text:
    Frank B. Reed et al., Defendants in Error, v. W. K. Young, Plaintiff in Error.
    Gen. No. 14,273.
    1. Brokers and eactobs'—hoto question of procuring cause determined. Whether brokers seeking to recover a commission for services rendered in effecting a sale of property were the procuring cause, the effective means of bringing about such sale, is a question of fact to be determined by the jury under the evidence submitted.
    2. Brokers and eactobs—when recovery of commissions not dependent upon license. The right of real estate brokers to recover commissions is not affected by the expiration of their license between the time their services were rendered and the time when the sale was actually made.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 8, 1909.
    Samuel J. Howe, for plaintiff in error.
    Lewis T. Orr, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action in the Municipal Court, defendants in error recovered a judgment for $675 against plaintiff in error for their commissions as his brokers for bringing about a sale of his apartment building in Chicago to Margaret Dahlmann for $27,000.

The principal ground urged for the reversal of the judgment' is, that the evidence fails to show that the plaintiffs’ services or efforts were the procuring cause of the sale of defendant’s building to Mrs. Dahlmann. From the evidence the jury might, in our opinion, properly find that the facts and circumstances attending the sale of defendant’s building to Mrs. Dahlmann and the connection of plaintiffs with such sale were in substance as follows:

In January 1907, defendant listed his building with plaintiffs, real estate brokers in Chicago, for sale or exchange, and agreed in case of such sale or exchange to pay them a commission of two and one half per cent. Mrs. Dahlmann was then the owner of a farm in Wisconsin which she had listed for sale or exchange with Crilly, a real estate broker in Chicago. Plaintiffs, in February 1907, sent Blakey, another broker, to Crilly to submit for them defendant’s building to him, with a view of an exchange of the same for the Dahlmann farm. Thereupon Crilly sent for the husband -of Mrs. Dahlmann; he came to Chicago and was shown defendant’s building by Crilly. Crilly notified Blakey that Dahlmann was in town and Blakey communicated that information to plaintiff Beed. Beed then told defendant that Dahlmann was in the city; defendant expressed a wish to meet him and Reed promised to arrange a meeting. Reed saw Blakey and notified defendant that Dahlmann would he at his office at eleven o’clock the next morning. He gave Blakey a letter introducing him, Crilly and Dahlmann to defendant. Blakey met Dahlmann at Crilly’s office and the three proceeded to the office of defendant, where Blakey presented the letter of introduction and introduced Dahlmann and Crilly to defendant. The proposed exchange of the Dahlmann farm for defendant’s building was discussed and Crilly and Blakey stepped out of the private office of defendant while such trade was under discussion by Dahlmann and defendant. After this meeting defendant sent his brother to Wisconsin to see the Dahlmann farm, and later went to Wisconsin and inspected the farm himself. Defendant had several conferences with Dahlmann in reference to such exchange. Blakey and plaintiffs called on defendant and endeavored to effect such exchange. At one of such interviews defendant said to plaintiff Reed that he was experienced in trading; that they had better let him negotiate with Dahlmann; that they would get together, and that he would take care of plaintiffs.

About March 1, defendant told Reed over the telephone that he was still dickering with Dahlmann; that Dahlmann had told him that he had a cash buyer for his farm; that he had told Dahlmann to sell the farm and buy his building, and that he would keep Reed posted as to the deal. In the latter part of April, Reed again talked with defendant over the telephone and was told by defendant that Dahlmann had sold his farm for cash and was now figuring to buy defendant’s building for cash; that he did not know whether they would get together, but that he would keep Reed posted. This was the last communication between plaintiffs and defendant before May 7, 1907, on which day defendant entered into a contract for the sale of his building to Mrs. Dahlmann for $27,000. Crilly went to California early in March, returned late in April 1907 and learned of the sale of the Dahlmann farm. He then went to defendant to get a cash price for defendant’s building. He did not at first disclose who his prospective purchaser was, but before the sale was made he told defendant that it was Mrs. Dahlmann.

It was through the plaintiffs, acting through Blakey, that defendant was brought into communication with Mr. Dahlmann and through him with Mrs. Dahlmann. Defendant took the negotiations with Mr. Dahlmann into his own hands. Through these negotiations he learned that Mrs. Dahlmann had sold her farm and continued the negotiations with the Dahlmanns on the basis of a sale of his building to Mrs. Dahlmann in place of an exchange of it for her farm. While these negotiations were in progress Crilly returned from California, obtained from defendant a cash price for his farm and took part in the negotiations between defendant and the Dahlmanns. Defendant was brought into communication with Crilly by Blakey, acting for the plaintiffs, and the sale was made, not to a new purchaser found by Crilly, but to the party for whom Crilly acted in the negotiations for an exchange.

We think that the question whether the services and efforts of the plaintiffs were the procuring cause, the effective means, of bringing about the sale of defendant’s building to Mrs. Dahlmann, was a question of fact for the jury on which their verdict, on the evidence in this record, should not be disturbed., Hafner v. Herron, 165 Ill. 242; Rigdon v. More, 226 id. 382; French v. McKay, 181 Mass. 485.

The license issued to plaintiffs by the city of Chicago to do business as real estate brokers expired April 30, 1907, and from that time until long after the sale and conveyance of defendant’s building to Mrs. Dahlmann plaintiffs carried on business in Chicago as real estate brokers without any license. They took no part in the negotiations after April 30. When their services were rendered they had a license which expired before the sale was consummated. We think that plaintiffs’ right to recover was not affected by the expiration of their license between the time their services were rendered and the time the sale was made.

We find no reversible error in the instructions of the court and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas H. Denman, Defendant in Error, v. Oscar Daniels Company, Plaintiff in Error.
    Gen. No. 14,283.
    Personal injuries—When doctrine res ipsa loquitur applies. The doctrine res ipsa loquitur applies in favor of one who is employed on the main floor of a building in course of erection who is injured by being struck by a falling beam which was under the control of the defendant who was not the master of the person so injured.
    Tort. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 8, 1909.
    Rehearing denied January 22, 1909.
    Statement by the Court. In an action in the Municipal Court of the fourth class for a tort for personal injuries, .plaintiff had judgment for $1000, to reverse which the defendant prosecutes this writ of error.
    In the construction of a certain building the defendant corporation was the contractor for the steel frame; W. J. & W. P. O’Connor were the mason contractors and the plaintiff was employed by the O’Connors as a laborer. The defendant had put in place three or four stories of the steel frame and the mason contractor had built the brick wall above the top of the first story. Above the brick layers were the riveters in the service of the defendant employed in riveting together the joints of the steel frames which had been put in place by the steel setters. Plaintiff was employed on the first or ground floor of the building unloading brick from a wagon for his employers. While so employed one end of a beam about 16 feet long fell and struck him, on the head, inflicting the injuries complained of.
    A. E. Dennis and Eddy, Haley & Wetten for plaintiff in error; Charles H. Pegleb, of counsel.
    Edward Maher and H. E. Wynekoop, for defendant in error; Morse Ives, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

The riveters in the service of the defendant were working above the servants of the mason contractors, and it was the duty of the defendant to use reasonable care to so carry on the work of riveting, and so handle the appliances used in such work, as not to injure the servants of the mason contractors employed in said building, and if the riveters of the defendant negligently permitted a beam used by them in their work to fall upon and injure the plaintiff when he was at work in said building for the mason contractors, the defendant is liable to him for such injury. If the beam was under the control of defendant’s servants when it fell, its fall was so far out of the usual course of things as to make a ease where the maxim res ipsa loquitur applies, where the circumstances surrounding the accident amount to evidence from which the fact of the negligence of the defendant may be found in the absence of explanation by the defendant. C. U. T. Co. v. Giese, 229 Ill. 260; Sheridan v. Foley, 58 N. J. L. 230; Dixon v. Pluns, 98 Calif. 384.

The defendant offered no evidence as to the facts or circumstances attending or preceding the fall of the beam. The question of the liability of the "defendant therefore turns on the question whether from the evidence the jury might properly find that the beam which fell was an appliance used by defendant’s riveters in their work and under their control when it fell. The evidence is ample to show that the riveters were em-. ployed by the defendant; that they were at work near the top of the second story of the building; that they used beams to stand on while riveting, and there is no evidence tending to show that the bricklayers who had carried the wall a little above the top of the first story used, or had occasion to use, such a beam for any purpose. Louis Watts, who was on the first floor, testified that the riveters stood on the beams like a platform to rivet; that as they were lifting up that beam it happened to fall down; that one end of it struck plaintiff; that after the beam fell he saw one man standing at one- end of the beam with a rope in his hand fastened to the beam and another man where the other end of the beam had been, with no rope in his hand; that a few minutes before the beam fell he saw the same two men each with a rope fastened to the end of the beam in his hand, pulling the beam towards them; that he saw those two men turning the planks around above his head. Jones, defendant’s foreman, testified that just after plaintiff was hurt he saw a beam with one end on the floor; that a man had hold of a rope fastened to the upper end of the beam; that the man who had hold of the rope at the upper end of the beam was an Oscar Daniels man, a riveter, one of the steel men. Ragland testified that two men were putting up the beam; that one end of the beam fell and hit plaintiff; that he knew that the men who were putting up the beam were doing riveting on the steel work for the defendant.

