority for the doctrine that the carrier’s responsibility as such ceases on the arrival of goods at destination, and that of a warehouseman attaches to the carrier until the safe delivery of such goods; and the question of negligence is one.for the jury to determine under instructions accurately stating the law applicable thereto under the proofs. We are of the opinion that the instructions as a whole were calculated to mislead the jury. Some of them proceed upon the liability of defendant as a common carrier, and others as a warehouseman. Instruction 19 stated the law governing defendant’s liability accurately, and it was prejudicial and reversible error to refuse to give it to the jury. The instruction reads:

“The jury are instructed that the liability of a railway company, as a common carrier, terminates after a shipment of goods entrusted to it for transportation has been carried to destination, and if said shipment consisting of a carload of goods has been placed in a reasonably convenient position for unloading by the consignee or by the owner of the goods; and if the jury find from the evidence in this case that the carload of eggs for damages to which the plaintiff sues had been carried safely by the defendant to Chicago, Illinois, and had been there placed on its tracks in a reasonably convenient position for unloading by the consignee, then the defendant thereupon became a warehouseman of said goods, and was bound thereafter to exercise only ordinary care • in the custody thereof. The jury are instructed that ordinary care is such a degree of care as is usually exercised in and about their affairs by men of common prudence and caution in the age and country in which they live; in other words, ordinary care is such care as a prudent man takes of his own things.”

On another trial this instruction, if requested, must be given.

As to the measure of damages, the jury literally followed instruction No. 1 of the court, stating erroneously the measure of damages by allowing as damages the difference between the value of the eggs at the time of delivery to defendant for carriage and their final delivery at Chicago, to the attorney who presented the bill of lading. The jury evidently assumed that every egg of this shipment would have been in the identical condition when delivered as when shipped but for the negligence of defendant, and imputed to defendant negligence from delay in delivery after arrival, and on this assumption assessed damages. No allowance was made for natural deterioration inherent in goods of the fragile and perishable character of eggs, transported a long distance by rail and detained a number of days by the carrier without its fault. This result was necessarily brought about because the jury was not directed by any instruction given to take into consideration, in assessing damages, loss in value, if any, resulting from natural causes in transit or to delays in delivery not caused by or imputable to defendant. Defendant by the verdict of the jury was made to bear whatever loss may have resulted to the eggs in transit arising naturally from their perishable nature, and delays in delivery of plaintiff’s creation. Such is not the fair measure of damages sanctioned by the law.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Frank Simpson Fruit Company, Defendant in Error, v. The Atchison, Topeka & Santa Fe Railway Company, Plaintiff in Error.
    Gen. No. 14,828.
    Corporations—when foreign cannot maintain action in this state. A foreign corporation not having complied with the provisions of this state regarding foreign corporations doing business in this state cannot maintain an action in this state against another foreign corporation with respect to a transaction which arose outside of this state, although such action is transitory in character—the act of commencing such an action in this state is “doing business in this state” within the meaning of the statute.
    Baker, J., dissenting.
    Tort. Error to the Municipal Court of Chicago; the Hon. Thomas R. Lantry, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed December 23, 1909.
    Robert Dunlap, Lee F. English and James L. Coleman, for plaintiff in error.
    Charles A. Butler, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The parties to this suit are artificial persons, created by the laws of the States of California and Kansas. The plaintiff exists in virtue of the corporation laws of California, and the defendant in virtue of like laws of the State of Kansas. It stands admitted by the record that the plaintiff did not comply with the provisions of chapter 32, R. S., entitled, “An Act to regulate the admission of foreign corporations for profit to do business in the State of Illinois.” Plaintiff seeks by this suit to recover damages from defendant for its negligence in carrying a car of bananas from New Orleans, Louisiana, to Los Angeles, California.

In view of our conclusion that the Municipal Court was without jurisdiction to entertain or determine the cause, we do not regard as necessary a consideration of the merits of this controversy.

