text:
    Maude Huddleston, Appellee, v. Margaret Henderson, Administratrix, et al., Appellants.
    1. Administration of estates—administrator as trustee of funds. An administrator holds the title to the property of an estate in the right of the heirs, and occupies a fiduciary relation to the heirs of the estate.
    2. Contracts—where there is a fiduciary relation. Transactions between a party and one bearing a fiduciary relation to him are prima facie voidable, and the burden of proof, the fiduciary relation being established, is upon the one receiving the benefit to show an absence of undue influence.
    3. Beiea.se—by cestui que trust. A release by a cestui que trust
      is not binding unless he is first made fully acquainted with his rights and the nature and full extent of the liability of the trustee.
    4. Release—when obtained by fraud. Any concealment, misrepresentation or other fraudulent conduct on the part of the trustee will vitiate a release obtained from the cestui gue trust, and the burden of proof is on the trustee to vindicate the transaction.
    5. Fraud—where evidence is sufficient to sustain allegations of. In a bill to set aside a release on the ground that it was obtained by fraud, where defendant, administratrix of the estate of her deceased illegitimate son, settled an a'ction to recover damages for his death and with her attorney induced complainant, an illegitimate .daughter, to sign a release representing it to be a will; there is sufficient evidence to sustain the allegations of fraud.
    6. Death—who entitled to damages. In a suit at law by an administrator on behalf of collateral relatives to recover damages for death, there can be no recovery unléss it is proved that the collateral relatives received pecuniary assistance.
    7. Descent—where sister of illegitimate birth is entitled to half the estate of her brother. Under R. S. e. 39, § 2, where an administratrix of the estate of her deceased illegitimate son, who left no descendant recovers damages for his death, complainant, an illegitimate daughter, who is the only surviving descendant of the mother of deceased, is entitled to -one-half of the money after probate costs are paid, and it is not necessary to prove that she received pecuniary assistance or was dependent on the deceased.
    8. Equity—jurisdiction to settle estates. Where a court of equity has acquired jurisdiction for the purpose of setting aside a release obtained by an administratrix from an heir by fraud, it may in the interest of justice and to avoid a multiplicity of suits, assume full jurisdiction of the estate and retain jurisdiction until complete justice is done between the parties in respect to the subject-matter of the litigation.
    9. Equity—when prayer for general relief is sufficient to sustain decree. On a bill to set aside a release obtained by an administratrix from an heir by fraud, a prayer for general relief is sufficient to sustain, a decree ordering that half the money remaining after payment of costs be paid to complainant.
    10. Administration of estates—when administratrix is not entitled to commissions. On a bill to set aside a release on the ground that i; was obtained by fraud, where defendant, administratrix of her deceased illegitimate son, settled an a'ction to recover damages for his death and with her attorney induced complainant, an illegitimate daughter, to sign a release obtained by an administratrix from an heir by fraud and to defendant having had the use of the money is not entitled to commissions.
    11. Administration of estates—when administrator is not entitled to compensation. An administrator who has been guilty of wilful default or misconduct in the administration of the estate may be refused compensation,

      12. Injunctions—where decree is erroneous. On a 'bill to set aside a release, giving her a cheek and representing the release to be a will, restrain defendants from conveying certain real estate or paying out money a portion of the decree which continues the injunction “until the further order of the court" is erroneous.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed in part, reversed in part, and remanded with directions.
    Opinion filed May 19, 1913.
    Statement by the Court. This is a bill in equity filed May 6, 1912, by Maude Huddleston against Margaret Henderson, administratrix of the estate of George Eyan, deceased, Margaret Henderson and the Farmers’ National Bank of Springfield, in the circuit court of Sangamon county, to cancel and set aside a certain release and to restrain the defendant, Margaret Henderson, from conveying certain real estate and the Farmers’ National Bank from paying out certain moneys on the check of Margaret Henderson, administratrix, or Margaret Henderson.
    The bill alleges that on March 10, 1910, Margaret Henderson, was appointed administratrix of the estate of George Eyan, deceased, by the probate court of Sangamon county and as such administratrix gave bond in the sum of $200 with T. J. Condon as surety; that complainant is a daughter of said Margaret Henderson and a sister of George Eyan, deceased; that on April 21, 1910, said administratrix instituted suit in the circuit court of Sangamon county against the Chicago and Alton Eailroad Company to recover damages for the death of said Eyan, alleged to have been caused by the negligence of said Eailroad Company; that on May 7, 1911, the said suit was settled by the Eailroad Company paying the administratrix the sum of $2,900 and that no settlement of the estate has yet been made. °
    The bill further alleges, on information and belief, that complainant has signed a certain release of her claim as one of the heirs of said Eyan, deceased, and states the facts to be that on August 11, 1911, Mrs. Henderson and her attorney, T. J. Condon, came to the residence of Mrs. Crabbe, where complainant was working, and that Condon there wrote in complainant’s presence a paper and read it to her as the will of Mrs. Henderson and asked complainant to sign the same, and pointed to where complainant was to sign and she did sign the same believing it to be the will of Mrs. Henderson; that Mrs. Henderson and her attorney now claim the paper signed is a release and discharge of Mrs. Henderson both as administratrix and personally from liability to complainant on account of any money or property received by her as administratrix.
    It is alleged that complainant relied on the reading of said instrument by said Condon to be the will of Mrs. Henderson, and if she signed any other instrument than the will of Mrs. Henderson then her signature was procured through fraud, misrepresentation and circumvention; that Condon now claims to have said paper signed by complainant and claims the same to be a release, but neither complainant nor her attorney have been able to ascertain what it is although her attorney had requested of Condon that the same be shown to him, but Condon claims the same is a release and discharge of Mrs. Henderson as administratrix.
    It is alleged that Mrs. Henderson has used $1,375 of the $2,900 so received by her, in the purchase of a certain lot and has deposited other of the money so received by her in the Farmers’ National Bank. The bill prays for an injunction restraining the alienation of said lot and the paying out any money now on deposit in said bank on the check of Margaret Henderson or Margaret Henderson, administratrix, and for the cancellation of said release, and for such other and further relief as to said court shall seem meet. The bill is verified and does not waive the oath to the answer. A temporary injunction was issued as prayed.
    The answer of Margaret Henderson, administratrix, and individually, admits the relationship as alleged; the death of Ryan, the appointment of defendant as administratrix; states the making of a contract with certain attorneys to bring suit against the Railroad Company on a contingent fee; that said suit was brought by her as administratrix and that she individually was the next of kin and the only person entitled to the money in the suit; that said suit was compromised for $2,900 and she received. $2,100 after paying her attorneys their fees and disbursements; admits the estate is unsettled; admits complainant signed a release, but denies that it was obtained through fraud or circumvention. The answer states that this defendant is a married woman, having been married December 24, 1903; that in her early years-, about thirty years ago, she was indiscreet and gave birth to George Ryan without having been married; that her husband knew this fact, and it provoked him; that four or five years after the birth of Ryan she gave birth to complainant, who was also born out of the marriage state, but the fact that complainant was an illegitimate child was unknown to her husband and she feared, if he should hear of that fact, he would leave her; that in August, 1911, complainant came to defendant and stated she had heard there was some insurance money with defendant for her; that defendant stated there was no insurance money and that the only money she had received was through a law suit against the railroad and that her lawyer had informed her that complainant had no interest in that money, and requested that she go with her to defendant’s lawyer; that the next day defendant received a letter from C. C. Bier-man, a lawyer, requesting her to call at his office; that defendant went to Bierman’s office and told him how much money she had received and what she had done with it, and that he told her complainant was entitled to $750 of it; that defendant then went to Condon’s office and told him she feared her husband might learn of the birth of this daughter and leave her, and she wanted the matter settled; that thereafter there was a .meeting at Condon’s offipe between Bierman and Con-don which was unpleasant; that Condon told her to tell her husband the truth, but she feared to do so and could not; that she and Condon then went to complainant, and complainant told Condon that Bierman, her lawyer, had told her she was entitled to part of the money, and Condon replied there was a difference of opinion between lawyers on that question, that meanwhile her mother might suffer and asked her what she would take and release her mother and that she replied $200 and that he, Condon, wrote a release and she read it and signed it, and he gave her his check for that amount which she accepted; that after handing complainant the check defendant requested Condon to prepare a will for defendant, which was then and there done and the same was executed; that said check could have been cashed, but never has been and has not been returned to complainant. The answer admits the purchase of the lot as alleged and that she occupies the same with her husband; that she has on motion of complainant executed a bond for $4,200 which has been approved by the court and denies that complainant is entitled to any relief.
    The cause was referred to the master to take the evidence and report it with his conclusions. Exceptions were filed to the report of the master and a decree entered finding that the equities of the cause are with the complainant; that George Ryan and Maude Huddleston were illegitimate children of Margaret Henderson and said Maude Huddleston illegitimate and Margaret Henderson are Ryan’s only heirs at law and next of kin; that Ryan lost his life in an accident; that letters of administration on his estate were issued to Margaret Henderson on April 22, 1910; that she brought suit against the Chicago and Alton Eailroad Company under chapter 70 of the Eevised Statutes; that said suit was compromised May 7,1911, for $2,900, received by Margaret Henderson as administratrix and she has paid to the attorneys $800 for their fees and disbursements; and is now chargeable with $2,100 net as such administratrix; that said $2,100 under the statute is for the exclusive benefit of the next of kin; that Margaret Henderson, as administratrix and mother, sustained a fiduciary relation toward complainant and was bound to deal in the distribution of the trust estate in the utmost good faith- and this she has wholly failed to do; that in taking out letters and bringing suit she withheld the fact from the court that complainant was her daughter and a sister of deceased; that the complainant executed a release and that it was obtained by fraud and circumvention and should be set aside and canceled; that complainant and Margaret Henderson áre each entitled to one-half of said $2,100, now held by Margaret Henderson as administratrix, after the costs of the probate court are paid; that Margaret Henderson has invested part of said money so received in a certain lot describing it and she now holds title to the same.
    The court decrees that said release be canceled; that the injunction be continued until the further order of the court; and that distribution of said $2,100 be made according to the statute; and that one-half of said $2,100 after the costs of the probate court are paid, be paid to complainant; and that Margaret Henderson pay the costs of this proceeding. Margaret Henderson appeals personally and as administratrix.
    Albert Salzenstein, for appellants.
    C. C. Bierman, for appellee; E. S. Smith, of counsel.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The errors urged are (1) that the bill not waiving the oath to the answer the proof is not sufficient to sustain the fluffing that fraud and circumvention was used to procure the signature to the release, and (2) that complainant being a collateral heir has no interest in the money recovered without proof that the heir was dependent on the deceased in his life time and there can be no recovery for a sister of illegitimate birth who has not received pecuniary assistance and was not dependent on the deceased. It is also stated (3) that a court of equity will not take jurisdiction of the settlement of estates except in extraordinary cases, and that (4) the administratrix is entitled to commissions on the money in her hands.

