text:
    Pauline Polak, Administratrix, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 19,972.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed March 23, 1915.
    Rehearing denied April 8, 1915.
    Statement of the Case.
    Action by Pauline Polak, administratrix of the estate of Vojteck David, deceased, plaintiff, against Chicago and Alton Railroad Company, defendant, to recover damages for the alleged wrongful killing of plaintiff’s intestate.
    The accident occurred on Kedzie avenue, a north and south street, in the city of Chicago, where five tracks of the defendant’s railroad, running east and west, crossed the street at grade and approximately at right angles, and happened Sunday afternoon, October 27, 1907, a clear, bright day, about two o’clock. Commencing at the south the first two tracks were switch tracks, the next was a main track used by trains approaching Kedzie avenue from the west, the fourth was a main track used by trains approaching from the east, and the fifth was a “lead” track. The usual air-valve gates were on both sides of the crossing, the distance between the south gates and the north gates being seventy-five or eighty feet. A man in a tower, situated about two hundred feet east of Kedzie avenue and on the south side of defendant’s right of way, operated both gates simultaneously, two arms crossing the entire street when the gates were down, another arm crossing the east sidewalk and another the west sidewalk. Empty coal cars were being switched on the most northerly track just before the accident and the train was moving back and forth across Kedzie avenue, blocking the street. The locomotive, which was at the front of the train, was west of Kedzie avenue and was headed east. The engineer who was in the cab on the right side, had an uninterrupted view to the south and east.
    The first count of the declaration, which was in three counts, alleged, in substance, that the defendant, by its servants, was driving a certain locomotive, and certain passenger coaches attached thereto, along said railroad at or near Kedzie avenue, and, while plaintiff’s intestate with all due care was rightfully walking on Kedzie avenue across said tracks, the defendant so negligently manned andvcontrolled its road, guarded the crossing and managed said train, that the train struck plaintiff’s intestate, and without fault on his part he was so seriously injured that he died the same day, leaving him surviving his widow and next of kin, etc. The second count charged negligence in driving a “locomotive engine and train of passenger cars backwards across Kedzie avenue” and at “such a high and dangerous rate of speed” that the train struck plaintiff’s intestate, who was then and there with all due care rightfully upon said street and tracks for the purpose of crossing the tracks. The third count charged negligence in driving a “locomotive engine” across Kedzie avenue without ringing a bell or sounding a whistle, contrary to the statute, and that in consequence said locomotive struck plaintiff’s intestate, who was then and there with all due care rightfully upon said street and tracks.
    There was no count charging wilful or wanton negligence. Deceased approached the crossing from the south, walking on the east sidewalk of Kedzie avenue. There were no cars standing on the two switch tracks east of Kedzie avenue, and there were no buildings south of- said tracks and immediately east of Kedzie avenue. A train approaching from the east on said fourth track could be seen a half a mile away. The testimony is somewhat conflicting as to whether, when deceased reached the crossing, the south gates were up or down, a witness for plaintiff testifying that she was standing on the east sidewalk of Kedzie avenue south of the crossing; that deceased passed her and started to cross the tracks; that at that time the south gates were open, and that later she saw him struck by the train. Six witnesses for defendant testified that this witness had a bad reputation for truth and veracity in the community in which she lived. Plaintiff’s witness, a boy nine years old at the time of the accident, testified that he was playing about sixty-five feet north of the tracks; that he noticed deceased crossing the tracks, and that the gates were open. He also testified that he saw a freight train strike deceased. Six witnesses for defendant testified that at the time of the accident and for several .minutes prior thereto the gates were down.
    Deceased passed the south gates and continued to walk north on east sidewalk, looking straight ahead and not at any time looking towards the east. The engineer of the freight train on said fifth track testified that he first observed deceased when deceased was just inside the south gates, which were down; that deceased walked north; that when he reached the freight train he “bumped into” one of the cars, and then stood facing the train in the space between the train and the next track to the south, the fourth track, and made no effort to get off the tracks; and that there was nothing to obstruct his view of the train approaching Kedzie avenue on said fourth track from the time he left the south gates until he was struck. In the meantime a train of empty passenger coaches was approaching from the east on this fourth track. This train was backing west, coaches first, and was running about eight or nine miles per hour. The automatic bell on the engine in the rear was ringing. The pilot had such control of the train that he could stop it without the assistance of the engineer. The pilot was standing on the west platform of the car farthest from the engine, in the same position as a motorman on a street car, with his hand on the air brake. He testified that he sounded the air whistle at frequent intervals as the train approached Kedzie avenue and that he noticed three men standing- at different places immediately south of said freight train between the train and the fourth track. He further testified: “There was room enough between that freight train and my train to permit a man to stand in between. That was done right along. I passed two of the switchmen and I supposed he was the third. The space between the south edge of freight cars and north edge of my cars was probably six feet. * * * He was looking at the cars in the clear of me. As I come in about 15 or 20 feet of him, he stepped back. I whistled and hollered. * * * But he stepped back two steps and comer of car hit him in the side and knocked him down. Car struck back of his head. At that time I had reduced speed of my train considerable. It was not going over two or three miles an hour when it hit him. It ran probably half a car length before stopping. * * * Then I jumped off. * * * No part of my train ran over him. * * * If he had stood still he would not have been struck.” The engineer of the freight train also testified that shortly before deceased was struck he leaned out of the cab window and endeavored to direct deceased’s attention to the oncoming train but was unsuccessful.
    From a judgment for plaintiff for five thousand dollars, defendant appeals.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and James H. Winston, of counsel.