Section 1 of the Act, supra, provides, “That before any foreign corporation for profit shall be permitted or allowed to transact any business, or exercise any of its corporate powers in the State of Illinois * * * they shall be required to comply with the provisions of this act, and shall be subject to all of the regulations prescribed herein * # and the penal clause of said Act provides inter alia, after reciting the character of the penalty to be inflicted for non-conformity, “and in addition to such penalty, if after this Act shall take effect any foreign corporation shall fail to comply herewith, no suit may be maintained either at law or in equity, upon any claim, legal or equitable, whether arising out of contract or tort, in any court in this state.” This action is tort, and the Act supra became operative July 1, 1905. So far as we have been able to discover our Supreme Court has not to this time passed upon the scope of, or given judicial interpretation to, those parts of the Act supra above quoted.

It is axiomatic that every act of a corporation must find for its support some power in the grant creating it, or arise from power inferable from such grant and necessary to carry forward the object of its creation. So it seems clear to us that the commencement of an action in a legal tribunal of this state is the exercise of a corporate power in this state, and such action being at the instance of a foreign corporation, which has not qualified to do business in this state by complying with the terms of the Act supra, it subjects itself to the prohibition found in the Act and is debarred from maintaining such action in this jurisdiction. Plaintiff lacking the right to institute a suit, when it does so in violation of a prohibitory statute, the tribunal whose jurisdiction is invoked is without power to grant relief or take cognizance of such suit, or render the judgment sought. If, however, section 1 supra standing alone is not subject to this construction, any doubt which might exist is at once removed when section 6, which must, according to the prevailing canons of construction, he read and interpreted with section 1, is so read and considered. Section 6 clearly inhibits in plain terms the maintaining of any suit “arising out of contract or tort” by any foreign corporation failing to have complied with the terms of chapter 32 supra. Nor do we see any cogent reason why, in this case, we should go out of our way, or disregard by refinement of distinction, the plain intent and meaning of this salutary Act, to sustain the jurisdiction of the conrt and thereby thwart what to us seems to be its plainly intended beneficent purpose. We see no reason in this particular case, either in law or morals, why plaintiff should be permitted to trouble our courts with the settlement of its dispute with defendant. True, it is a transitory action, and the situs of the forum may be chosen by plaintiff unless it meets a preventive statute, such as chapter 32 supra. The cause and every step taken which led to the dispute disclosed by the record occurred in territory foreign to the State of Illinois, and in it no citizen of this state, natural or artificial, was concerned or interested. The courts of New York long since declined to intermeddle with disputes of non-residents arising in a sister state, and the legislature of New York in its wisdom passed an Act in terms in consonance with the decisions of its courts. While we do not intend to decide that the courts of this state are without jurisdiction to entertain the cause because the action arose in foreign territory, the actors in which are foreign corporations, we do hold that the non-compliance of plaintiff with chapter 32 supra constitutes an insuperable barrier to the Municipal Court’s taking jurisdiction of the cause.

The Municipal Court being without jurisdiction to entertain the action, its judgment is reversed and the cause is not remanded.

Reversed.