As to the first contention, the bill alleges and the answer admits that Margaret Henderson, the administratrix, is the mother of Maude Huddleston and of George Ryan, the deceased. As administratrix, appellant was trustee of the funds of the estate for the parties entitled thereto and owed the utmost good faith to appellee. An administrator holds the title to the property of an estate in the right of the heirs, and occupiés a fiduciary relation to the heirs of the estate. Mayrand v. Mayrand, 194 Ill. 45; Woods v. Roberts, 185 Ill. 489; Mettler v. Warner, 249 Ill. 341, affirming 156 Ill. App. 31. “Transactions between a party and one bearing a fiduciary relation to him are upon his motion prima facie voidable upon grounds of public policy, and the burden of proof, the fiduciary relation being established, is upon the one receiving the benefit to show an absence of undue influence, by establishing the fact that the party acted upon competent and independent advice of another, or such other facts as will satisfy the court that the dealing was at arm’s length, or he must show that the transaction was had in the most perfect good faith on his part and was equitable and just between the parties, or, as some of the authorities say, that it was beneficial to the other party. ’ ’ Thomas v. Whitney, 186 Ill. 225; Woods v. Roberts, supra; Mayrand v. Mayrand, supra; Beach v. Wilton, 244 Ill. 413. “A release by a cestui que trust will not be binding unless he is first made fully acquainted with his rights, and the nature and full extent of the liabilities of the trustee. Any concealment, misrepresentation, or other fraudulent conduct, on the part of the trustee will vitiate such a release, * * * and the burden of proof is on the trustee to vindicate the transaction from any shadow of suspicion, and to show that it was perfectly fair and reasonable.” Jones v. Lloyd, 117 Ill. 597.

The record shows that appellant appears to have concealed from appellee, the fact that appellee had any interest in the money received from the railroad company for the death of her brother. When appellee heard that her mother had some money in which she had an interest she went to see appellant, who told her she had no interest in it. The answer states that appellant took appellee to appellant’s attorney, who also informed appellee that she had no interest in the money received from the Railroad Company as damages for her brother’s death. Condon, the attorney for appellee, testified to repeatedly telling appellee that she had no interest in the money; that appellant in his presence told appellee that for the husband of appellant to learn that appellee was appellant’s daughter might cause him to desert appellant; that after learning that appellee had consulted a lawyer he told her that her lawyer was a young man who had not handled personal injury cases, while he, the witness, had handled many, and was better acquainted with such matters, and he had consulted with his partner, and after consulting the authorities “we concluded Mrs. Huddleston was not entitled to any of the money;” and that he told appellee, if it should get in the papers that she was claiming any of the money, appellant’s husband would leave her, and it was appellee’s duty to execute a release. Mrs. Turner, the foster mother of appellee, testified that in August, 1911, Condon with appellant came to her home and offered to pay her to get appellee to withdraw her suit.

It is shown by the evidence for appellant that after appellant and her attorney both knew appellee was consulting an attorney, they went to Mrs. Crabbe’s where appellee was working as a domestic, and there drew a will for appellant to execute devising her estate to appellee, and procured the signature of appellee as a witness to what she supposed was a will and gave her a check for $200 and the possession of the will, and told her to cash the check and not go near her attorney, but leave the city. Appellee discovered immediately after appellant and her attorney had left Mrs. Crabbe’s that she had not signed a will, and thinking something was wrong, she at once went to her attorney and the check was returned to appellant’s attorney the day it was given to her.

The evidence of appellee is that the will was talked about and written by Condon in her presence, and that appellant signed it and Condon asked Mrs. Crabbe for whom appellee was working to sign it, and then said, “Well, you sign it Maude” and there was another paper under it and she signed the wrong paper and Condon gave her a check for $200 and that she did not know she signed a release. Mrs. Crabbe testified that she saw no other paper except the will, and that Condon said, “Mrs. Henderson said she had no objection to my knowing’ what was in the will; he said I will read it to you and you can sign it and Mrs. Henderson will sign it and Maude will sign it. ’ ’

The admissions of the answer, the evidence of appellant and her attorney and Mrs. Crabbe with that of appellee ; the advice of Condon to appellee to cash the check, keep away from her attorney, “to get your trunk and get out of town;” the getting the paper signed by appellee in the absence of her attorney, the statements of Condon concerning her attorney and drawing a will in favor of appellee and handing it to appellee, and the unconscionable breach of trust by appellant, as administratrix, concurred in and assisted by her attorney, all prove the allegations of the bill that the release was procured by fraud and circumvention and overcome the statements of the answer, that are responsive to the bill, by more than the equivalent of two witnesses.

The bill was filed for the purpose of having the release vacated and declared null and void, enjoining the appellant from transferring the property bought with the money obtained on the settlement and withdrawing the money from the bank until the settlement of the estate and for general relief. The question of the interest of the appellee is raised by the allegations of the bill, the answer and the contention of the appellant that appellee has no interest in the money received on the settlement and hence no right to maintain this suit. In settling that question the court was justified in finding what were the interests of the parties under the pleadings, the prayer for general relief and- the evidence.