      Abstract of the Decision.
    Railroads, § 738

      —when pedestrian at street crossing guilty of contributory negligence. Evidence in action to recover damages for alleged wrongful killing of pedestrian at street crossing examined and held to show that deceased was guilty of contributory negligence.
    Quin O’Brier, for appellee; Munson T. Case, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    Morris Feldman et al., trading as Feldman Brothers, Defendants in Error, v. David Bernstein, Plaintiff in Error.
    Gen. No. 20,092.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 23, 1915.
    Statement of the Case.
    Action by Morris Feldman, Abraham Feldman, Nathan Feldman and Hyman Feldman, trading as Feldman Brothers, plaintiffs, against David Bernstein, defendant.
    Defendant by a written contract of guaranty, directed plaintiffs to deliver to J. Kier such goods as Kier might want from time to time, agreeing to become fully responsible to plaintiffs for any balance, either upon open account or promissory notes, which Kier might from time to time owe plaintiffs, not exceeding the sum of $400 for such purchases. All notice necessary to charge him as guarantor in case plaintiffs should call upon him to pay any deficiency was acknowledged by defendant in the writing, and he agreed that said writing should be construed as a continuing guaranty. In plaintiffs’ statement of the claim, to which a copy of the guaranty was attached, it was alleged, in substance, that plaintiffs’ open account against said Kier amounted to the total sum of $384.86, for merchandise delivered to him, and that defendant owed plaintiffs said sum.
    Abstract of the Decision.
    Guaranty, § 1