Mr- Justice Baker, dissenting,


text:
    Buyers Index Publishing Company, Plaintiff in Error, v. Scheidel Western X Ray Coil Co., Defendant in Error.
    Gen. No. 14,865.
    1. Measure of damages—in action upon contract for publication of advertisement. Where an advertisement is published in a magazine in accordance with the contract, and the magazine is duly issued and nothing more remains to be done on the part of the publisher, the measure of damages is the contract price.
    2. Municipal Court—-when final judgment rendered for plaintiff. A judgment for the defendant will be reversed and final judgment rendered in favor of the plaintiff if the action is one sounding in contract, which has been tried by the court without a jury and the evidence shows the plaintiff’s right of recovery.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Anthony J. Clanty, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and judgment here.
    Opinion filed December 23, 1909.
    Edward R. Hills, for plaintiff in error.
    A. D. Gash, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff published a monthly magazine, alternately in the English and Spanish languages, called the “Buyers Index.” Defendant, by a contract in writing with plaintiff, arranged to have inserted in the Spanish edition of the “Buyers Index” for one year an advertisement in Spanish, for which it was to pay $180 in quarterly installments. Defendant agreed to furnish the advertising matter, which plaintiff was to translate and return for approval. A cut and literary matter were furnished, the latter translated into Spanish, submitted to defendant and returned to plaintiff with defendant’s approval. In due course the advertisement as so made up was inserted and published in the “Buyers Index” Spanish edition for the months of December, 1906, and February, April, June, August and October, 1907. These six issues of the magazine were offered and received in evidence. Defendant refused to pay for the advertisement and based such refusal as its defense to this action on the ground that the contract was procured by the false and fraudulent representations of the agent of plaintiff when the contract was made, in faith of which the consent of defendant thereto was obtained. Among’ other conditions of the contract is one numbered 3, as follows: “It is clearly understood that the conditions above and herein set forth embody all agreements and understanding concerning the present contract as made or had with said Buyers Index Publishing Co., its agents or employees acting in its behalf, either written or verbal.” Plaintiff further agreed to furnish defendant names of dealers in X-Bay machines in South America. This it did. It appears that Maples, who procured the contract, represented to defendant that he, Maples, had formulated a plan for opening up business in 'South America and had an organization perfected for “going over” the trade of these southern countries; that such organization consisted of a man in his, Maples’, employ, who would call upon the trade there; that he had a stenographer who would circularize the trade, and that there was a “vast amount” of business there which defendant ought to get. Maples further represented that he had made an arrangement to represent the “Buyers Index” because he found that his expenses were “a little too high” in the southern organization for him to carry it out, and that he had arranged to take the representation of the “Buyers Index” in order to give him enough money to carry out his own plans for his southern organization; that if defendant would give him an advertisement for the “Buyers Index” he would take it as compensation for his representation in southern countries. Defendant’s witness also testified that Maples said that he did not think “ads” in periodicals so far from home would do any good, but that the “ads” were a means to an end; that the end was the getting of defendant’s goods introduced in southern countries; that these representations of Maples were the procuring cause of entering into the contract. After the contract was signed Maples failed to carry out any of his promises, and so defendant wrote plaintiff January 3, 1907, that “the understanding that your Mr. Maples and ourselves had in our office is not being carried out in anything like a satisfactory manner by him,” and asked that the contract be cancelled. Plaintiff declined to accede to this request and repudiated any liability not embraced within the contract between them. On June 18, 1907, defendant by letter returned to plaintiff a statement and a list of dealers in southern countries sent it by plaintiff, and added, “It is useless for you to send us anything further * * A trial before the court resulted in a judgment of nil capiat and for costs, which plaintiff seeks by this review to have reversed.

It is clear that as to the representations of the agent Maples, not embodied in the contract, plaintiff is not concerned. If they constituted a contract, it was between defendant and Maples, for any breach of which defendant must look to Maples for requitement. The representations of Maples as detailed by defendant’s witness Howe, and as shown by the correspondence in relation thereto, found in the record, clearly, we think, demonstrate that what Maples undertook to do for defendant was aside from, and had no connection with, the written contract entered into with plaintiff. The evidence of plaintiff sufficiently shows that it complied with every material condition of the contract obligatory upon it; that the advertisement was inserted in accord with the contract, with the approval of defendant ; that it was inserted in Spanish and published for one year following in the alternate months of that year in the “Spanish edition” of the “Buyers Index.” Every such paper was offered and received in evidence. If defendant did not receive a copy of each of the papers containing its advertisement, such failure resulted from its peremptory refusal to receive anything further from plaintiff. Plaintiff’s witness Morrison testified that he had compared the proof returned by defendant with the advertisement inserted in the “Buyers Index,” and that the two were identically the same. This evidence was erroneously stricken out on motion of counsel for defendant. Both the proof and advertisement were in the Spanish language, and Morrison in this testimony must be regarded as an expert, and it is familiar law that experts may testify to conclusions based on facts within their knowledge. At least, undisputed, it furnishes prima facie proof of the fact. The six numbers of the “Buyers Index” containing the advertisement of defendant were in evidence and subject to rebuttal by defendant if not in compliance with contract or in any way variant from the matter approved by it. In giving our judgment, the trial being by the court without a jury, this evidence must be treated as admitted and be weighed by this court as proof.