Appellant’s second contention, that appellee has no interest is based upon the principle, that in a suit at law by an administratrix on behalf of collateral relatives to recover damages for the death of a relative, there can be no recovery, unless it is proved that the collateral relatives received pecuniary assistance from and were dependant on the deceased. While that is the law and the burden of proof to show such dependence is on the brothers and sisters, yet, when the damages have been recovered that question is entirely irrelevant and immaterial. The statute, section 2, chapter 70, provides the money “ shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property, left by persons dying intestate.” Section 2 of chapter 39, of the statute, title “Descent,” is the section concerning “Illegitimates.” The fourth paragraph of that section provides: “When there is no widow or surviving husband, and no child or descendants of a child, the estate of such person shall descend to and vest in the mother and her children and their descendants—one half to the mother and the other half to be equally divided between her children and their descendants, the descendants of a child taking, the share of their deceased parent or ancestor.” The question to which counsel for appellant have devoted much the greater part of their argument is settled by the terms of the statute as quoted. There is nothing to be construed, the language is clear and unequivocal. There is no foundation for their contention and the court correctly found that the interest of appellant was one-half of the money received after the payment of the probate costs. All the findings of fact by the court are fully sustained by the evidence and the pleadings.

Appellant also contends that “a court of equity will not except in extraordinary cases take jurisdiction in the administration and settlement of estates.” The circuit court as a court of equity had jurisdiction of this cause to set aside the pretended release on the ground of fraud, and no other court had jurisdiction to grant such relief. Haying acquired jurisdiction for that purpose, the court should in the interest of justice and to avoid a multiplicity of suits on'a bill containing suitable allegations, have assumed full jurisdiction of the estate and retained jurisdiction, until complete justice was done between the parties in respect to the subject-matter of the litigation. Dougherty v. Hughes, 165 Ill. 384; Elting v. First Nat. Bank, 173 Ill. 368; Moore v. Brandenburg, 248 Ill. 232, 140 Am. St. 206, rev’g 154 A. 156; Holden v. Holden, 24 Ill. App. 106.

"While there is no specific prayer that appellant be decreed 'to pay to appellee the part of the money received from the settlement found to be due her there is a prayer for general relief. That part of the decree ordering that half the money received that remains after the payment of costs be paid to appellee can be sustained under the prayer for general relief.

It is also insisted that the court erred in not allowing appellant an administrator’s commission on the sum collected as damages for the death of her son. Letters of administration were issued to her in March, 1910. In May, 1911, she collected $2,900 on a compromise of the .suit and after paying her attorneys there remained $2,100 net to the estate. She did not disclose to the probate court the fact that she had a daughter, the appellee, who is an heir of the deceased. In August, 1911, appellee demanded her share of the estate. At that time appellant had invested in real estate in her own name $1,375 of the $2,100, and had part of the proceeds in a bank in her own name. Appellant has wrongfully insisted that appellee has no interest in the sum recovered and from the time of the investment of part of the amount in real estate to the present time has had the personal use of such real estate. The appellee by law should have received her half as soon after the money was received on the compromise with the railroad company as the estate could be settled. The appellant was properly chargeable with interest on the money she personally used. She might under the statute be charged with interest at ten per cent, per annum on the money in her hands after two years and six months from the date of the letters of administration. Statute, section 113, chapter 3. She was allowed credit for the sum paid her attorneys for the collection of damages from the railroad company ; even if she had not been guilty of attempting to wrongfully beat appellee out of her share, the interest on the part invested in real estate to the present time would be a reasonable compensation for her services. Numerous cases hold that compensation may be refused if the administrator has been guilty of wilful default or misconduct in the administration of the estate. Whittemore v. Coleman, 239 Ill. 450; In re Estate of Wincox, 186 Ill. 445; Whittemore v. Coleman, 144 Ill. App. 109; Woerner on Adm’r, 1163. There was no error in refusing to allow a commission to appellant.

The decree of the court continues the injunction ‘ ‘ until the further order of the court. ’ ’ The court evidently had in view the making of a further order releasing the injunction, when appellant shall have arranged to pay her daughter what is due her. The decree should have made some provision for its dissolution, when appellee receives her share of the money. That part of the decree continuing the injunction “until the further order of the court” is erroneous (Sholty v. Sholty, 140 Ill. 81) and will be reversed and the cause will be remanded to the trial court with instructions to enter a decree continuing the injunction, until appellee has received what is due her from appellant, except that the money in the bank, and the said real estate may be used by appellant to pay appellee the half of said money so received that is due her after the payment of the costs in. the probate court; in all other respects the decree will be affirmed. However, counsel for appellant has not in any way raised any question over that part of the decree which continues the injunction until the further order of the court nor mentioned it in his brief and argument or assigned error on that question. Since the decree is reversed on an error not raised by appellants, the costs of appellants on this appeal will be taxed to Margaret Henderson personally and the costs of appellee to her.

Decree affirmed in part, reversed in part and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Creighton

license: Public Domain

text:
    W. H. Nichols and A. B. Cambier, Receivers, Appellants, v. Estate of James A. Cunningham, Deceased, Appellee.
    1. Witnesses—when stockholder of claimant company incompetent. A stockholder in a company which is seeking to establish a claim against the estate of a deceased stockholder of a bankrupt corporation is an incompetent witness in support of the claim though he holds but one share and was not a stockholder at the time of the transaction concerning which his testimony is offered.
    2. Corporations—stockholder of claimant company may properly he permitted to identify hooks. Where a company files a claim against the estate of a deceased stockholder of a bankrupt corporation, it is proper to permit a witness who was a bookkeeper of such company and is a stockholder to identify its books.
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed May 19, 1913.
    J. B. Mann and Walter C. Bindley, for appellants; Bindley, Penwvbll & Bindley and Merton Newberry & Jacobson, of counsel.
    J. H. Dyer and Rearick & Meeks, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

The Northern Bive Stock Company was incorporated under the laws of the state of Wisconsin, May 23,1906, with a capital stock of $60,000, and Frank T. Stare, C. S. Crary, James A. Cunningham, John B. Hamilton and William Moore were the subscribers to such stock. Shortly after its organization of the company it engaged in the sheep business and bought largely in the southwest and west and shipped to Wisconsin for the purpose of feeding and pasturing.

Some time before the organization of the Northern Bive Stock Company, the Waukesha Canning Company was organized, and C. S. Crary, John L. Hamilton, William Moore, Frank T. Stare and James A. Cunningham were numbered among its stockholders and officers. After a short but active career the Northern Live Stock Company became bankrupt and went out of business and left.among its creditors the said Waukesha Canning Company, which had just closed its doors and gone into the hands of receivers, its claim amounting to above $45,000. James A. Cunningham died on the 11th day of January, 1910, and letters of administration were issued. Shortly thereafter the Waukesha Canning Company, by its receivers, filed a claim against the estate of Mr. Cunningham, for the sum of $45,067.33, as follows:

“In the matter of the estate of James A. Cunningham, deceased. Estate of James A. Cunningham, deceased.

To the Waukesha Canning Company, William H. Nichols and A. B. Cambier, Receivers, of Waukesha, Wisconsin, Dr.

To cash loaned to and advanced for the use and benefit and at the special instance and request of James A Cunningham (the above named decedent)— John L. Hamilton, Charles S. Crary, William Moore and Frank T. Stare, as co-partners, doing business at that time at Waukesha, Wisconsin, under the firm name and style of the Northern Live Stock Company, between and including May 2, 1906, and January 27, 1909, and of which a statement is attached, made a part hereof and marked schedule ‘ A.’

$140,075.86

Less credits as per schedule ‘B’ attached 95,008.52

Balance due claimant $ 45,067.34”

On the 25th day of April, 1911, an amended claim was filed, as follows:

“To moneys and cash loaned and advanced for the use and benefit and at the special instance and request of James A. Cunningham, the above named decedent, and John L. Hamilton, Charles S. Crary, William Moore and Frank T. Stare: said above named parties,, including said decedent, being personally liable jointly and severally for the said advancements, the same having been advanced by claimant for the use and benefit of the Northern Live Stock Company, and at its special instance and request, and at the special instance and request of the above named parties, and each of them, before one-half of the capital stock of the said Northern Live Stock Company had been subscribed and at least twenty per centum thereof had actually been paid in, as required by the Wisconsin statute, and said company being at the respective times of said advancements and loan authorized by said parties, including said decedent, to transact the business of procuring said advancements and loans,” as shown by statement attached, showing amount the same as in the original claim.