We think that from the evidence the jury might properly find that the beam, at the time it fell, was under the control of the defendant, and that the verdict cannot be said to be against the evidence.

We cannot, upon the evidence in this case, say that the damages awarded the plaintiff are excessive.

We find no reversible error in the ruling of the court on questions of evidence or instructions.

The judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Justice Chytraus

text:
    Janko Gjukic, Defendant in Error, v. Chicago Crushed Stone Company, Plaintiff in Error.
    Gen. No. 14,250.
    Personal injuries—when recovery cannot he sustained. Where an injury results either through the carelessness of the plaintiff or because of some danger inherent in the work which he was doing at the time, a recovery therefor will not be sustained.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed.
    Opinion filed January 8, 1909.
    F. J. Canty, for plaintiff in error; R. J. Folonie and George Pfirshing, of counsel.
    Nathan Neufeld, for defendant in error; Isaac E. Korn, of counsel.
   Mr. Justice Chytraus

delivered the opinion of the court.

Plaintiff in error sued out this writ of error to reverse a judgment against it for $1,000. Gjukic, defendant in error, was injured on January 18, 1907, while in the employ of the plaintiff in error at a stone quarry which it operated at Summit, Illinois. In Ms “statement of the nature of the tort,” which the statute requires to be filed in such case, Gjukic complains of The Chicago Crushed Stone Company, a corporation, as follows: “it became the duty of the defendant to provide for the plaintiff a reasonable safe place to work so to protect the life and limb, yet the defendants disregarding their duty in that respect allowed stone and other debris to fall on plaintiff’s right leg although the plaintiff used due care and diligence,” by reason of which neglect and carelessness plaintiff’s leg was broken.

It appears from the evidence that at the time he was injured Grjukic was on top of a pile of stone, previously loosened by blasting, for the purpose of prying down stone to be loaded upon a car. He was one of a “gang” of three workmen who loaded stone upon cars and were paid according to the number of cars they loaded. Grjukic is a man about forty years of age and had worked for the company about eleven or twelve days. The pile of stone, upon which he was working in prying down stone with a crow-bar, was about 12 to 17 feet high. According to the testimony he had been working on the stone pile from two to fifteen minutes, when he pried on a stone and both he and the stone fell down from the piles. He fell on one side of the pile and on the other side, he says, about five cars of stone fell. Other witnesses say very little if any stone fell when Grjukic fell. Whether little or much stone fell when the plaintiff fell appears to us immaterial. When he went to work on the stone pile prying down stone and loading cars therewith he assumed the risk of falling down and injuring himself in connection with that work. Necessarily, according to the evidence before us, the cause of his falling was either some carelessness of his own or danger inherent in the work he was doing at the time. The record shows no negligence on the part of plaintiff in error. Plaintiff in error was not an insurer against injury.

The judgment of the Municipal Court will be reversed.

Reversed.


text:
    John Doherty, Defendant in Error, v. The Parker-Washington Company, Plaintiff in Error.
    Gen. No. 14,279.
    1. Master and servant—who may he vice-principal. A superior servant or vice-principal may be a fellow-servant; one of two servants in equal station or authority may be vice-principal, and, furthermore, though it may rarely occur, no principle of law prohibits a subordinate employe being made a vice-principal for a particular purpose or a particular occasion. The question is one to be resolved by a consideration of the facts and circumstances in evidence.
    2. Master and servant—how question of fellow-servants determined. The question of fellow-servantship when raised cannot always be disposed of by ascertaining what was generally the position of the person in a given case contended to be a fellow-servant. In a case of contradictory and conflicting testimony, in respect to the facts upon which the question must be determined then the question is always one of fact to be determined, when there is a trial by a jury, upon proper instructions as to what constitutes the relation of fellow-servants or the position of vice-principal. But in case of no conflict of evidence in respect to the facts upon which the question is to be determined, then the question is always one of law to be settled by the court, whether the trial is one by jury or not.
    3. Master and servant—how question of liability determined, where servant whose negligence is in question, occupied dual position. When a particular employe occupies a dual position of fellow-servant and vice-principal, then it is to be ascertained whether the negligent act complained of arose out of or was the direct result of the exercise of the authority conferred upon him by the master over his co-laborer, and if it occurred in the exercise of such authority, then the master is liable for the negligence; otherwise not. The master is liable also where the injury results from the negligence of the vice-principal as such in combination with the negligence of such vice-principal in his capacity of fellow-servant, provided, however, that his negligence in the capacity of vice-principal is then such that the injury would not have happened but for that negligence.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed January 8, 1909.

      Charles L. Mahony and Holmes Conrad, Jr., for plaintiff in error.
    John C. King and James D. Power, for defendant in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

The Parker-Washington Company sued out this writ of error to reverse a judgment for $.546.66 obtained against it by John Doherty, the defendant in error. Doherty obtained the judgment in an action on the case for personal injuries he sustained May 7, 1907, while in the employ of plaintiff in error. The injuries are contended to have been occasioned by the negligent conduct of one Wellington H. Hixon, a vice-principal.

Plaintiff in error was constructing a tunnel under the streets of Chicago near 73rd street and Drexel avenue. In the prosecution of the work of such construction an elevator brought from the tunnel up to the surface of the ground small cars through a shaft. These small cars came up filled with rock and.loose earth which, at the surface, was emptied into larger or “dump” cars. These “dump” cars ran upon a track and carried the load to a dump where the car was emptied. The dump cars were about 6x8 feet and operated on a pivot or swivel running from front to rear, so that they could be “dumped” or emptied toward either side. Upon each side of the cars were two chains so placed and arranged that when the chains on one side were released the car would “dump” toward the other side. Doherty, when injured, was assisting in loading dump cars at the mouth of the shaft, running them out on the dump and there emptying them. The injury occurred about midnight of the second day of Doherty’s employment. With him at the time was Hixon.

The track ran north and south and Doherty was on the east side and Hixon on the west side of the car which was* dumped when Doherty was hurt. He was hurt by the carload of rock and loose dirt being dumped upon him. There is a square conflict in the testimony whether foreman Olson made the statements and as to all the facts upon which is predicated the conclusion that Hixon, at the time in question, acted as vice-principal and, also, in respect to the directions to Doherty by Hixon and the latter’s acts when the chains upon the car in question were released and the car dumped. Upon both these propositions we must, however, abide by the verdict of the jury, for, upon the state of the evidence in this record, we are not warranted in assuming to substitute our judgment for that of the jury and that is what we would have to do in order to reverse this judgment.

Taking such view of the evidence as we find to be most favorable to Doherty there is sufficient evidence to sustain a verdict and judgment in his favor. He was anew hand at work of this kind. Hixon testified that he, himself, had charge of the top work, or had charge of the cars on top, and had had charge thereof since December 1906. Doherty says he was a laborer and was hired to dig in the tunnel but, as he did not have his long boots with him on this occasion, the foreman, Olson, told him to go and help Hixon on top and he, Hixon, would show him what to do. Olson, Doherty says, also told Hixon to show him what to do. Hixon tells us that on the trip Doherty was injured the dump car had advanced about fifty or sixty feet, but had not reached the place where it was to be taken, when the front wheels ran off the track. At" that time Doherty was ahead with a lantern but came back with it and put it down on the ground. He, Doherty, was then on the east side of the car and Hixon was on its west side. The car was leaning somewhat toward the east side, thereby straining and tightening the chains on the west side, and Hixon told Doherty to put his shoulder under his side and “raise it like over to him,” which Doherty did. Hixon then unloosened the two chains on the west side of the car, where he was, and then, as put by Doherty, “the car came over right on top of me.” As a matter of fact the stones, and earth fell upon him, broke his left leg and otherwise injured him. Customarily both men would be on the same side, one at each chain, and unloosen the chains to dump the car. Doherty would unloosen his chain when Hixon told him to do so. Hixon informs us that on this occasion, when the car “jumped the track,” he prepared to dump the car where it was.