In cases of this nature, where an advertisement is published in a magazine in accord with the contract, and the magazine is duly issued and nothing more remains to be done on the part of the publisher, the measure of damages is the contract price. Haynes Co. v. Nye, 185 Mass. 507. As said in case supra: “There was evidence that the damage to the plaintiff would be the contract price, and this would have warranted the jury in assessing damages accordingly.” Defendant having failed to produce any proof tending to minimize the damages from the contract price, such contract price must be regarded as the measure of damages which should have been awarded plaintiff by the trial judge in the court below. The Municipal Court Act requires this court to give such judgment as in its opinion, from the record, the Municipal Court should have entered. It is our opinion that under the evidence and the law applicable thereto the finding of the issues by the Municipal Court should have been for plaintiff, and its damages should have been assessed to the amount agreed to be paid in the contract.

The judgment of the Municipal Court is reversed and- a judgment will be entered here in favor of plaintiff and against defendant in the sum of $180.

Reversed and judgment entered here for plaintiff.


author: Mr. Justice Baker

text:
    Katherine Jefferson, Plaintiff in Error, v. The Supreme Tent of the Knights of the Maccabees of the World, Defendant in Error.
    Gen. No. 14,787.
    1. Insurance—when false answers in application constitute defense. Where the benefits to he derived are conditioned upon truthful answers made in the application, proof of the falsity of such answers constitutes a full defense.
    2. Insurance—what competent upon question of untruthfulness of answers as to condition of sanity. JSeld, competent to show the judgment of a court finding the ‘ applicant insane, contrary to his answers in his application; likewise, held, competent to establish such insanity by the opinions of physicians who saw such applicant during his confinement as an insane patient.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 23, 1909.
    George M. Boyd, for plaintiff in error.
    Mann & Miller and Gale Blocki, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on a benefit certificate issued by defendant, payable to plaintiff on the death of her husband, Jay Jefferson, there was a judgment for the defendant, to reverse which plaintiff prosecutes this writ of error. January 31, 1900, Jay Jefferson made application for membership in the defendant order. He was admitted to membership and a benefit certificate issued to Ms mother, which was surrendered after his marriage to plaintiff and the certificate sued on issued in its stead. The assured died April 16, 1907. TMs certificate, dated September 12, 1901, recites that Jay Jefferson had been admitted to membership in a certain tent of the defendant order, and states that under the provisions of the laws of the Supreme Tent of the order at Ms death an assessment on the membersMp, not exceeding in amount $1,000, will be paid to plaintiff, his wife, on proof of death and surrender of the certificate, “provided he shall have in every way complied with the laws of said Supreme Tent, now in force or that may hereafter be adopted, and he has not untruthfully answered any questions in his application for membership, or made untruthful statements therein, as shown by said application, which is hereby made a part of this certificate.” In his application the assured was asked and answered certain questions and warranted and agreed that said answers were true in every particular. Then follows as a part of said application the following agreement:

“I hereby agree that the above are true answers to the foregoing, and that these statements, together with those made to the examining physician in this application and the laws of the Supreme Tent of the Knights of the Maccabees of the World, now in force or that may hereafter be adopted, together with my certificate of membership, shall form the basis of this contract for beneficial membership; that any untrue answers, any suppression of facts * * s shall vitiate my benefit certificate and forfeit all payments made thereon. # * ° This application and the laws of the Supreme Tent now in force or that may hereafter be adopted, together with my certificate of membership are made the contract between myself and the said Supreme Tent, and I for myself and my beneficiary agree to conform to and be governed thereby.” The contract between the defendant and the assured made an assessment on the membership payable to the plaintiff on the express condition that the assured “has not untruthfully answered any questions in the application for membership, or made untruthful statements therein,” and provides that any untrue answer shall vitiate the benefit certificate. If the assured untruthfully answered a question in his application for membership, such untruthful answer, by the terms of the contract between defendant and the assured, constituted a good defense to this action on the benefit certificate. It will be necessary, therefore, for us only to consider the question whether the trial court erred in admitting evidence offered by defendant to prove that the answer of the assured to the question whether he had ever had insanity was untruthful, and the question whether from the evidence the court might properly find that such answer was untruthful.