The claim was heard in the probate court of Vermilion county and was not allowed, and upon an appeal perfected to the circuit court of said county, such proceedings were had that the court found the issues for the estate, and entered judgment for costs against the claimant, whereupon this appeal has been perfected bringing the record before us.

It will be observed that in the first claim for probate, the items referred to cash loaned and advanced for the use and benefit, and at the special instance and request, of James A. Cunningham, John L. Hamilton, Charles S. Crary, William Moore and Frank T. Stare, partners, doing business under the firm name of the Northern Live Stock Company, in the sum of $45,-067.34.

In the amended claim filed April 25, 1911, the account stated is for money loaned and advanced at the special request of James A. Cunningham, et al., the same having been advanced by claimant for the use and benefit of the Northern Live Stock Company and at the special instance and request of the said parties and each of them before twenty per centum of the capital stock of the corporation had been paid in, as required by the statute of Wisconsin.

It would seem, under the amended claim as filed against the estate of Mr. Cunningham, that the validity of the claim is to be determined by the question of whether or not the twenty per centum of the capital stock subscribed had been paid, as required by the laws of Wisconsin, at the time or before the credit was given, if any is shown to have been given, to the Northern Live Stock Company. Under the amended claim the question presented is not whether the claimant extended credit to James A. Cunningham, and by reason thereof should have a claim allowed against his estate, but, first, whether James A. Cunningham was a stockholder in the Northern Live Stock Company, and, second, whether he paid into the treasury of said company the twenty per centum upon the shares of stock subscribed by him, before the company contracted the debts in question; and in determining these questions we are brought face to face with several difficult questions of fact and a few question of law.

It is contended by the appellees that the books of the company introduced in evidence show that on January 23,1906, the per centum required by the statute of Wisconsin to be paid in upon the capital stock before a corporation can transact business and contract debts without the stockholders incurring personal liability, was paid in by Mr. Cunningham, while appellants contend that the required per centum was not paid at that time and that the entry referred to by the appellees has been fully explained and shown to be a loan or advancement, and that this was shown by the oral evidence introduced upon the trial of the cause.

By reference to the original claim filed in this case against James A. Cunningham’s estate, and the other parties named therein, the claim is sought to be sustained as against said James A. Cunningham, and the others, as partners doing business under the firm name and style of the Northern Live Stock Company, of Waukesha, Wisconsin, and from the language used in the statement of this account we would naturally conclude that the claim was for money loaned these gentlemen individually, and that the receivers were seeking to hold them liable by reason of many advancements of money to them, but the amended claim filed seems to proceed upon the theory that the claimants, at the request of James A. Cunningham and the other parties named, had advanced money to the Northern Live Stock Company, a company having capital stock, and that because Mr. Cunningham and the other named parties had failed to pay the required per centum of such capital stock, the estate of Mr. Cunningham should be held for the entire loss of the claimant.

On an examination of the statement of account filed with the original claim, we find an item of $10,000, which recites that the item of $10,000 was a payment of twenty-five per centum of the stock subscription of said Moore, Hamilton, Crary and Cunningham, on June 23,1906. If this entry is correct, Cunningham and his co-partners paid the full amount required under the statute of Wisconsin in order to avoid such liability as is here claimed, and therefore the corporation could transact business without the stockholders being personally liable.

We find, from a comparison of the itemized account filed with the amended claim, that the item in question has been changed, and it does not appear in the abstract of the amended claim as being a payment of twenty-five per centum of the stock subscription of Cunningham, and the others, hut is entered as money advanced by the Illinois Canning Company, and upon reference to the record we find this item is scratched and interlined so that it is almost unintelligible.

It is contended by the appellants that all of these seeming irregularities and changes are explained by the oral evidence of Edmund D. Seltzer and other witnesses, who make clear all matters shown by the books in general, and of the $10,000 item in particular.

But, Mr. Seltzer is a stockholder in the company who seeks to have, through its receivers, this claim established, and he is for that reason an incompetent witness. It is said that he was not a stockholder at the time he was first employed as bookkeeper, and did not have any interest in the company until March 17,1910, when he bought one share, and it is insisted that the fact that he acquired his stock after the transaction in question makes him competent as a witness in favor of his company in the effort to have the claim allowed against the estate of Cunningham.

We think all persons who hold stock in the Waukesha Canning Company,- no matter whether it be one share or many, are barred from appearing as witnesses in behalf of the claimant company in which they are stockholders.

“We have held, that stockholders in a corporation are interested within the meaning of this (section 2 of chapter 51, B. S.) section of the statute, and are incompetent to testify against the representatives of a deceased party in their own behalf.” Albers Commission Co. v. Sessel, 193 Ill. 153.

In Volbracht v. White, 197 Ill. 298; Ittner Brick Co. v. Ashby, 198 Ill. 563 and in Cronin v. Royal League, 199 Ill. 228, the same doctrine is recognized and enforced.

In Ogden Building & Loan Ass’n v. Mensch, 196 Ill. 554, it is said: “A stockholder in a private corporation is interested in all its transactions, and, of course, in every conveyance to and from it. As the assets of the corporation are increased or diminished, his stock, which is representative of a portion of the assets, is of more or less value. ’ ’ And there the court cited with approval the holding of the court above quoted from Albers Commission Co. v. Sessel, supra.

Under the rule thus announced in the above mentioned authorities, no person holding stock in the Waukesha Canning Company was competent as a witness in support of the claim against the estate of Cunningham.

It follows, therefore, that all of the evidence offered by the witness Seltzer was improper, except the identification by him of the books and we assume it was so regarded by the trial court, in as much as several important items had been changed favorably to the claimant on the books. At least a part of the entries could not have been received and considered as original entries because of the alterations and changes made by some one interested in behalf of the claimant.

The rule which is applied to the bookkeeper, and under which his evidence is held to be improper, must of necessity be applied to the evidence of Mr. Stare, Mr. Crary, Mr. Hamilton and Mr. Moore, and when their evidence and letters passed from one to the other is eliminated, this claim rests upon an unreliable book account that bears evidence of having been doctored to suit the occasion and the evidence of W. E. Alkire, and we confess his evidence is attended with great uncertainty, inconsistency and unreasonableness. The court, who had the opportunity to see and hear him testify, evidently did not put reliance in his statements, but even had his evidence been reasonable and consistent, it is not sufficient to overcome the plain entry made by the claimant in its books at a time when there was no reason for a false or fraudulent entry.

In support of the truthfulness of the claim of payment of the $10,000 upon the stock subscribed for, we find a draft was sent by the Illinois Canning Company to the Northern Live Stock Company on the day in question by Cunningham and his three co-subscribers to the capital stock of said company, with a notation that it was in payment of twenty-five per centum of the subscriptions of the several subscribers to the said capital stock, and the same was acknowledged and placed to the credit of the subscribers aforesaid and so remained to their credit until after the death of Cunningham.

Under all of the proper evidence in this case and the circumstances attending the whole transaction, we are convinced that the proof shows that Cunningham did pay the required percentage of his subscription to the capital- stock of the said company at the time of the entry made as above stated, and that the claim against his estate has not been sustained by the proof in the record.

Believing that the finding and order of the trial court was right, the judgment is affirmed.

Affirmed.


author: Per Curiam.

text:
    Joseph Loftus, Appellee, v. Illinois Midland Coal Company, Appellant.
    1. Mines—when flagman acting in line of his employment. Plaintiff, a flagman in a mine who was- injured when a ear was derailed while he was assisting a driver, is to be regarded as having been acting in the line of his employment where the evidence tends to show that it was a part of his duty to assist drivers and that on the occasion in question the assistant mine boss directed him to go with such driver and help bring in certain ears.
    2. Mines—proximate cause of injury. It is a question of fact whether the mine operator’s wilful failure to comply with the Mines and Miners Act by failing to furnish refuge places was the proximate cause of an injury to a flagman assisting a driver when a derailed ear turned cross-wise and struck him.
    3. Damages—admissibility of evidence. Where the declaration alleges that some organs of plaintiff’s body have become paralyzed and rendered entirely impotent, evidence is admissible that injury to the prostate gland would impair vitality and affect the power of procreation, and any circumstance traceable to the injury which tends to prove impoteney whether temporary or permanent is proper.
    4. Appeals and errors—effect of remittitur. While the trial court may enter judgment on verdicts with the consent of the successful party for a sum less than the amount of the verdict, yet the judgment is anomalous and in a reviewing court is not entitled to the presumption of a fair verdict.
    5. Damages—when excessive. When it is alleged that plaintiff was crushed, bruised and wounded whereby some of the organs of his body were paralyzed and rendered entirely impotent and under the evidence the injury is of doubtful extent and permanency, a verdict for $17,000 is excessive and a remittitur of $7,000 does not cure it.
    6. Damages—instructions. An instruction on the measure of damages in an action for personal injuries which particularly calls attention to the "total or partial loss of virility or masculine vigor if the evidence proves such loss, ’ ’ while not reversible error, calls attention to a .feature likely to arouse prejudice and passion.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed May 19, 1913.
    Brown & Hay and John T. Creighton, for appellant; Mastín & Sherlock and Underwood & Smyser, of counsel.
    Drennan & Lawler, for appellee.
   Per Curiam.