It may fairly be said that when Olson, the foreman, told Doherty to go and help Hixon, who had charge of the cars, and that Hixon would show him what to do, Doherty was placed under Hixon’s orders. This conclusion is more peculiarly forced upon our mind in view of the fact of Doherty’s newness at the work. The master made Hixon both the superior and the instructor of Doherty. When the latter in compliance with the former’s direction put his shoulder under the side of the car it was not merely a co-operation in service, but it was in the fullest sense an obedience of an order given by one whom the master had substituted in his own place and stead—a vice-principal. True there is great conflict in the evidence and practically all the testimony that is of vital importance, upon this issue of vice-principalship, is in conflict and it is here in truth a delicate matter to say that the defendant in error has a preponderance. But that question has been passed upon by the jury and by the learned trial judge favorably to the defendant in error. We cannot disturb their conclusion.

A superior servant or vice-principal may be a fellow-servant; one of two servants in equal station or authority may be vice-principal and, furthermore, though it may rarely occur, vno principle of law prohibits a subordinate employe being made a vice-principal for a particular purpose or a particular occasion. The relative general position of the employes concerned, when the question is involved, is, frequently, but a circumstance of greater or less weight in arriving at a conclusion. When an issue arises whether an employe on a particular occasion was a vice-principal it must be determined by the facts and circumstances of the occasion. The question of fellowservantship, when raised, cannot always be disposed of by ascertaining what was, generally, the position of the person in the given case contended to be a fellow-servant. In a case of contradictory and conflicting testimony, in respect to the facts upon which the question must be determined, then the question is always one of fact to be determined, when there is a trial by a jury, upon proper instructions as to what constitutes the relation of fellow-servant or the position of vice-principal. But in case of no conflict of evidence in respect to the facts upon which the question is to be determined, then the question is always one of law to be settled by the court whether the trial is one by jury or not.

When a particular employe occupies the dual position of fellow-servant and vice-principal then it is to be ascertained whether the negligent act complained of arose out of and was the direct result of the exertion of the authority conferred upon him by the master, over his co-laborer, and if it occurred in the exercise of such authority then the master is liable for the negligence, otherwise not. The master is liable, also, where the injury results from the negligence of the vice-principal, as such, in combination with the negligence of such vice-principal in his capacity of fellow-servant provided, however, that his negligence in the capacity of vicé-principal is then such that the injury would not have happened but for that negligence. Gall v. Beckstein, 173 Ill. 187; Norton Bros. v. Nadebok, 190 Ill. 595; Roebling Const. Co. v. Thompson, 229 Ill. 42.

Herein the negligence of Hixon in directing Doherty to put his shoulder under the east side of the car, where Doherty was, and then, while Doherty had his shoulder under that side, loosening both the chains on the west side of the car, occasioned the injury. The jury determined that in giving such direction and while he thereupon loosened the chains Hixon acted as -vice-principal.

The judgment of the trial court must be and it is affirmed.

Affirmed.


text:
    Frank J. Pluard, Defendant in Error, v. John J. Gerrity et al., Plaintiffs in Error.
    Gen. No. 14,285.
    1. Municipal Court—how form, of action instituted in, determined. The form of an action instituted in the Municipal Court where there are no written pleadings is to he ascertained from the written statement of the demand.
    2. Estoppel—operation of doctrine of, where definite position is taken in court. Where a party deliberately takes a position in court, then an estoppel arises which prevents him from changing his position after the termination of that suit, whether the result therein is in his favor or against him.
    3. Actions and defenses—what essential to recover in action ex contractu against several defendants. In an action against two or more defendants ex contractu it must appear from the evidence that there was a joint contract by all the defendants; otherwise there can be no recovery against any one.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Michael J. Girten, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed January 8, 1909.
    Statement by the Court. Frank J. Pluard on November 5, 1907, brought suit in the Municipal Court against John J. Gerrity and Peter J. G-errity and, according to the requirement of the statute, filed a “statement of the nature * * of the demand” as follows: “Plaintiff’s claim is for damages on a breach of contract to furnish steam heat and hot water for premises known as number 103, 92nd street. Damages $200.” The two defendants entered their appearance and on November 12, 1907, the defendant John J. Gerrity filed a sworn plea denying that the defendants were jointly liable. The case was tried before the court without a jury and, on November 21, 1907, the court rendered a judgment against both defendants for $126.60 and costs of suit. Thereupon the Gerritys sued out this writ of error to reverse that judgment.
    The facts upon which the judgment was rendered, as they appeared from the testimony, are shown in the record by way of an agreed statement.
    It appears the testimony showed that plaintiffs in error, John J. and Peter J. Gerrity, leased to defendant in error, Frank J. Pluard, the cottage number 103, 92nd street for a term of one year beginning August 1, 1907, at a rental of $15 per month. Pluard used the cottage as his residence and also conducted a barber shop there. Shortly after August 1, 1907, Pluard made an oral agreement with John J. Gerrity (who evidently was in possession of an adjoining building with boilers in it) whereby John J. agreed to furnish Pluard with steam and hot water throughout the winter and with hot water for his barber shop during the summer. Pluard agreed to put into the cottage certain radiators and about two hundred feet of pipe to connect the boilers in John J. Gerrity’s building with the radiators in the cottage and the bowls in the barber shop. Considerable of this pipe was to be in the open air between the buildings. Pluard agreed to attend to the fire in the hot water heater during the summer. Pluard put in the pipe and radiators and, until the steam heater was put in operation, attended to the hot water heater. John J. Gerrity furnished the steam and hot water. Some time after the completion of this arrangement John J. Gerrity told Pluard he would get some asbestos covering for the pipe and asked Pluard to help him put it on, which the latter consented to do. Bnt John J. Gerrity could not get the asbestos so he employed a plumber who did the whole job for $88.75. John J. Gerrity presented this bill to Pluard, who refused to pay it, and then John J. Gerrity shut off the steam and hot water. The defendant Peter J. Gerrity was aware of what was going on between Pluard and John J. Gerrity, but in nowise participated.
    In putting in the plant Pluard had incurred a liability to a plumber of $106.60—$67.85 for material and $38.75 for labor—which seems to be the total cost of the plant. Of this bill Pluard paid only $10. The judgment rendered by the court, against both defendants, is made up of $106.60—-the total plumber’s bill— and $20 for punitive damages.
    The learned trial judge laid down the following rule of damages as applicable to this case: “The plaintiff’s remedy is two-fold, first, he can let his investment stand, and recover for successive breaches of the contract; second, he can recover his investment and damages for breach of the contract, thereby ending further litigation.” And the court also held that the case was a proper one for punitive damages.
    Frank Foster, for plaintiffs in error.
    No appearance by defendant in error.
   Mr. Justice Chytraus

delivered the opinion of the. court.

This is an action ex contractu. The theory of an action is to be ascertained from the written statement of his demand solemnly made by a party in court. When a party deliberately takes a position in court then an estoppel arises which prevents him from changing his position after the termination of that suit, whether the result therein is in his favor or against him. The legal effect of Pluard’s statement of his demand in this case is an assertion that John J. Gerrity and Peter J. Gerrity, the defendants, jointly undertook and promised him to furnish steam heat and hot water and that they did not carry out and perform their joint promise in that behalf. The judgment was rendered by the learned trial judge on the theory of a joint obligation. In the evidence, however, there is not even a pretense or a suggestion that Peter J. Gerrity joined in any promise or undertaking with reference to furnishing steam heat and hot water. In an action against two or more, ex contractu, it must appear from the evidence that there was a joint contract, by all the defendants, otherwise there can be no recovery against anyone. For authorities see cases cited in Heidelmeir v. Hecht, 145 Ill. App. 116; The Cairo & St. Louis R. R. Co. v. Easterly, 89 Ill. 156, 158; Faulk v. Kellums, 54 Ill. 188; Cooper v. McNeil & Higgins, 43 App. 350. This rule applies to actions prosecuted before justices of the peace, where there are no pleadings. Briggs v. Adams, 31 Ill. 486. The rule, as specifically pointed out in some of these cited cases, is founded in sound reason and is one of substantive law, not merely one of practice. No one should in court be required to defend against a cause of action other than that wherewith he has been charged. Other errors appear in this record but it is unnecessary to discuss them. For the error in rendering judgment herein without any evidence tending to show liability on the part of Peter J. Gerrity the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Richard Freish, Defendant in Error, v. Joseph Spaulding et al., Plaintiffs in Error.
    Gen. No. 14,873.
    Appeals and errors—what not final judgment in Municipal Court. If a judgment is entered by the Municipal Court of Chicago and a motion is made in due time to vacate the same, such judgment is not final for purposes of appeal until such motion to vacate has been overruled.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1908.
    Stricken from files.
    Opinion filed January 14, 1909.
    Cantwell & Roth, for plaintiffs in error.
    Carl A. Ross, for defendant in error.
   Per Curiam.