      —when evidence sufficient to establish. Evidence examined and held to he sufficient to establish the making of a contract of guaranty.
    The only defense set out in defendant’s affidavit of merits was that defendant had never guarantied the payment of any account of plaintiffs against J. Kier for merchandise delivered by plaintiffs to said Kier. The defendant, however, admitted that he signed the instrument in writing sued upon, but claimed that he signed it for “I. Kier” and not for “ J. Kier.”
    To reverse a judgment for plaintiffs for $384.86, defendant prosecutes this writ of error.
    Aaron Soble, for plaintiff in error.
    No appearance for defendants in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Theodore Wolf, (Plaintiff) and Overland Motor Company, (Garnishee), Defendants in Error, v. J. F. Timmons, Plaintiff in Error.
    Gen. No. 20,192.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 23, 1915.
    Rehearing denied April 8, 1915.
    Statement of the Case.
    Action of the fourth class in contract by Theodore Wolf, plaintiff, against J. F. Timmons, defendant. On November 10, 1913, the day on which the action was commenced and summons issued, plaintiff filed an affidavit and bond for an attachment in aid, and an attachment writ was issued, directing the bailiff to summon the Overland Motor Company as garnishee. Plaintiff alleged in his affidavit for attachment that the defendant “is about fraudulently to conceal, assign or otherwise dispose of his property or effects, so as to hinder and delay his creditors,” and that “the debt sued for was fraudulently contracted on the part of the debtor,” and that the defendant wrote and signed the statements which constituted the fraud. The summons was returned by the bailiff on November 15th with the indorsement that the defendant was “not found in the City of Chicago.” The attachment writ was returned with the indorsement that he had served the same on the garnishee, on November 14th. The garnishee answered to the effect that it was indebted to defendant in the sum of $225.
    Defendant entered his special appearance December 3rd for the sole and only purpose of moving “to quash the writ of attachment,” and of moving “to dismiss the above entitled cause for want of jurisdiction,” and filed his so-called written “plea to the jurisdiction,” which was signed by defendant personally, and was verified by his affidavit, sworn to before a notary public of Cook county on December 1st. This plea alleged, in substance, that defendant, at the time of the commencement of the action, was and had been for thirty-six years a resident of Seneca, in the county of LaSalle and State of Illinois; that he was not and had never been a nonresident of the State of Illinois; that no part of plaintiff’s alleged claim against him “was contracted or caused through fraud or fraudulent intent by him;” and that the action is improperly brought, etc. It appears from the transcript that on the same day the court overruled defendant’s motion. It further appears that on the following day the defendant moved that plaintiff file an amended statement of claim instanter. The court granted the motion aria extended the time within which defendant might file his affidavit of merits until December 9th. Plaintiff, on December 4th, filed an amended statement of claim alleging that plaintiff’s claim “is for the difference in price of one automobile- sold to defendant for $819, which he refused to keep after purchasing same, and the price at which it was sold, to-wit: $700, on or about September 20, 1913, less the expense of handling and selling same amounting to $31.” In plaintiff’s affidavit of claim it was stated that $150 was due plaintiff from defendant.
    The defendant did not file an affidavit of merits to plaintiff’s amended statement of claim within the time mentioned in the court’s order of December 4th, and did not traverse that portion of plaintiff’s affidavit for attachment in aid, which alleged that defendant is about fraudulently to conceal, assign or otherwise dispose of his property or effects as so to hinder and delay his creditors, and on December 10th the court defaulted defendant in the original suit for want of an affidavit of merits, and after a hearing, before the court without a jury, assessed plaintiff’s damages at the sum of $150, and also sustained the attachment. And thereupon the court entered judgment in the original suit in favor of plaintiff and against the defendant for $150 and costs, and also entered judgment against the garnishee, Overland Motor Company, on its answer for the sum of $225, for the use of plaintiff as to $156.10, being the amount of the original judgment and costs, and the residue for the use of the defendant.
    On the following day, December 11th, the defendant moved to set aside and vacate the judgment against the defendant and also the judgment against the garnishee, and the motion was set for hearing on January 2, 1914, at which time the attorney for defendant presented and read his own affidavit, subscribed and sworn to on December 11th, in support of the motion, wherein it was alleged that affiant procured a copy of plaintiff’s amended statement of claim, filed December 4th, on December 5th; that on account of his attending court on a motion for a new trial “he had no time to draw an affidavit of merits” until Monday, December 8th; that said affidavit of merits was written up by his stenographer on Tuesday, December 9th, whereupon he immediately mailed the same to defendant at Seneca, Illinois, but had not had time to receive it back; that on December 9th he “called up” plaintiff’s attorney and asked for further time within which to file an affidavit of merits and that said attorney “led this affiant to believe” that he would allow further time; that affiant believes that defendant has a good defense to the merits to the whole of plaintiff’s demand “in that he never contracted to buy the automobile mentioned in plaintiff’s statement of claim.” The court overruled defendant’s motion to vacate and set aside said judgments, and defendant sued out this writ of error.