This was an action on the case brought by appellee in the circuit court of Sangamon county, against the appellant, to recover for injuries alleged to have been received by appellee while employed in appellant’s coal mine as a flagman. The declaration contains one count, based upon the alleged failure of appellant to furnish in “the first west entry off the south main entry,” refuge places as required by clause “B” of section 15 of chapter 93 of the Revised Statutes. A plea of the general issue was filed to the declaration, trial had before the court and a jury, and verdict returned in favor of the appellee in the sum of ,$17,000. Upon motion a remittitur in the sum of $7,000 was filed, a motion for new trial made and overruled and a judgment entered in the sum of $10,000 in favor of appellee, from which judgment an appeal was perfected, thus bringing the record before ns for review.

It appears from the weight of the evidence in the case, that at the date of receiving the injury complained of by appellee, the appellant was operating its coal mine at Pawnee, in said county, in which it had a hauling road on which hauling was done by draft animals, and that appellee was employed therein by appellant as a flagman, and while so engaged, he was directed to assist Frank Reed, a driver, in managing his team while the driver was picking up some lost cars in the “first west entry off the south main entry;” that after the cars had been located and while the driver was coupling them up and hitching the mules to the cars, appellee was at the head of the front mule holding the team; that when the mules were hooked to the cars the driver asked if appellee was all right, and when appellee said he was, the driver whistled at his mules and they started at a rapid pace; that the appellee had traveled a distance of fifteen or twenty feet, got up against the wall of the entry and by one of the props of the entry, which was as secure as any place in that immediate neighborhood; that one of the cars left the track, turned cross-wise, struck appellee and produced the injury, as disclosed by the evidence.

It further appears from the evidence that no effort had been made by appellant to comply with the section of the statute relied upon for recovery in this case. At one time in the history of the mine, there had been cross entries made in working out the mine, but these had been closed, so that on the day in question, there was no refuge place and no cross openings or rooms in this entry, as provided by statute.

The evidence also shows that there was no clear space beyond the width of the car on either side of the track of two and one-half feet. It is also shown by this record that the space on either side of the cars was described as being of the width of from eight inches to two feet; that gob and dirt and old props covered the space between the walls of the entry and the cars.

It is urged by appellant that appellee was a volunteer upon the occasion in question, and not acting in the line of his employment. While we have stated above that at the time of the injury appellee was engaged in the line of his duty, the earnestness with which this question is urged prompts us to a further reference to the record.

Appellee testified that when he was employed by Mr. Pearce, the driver boss of appellant, as flagman, he was told that it would be a part of his duty to assist the drivers. Four other witnesses to-wit: Frank Eeed, Frank Patton, Thomas Duval and William Duval, testified to hearing Mr. McMurdo, appellant’s assistant mine boss, direct appellee to go with driver Eeed and help to bring in the lost cars.

Thus it will be seen he was not a volunteer, but was there under his employment.

It is contended by appellant, notwithstanding the failure of appellant to provide refuge places in this entry for the protection of its employes, that there is nothing in the record to show that such failure was the proximate cause of the injury.

It is a question of fact whether the mine operator’s wilful failure to comply with the provisions of the Mines and Miners Act was the proximate cause of the injury to appellee. Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145; Kellyville Coal Co. v. Strine, 217 Ill. 516; Athens Min. Co. v. Carnduff, 221 Ill. 354; Olson v. Kelly Coal Co., 236 Ill. 502.

Proximate cause of an injury is, in law, the probable cause of such injury. It is probable that if the refuge places had been provided as required by -law, that any intelligent person would not have failed to have made use of them in time of danger. If the statute under consideration had been complied with, every workman in the entry would have been, at farthest, within thirty feet of such a refuge place, or place of safety. It will be remembered that the injury to appellee occurred from 130 to 150 feet from the entrance to this entry. Had the law been complied with, one refuge place would have been in from ten to thirty feet of appellee. It was the duty of the jury to pass upon the question of the probable cause of appellee’s injury, and their findings rest upon the same rule as a finding upon any other question of fact. There must be sufficient facts and circumstances tending to support the verdict of a jury before it should be permitted to stand. Under our view of the evidence on that question, the finding of the jury that defendant was negligent is supported by the evidence.

It is further urged by appellant, that the court erred in admitting evidence that injury to the prostate gland would cause a lessening of tone, would impair vitality and masculine vigor and would affect the power of procreation, while the allegation of the declaration was that such injury caused impoteney.

Any fact or circumstance traceable to the injury in question which tended to prove impoteney, or any other allegation of fact, was proper, under the declaration, to be submitted to the jury for their consideration. The whole diagnosis of the injury to appellee, if made and testified to by a competent physician, was proper evidence for the consideration of the jury. While the permanent character, or temporary nature of the effect of the injury upon the impoteney of the appellee was a proper matter to be considered by the jury in determining the measure of damages in this case, it cannot be conceded to depend upon the question of the permanent character of such impoteney.

The declaration alleged that appellee, by reason of such injury, became sick, sore, crushed, bruised, wounded, etc., “by reason thereof he is permanently injured and some of the members and organs of his body have become paralyzed and rendered entirely impotent,” and that he will continue to suffer anguish of mind “over his crippled and impotent condition.”

The definition of “impotent” as given in the Universal Dictionary of the English Language, is “deficient, incapacity, weak, feeble, one who is feeble, infirm or languishing from disease, or destitute of power of sexual intercourse. ’ ’

Impotency, as classed in Bouvier’s Law Diet., may be “curable, incurable, accidental or temporary.”

Thus it will be seen that impotency, like other diseases and injuries, may attain minor or major states; it may be curable or incurable. If curable, it may last a year or years, or a few months. In incurable it is, of course, permanent in character. If the parts are weak, feeble, incapacitated or infirm for a period, the party is no less impotent during that period than if it were permanent in character. Hence we say, it was not essential that the evidence should show the condition was necessarily permanent in order for the evidence complained of to be proper.

It is contended that the amount of the verdict can only be accounted for on the grounds of prejudice and passion or misconception on the part of the jury, and that the remittitur of $7,000 does not remove the prejudice, passion or misconception, and that these elements may have, and probably did enter into the finding of facts, if not the issues themselves. The trial court recognized the fact that the damages as found by the jury were excessive, and appellee conceded that they were and entered the remittitur. While it is the settled law, that it is in the power of the trial court to enter judgment on verdicts with the consent of the successful party for a sum less than the amount of the. verdict, and the entering of such judgment is not error, yet the judgment is anomalous, and in a reviewing court is not entitled to the presumption of a fair verdict. We think the error of such an excessive verdict cannot be cured by a remittitur. Loewenthal v. Streng, 90 Ill. 74; Chicago & N. W. R. Co. v. Cummings, 20 Ill. App. 333; Eidem v. Chicago R. I. & P. R. Co., 144 Ill. App. 320; Sackheim v. Miller, 136 Ill. App. 132. The instruction on the measure of damages particularly called the attention of the jury to the “total or partial loss of virility or masculine vigor, if the evidence proves such loss, by reason of his injury.” This, while not alone reversible error, particularly called the attention of the jury to a feature of the case very liable to arouse prejudice and passion. The judgment as entered is still very large when the very doubtful extent and permanency of the injury as shown by the evidence is considered. In view of the excessive verdict and large remittitur, we hold that the rights of the parties should be submitted to another jury. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Gridley

text:
    James M. Barrett, Plaintiff in Error, v. Chicago Bridge & Iron Company, Defendant in Error.
    Gen. No. 17,612.
    1. Master and servant—when servant assumes rislc. Plaintiff, who was injured when a piece of steel flew into his eye from a drift pin which he was driving, will be held to have assumed the risk where it appears that he was 19 years of age and intelligent; that he saw that the pin in question was battered, and that he knew from his experience or should have known that blows on the frayed head of a pin would probably cause small pieces of steel to fly off.
    2. Master and servant—when not error to refuse to permit plaintiff to testify that he did not lenow that steel few from a drift pin. ■ It is not error to refuse to allow plaintiff, in an action for an injury received when a piece of steel flew into his eye from a drift pin he was driving with a sledge hammer, to testify that he did not know that steel ever flew from a pin or was likely to, where he was 19 years of age, had nearly completed the eighth grade of the grammar school, had often seen workmen drive pins, some of which were battered, and he knew that the pin in question was battered and frayed over.
    Error to the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 29, 1913.