The defendant in error has filed a plea to the writ of error, averring, in substance, that the writ was not sued out within 30 days from the rendition of the judgment, as required by section 23 of the municipal court act. The plaintiffs in error have each demurred to the plea.

It is recited in the bill of exceptions that the judgment was rendered in the cause June 9,1908, and that, on the same day, the defendants, plaintiffs in error here, moved the court to vacate the judgment and grant a new trial; whereupon the court ordered that the motion be entered and the cause postponed till July 10, 1908, and that, July 10, 1908, the motion was heard and overruled.

The writ of error was sued out August 10,1908.

The effect of the motion to vacate the judgment and grant a new trial, and the continuance of that motion till July 10, 1908, was to stay the judgment pending the motion. There could be no final judgment till that motion should be determined. Hearson v. Graudine, 87 Ill. 115, 121.

See also the following cases: Hibbard v. Mueller, 86 Ill. 256; People ex rel. v. Gary, 105 Ill. 264; Vogelsang v. Fredkyn, 133 Ill. App. 356.

The judgment having become final July 10, 1908, when the motion was denied, the suing out of the writ August 10, 1908, was in apt time. The demurrers of plaintiffs in error to the second plea of defendant in error will be sustained. The first plea of defendant in error will be stricken from the files.

Strilcen from files.


author: Mr. Presiding Justice Adams

text:
    Rosenbaum Bros. & Co., Appellant, v. Drumm Commission Company, Appellee.
    Gen. No. 14,121.
    1. Assumpsit—when lies for money had and received. The test as to whether an action of assumpsit for money had and received will lie is, “does the money in justice, belong to the plaintiff, and has the defendant received the money, and should he, in justice and right, return it to the plaintiff.”
    2. Contracts—when mortgagee mere depositary of money. If a sale of cattle is made at a specified price per head and part of the purchase price to be paid to a mortgagee of such cattle, a payment made by the purchaser of such cattle and placed in the hands of such mortgagee as provided for by the contract, is received by such mortgagee as a mere depositary, subject to return to such purchaser in the event of the non-performance of the contract of sale by the seller and mortgagor.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed January 18, 1909.
    Statement by the Court. The declaration contains only the common counts, including the count for money had and received to the use of the plaintiff. The defendant, appellee here, pleaded the general issue. The court, at the close of the plaintiff’s evidence, instructed the jury, on the defendant’s motion, to find the issues for the defendant, which the jury did, and the court, after overruling the plaintiff’s motions for a new trial and in arrest of judgment rendered judgment on the verdict. The following facts gave rise to the suit:
    March 12, 1892, a contract in writing was executed between W. E. Washington, of Hagerman, New Mexico, of the first part, and Eosenbaum Bros. & Co., of Chicago, Hlinois, of the second part, which contains the following:
    “Witnesseth: That the said party of the first part for and in consideration of Fifteen Dollars seventy-five ($15.75) per head for One Thousand Head one year old steers, has this day bargained, sold and hereby covenants and agrees to deliver to the party of the second part f. o.b. the cars, at Hagerman, N. Mex., One Thousand head of good, smooth, full aged cattle, consisting of One Year Old Steers, between May 15th and June 15th, 1902, at the option of said party of the second part, by giving ten days’ notice in writing to the said party of the first part at Hagerman, N. Mex., exclusive of stags, blinds, swaybacks, big jaws, dwarfs, cripples or cattle in any wise deformed or locoed.”
    The contract also contains the following:
    “Party of the second part hereby agrees to receive said cattle at the time, place and on the terms and conditions herein set forth, and further agrees to make final and balance of payment to first party on said cattle at the time of delivery, and failure on the part of the second party to comply with this agreement shall cause the forfeiture to first party of the payment this day made of Three Thousand Dollars ($3,000.00).
    “Party of the first part hereby acknowledge receipt from the second party, of Three Thousand Dollars ($3,000.00) as a partial or advanced payment on said cattle, which shall be repaid to said party of the second part in the event of the said party of the first part failing to comply with the terms of this contract, and same shall be paid by said first party in addition to any and all sums which shall become payable to said party of the second part by reason of any shortage in the number of head of said cattle, as hereinabove provided. Party of the first part hereby agrees to receive the balance of the payment in current exchange upon delivery of said cattle in a draft on Chicago, payable to his order through Drumm-Flato Commission Company.
    “Party of the first part represents that he is the absolute owner of all of the above mentioned cattle; and that they are in every respect as good cattle as the Hat cattle owned by Scott & Bobinson of same sex and age—in the opinion of the party of the second part, represented by H. E. Siders or Sam Davidson.”
    There are other provisions in the contract, not necessary to be stated. The name of the defendant, when suit was brought, was the Drumm-Flato Commission Co., but, after the contract was made, its name was changed to Drumm Commission Co.
    The $3,000 mentioned in the contract was not paid at the date of the contract, but was paid the next day, March 13, 1902. The plaintiff received the following letter from the defendant:
    “Kansas City, Mo., March 13, 1902.
    Messes. Bosenbaum Bros. & Co.,
    Chicago, HI.
    Dear Síes : Upon the payment to us of the sum of Fifteen & 75/100 ($15.75-100) Dollars per head for one thousand (1,000) head of yearling steers sold you by W. E. Washington, according to contract entered into between yourselves and said Washington, calling for delivery of said cattle in the B. B. shipping pens at Hagerman, New Mexico, we will execute and deliver to you a release of one chattel mortgage on the cattle so sold and delivered according to said contract, said release to cover only the cattle delivered to you under the contract. Tours truly,
    Drumm-Flato Com. Co.,
    Per F. W. Flato, Jr.,
    V. Pt.”
    Written in ink across the face of the last letter is this:

      “Fort Worth, Tex., 3/13/’02.
    Rec’d on the within mentioned contract the sum of three thousand ($3,000) dollars.
    Drum-Flato Comm. Co.,
    Per W. E. Stickney.”
    It was admitted that the foregoing receipt was authorized by the defendant, and that it received the money. The money was paid to defendant in the following manner: The plaintiff, Rosenbaum Bros. &
    Co., drew a draft on J. Rosenbaum Grain Co. for $3,000, payable to the order of W. E. Washington. Mr. Washington and Mr. Feu, plaintiff’s financial manager, took the draft to the defendant. Washington then endorsed it and delivered it to the defendant, and the defendant endorsed and cashed it. From March 13, 1902, until June 24, 1902, last date included, there was considerable correspondence, by letters, between plaintiff and defendant. April 16, 1902, plaintiff wrote' to defendant, informing it that the cattle had been inspected by Mr. H. E. Siders, and he had reported that they were not as represented in the contract, and that, consequently, plaintiff was forced to rescind the contract; also that Mr. Washington had offered, through Mr. Siders; to allow plaintiff a cut of from 30 to 50 per cent., which would not answer plaintiff’s purpose. The letter closes by saying that plaintiff would look to defendant for the refunding of the $3,000. Defendant answered plaintiff’s letter of April 16th as follows:
    “Kansas City, Mo., Apr. 18, 1902. Messrs. Rosenbaum Bros. & Co.,
    Chicago, El.
    Gentlemen : We beg to acknowledge receipt of your favor of April 16th, of which we note contents fully. We received a letter from W. E. Washington this morning under date of the 14th inst., but he didn’t mention anything about his failure to deliver the cattle according to his contract with you, hence we have written him by this mail, enclosing him a copy of your letter, with the request to let us hear from him without delay. As soon as we hear from him will write you again.
    “We have just had reference to copies of our letters to you, written at Ft. Worth on the 12th and 13th of March, in which we agree to furnish you with the proper release of mortgage on delivery of the cattle, but they state nothing about the $3,000.00 that was paid on the contracts; however, we presume if the cattle are not delivered according to contract that this money should be refunded to you, but we should have instructions from Mr. Washington to that effect. All that he mentioned in his letter we received today was that he was hoping to make a close gather on his cattle, but doesn’t intimate that your man had passed on the cattle and that he couldn’t fill his contract.
    Tours truly,
    Dbumm-Flato Com. Co.,
    Per F. W. Flato, Jr.,
    Vice Pres’t.”
    April 23, 1902, plaintiff wrote to defendant, substantially reiterating the statement made in its letter of April 16th, to which the defendant replied as follows :
    “Kansas City, Mo., Apr. 25, 1902. Messes. Rosenbaum Beos. & Co.,
    Chicago, Ill.
    Gentlemen : Tours of the 23rd inst. received yesterday and Mr. Washington arrived here this morning. From what he says we judge there is quite a difference between you and him in regard to the matter. He has requested and positively directed us not to remit you the $3,000.00. We did not receive the money under any direction or agreement to repay it to you. Mr. Washington expects to carry out his agreement. We have credited Mr. Washington’s debt to us with the $3,000, and you will appreciate the fact that we cannot pay it to you without his consent.
    Tours truly,
    Dbumm-Flato Com. Co.,
    Per F. A. Flato, Jr., Vice Pres.”