      Abstract of the Decision.
    1. Appearance, § 10

      —when making motion amounts to. A defendant in an action on a contract in which an attachment in aid had been issued, entered a special appearance for the sole purpose of moving to quash the writ of attachment and of moving to dismiss the cause for want of jurisdiction and filed a so-called plea to the jurisdiction. After the denial of his motion to quash the writ and dismiss the cause, he moved that plaintiff file an amended statement of claim. It was held that the latter motion amounted to entering a general appearance and that the court thereby obtained jurisdiction of his person.
    2. Municipal Court of Chicago, § 8*—when jurisdiction of defendant and garnishee acquired 6y appearance of defendant. Where a defendant in an action in which an attachment in aid has been issued enters a general appearance and the garnishee is found and served in the district, the Municipal Court of Chicago acquires jurisdiction of both the defendant and the garnishee.
    3. Judgment, § 142*—what essential on motion to vacate default. The affidavit in support of a motion to vacate and set aside a judgment by default must show diligence as well as a meritorious defense.
    To reverse the judgment of the court overruling defendant’s motion to set aside and vacate said judgments, defendant sues out this writ of error.
    Marshall Solberg, for plaintiff in error.
    Walter H. Eckert, for defendants in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Margaret Fitzpatrick, Plaintiff in Error.
    Gen. No. 20,233.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Chables H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 23, 1915.
    Statement of the Case.
    Prosecution by The People of the State of Illinois, plaintiff, against Margaret Fitzpatrick, defendant.
    On January 9, 1914, an information, signed by Thomas H. Sweeney and verified by his affidavit, was filed in the Municipal Court of Chicago, charging that Margaret Fitzpatrick, “is an idle and dissolute person, is a common night walker and goes about the public streets soliciting men for the purpose of prostitution; is lewd, wanton and lascivious in speech, person and behavior; is idle and neglectful of all lawful business and did habitually mis-spend her time by frequenting houses of ill-fame and tippling shops.” By order of the chief justice of the' Municipal Court the cause was set for trial before the Hon. Charles H. Bowles, a judge of the City Court of Chicago Heights, Cook County, Illinois, who was holding a branch of the Municipal Court at the request of the judges of said Municipal Court.
    Defendant pleaded not guilty and demanded a jury trial, and the jury having found her guilty and a sentence of six months’ imprisonment in the House of Correction having been imposed, defendant prosecutes this writ of error.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 35