      Statement by the Court. This is an action brought by James M. Barrett, plaintiff, against Chicago Bridge & Iron Company, a corporation, defendant, to recover damages for the loss of his right eye while he was in the employ of defendant in December, 1902. The case has been tried twice. On the first trial the jury found the defendant guilty and assessed plaintiff’s damages at $17,000, but a new trial was granted. On the second trial in October, 1909, the court, at the conclusion of plaintiff’s evidence, instructed the jury to find the defendant not guilty, which they did, and judgment was entered for the defendant. Plaintiff seeks by this writ of error to reverse the judgment.
    The facts are substantially as follows: The defendant was engaged in the business of assembling the parts of and building steel bridges, taking apart old bridges and building large steel retorts or tanks, and at the time of the accident was building a steel retort over 100 feet long and about seven feet in diameter. The retort was being constructed in defendant’s shop in fifteen-foot sections, which sections were to be afterwards fastened together at the place where the retort was to "be used. Each fifteen-foot section was constructed of three sheets of steel of equal lengths and five feet wide. Each sheet, when rolled and the edges brought and riveted together, made a hollow cylinder five feet long and about seven feet in diameter, and formed a five-foot section of the retort. The five-foot sections were laid end to end, but not overlapping. In bringing the ends together they were slipped into “butt-straps” in such a way that there was a butt-strap inside and outside where the sections came together. Around each end of a section there were several rows of holes and corresponding holes in the butt-straps, through which rivets were to be driven, but before this could be done it was necessary to bring the holes exactly opposite each other. This was done ■by driving, by means of sledge hammers, “drift pins” into the holes, both from the inside and from the outside of the retort, and then knocking them out again. These drift pins were of steel, thicker at one end than at the other, about seven inches long and about one inch in diameter at the thickest part. At the time of the accident plaintiff and a co-laborer named Wright were inside of one of the fifteen-foot sections, driving drift pins towards the outside, “lick and lick about,” and as plaintiff struck the head of one of the pins with his hammer a piece of steel, presumably from the head of the pin, flew into plaintiff’s right eye and destroyed it. The pins had been started in the holes by the foreman, and plaintiff and Wright had been ordered to drive them in. They were both old and new. Some of them had been so used that the end which received the blows of the hammer had frayed over like a burr or rose. Although plaintiff, when he was injured, was at work three feet on the inside of the section of the retort, he testified that it was light enough for him to see the heads of those pins driven from the inside and the small ends of those driven from the outside, and that he did not remember of failing at any time to strike fair with his hammer. Plaintiff was 19 years old, intelligent and well educated. He ceased going to school when 17 years of age, having nearly completed the eighth grade of grammar school. He worked for one concern for three months, operating an electric power machine, cutting steel and metal pipes. He was first employed by the defendant about 1% years before the accident for three months. During that time he worked both in the yard and in the shop, bolting angle irons together, cutting off pieces of iron, operating a dishing machine and other machinery, and saw “hundreds and hundreds of pins” lying around on the floor, some with the large ends more or less battered, and saw workmen pick them up, insert them in holes and drive them in- with sledge hammers. About six months before the accident he was again employed by the defendant, doing work as ordered. He assisted in dismantling old bridges, cutting off rivets with chisel and hammer. While so employed he frequently went into the shop where the riveting was being done on the retort in question, saw the workmen driving the drift pins and saw many pins, some new and some with battered heads, lying about on the floor. On the third day before the accident he was set to work in the shop “running reamers,” a short distance away from the place where the men were driving drift pins, saw the men use pins with battered heads, new pins and repaired pins, and saw other men take some of the pins with battered heads to the blacksmith shop of defendant to be repaired and return with other pins. The floor was “pretty well covered with drift pins.” Plaintiff testified that on the morning of the accident he watched the foreman pick up certain drift pins from the floor and put them in the holes of the section of the retort; that he saw that some of the pins picked up and put in the holes were battered and frayed at the head and that some were not; that when the foreman told him to drive the pins with Wright he made no reply but picked up a hammer and commenced driving the pins; that he knew it was simply a question of taking a sledge hammer and driving the pins; that he and Wright had struck two blows each on the particular pin just before the accident; that the.head of the pin was in “plain view,” was battered down, and the “battered part was projecting out over the edge and peeling down like the skin of a banana.”
    William E. Mason, John C. King and Jambs D. Power, for plaintiff in error.
    Frank M. Cox and E. J. Fellingham, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Counsel for plaintiff first contend that the trial court erred in instructing the jury at the close of plaintiff’s evidence to find the defendant not guilty. It is argued that plaintiff, when injured, was driving the drift pins in obedience to an order from the foreman of defendant, that under the circumstances plaintiff did not assume the risk of being injured by a flying chip of steel, and that the case was one for the jury. The doctrine of assumed risk has a well recognized exception in cases where the servant is .ordered by his master to perform work which is dangerous and where the servant does not appreciate the risk of performance. But this exception does not apply where the servant has full knowledge of the danger. “It is only where the servant has been misled by the order of the master that the exception exists.” Republic Iron & Steel Co. v. Lee, 227 Ill. 246, 259. “All persons of mature years and ordinary experience, and endowed with their natural faculties, must be held to understand the ordinary laws of nature, such as that water will run down hill, a falling body will strike the ground, etc., and it must be presumed, when such persons have knowledge of obvious defects in appliances or places with or in which they are engaged in performing, ordinary labor and with which they are entirely familiar, they will also comprehend the natural and probable results which will follow from a use of such appliance or from working in such place.” Montgomery Coal Co. v. Barringer, 218 Ill. 327, 332. In this case plaintiff was employed to perform labor which did not necessitate technical or especial skill. When he was ordered to drive the drift-pins in the retort he knew exactly what was required of him. An understanding of natural laws and strength of body was all that was necessary. He had observed other workmen engaged in that labor. He had frequently seen the drift-pins lying on the floor, some new and some with heads frayed. He had seen pins taken to the blacksmith shop to be repaired. He knew that repeated blows on the head of a pin by sledge hammers would cause the heads to fray over. He had previously been engaged in cutting steel with a cold chisel and hammer and knew that chips of steel would occasionally fly off. He knew, or ought to have known, that continuous blows on the frayed head of a pin would probably cause small pieces of steel to fly off. The danger of accident was remote, but the possibility of chips of steel flying was obvious. The sledge hammer which plaintiff was using at the time of the accident was in good repair. The particular pin struck was seen by plaintiff to be “peeling down like the skin of a banana.” It was not necessary to continue striking that particular pin. Other pins were lying near at hand and the particular pin could have been replaced by another in better condition. In Illinois Cent. R. Co. v. Brown, 107 Ill. App. 512, Brown was a common laborer in a section gang. It became necessary to cut off a part of a.flange of an ordinary rail and he was ordered by the foreman to assist in that work, to which he made no objections. While the foreman held the chisel on the rail, Brown struck the chisel with a hammer and a smáll particle of steel flew from the rail into one of Brown’s eyes and destroyed it. It was held that he could not recover, even on the hypothesis that the doing of this particular work was outside of the line of his regular work, and for the reason that the risk was quite as obvious to him as it could be to any one. In Webster Mfg. Co. v. Nisbett, 205 Ill. 273, Nisbett and a helper were working together in the shop of their employer. The helper was using a common tool, known as a “backing hammer,” the face of which had become somewhat chipped and out of repair. As the helper struck a blow, a small particle of steel hit one of Nisbett’s eyes, destroying the sight. It was held that the court erred, under the facts in evidence, in not directing a verdict of not guilty, even though it appeared that Nisbett had, previous to the accident, made complaint to the foreman as to the condition of the tool and the foreman had promised to have it fixed, coupled with an order to continue work with the tool. In Herricks v. Chicago & E. I. R. Co., 257 Ill. 264, 267, it is said: “It is the law that the master is not liable for a defect in a simple, ordinary tool procured and provided in the ordinary way. It is one of the essential facts to be proved by a servant seeking to recover on account of a defective tool or appliance, that he did not know of the defect and had not equal means with the master of knowing of it; (Goldie v. Werner, 151 Ill. 531); and as to a simple tool the opportunities of the servant for knowing of the defect are at least equal to those of the master. If the tool is procured by the master from another and there is a latent defect, neither one would know of it and the master would not be liable, and if there is a patent defect the servant has as good an opportunity to know of its existence as the master. This rule includes all common tools and appliances, such as hammers, wrenches, axes, hoes, spades and ladders. * * * Neither is the master bound to inspect simple tools furnished to his servant to discover whether defects appear in the course of their use. * * * If any defect should appear in the course of use of such tool, the servant using it would have a better opportunity to discover it than the master. An exception, however, has been recognized in cases where the master has manufactured the tool under such circumstances that there is no equality of knowledge between him and his servant. * * * In such a case the servant may say that he not only did not know but did not have equal means with the master of knowing of the defect.”