      In subsequent letters the plaintiff insisted on the return to it by the defendant of the $3,000, and the defendant refused to return the money unless by Washington’s consent. June 24, 1902, plaintiff wrote to defendant, informing it that it had drawn a draft on it for $3,000, in favor of Barse Live Stock Commission Co., attaching thereto defendant’s receipt of March 13,1902. This draft was put in evidence by the plaintiff, with notice of its protest.
    “The court having announced that, under the law, the plaintiff could not recover, even though it showed that the contract, entered into between the plaintiff and Washington, had not been complied with on the part of Washington, and that no cattle had been offered or tendered to the plaintiff, in accordance with the terms of said contract,” it was stipulated between the parties that, instead of asking questions of the various witnesses, the attorney for the plaintiff should make an offer, as to what he expected to prove by the witness, Joseph Rosenbaum, and the witness H. E. Siders, who were present in court; whereupon the plaintiff offered to prove by Rosenbaum that subsequently to the payment of the money, Mr. Stickney, representative of the defendant, said to him that the money which had been received upon the contract would be refunded if the cattle were not up to contract. The offer of proof by Siders is very lengthy, but is, in substance, that he, Siders, had made a thorough examination of the cattle and that they were not as good as the Hat cattle, but were an inferior grade in size, color and other respects, and that they complied, in no respect, with the terms of the contract, and that the plaintiff had lived up to the contract. Plaintiff further offered to prove by the witness, Rosenbaum, that the plaintiff had not received any of the cattle, and that the defendant had not released any of them from the mortgage, and that demand had been made on the defendant for the return to plaintiff of the $3,000 paid, and that payment of the draft in favor of the Barse Co. had been refused. The court, on defendant’s objections, excluded all the evidence offered except the offer of the evidence of Rosenbaum that a demand for the $3,000 had been made, and the refusal by defendant of the draft drawn in favor of Barse Live Stock Commission Co.
    Mayer, Meyer & Austrian, for appellant.
    John Gibson Hale, Botsford, Deatherage, Young & Creason and James S. Botsford, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The theory of appellant’s counsel is that, on the hypothesis that Mr. W. E. Washington has failed to comply' with his contract, which hypothesis must be assumed, for the purpose of the argument, the plaintiff is entitled, in equity and good conscience, to a return of the $3,000 from the defendant. The contention of counsel for the defendant is, that by the terms of the contract between Washington and the plaintiff, the $3,000 paid by plaintiff is to be returned by Washington, in the event of his failure to comply with the terms of the contract, and that, such béing Washington’s express promise, there can be no recovery against the defendant, on an implied promise or othererwise. In order to ascertain the understanding and intention of the parties, Washington, Rosenbaum Bros. & Co. and the Drumm Commission Co., it is necessary, not only to consider the contract and the writings referred to in the preceding statement of facts, but also to place ourselves, as nearly as possible, in the place of the parties, respectively, keeping in mind their respective interests in the subject-matter, and their conduct in respect to it. The price at which Washington sold the cattle to the plaintiff, $15.75 per head, was the sum per head for which they were mortgaged to the defendant, the Drumm Commission Co. Therefore, it was Washington’s interest to pay his debt to that company, and have the security for it, the chattel mortgage, released as to the cattle sold by him to the plaintiff. It was also the interest of the defendant to have Washington’s debt to it paid, and it was clearly the interest both of the plaintiff and the defendant, that the money paid by plaintiff should be placed in the defendant’s hands, as otherwise the defendant would not release the mortgage on the cattle which the plaintiff has purchased from Washington. Hence the cash payment of $3,000 was, in substance, made to the defendant, and hence, also, this provision in the contract: “Party of the first part hereby agrees to receive the balance in current exchange, upon delivery of said cattle, in a draft on Chicago, payable to his order, through Drumm-Flato Commission Company.” That it was the understanding of the defendant that the purchase price of the cattle should be placed in its hands by the plaintiff, is, we think, evident from its letter of April 18, 1902, set out in the preceding statement. That letter is not addressed to Mr. Washington, but to Rosenbaum Bros. & Co., and reads thus: “Upon the payment to us of the sum of fifteen & 75/100 (15.75-100) dollars per head, for one thousand head of yearling steers sold you by W. E. Washington, according to contract between yourselves and said Washington * * * * we will execute and deliver to you a release of one chattel mortgage on the cattle,” etc. And, as if to leave no doubt of defendant’s understanding that the money due, or to become due, on the contract, was to be paid to it, this is written by it across the face of its letter:

“Fort Worth, Tex., 3-13-02. Rec’d on the within mentioned contract the sum of three thousand (3,000) dollars. Drumm-Flato Commission Co., per W. B. Stickney.” The words “the within mentioned contract” can only refer to the contract mentioned in the letter, viz., the contract between W. E. Washington and the plaintiff. We cannot escape the conclusion that the defendant was, with the understanding of Washington, the plaintiff and itself, a mere depositary of the cash payment of $3,000, the deposit to abide the result of the contract, with a possible interest in defendant, depending on the performance of the contract of March 12, 1902, by both parties to that contract; hut with the duty incumbent on defendant to return the money to the plaintiff, in the event that Washington should fail to comply with the contract. This, also, seems to have been defendant’s understanding, as in its letter of April 18th to the plaintiff, it says: “We presume, if the cattle are not delivered according to contract, that the money should be refunded to you, but we should have instructions from Mr. Washington to that effect.” We fail to perceive the necessity of Washington’s consent or instruction to a return of the money to the plaintiff, if Washington substantially failed to perform his part of the contract with the plaintiff. In such case he would not be entitled to the money or any part of it, and it is for the defendant, who has the money, to return it. Defendant admits possession of the money, and if Washington has failed to perform his contract, neither he nor defendant has any interest in it, and no sound reason is perceived why it should not be returned to the plaintiff, whose money it is. The defendant does not claim any interest in it.

The test, as to whether an- action for money had and received will lie, is, “does the money, in justice, belong to the plaintiff, and has the defendant received the money, and should he, in justice and right, return it to the plaintiff.” Wilson v. Turner, 164 Ill. 398, 403; First Nat. Bank of Springfield v. Gratton, 172 ib. 625; Allen v. Stenger, 74 ib. 119; Barnes v. Johnson, 84 ib. 95; 15 Am. & Eng. Ency. of Law, p. 1096.

Privity of contract is not necessary to a recovery. First National Bank v. Gatton, supra.

We are of opinion that the learned judge of the trial court erred in holding that there could be no recovery, even though Washington did not comply with the contract between him and the plaintiff. We understand the cause to have been decided on the sole ground that Washington, and not the defendant, is liable, in the event of Washington’s failure to fulfill his contact. The court excluded offered evidence to prove that Washington did not perform his contract with the plaintiff, so that the question whether he did or not is not before us.

If the defendant still believes, in good faith, that Washington’s consent is necessary to its protection, in case it shall return the money to the plaintiff, it may, out of abundant caution, notify Washington to defend the suit. '

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Stanley Graff, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 14,127.
    1. Vebdict—when not disturbed. A verdict will not be set aside as against the greater weight of the evidence unless manifestly so.
    2. Vebdict—when not excessive. Held, that a verdict for $2,500. rendered in an action for personal injuries is not excessive where the evidence tended to show that the plaintiff who earned his livelihood by manual labor, received an injury to his hand which rendered it substantially useless.
    3. Masteb and sebvant—when doctrine of assumed risk does not apply. An employe does not assume the risk of defects in machinery and appliances of which he is ignorant.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkeb, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed January 18, 1909.

      Knapp, Haynie & Campbell, Gilbert R. Call and William Beye, for appellant.
    Charles E. Milroy and F. H. Novak, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The plaintiff, Stanley Graff, sued the defendant, the Illinois Steel Company, in case for negligence, per quod plaintiff was injured. The pleadings consist of the declaration and a plea of the general issue. The defendant, at the close of the plaintiff’s evidence and again at the close of all the evidence, moved the court to take the case from the jury, and presented to the court written instructions to that effect, and the court overruled said motions and refused the instructions. The jury found the defendant guilty and assessed the plaintiff’s damages at $2,500; motions of defendant for a new trial and in arrest of judgment were overruled and judgment was rendered on the verdict.