Defendant offered in evidence a certified transcript of a proceeding in the County Court of Cook county on March 4,1892, showing that on that day Jay Jefferson came, in the custody of the sheriff, and also came C. 0. Williamson, county agent, at whose instance he was arrested; that a jury was impaneled and sworn, evidence heard, and a verdict rendered finding that said Jay Jefferson was insane, on which verdict there was a judgment that he was insane, and an order that he be committed to the Northern Hospital for the Insane at Elgin, and also a similar transcript of a proceeding in said court April 6, 1896, which contains a similar verdict, judgment and order. We think the court did not err in admitting such transcripts in evidence.

Under the first judgment the assured was committed to said hospital and there remained until December 25, 1892, when he was discharged. He returned to the hospital August 31, 1894, voluntarily, was admitted as a patient, and there remained until June 1, 1895. He was again admitted as a patient April 7, 1896, under the judgment of April 6, 1896, and there remained until November 13,1897.

Defendant offered in evidence the depositions of three persons—not physicians-—connected with said hospital, each of whom testified to the conduct and conversations of Jefferson while in said hospital, and expressed the opinion, based on such conduct and conversations, that he was insane. The court did not err in admitting the testimony of said witnesses. Keithley v. Stafford, 126 Ill. 507.

It clearly appears from the evidence that the assured had been insane before he applied for membership in the defendant order, and that his answer in the application to the question whether he had ever had insanity was untruthful. Under the express provisions of the certificate sued on, such untruthful answer constituted a good defense to the suit. The statement in the application that the assured had never had insanity was a material representation and, being false, avoided the certificate. Metropolitan Life Ins. Co. v. Moravec, 214 Ill. 186.

It follows from what has been said that, in our opinion, the judgment is right, and it is affirmed.

Affirmed.


text:
    Albert E. Samuels, Defendant in Error, v. The Life Association of America, Plaintiff in Error.
    Gen. No. 14,796.
    1. Municipal Court—what equivalent to stenographic report. A bill of exceptions purporting to show the proceedings upon the trial will be accepted in lieu of the “stenographic report” provided for by the Municipal Court Act. Held, likewise, that the bill of exceptions in question in this case sufficiently showed all of the proceedings sought to be reviewed.
    2. Contracts—when false representations do not justify rescission. False representations as to matters future and false representations as to matters not relied upon do not justify rescission.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed December 23, 1909.
    Rehearing denied January 10, 1910.
    Samuel A. Harper, for plaintiff in error.

      Benjamin C. Bacheach and Aethue C. Bacheach, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Defendant in error brought an action of the fourth class in the Municipal Court against plaintiff in error and Ernst, its agent, to recover $733.18 paid by him to plaintiff in error as and for the first premium on a policy of insurance for $20,000 on his life, on the ground that he was induced to apply for and accept said policy through the false and fraudulent representations of defendants, and that on discovering that he had been defrauded he rescinded the contract.

The instrument incorporated into the transcript and designated in the certificate of the trial judge, a “bill of exceptions,” purports to set out the proceedings “on the hearing” of said cause before the court, without a jury. It states that “the plaintiff introduced the following evidence,” and then sets out questions of counsel and answers of the witnesses, and concludes with the statement of plaintiff’s counsel: “We rest.” It then sets out the testimony for the defendants and concludes with the statement of defendant’s counsel: “That is all.” It then states that the plaintiff was recalled and gave the testimony therein set forth, and that at the close of his examination plaintiff’s counsel again said, “We rest.” We think that the statements in the instrument are equivalent to an express statement that it contains all the evidence heard in the cause and the proceedings on the trial. Mullin v. Johnson, 98 Ill. App. 621, and cases there cited. The instrument must be regarded as the substantial equivalent of the “stenographic report of the evidence and proceedings on the trial” mentioned in the sixth clause of section 23 of the Municipal Court Act, and the motion of defendant in error to strike the same from the transcript will be denied.