We are of the opinion that under the facts of this case the court did not err in instructing the jury, at the close of plaintiff’s evidence, to find the defendant not guilty. Reference may also be made to the following cases: Miller v. Erie R. Co., 21 App. Div. (N. Y.) 45 (a push-pole); Wachsmuth v. Shaw Electric Crane Co., 118 Mich. 275 (a snap-hammer, for use in riveting) ; Cincinnati, H. & D. R. Co. v. Phinney, 38 Ind. App. 546 (a steel punch, which, by long use, had become burred or split); Hefferen v. Northern Pac. R. Co., 45 Minn. 471 (a side-set, the head of which had become worn and battered); Campbell v. Gillespie Co., 69 N. J. Law 279, 282 (a drift-pin with a frayed head).

Counsel for plaintiff further contend that the trial court erred in refusing to allow plaintiff to testify that “up to the time he received the injury he did not know that chips of steel, or pieces of steel of any kind, ever flew from a drift pin, or were likely to fly from a drift pin,” thereby causing injury. Assuming that the plaintiff would have so testified had the court allowed him to, we are of the opinion that under the facts of this case the court • did not err in the rulings complained of. In view of plaintiff’s age and education, and his experience in defendant’s shop, as disclosed from the evidence, we do not think he can be heard to say that he did not know that driving a steel drift pin, frayed over and “peeling down like the skin of a banana,” with a heavy sledge hammer into the holes of the section of the retort in question, was liable to cause a piece of steel to fly off. Gillaspie v. United Iron Works Co., 76 Kan. 70; King v. Morgan, 48 C. C. A. 507,109 Fed. Rep. 446,448. The possibility of pieces of steel flying off under such circumstances was obvious, and knowledge of such conditions “carries knowledge of the danger and the risk is assumed.” Elgin, J. & E. R. Co. v. Myers, 226 Ill. 358, 365; Christiansen v. Graver Tank Works, 223 Ill. 142, 149.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    Martin Connelly et al., Defendants in Error, v. Peter Wallin, Plaintiff in Error.
    Gen. No. 18,042.
    1. Contracts—when question of waiver of condition is for the court without a jury. In an action for a balance alleged to be due on a building contract, it is a question of fact or of mixed law and fact for the court without a jury, whether the provision of the contract requiring a certificate from certain architects as a condition precedent to obtaining final payment was waived, where defendant did not employ the architects mentioned in the contract to superintend the work and was often on the premises himself and suggested changes and made payments without requiring certificates.
    2. Contracts—performance. Held, in an action for a balance alleged to be due on a building contract, that the court without a jury was warranted in finding that plaintiff completed the work substantially in accordance with the plans.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Welus, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 29, 1913.
    William S. Corbin, for plaintiff in error.
    Mather & Hutson, for defendants in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is a writ of error to review a judgment of the Municipal Court of Chicago, for $459.10, entered in a fourth class suit, in favor of Martin Connelly and Joseph L. Connelly, copartners, as- Martin Connelly & Son, plaintiffs, against Peter Wallin, defendant. The action was to recover the balance claimed to be due plaintiffs on a building contract and the value of certain extra work. The issues were tried before the court without a jury.

On July 30, 1909, the plaintiffs, as mason contractors, entered into a written contract with the defendant, as owner, whereby plaintiffs, in consideration of the sum of $8,175, agreed to do the mason work and cut stone work of an apartment building to be erected upon premises owned by the defendant in the city of Chicago, according to the drawings and specifications of a certain firm of architects named in the contract, and which drawings and specifications were made a part of the contract. The defendant agreed to pay the plaintiffs the said sum of $8,175 “upon written certificates issued by the architects as the work proceeds, for a sum not to exceed eighty-five (85) per cent, of the value of the materials used and labor performed as estimated by the architects, * * * ; which said certificates shall be paid immediately upon presentation ; and a final settlement as to the remainder and all extras, if any, shall be had and payment made - days after the work shall have been completed * * *, and the architects shall have certified thereto in writing.” The contract had many other provisions respecting the powers and duties of the architects, usually contained in building contracts.

In their amended statement of claim, plaintiffs, in addition to the balance due on the contract price, claimed the total sum of $537.80 for extra work. The trial court apparently disallowed the extras, except one item of $30, and found the balance due plaintiffs on the contract price to be $429.10, a total of $459.10, upon which finding the judgment was entered. In said statement of claim plaintiffs alleged, inter alia, “that no architect superintended the construction of the said building and that all of the provisions of the said contract respecting the doing of the work to the approval of the architect were waived by the defendant by reason of his failure to employ said architect; * * * that several payments were made by the defendant to the plaintiffs direct without the intervention of an architect or architect’s certificates; that the defendant, by so doing, and by his failure to employ an architect, waived the provisions of the contract requiring the plaintiff's to procure architect’s certificates.” The defendant, in his affidavit of merits, denied that he waived the provisions of the contract requiring the plaintiffs to procure architect’s certificates before the final payment should become due, and averred that the plaintiffs failed to do the mason and cut-stone work on the building substantially according to the drawings and specifications.

Counsel for defendant contends that the judgment should be reversed because of the failure of plaintiffs to produce an architect’s certificate as a condition precedent to their right to obtain the final payment under the contract. Under the facts as disclosed by this record, we think the contention is without merit. “Any act of the owner under such a building contract which prevents the contractor from obtaining such certificate, or any conduct of the owner showing that he had waived such a provision, will release the contractor from the duty of procuring such certificate.” Kleinschnittger v. Dorsey, 152 Ill. App. 598, 602; Haunroth v. Peters, 50 Ill. App. 366; Vermont Street M. E. Church v. Brose, 104 Ill. 206; Foster v. McKeown, 192 Ill. 339; Evans v. Howell, 211 Ill. .85, 93. This is so where, “prior to the completion of the work, the builder discharged the architect subject to whose approval the work was to have been performed, or where the builder fails to employ an architect or engineer to supervise or approve the work.” 30 Am. & Eng. Encyc. Law, p. 1245; Federal Contracting Co. v. Coal Creek District, 166 Ill. App. 369, 378; Griffith v. Happersberger, 86 Cal. 605; Diehl v. Schmalacker, 30 Misc. (N. Y.) 786; Barker v. Troy & R. R. Co., 27 Vt. 766, 775. And where, as in this case, the defendant did not employ the architects to superintend the work and was himself frequently on the premises during the progress of the work and made suggestions as to changes, and made payments on account to plaintiffs without requiring certificates, the question whether the provision of the contract requiring a certificate from the architects as a condition precedent to obtaining final payment had been waived, was a question of fact, or of mixed law and fact, for the court, trying the case without a jury, under all the evidence, to pass upon. Foster v. McKeown, 192 Ill. 339, 349; Palmer v. Meriden Britannia Co., 188 Ill. 508, 520. The trial court by its finding evidently thought there had been such a waiver, and we think that the finding is amply supported by the evidence.