The contentions of defendant’s counsel are, that the court erred in not taking the case from the jury, and in rulings on evidence and instructions; that the verdict is contrary to the weight of the evidence, and that the damages are excessive.

The plaintiff was employed by the defendant July 5, 1903. His first work in defendant’s employ was chipping, which he continued for about three months, when he was put to rivetting, in which work he was engaged something more than three weeks, when November 13, 1903, he was put to work with the'fitting-up gang. At the place where he was sent to work an iron girder, between 16 and 20 feet long and between 3 and 4 feet wide, with a flange at its lower side, and with a piece of iron about three feet in length, bolted to it, was suspended about two feet above certain other iron girders on the ground below it. It was suspended edgewise by means of two hooks, one being attached to it about five feet from each end of it. The hoisting and lowering of the girder was done by a hoisting apparatus or machinery, the motive power of which was air. There were two ropes hanging down near the hooks at the ends of the girder, by pulling one of which the girder was hoisted and by pulling the other it was lowered. At the time of the accident a Mr. Heidel, head of the fitting gang, was operating the ropes at one end of the girder, and Albert Jablonowski was operating the ropes at the other end, where the plaintiff was. The plaintiff testified, in substance, that Heidel motioned to him to take the bolt from off the girder, to do which he. had to reach under the girder to unscrew the nut which held the bolt, and as he was so doing, the end of the girder next to him dropped fast and suddenly and his left hand, which was edgeways, underneath the girder, was caught between it and a girder beneath it. The evidence shows that only the end of the girder next to which the plaintiff was, dropped, and that it rested on one of the girders on the ground, so that the girder slanted from the end which remained suspended to the end which dropped, leaving a space of about two inches between the fallen girder and the one beneath it, and the plaintiff’s hand was caught in that space. Albert Jablonowski testified that he lowered the end of the girder next to the plaintiff in obedience to a signal to lower it. He says he had been running the hoist for the laboring gang for about a year before the time of the accident; that Kowaliski was the labor boss and Jochim. was the head boss, and that he told Jochim two days before the accident that the tackle of the hoist was out of order, and that he, witness, would not work with it, and that, on the day of, and before the accident, he told Kowaliski that the hoist was out of order, and Kowaliski said, “You can work it.” Witness further testified that the hoist worked loose, that it would hoist up right, but not lower; that if it was started to lower it would run right down, and that, when he pulled the rope, he was trying to lower the girder about half an inch, but it ran right down— dropped; also that if the hoist was in good condition he could stop it at any place. In this last the witness is corroborated by the testimony of Jochim, called by the defendant, who testified, on cross-examination, that “if a hoist is in good running order an object will never drop suddenly.” Jablonowski also testified that they did not go ahead and use the hoist, on the girder, after the accident.

Defendant’s counsel rely on the testimony of Jochim, Froh, Cairns and Pence, witnesses for defendant, who testified, in substance, that the girder descended slowly and that the hoist was in good condition.

Jochim testified that nothing was said to him by plaintiff, or any person, about the hoist being out of repair, or not working properly. Kowaliski was questioned and answered as follows:

“Q. The day before he was injured, or the day he was injured either, did any one say to you that this air hoist, on which he was injured, was out of order, or no good, or anything of that kind!

A. I don’t remember very good.

Q. Do you remember of any one saying anything of that kind to you?

A. I don’t remember.”

The evidence of Froh is, to say the least, very unsatisfactory. He says he was working at a rotary planer forty feet distant from plaintiff; that plaintiff must have reached under the girder to take out a bolt, or something, and that some way or other, Heidel and another fellow lowered the girder down on plaintiff’s arm; also that he did not notice the hoist at the time of the accident, but he used it the next day; also that the girder did not drop, but went down easily. On cross-examination he testified that the first thing which attracted his attention to the fact that plaintiff was injured was some hallooing.

Cairns testified that the hoist was not out of order that he knew of. His cross-examination shows that he was attending to his own work, heating rivets, and looking out for himself, and paying very little attention to the operation of the hoisting apparatus.

Pence, on cross-examination, testified: “At the time when I saw this man’s arm under there, and saw him pull it out, the girder was suspended in the air, both ends even. I never saw that girder with one end down and the other up. I didn’t see one end drop down and the other up.” This evidence shows conclusively that the witness was paying little or no attention to what occurred at the time of the accident, because it is established beyond doubt by the evidence, that one end of the girder fell, and the other end did not.

Heidel, who was operating the ropes at the end which remained suspended, was in court at the time of the trial. He had ample opportunity to observe what occurred before and at the time of the accident, but he was not called as a witness.

The court properly submitted the case to the jury. It was the province of the jury to decide on which side the greater weight of the evidence was, and we cannot set their, verdict aside, unless it is manifestly against the preponderance of the evidence, which we do not •Blink it is. We find no reversible error in the court’s rulings on evidence. The witness Jochim testified that the hoist was used continually after the accident, and was then asked whether it was repaired after the accident, which question the court ruled against. This, however, did not prejudice defendant, as Harper, defendant’s witness, testified that the hoist was not repaired after the accident.

Counsel contend that the sole cause of the accident was the negligence of Jablonowski. If this were true, it could only avail the defendant if Jablonowski and the plaintiff were fellow servants, which counsel for defendant do not claim, but, on the contrary, expressly disclaimed on the trial, saying of Jablonowski: “There is' no charge in the declaration of the negligence of this man. Consequently, there is no fellow servant question involved. If this man’s negligence "caused the injury, then they cannot recover, as the declaration is on the exclusive theory of the ill repair of this hoisting apparatus.” There is no evidence that Jablonowski, in operating the rope to lower the girder, in obedience to the order given him, was in the least negligent.

Counsel for defendant asked four instructions, the giving any one of which would have excluded from the consideration of the jury the plaintiff’s evidence tending to prove that the hoisting apparatus was in an unsafe and dangerous condition. The instructions were properly refused. Counsel object to plaintiff’s second instruction, on the ground that it eliminates the question of assumed risk. The question of assumed risk is not involved in the cause. An employe does not assume the risk of defects in machinery or appliances of which he is ignorant. The plaintiff had never operated the hoist, nor had he had any opportunity to discover defects, if any, in it. The court did not err in giving the instruction.

The plaintiff was between 41 and 42 years old at the time of the accident, and, so far as appears from the evidence, was a competent, able-bodied man. He testified that after the accident his hand was black and blue and swollen, and so continued for more than a year; that his fingers are stiff and his hand painful, and that he has not been able to do any work with it. He testified that for two or three weeks after the accident two of defendant’s doctors treated him, and after that time he was treated by doctors Kobalski and Train, at a free dispensary.

Dr. Krezminski, witness for plaintiff, testified that he examined the plaintiff’s hand on several occasions, using an X-ray on one occasion, and found the joints swollen and the middle metacarpal bone fractured, the fracture being a little oblique, and the fractured bone knitted together, the union being such as to limit motion, and that the injury is permanent and will grow worse. Dr. Tobias, called by plaintiff, examined the hand a short time «before the trial, and testified that it was deformed and its motion partly lost; that plaintiff could not squeeze with it, and that it would never be any better.

Doctors Burry and Behrendt were called as witnesses by the defendant. The former testified that he examined plaintiff’s hand in December, 1903, and that it was then swollen and the voluntary motions of the fingers were slightly limited; that he took an X-ray picture of the hand and there was no fracture of the bones of the hand, and the circulation was fair,, and his opinion at that time was that there would be no permanent disability. Doctor Behrendt testified that he examined plaintiff’s hand November 13, 1903. His testimony was substantially the same as that of Doctor Burry.

Neither of defendant’s medical witnesses testified as to whether the condition of plaintiff’s hand, as it was at the trial, could be improved by treatment, or whether or not the condition is permanent.

The jury, before whom the plaintiff appeared and testified, had the opportunity of seeing his hand. The following occurred in the examination of the plaintiff:

“Q. Now after the six months when you ceased treating with the doctors, what was the condition of your hand then?

A. Well the hand—the finger been stiff and they are stiff to-day.

Q. Can you close your hand like this? Close it as far as you can.

A. (Illustrating). That is all I can close; pains too much.

Q. What if any effect does it have on your hand, or arm, if you try to lift anything or close your hand?

A. I cannot hardly lift anything. If I close it pains me way to my shoulder, and goes right in my body.

Q. And has that condition continued ever since the injury, all the time?

A. Yes, sir.

Q. Has your hand been painful and hurt you all the time since you were hurt?

A. Yes, sir.

Q. Now before this injury what was the condition of your hand? Did it ever hurt you before that?

A. No sir, just as well as this one, the right one; I could lift, I could do any work with this hand just as well as the right hand.”