The plaintiff, in Chicago, made an application in writing to the defendant, The Life Association of America, in New York City, for a policy of insurance on his life for $20,000. The application contained the following: “I hereby agree that all representations and agreements made by or with the Association, or the agent taking this application, are reduced to writing herein and made a part of this application and the policy issued hereunder. ’ ’ By the application plaintiff applied for a certain kind of policy, “with premiums of $1,047.40, $733.18 payable annually in advance.” The application was forwarded by the agent who took the same to the Association in New York* was accepted and a policy issued and sent to the agent in Chicago. The agent tendered the policy to the plaintiff, who requested that the agent leave the policy with him a few days, so that he could have some one look it over to see if it was all right. The provision of the policy as to premiums is as follows: “In consideration of the annual premium of one thousand forty-seven and 40/100 dollars, and of the payment of a like amount upon each twenty-first day of February hereafter until the death of the Insured.” On the back of the policy are the following endorsements:

“Annual premium $1,047.40,

Due Feby. 21st.

Net annual premium $733.18,”

After plaintiff’s attorneys had examined the policy, plaintiff accepted it and gave his check for $733.18, payable to the order of said Association, and the Association delivered to him a receipt for the same. The application further states that it was agreed between the agent and plaintiff that plaintiff might purchase twenty shares of stock at $40 per share. On the payment of said premium the Association sent plaintiff an instrument in writing, signed by its president, giving plaintiff the option to purchase twenty shares of the capital stock of the Association at $40 per share, at the expiration of three years from the date thereof, provided said policy should then be in force and the premium thereon paid for the ensuing year. About January 18,1908, plaintiff received notice that the second premium of $1,047.40 would be due February 21. January 25 the president of defendant wrote plaintiff in answer to his letter that he had the right, at his option, to tajie a loan from the company of thirty per cent of the premium, amounting to $314.22, which sum with interest would be deducted from the policy at his death, or he might pay the entire premium of $1,047.40 in cash. This, the plaintiff testified, was the first notice or knowledge that he had that a loan had been made to him on his policy of thirty per cent of the first premium. February 17, 1908, plaintiff notified the defendant that he rescinded the contract and demanded the return of the first premium. March 5, 1908, this suit was brought.

The false representations relied on as giving the plaintiff the right to rescind the contract and recover the premium paid, are representations made by Ernst, the agent of the Association, in January, 1907. The only alleged false representations made by Ernst that we deem it material to .consider are the representations in reference to the amount of the premiums to be paid by the plaintiff to the Association.

We think that the jury might from the evidence properly find that Ernst represented to defendant that the profits on the shares of stock he was. given an option to purchase would, from the time he obtained his insurance, be laid away, and at the end of three years, on the payment of the fourth premium, he would get his stock free; that the Association gave all stockholders a reduction of thirty per cent on their premiums; that plaintiff’s insurance would cost $733.18 per year. The representations as to future dividends on the stock may be disregarded, because they relate to the future. In substance the representations of Ernst may be regarded as a representation that plaintiff, because of his option to buy said stock, became entitled to be regarded as a stockholder; that stockholders were given a reduction of thirty per cent on their premiums, and that therefore plaintiff’s policy for $20,000 would cost him $733.18 instead of $1,047.40. In fact no such reduction was made to stockholders, and no such reduction could lawfully be made.

Plaintiff expressly agreed in his application that all representations made by the agent taking his application were reduced to writing and made a part of the application and of the policy, and the application contains no reference to any discount or reduction from the premiums to stockholders. The application states that plaintiff desired a policy for $20,000, “with annual premiums of $1,047.40, $733.18 payable annually in advance.” The policy states that it is issued “in consideration of the annual premium of $1,047.40 and the payment of a like amount each year.” The policy was submitted to the plaintiff for examination and was examined by plaintiff’s attorneys before it was accepted by plaintiff and the first premium paid. A copy of the application was attached to the policy. There is no evidence tending to show that the plaintiff was misled or deceived as to the contents of either the application or the policy.

In the opinion of the majority of the court, not including the writer of this opinion, the representation of Ernst that plaintiff’s insurance would cost him $733.18 per year, though false, when considered in connection with the other evidence cannot be held to give plaintiff the right to rescind the contract and recover the premium paid. The judgment of the Municipal Court will therefore be reversed.

Reversed.


text:
    Sadie M. Cooney, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 14,806.

      Vebdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not he set aside on review.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 23, 1909.
    Charles J. Gould and Ferdinand Goss, for plaintiff in error; John R. Harrington, of counsel.
    W. A. Morrow, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings before us for review the record of a judgment for $550 recovered by plaintiff in an action for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant. Defendant operated in State street, south of Madison, a double track cable street railroad. The northbound cars ran on the east track to Madison street, around a curve to the east into Madison, around a loop into State street several blocks north of Madison, and then south in the west track in State street across Madison street. The curved track leading from State street into Madison street left the northbound track in State street a few feet south of the south line of Madison street. From that point south the tracks were four feet and nine inches apart. From that point north the distance between the track leading into Madison street and the west or southbound track in State street increased rapidly, as the former curved sharply to the east and the latter slightly to the west.' In passing around the curve the rear end of a car was thrown out to the west two or three feet farther from the rail than it was when on a straight track.

Plaintiff, just before she was injured, started to go east across State street from the southwest corner of State and Madison. When she came near to the east track a train was approaching from the south in that track, and she stopped to let the train pass in front of her. As she stood waiting for that train to pass, a train came from the north in the west track. She stood so near to the east track that as the train went around the curve the rear end of one of the cars struck her and threw her against one of the cars of the southbound train and injured her. She testified that when she started to cross the street she saw the train coming from the south and also the train coming from the north; that the latter was then some distance north of Madison street; that she thought she could cross in front of both trains, but when she came near to the east track saw that the gripcar was only a few feet south of her, and decided to wait for that train to pass in front of her. There was evidence on the part of the defendant tending to show that when plaintiff crossed the southbound track she passed only a few feet from and in front of the gripcar of the southbound train. We cannot say that from the evidence the jury might not properly find that plaintiff, in attempting to cross the street at the time and under the circumstances shown by the evidence, was in the exercise of reasonable care for her own safety.

It is not claimed that defendant was guilty of negligence in respect to the operation of the northbound train. Plaintiff’s position as she stood near the curved northbound track and between that track and the southbound track, with a train going around the curve on one track and a train approaching from the north on the other, was one of peril. The distance between the tracks at the point where she stood was between five and six feet. Possibly there was a point between the tracks where she might have stood and not been struck by a car of either train. Clearly she might have gone to the north and avoided danger of injury from either train. But she testified that there were teams passing both east and west in Madison street and teams passing in State street; that she became bewildered, looked for a way to escape, saw none and so stood still. Placed as she was in a position of danger, the exercise of reasonable care for her own safety did not require her to act with the same deliberation, coolness, foresight and good judgment which the exercise of such care would demand and require of her under ordinary circumstances. We cannot say that the jury might not from the evidence properly find that plaintiff was in the exercise of reasonable care for her own safety from the time she stopped to let the northbound train pass in front of her, until she was struck and injured.

That plaintiff, in the place where she stood between the tracks was in a dangerous position, is shown by the fact that she was there struck by the rear end of a car in the northbound train and thrown against a car of the southbound train and injured. Plaintiff was on a public street at the usual place of crossing said street. She could not go forward because a train was passing in front of her on the east track, and under the circumstances stated defendánt ran its southbound car behind her and near to her. We think that under the evidence in the case the question whether the grip-man, after he discovered, or by the use of reasonable care would have discovered, that plaintiff was in a position where she was in danger of injury from his car if it was not stopped, used reasonable care to stop his car, the question whether, if he had used reasonable care, he could have stopped the car before it came near to the plaintiff, and the question whether the defendant was guilty of negligence which directly caused or contributed to plaintiff’s injury, were all questions on which the verdict of the jury must be held conclusive against the defendant.

The judgment will be affirmed.

Affirmed.


text:
    William Rochells, Plaintiff in Error, v. Albert J. Brockman, Defendant in Error.
    Gen. No. 14,815.