Counsel further contends that the judgment should be reversed because the evidence shows that plaintiffs failed to complete the work substantially in accordance with the plans and specifications. This was a question of fact to be determined by the court, sitting without a jury, under all the evidence. Shepard v. Mills, 173 Ill. 223; Bauer v. Hindley, 222 Ill. 319; Peterson v. Pusey, 237 Ill. 204. We cannot say, after a careful review of the evidence, that the court’s finding is manifestly against the weight of the evidence, and we are not disposed to disturb the finding and judgment. The judgment of the Municipal court is accordingly affirmed.

Affirmed.


text:
    Paris Flouring Company, Defendant in Error, v. Imperial Cotto Milling Company, Plaintiff in Error.
    Gen. No. 18,108.
    1. Evidence—as to market value. In an action for damages from failure to deliver cotton seed meal sold, evidence as to the market value of the meal at the time defendant should have performed the contract is admissible.

      2. Damages—sales. In an action for damages from failure to deliver cotton seed meal, a verdict for the difference between the contract price and the market price a reasonable time after plaintiff demanded performance, is sustained.
    3. Evidence—under section 33 of the Municipal Court Act. In an action to recover damages for defendant’s failure to deliver cotton seed meal sold to plaintiff, the sales agent of defendant at Chicago, having charge of several employees and assistant sales agents, is a “ superintendent or managing agent’’ within section 33 of the Municipal Court Act.
    4. Municipal court—pleading. . In an action of the fourth class in the Municipal Court, written pleadings are not essential and the action is what the proof makes it.
    Error to the Municipal Court of Chicagothe Hon. William FT. Cottrell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 29, 1913.
    A. Binswanger, for plaintiff in error.
    Bbyaft, Duval, McCormick & Wilber, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment for $575, rendered by the Municipal Court of Chicago, in a case of the fourth class, in favor of Paris Flouring Company, an Illinois corporation, and having its principal office at Peoria, Illinois, plaintiff, against Imperial Cotto Milling Company, a corporation, and having its principal office at Portland, Maine, defendant. The judgment was entered upon the verdict of a jury.

In September, 1909, the defendant at Chicago, through its sales agent at its Chicago office, sold to the plaintiff five cars or 100 tons of cotton seed meal, at $30.25 per ton, f. o. b. Boston points, for November and December shipment. No part of the meal was delivered to the plaintiff prior to December 31, 1909, nor at any time after that date. Plaintiff’s action was for the recovery of damages occasioned by defendant’s failure to deliver the meal. There was evidence tending to show that for about forty-five days after December 31, 1909, plaintiff was ready and willing to accept a delivery of the meal at the contract price, and repeatedly requested the defendant in writing to make such delivery, and that the time of delivery was extended by the parties. On January 26, 1910, plaintiff wrote defendant at Chicago: “Our customers must have this meal, and unless we receive papers immediately we shall be obliged to buy this meal for your account, and shall expect you to make good whatever loss we suffer. We should probably be obliged to pay about $36 per ton. * * * We have waited a long time and patiently for the shipment of this meal. * * * We very much prefer to have you make the shipment. ’ ’ To this communication the defendant, by letter written by said sales agent on February 1st, replied: “We are doing everything possible to get our shipments out: The Illinois Central has suffered the worst blockade in its history and you can realize what this means to us. We have again written our Peoria office requesting them to give the matter their immediate attention. ’ ’ On February 3rd, plaintiff wrote defendant at Chicago: “We cannot quite understand why you do not ship the meal, as we have been getting cars very freely from the southwest. * * * If you cannot induce your Peoria office to make the shipment, perhaps they would prefer to send us check for the difference between the present market, on which we could buy it, say $36, and the contract price. * * * We must have one thing or the other now. ’ ’ On February 11th, plaintiff again wrote defendant at Chicago: “We are getting quite discouraged about getting papers on that cotton seed, which we bought for Nov.-Dee. shipment. * * * Our customers are threatening to prosecute if we do not fill our contracts. We should like to hear from your general office in Peoria just how the matter stands. * * * It will be quite agreeable to us to buy in this meal ourselves and send you a bill for the loss. We shall be obliged to do something immediately. * * * Let us hear from you by return mail.” The defendant, by letter written by said sales agent, replied on February 14th: “We have forwarded your favor of February 11th to our Peoria office and asked them to give it their immediate attention, which we trust they will do so as to relieve you in this matter. ’ ’ Plaintiff did not hear from the Peoria office and the correspondence ended and subsequently plaintiff commenced this action. There was also testimony showing that the fair market price of the grade of meal contracted for, during the month of January, 1910, subsequent to January 7th, and during all of the month of February, at Boston rate points, was $36 per ton, or $5.75 per ton more than said contract price.

We do not think that the trial court erred in admitting the testimony as to the market price of said meal. “If delivery is postponed by agreement between the parties, the measure of damages is the difference be-' tween the contract price and the market price at the time the article is deliverable by the subsequent agreement, and where the timo of delivery is postponed indefinitely, the measure of damages is the difference between the contract price and the market value at a reasonable time after demanding performance. ’ ’ Summers v. Hibbard, Spencer, Bartlett & Co., 153 Ill. 102, 111; Baringer v. Imperial Cotto Milling Co., 164 Ill. App. 467. Nor do we think that the verdict is manifestly against the weight of the evidence or excessive, as contended by defendant’s counsel. The contract price of the meal was $30.25 per ton and the market value thereof, at Boston rate points, after the time for delivery had been indefinitely postponed and after a reasonable time after plaintiff had demanded performance, was $36 per ton. This difference on 100 tons amounts to $575, which was the amount of the verdict.

On the trial plaintiff, under section 33 of the Municipal Court Act, called as a witness the said sales agent of defendant, S. N. Hoffheimer. That section provides : “That upon the trial or hearing of any suit in the Municipal Court any party thereto, * * * or the directors, officers, superintendent or managing agents of any corporation which is a party to the record in such suit, may be examined upon the trial thereof as if under cross-examination at the instance of the adverse party or parties or any of them,” etc. After the witness had been examined by plaintiff’s attorney, as if under cross-examination, and had testified at considerable length, defendant’s attorney moved that all of the testimony be stricken from the record on the ground that it was not shown that the witness was a party to the suit, or a director, officer, superintendent or managing agent of the defendant, which motion was overruled, and this ruling is assigned as error. We think that the court’s ruling was correct. The evidence showed that the witness was the sales agent of defendant at Chicago; that he had charge of several employees and assistant sales agents at the Chicago office of the defendant, which was located in the Live Stock Record Building, at the stock yards, Chicago, that he was constantly engaged in making sales and developing the business of the defendant “from the sales end of it,” and that he, on behalf of defendant, made the contract with the plaintiff here in question with the acquiescence of defendant. We think he was such a “superintendent or managing agent” of the defendant as to come within the purview of the statute.

There is no merit in the contention that the judgment should be reversed because of an alleged variance between plaintiff’s evidence and its amended statement of claim. This statement sufficiently advised defendant of the case it was called upon to meet. Furthermore, this was a case of the fourth class, where written pleadings are not essential and the action is-what the proof makes it. Edgerton v. Chicago, R. I. & P. R. Co., 240 Ill. 311; Doherty v. Schipper & Block, 157 Ill. App. 413, 422.

It may be that some of the court’s rulings on certain offered evidence were not proper, as urged by defendant’s counsel, but after a careful examination of the record we are not satisfied that the “judgment is contrary to the law and the evidence, or * * * resulted from substantial errors # * * directly affecting the matters at issue between the parties” (paragraph 7, sec. 23, Municipal Court Act), and the judgment of the Municipal Court is accordingly affirmed.''

Affirmed.