There is in the evidence, if credited by the jury, a sufficient basis for a finding that the condition of the plaintiff’s hand, as a result of the injury, is such as to render it substantially useless to him in the performance of manual labor, for the remainder of his life. We find no sound reason for interfering with the assessment of damages by the jury.

The judgment will be affirmed.

Affirmed.


text:
    John V. Fox, Appellee, v. Patrick Ryan, Appellant.
    Gen. No. 14,140.
    Bbokebs and faotobS'—what does not affect right to commissions. If a broker is the procuring cause of a sale the fact that the purchaser did not carry out his contract but submitted to its forfeiture without fault of such agent, does not defeat his right to recover his commissions.
    Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Axel Chttbatjs, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed January 18, 1909.
    M. Henry Guerin, for appellant.
    Adler & Lederer, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Appellee, plaintiff below, sued appellant in assumpsit. The declaration contains only the common counts. The defendant pleaded the general issue. The cause was tried by the court, without a jury, by agreement of the parties, and the court found for the plaintiff, assessed his damages at the sum of $4,000, overruled defendant’s motions for a new trial and in arrest of judgment, and rendered judgment on the finding.

The argument of counsel for the defendant, appellant here, is mainly confined to a discussion of the evidence and alleged errors of the court, in rulings on propositions tendered to the court as propositions of law. The plaintiff, who is a general broker, testified, in substance, as follows: In March, 1901, he had an interview with the defendant in his, plaintiff’s office, in the city of Chicago, and defendant told him that he wanted to sell the stock of the Golden Star Mining-Company, in which he had 155,718 shares, for $1.35 per share; that the Annie Laurie Company owned the mine adjoining that of the Golden Star Mining Co., and that the latter company owned the apex of the former, and that it was important to the Annie Laurie Co. to own the Golden Star Company’s mine; and plaintiff told him that he, plaintiff, knew the principal owners, Peter L. Kimberly and Louis C. Houck, of the Annie Laurie Co.’s mine, and defendant said that if plaintiff would effect a sale of the stock he would pay him 5 per cent, commission. Plaintiff consequently took the matter up with Mr. Kimberly and Mr. Houck,' seeing them numerous times, and, in March or April, he took the defendant to the office of Mr. Houck, with whom defendant was not acquainted, at defendant’s request, and showed Mr. Houck some samples from the mine. In from two weeks to a month after plaintiff’s first interview with defendant, he had another conversation with defendant, in which the latter said to him, “Inasmuch as we are not going to be able to get what I really want for this stock from Mr. Kimberly, I won’t be able to pay you 5 per cent., but I will pay you $4,000 if the deal goes through,” and plaintiff said, “That will be all right, Mr. Byan, that will be satisfactory. I will accept $4,000. You can go ahead and close up the deal with Mr. Kimberly.” Mr. Byan said he would carry on the deal with Kimberly direct, and that I was to keep in touch with Kimberly and promote his, Byan’s interest, with the view of closing up the transaction.

The plaintiff put in-evidence the following letters:

“Chicago, April 4, 1901.

Johh V. Fox, Esq.,

City;

Dear Sir: I closed deal with Kimberly last night on the basis I told you about. I leave for Salt Lake City at once, as the deal will have to be closed from that end. I expect to be back in about two weeks.

Yours truly,

Pat Byan.”

“Chicago, March 27, 1901.

John V. Fox, Esq.,

City;

Dear Sir : I just received a letter from my foreman at the mine saying the property was looking very much better, and that he was taking out very high grade ore out of a new place. If you see Kimberly or Houck before returning from Pittsburg do not talk price until you see me. I am writing my associate in St. Paul now. I am of the opinion they will not sell at present price. Yours truly,

Pat Byah.”

“Salt Lake City, June 18, 1901.

John V. Fox, Esq.,

Chicago, Bis.

My Dear Sir: Your favor of the 14th inst. just received- and contents noted. In reply would say Mr. Kimberly did not make the second payment on the Golden Star property which was due on June 8th.

On that day he come and wanted ninety days more time. I refused to grant the request unless he would pay down some more money. This he would not do, so we called the deal off. Houck would not go in with him on the deal. I have put some men to work on the property, and I expect to leave for Chicago some time next week and will call and see you.

Bespectfully,

Pat Byan.”

Thomas E. Fox, a brother of the plaintiff, testified, in substance, that he was present in plaintiff’s office when a conversation occurred between defendant and plaintiff, and heard defendant say that if the deal went through, he would pay plaintiff 5 per cent, commission ; and that, about two weeks after the conversation last mentioned, he heard defendant say to plaintiff that “he would pay him $4,000 if the deal went through,” and plaintiff said that was satisfactory. It appears from the evidence of Mr. Byan, called by plaintiff, that he, a Mr. Conley and a Mr. Ham, owned the stock of the Golden Star Mining Co., in all about 156,000 shares, and that they sold it to Kimberly for about $200,000; and the defendant testified, when called as a witness on his own behalf, that only $5,000 of the purchase money was paid by Kimberly, and that they declared the contract forfeited, in accordance with its terms.

The defendant, Patrick Byan, testified, in substance, that he never promised to pay plaintiff $4,000 if the deal should go through, and contradicted the plaintiff’s evidence in other material matters. In this conflict of the evidence, it was for the court to decide on which side the greater weight of the evidence was, and we do not think the court erred in finding that it was on the side of the plaintiff. If the plaintiff was the procuring cause of the sale, as the court found, the fact that Kimberly did not carry out his contract, but submitted to its forfeiture, without fault of the plaintiff, does not defeat plaintiff’s right of recovery. Wilson v. Mason, 158 Ill. 304. It does not appear that Kimberly was financially unable to make the deferred payment on his contract, if this were material. He may, for aught appearing, have concluded that he had made a losing contract, and that he would save money by allowing it to be forfeited.

Counsel object to the refusal of the court to hold as law defendant’s propositions 1, 7 and 9. Proposition 1 is that the plaintiff is not entitled to recover. Propositions 7 and 9 are as follows:

“No. 7. The court holds that a broker is not entitled to commission where a party whom he introduces as a buyer enters into a contract, which contract gives him the option to withdraw by forfeiting the earnest money, which course he pursues.”

“No. 9. The court holds that if the defendant did not hear from said plaintiff relative to a customer for his property for a period of six months, then the defendant had a right to consider that the plaintiff had abandoned all negotiations for a sale of the property in question and was entitled to take up negotiations with any prospective customer with whom negotiations might have been carried on by said defendant.”

The propositions are not the law and were properly refused.

Counsel also object to the modification by the court of propositions 2, 3 and 5, presented by the defendant, and the giving them as modified. We find no reversible error in the court’s action in respect to said propositions. .

The judgment will be affirmed.

Affirmed.


text:
    Lena Mark, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,163.
    1. Passenger and carrier—when instruction as to care required of former appropriate. HeXd, that the following instruction was correct in form and proper to be given under the facts of this case.
    “The court instructs the jury as a matter of law that it is the duty of a street railroad company to use the highest degree of care and caution, consistent with the practical operation of the road, to provide for the safety and security of passengers while being transported.”
    2. Instructions—must not assume facts in dispute. An instruction which directly or in effect assumes the existence of a fact in dispute, is properly refused.
    3. Instructions—need not repeat. An instruction though correct in form if substantially contained in another instruction given, is properly refused.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook County'; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed January 18, 1909.
    West, Eckhart & Taylor, for appellant.
    Charles M. Foell and Earl J. Walker, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

This is an appeal from a judgment rendered in a' suit by appellee against appellant. It is averred in the declaration that plaintiff became a passenger on defendant’s street car, on Sixty-third street, in the city of Chicago, going west on said street, and signalled the conductor 'to stop the car at the intersection of said street with Morgan street, to allow plaintiff to alight therefrom. The car was stopped at said intersection, and while plaintiff was in the act of alighting therefrom, and before she had sufficient time to reach the ground, the car was suddenly started forward with a violent jerk, and she was thrown to the ground and was thereby injured.

The defendant pleaded the general issue; the jury found the defendant guilty and assessed plaintiff’s damages at $1,000, and the court overruled defendant’s motions for a new trial and in arrest of judgment and rendered judgment on the verdict.