      Contracts—when earnest money may he recovered. If a person agrees to purchase real estate, and deposits money to bind the bargain, he may recover such earnest money in the event of the seller being unable to convey to him such a title as he had agreed to convey.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Ajdblob J. Petit, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed December 23, 1909.
    Statement by the Court. In an action brought by plaintiff in error against defendant in error to recover $100 deposited by plaintiff with defendant, there was a judgment for the defendant, to reverse which the plaintiff prosecutes this writ of error. The trustees of a certain church entered into a contract in writing with plaintiff, by which they agreed to sell and convey to him, and he agreed to buy, at a certain price, lots 3 and 4 in block 2 in Wrightwood, a subdivision, etc. Defendant agreed to pay the purchase price on a certain day, provided “a good and sufficient general warranty deed conveying to the purchaser a good title to said premises * * * shall then be ready for delivery. ’ ’ The contract recited the payment of $100 earnest money by the plaintiff, and contained the following provision: “A complete merchantable abstract of title, or a merchantable copy, brought down to date, to be furnished within a reasonable time. In case the title upon examination is found materially defective, within ten days after said abstract is furnished, then, unless the material defects be cured within sixty days after written notice thereof, the said earnest money shall be refunded and this contract is to become inoperative. * * * This contract and the said earnest money shall be held by Albert J. Brockman for the mutual benefit of the parties thereto,” Plaintiff paid the $100 earnest money to the defendant, who gave him a receipt therefor containing the following provision: “Said earnest money to be returned to Mr. Rochells in case the title is defective.” The abstract was delivered by defendant to plaintiff, and the title, in the opinion of plaintiff’s attorney, was defective. The trustees of the church failed to cure the defects pointed out in the title, and plaintiff brought this action.
    Isidore Lasker and Oliver R. Barrett, for plaintiff in error.
    Spencer Ward, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The only question presented for our consideration is the question whether the evidence shows that the trustees had good title to said lots free from encumbrance. If they had not, then plaintiff was entitled to judgment for the earnest money deposited by him with the defendant. If they had such title, then the plaintiff, without just cause or excuse, failed to perform the contract and, by its terms, forfeited the earnest money. Said block 2 is a part of out lot E in Wrightwood. A plat of the subdivision of said out lot E was acknowledged, approved and filed for record September 17, 1879, and said lots 3 and 4 are in the west half of said block 2. The plat shows a “building line” thirty feet east from the east line of Halsted street, which is the west line of said block 2. The deed of conveyance of said lots from William Fuchs to the trustees of said church, dated June 29, 1901, contains the following provision: “Subject to this condition hereby annexed to this grant ordered, viz.: That a space of thirty feet in depth along the west line of said lots 3 and 4 and fronting on Halsted street, so called, shall never be built upon or in any manner obstructed or encumbered by buildings of any description, but shall be forever left and reserved as an open area or space in accordanee with the lines shown upon the maps and plats of the subdivision of said southwest quarter of section 28, and of the re-subdivision of said out lot <E’.” Said out lot E was subdivided by Frederic Deming, who conveyed said lots 3 and 4 to Julia 0. Sherman October 22, 1879. She conveyed said lots to Julius Hannes October 8, 1886, and he conveyed them to William Fuchs November 23,1888. Each of said deeds of said lots contains a provision similar to the provision in the deed from Fuchs to the trustees. Defendant introduced evidence showing that block 2 was 875 feet long from north to south; that lots in the west half of said block of the aggregate width of 300 feet had been built on up to the west line of the lots; lots of the aggregate width of 200 feet had been built on only to the “building line,” and that lots of the aggregate width of 375 feet were vacant.

The trustees of the church in purchasing said lots 3 and 4 did not acquire absolute and unqualified dominion over them. On the contrary it was a part of the title which they accepted that they should be limited and restricted in the use of the lots in an important particular. Such restriction constitutes an encumbrance on the land.

We are of the opinion that the abstract and the evidence as to the occupation of the west half of said block 2 at the time of the trial, do not show that the trustees of the church had a good, merchantable title to said lots, or one that the plaintiff was, under his contract, bound to accept. The plaintiff, in our opinion, was, under the evidence in this record, entitled to a judgment for the earnest money against the defendant.

The judgment of the Municipal Court will be reversed and judgment will be entered here in favor of the plaintiff in error and against defendant in error for $100 and for his costs in this court and in the Municipal Court.

Reversed with judgment here.