The plaintiff is married, and, at the time of the accident, was between thirty-seven and thirty-eight years of age. In the afternoon of July 1, 1903, she became a passenger on a street car of the defendant, bound west, on Sixty-third street, at the intersection of that street with Halsted street, to go west to Morgan street, and told the conductor to stop at that street. Halsted street and Morgan street lie north and south, Morgan street being four blocks west of Halsted street. The car was an open summer car, the motive power of which was electricity, and the seats ran across the car from side to side of the car. When the car reached the northwest corner of Sixty-third and Morgan streets, plaintiff attempted to alight and fell to the ground. She was assisted to the upper room of a house on said corner, where she remained a short time, when she was taken down from there on a stretcher and was taken to her residence on Morgan street, between two and three blocks from the place of the accident, in a wagon. There she was attended by physicians, and July 17, 1903, she suffered a miscarriage, the foetus being about four months old. Prior to that time she had given birth to six children, all of whom, except one, were living at the time of the trial. The objections of the defendant’s counsel are that the verdict is against the weight of the evidence; that the court erred in ruling on instructions, and made remarks in the presence of the jury prejudicial to the defendant.

The chief question of fact in dispute between the parties is, whether the car had stopped and was standing still when the plaintiff attempted to alight from it, or whether she attempted to alight before the car stopped, and while it was in motion. The plaintiff- and the witnesses produced by her testified that the car was not in motion, but had -stopped when plaintiff attempted to alight, and that, while she was so attempting, the car started forward with a jerk, causing her to fall to the ground. Witnesses called by the defendant testified that the car had not stopped, but was in motion, when plaintiff attempted to alight, and that it did not stop until after she fell. In this state of the evidence, it was for the jury to decide which witnesses were entitled to be credited, those for the plaintiff, or those for the defendant. Defendant’s counsel, citing numerous cases, urges that it is our duty to consider the testimony, and to reverse the judgment if we find the verdict manifestly against the weight of the evidence. This is unquestionably the law, and we have applied it in numerous cases. It would serve no useful purpose to discuss in this opinion, critically and in detail, the testimony of the different witnesses. We have read, re-read and carefully considered, all the evidence, and our conclusion from such reading and consideration is, that the verdict is supported by the evidence and is not manifestly contrary to the preponderance of the evidence. We are not even prepared to say, that had we been members of the jury, our verdict as to the plaintiff’s right of recovery would have differed from that rendered.

We find no reversible error in any remarks of the court during the trial.

The plaintiff’s seventh instruction is as follows:

“The court instructs the jury as a matter of law that it is the duty of a street railroad company to use the highest degree of care and caution, consistent with the practical operation of the road, to provide for the safety and security of passengers while being transported.”

Counsel, while admitting that the instruction is legally correct, contend that it has no application to the facts. Negligence, or a want of proper care, is averred in the declaration, and the evidence tends to prove the averment. Therefore the instruction, in informing the jury of the care legally incumbent on the defendant, is pertinent and applicable to the facts.

It is objected that the court erred in refusing each of defendant’s instructions numbered eleven, fourteen and sixteen. Refused instruction eleven is substantially included in defendant’s given instruction twenty-four. Refused instructions fourteen and sixteen are as follows:

“14. The court instructs the jury that where a person voluntarily exposes himself to a danger that he knows, or by reasonable attention would have known, he assumes the risks incident thereto and cannot recover fdr an injury resulting therefrom. If the jury believe, from the evidence, that plaintiff knew or might reasonably have known 'the dangers incident to alighting from a moving street car, and that, notwithstanding such knowledge, she attempted to alight from said car while in motion and was injured as the result of such.act, the plaintiff cannot recover in this action, and you should find defendant not guilty.

‘ ‘ 16. The jury are instructed that the plaintiff cannot recover at all in this case against the defendant, unless you believe the plaintiff has proved by a preponderance of the evidence each of the following propositions :

“(1) That the plaintiff was exercising ordinary care for her own safety at and just before the time of the accident in question;

“(2) That the plaintiff sustained injuries as charged in the declaration;

“(3) That the defendant was guilty of negligence in the manner charged in the declaration, or in some count thereof;

‘ ‘ (4) That such negligence of the defendant was the proximate, direct cause of the plaintiff’s injuries in question;

“And if you find from the evidence that the plaintiff has failed to prove, by a preponderance of the evidence, these propositions as stated, or that she has failed to so prove any one of them, she cannot recover against the defendant, and you should find the defendant not guilty.”

We think the court did not err in refusing instruction fourteen. It comes very close to assuming that *the plaintiff attempted to alight from the car while it was in motion, if it does not so assume, and is, as we think, calculated to mislead the jury. The jury were fully instructed as to the defendant’s theory, that the plaintiff attempted to alight from the car while it was in motion, by defendant’s given instruction thirteen, which is as follows:

“If the jury believe from the evidence that the plaintiff attempted to alight from the car in question while it was in motion, and that her fall and injury were due to that fact, and that such conduct on her part was a want of ordinary care for her personal safety, which contributed to the accident and injury in question, then the jury are instructed that she cannot recover in this case, and your verdict should be not guilty.”

In reference to refused instruction sixteen, counsel say it is sound law and that the part of the instruction marked four was not included in any instruction given. Defendant’s given instruction three commences thus: “The jury are instructed that the plaintiff is required by law to establish, by a preponderance of evidence, that the cause of the alleged injury was the negligence of the defendant charged in her declaration, before she can recover.” This substantially includes number four of the refused instruction sixteen.- It is not contended by defendant’s counsel that the parts of the instruction marked, respectively, one, two, three, are not included in instructions given. The court gave twenty-three instructions at the defendant’s request— certainly more than necessary to cover every phase of the case.

It is assigned as error, but not argued and therefore waived,x that the damages are excessive. We will say, however, that we consider the sum as damages very moderate, in view of the evidence in respect to the plaintiff’s injury.

Wé find no reversible error in the record, and the judgment will be affirmed.

Affirmed.


text:
    The People, ex rel. John Koelling, Appellee, v. John C. Cannon et al., Appellants.
    Gen. No. 15,196.

      Mandamus—when appeal from order granting, will not be determined upon merits. Where by virtue of lapse of time the question at issue in a mandamus proceeding has become merely one of abstract right, the appeal will not be determined upon the merits, but a dismissal thereof will be entered.

      Mandamus. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge presiding.
    Heard in this court at the April term, 1908.
    Appeal dismissed.
    Opinion filed January 18, 1909.
    Frank D. Ayers and Walter L. Fisher, for appellants.
    Levy Mayer and Harry Rubens, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court, granting a peremptory mandamus.

A petition was presented to that court March 12, 1908, as prescribed by the statute (Hurd’s Statutes 1905, paragraph 428), praying a peremptory writ of mandamus to the Election Commissioners of the City of Chicago, commanding them to submit to the electors of the city of Chicago, at the city election to be held on Tuesday, April 7, 1908, the following question, to be voted on by said electors: “Shall all places where liquor is sold, or given away, in this city, upon Sunday, be closed on said day.” March 26, 1908, the court made an order granting the writ; from which order the Election Commissioners appealed to the Supreme Court, and that court, October 26, 1908, dismissed the appeal for want of jurisdiction, holding that the appeal should have been to this court, and transferred .the transcript of the record to this court (People ex. rel. etc. v. Cannon et al., 236 Ill. 179), and the transcript was filed in this court October 31, 1908, which was more than six months after the day the election was held, and when the question should have been submitted to be voted on by the electors, if, under the statute, it is a proper question to be so submitted. The question presented by the appeal is, whether the question which the Election Commissioners are commanded, by the writ of mandamus, to submit to the voters, at the city election to be held April 7, 1908, is a proper question to be so submitted, under an act entitled “An act providing for an expression of opinion by electors on questions of public policy at general or special election,” in force July 1, 1901.

It is manifest that any decision of this question now would have no practical effect. Were we to hold that the question was a proper one to be submitted to the electors at the April 1908 election, it would be of no effect since that election is among the things of the past; and if we were to hold that the question is an improper one to be so submitted, under the statute, the holding would be fruitless, because the commissioners refused to submit it. Briefly, the question is a dead one and may never be revived.

In Gormley v. Day, 114 Ill. 185, the court say: “It is a well-recognized principle that courts, in exercising their jurisdiction in mandamus, will not award the peremptory writ where the right sought to be enforced has become a mere abstract right, the enforcement of which, by reason of some change of circumstances since the commencement of the suit, can be of no substantial or practical benefit to the petitioner,” citing numerous cases.

In Mills v. Green, 159 U. S. 651, the court say: ‘‘ The duty of this court, as of every other judicial tribunal is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from' the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.” See also, People v. Rose, 81 Ill. App. 387.

There are numerous .cases to the same effect.

The appeal will be dismissed, neither party to recover costs.

Appeal dismissed.