      —when information by another than Attorney General or State’s Attorney sufficient. Criminal cases in the Municipal Court of Chicago in which the punishment is by fine or imprisonment otherwise than in the penitentiary may he prosecuted by the • information of another than the Attorney General or State’s Attorney, but in such cases the information ' must be verified by the affidavit of such other person.
    2. Municipal Court op Chicago, § 4*—when nidge of court of another city may sit. Under section 13 of the Municipal Court Act (J. & A. 3325) a judge of the City Court of Chicago Heights who has been requested by the judges of the Municipal Court of Chicago to hold a branch of the latter court has jurisdiction to try causes brought in such branch.
    3. Criminal law, § 162*—when evidence sufficient to show defendant to be a vagabond. Where on an information under Illinois R. S., ch. 38, sec. 270 (J. & A. jf 3962) the testimony of the six witnesses for the People is to the effect that defendant was a common night walker and prostitute, was dissolute, neglectful of all lawful business and habitually misspent her time frequenting tippling shops, while defendant, who is the only witness for the defense, denies the charges and states that she is engaged in doing housework for her employer, receiving therefor five dollars a week and her room and board and that she also receives ten dollars a week from her husband who lives in California, the evidence is sufficient to support a verdict finding her guilty.
    Eugene A. Moran, for plaintiff in error; Rankin & Moran, of counsel.
    Maclay Hoyne, for defendant in error; Edward E. Wilson and James C. Dooley, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Samuel Burns, Defendant in Error, v. William A. Sullivan, Plaintiff in Error.
    Gen. No. 20,266.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed March 23, 1915.
    Rehearing denied April 8, 1915.
    Statement of the Case.
    Action by Samuel Burns, plaintiff, against William A. Sullivan, defendant, to .recover commissions for plaintiff’s services as broker in procuring the sale of defendant’s house and lot.
    The material facts are, in substance, as follows: Defendant listed certain property for sale at seventy-three hundred dollars with plaintiff and with several other real estate brokers early in 1913, informing them that he would pay commissions to the broker making the sale. Plaintiff mentioned the property to one Beilley, who wished to purchase a house in that vicinity, and about March 18, 1913, plaintiff showed Beilley the premises and house. Beilley made an offer of seven thousand dollars, which defendant refused. Subsequently plaintiff got Beilley to make an offer of seventy-one hundred dollars, but defendant also refused this offer and plaintiff so told Beilley. Thereupon plaintiff ceased his negotiations with Beilley, and, according to Beilley’s testimony, he (Beilley) gave up the idea of buying the house and commenced looking for another house. Subsequently one Takken, another real estate broker, who had been trying to sell Beilley a house in a different location upon being informed by Beilley that he (Beilley) had previously looked at defendant’s property but had given up the idea of purchasing it because of the price, entered negotiations with Reilley and defendant and shortly procured from Reilley an offer of seventy-two hundred dollars, (two-thonsand dollars down and balance in deferred payments) for the property which he finally succeeded in getting defendant to accept. The contract of sale was presented to both parties by Takken and signed by them, and defendant paid Takken one hundred and eighty dollars as commissions.
    Abstract of the Decision.
    Brokers, § 88

      —when evidence insufficient to establish right to commission. Evidence in action to recover commission for services as broker in sale of real estate examined and held to establish that another than plaintiff was the procuring cause of the sale.
    To reverse a judgment for plaintiff for one hundred and eighty dollars, defendant prosecutes this writ of error.
    Sonnenschein, Berkson & Fishell, for plaintiff in error.
    Charles A. Williams and Melville R. Adams, for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Frank H. Avery, Plaintiff in Error.
    Gen. No. 20,670.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 23, 1915.

      Statement of the Case.
    Prosecution by The People of the State of Illinois, plaintiff, against Frank H. Avery, defendant, on an information signed by David Neuman and verified by his affidavit.
    Section 93 of the Criminal Code (J. & A. ¡[ 3647) on which the information is based is, in part, as follows:
    “Whoever, either verbally, or by written or printed communication, maliciously threatens to accuse another of a crime or misdemeanor * * * with intent to extort money, goods, chattels or other valuable thing, or threatens * * * to accuse another of a crime or misdemeanor, * * * though no money, goods, chattels or valuable thing be demanded, shall be fined in a sum not exceeding $500, and imprisoned not exceeding six months.”
    The information is in the following language:
    “David Neuman * * * gives the Court to be informed and understand that F. H. Avery, heretofore to-wit: on the 6th day of July, A. D. 1914, at the City of Chicago aforesaid, did then and there demand money to the amount of one hundred dollars ($100) from the affiant with menaces and without reason and probable cause and thereby did threaten the affiant that unless the affiant delivered to him, the said F. H. Avery, the aforesaid sum he would cause the affiant to be placed in prison with a view thereby and intent then and there to extort and gain money, contrary to the form of the Statute in such case made and provided,” etc.
    Defendant having been found guilty and a fine of five hundred dollars and costs of nine dollars having been imposed, he prosecutes this writ of error to reverse the judgment.
    W. E. Cloyes and John J. Whiteside, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson and Ernest Langtry, of counsel.

      Abstract of the Decision.
    Extortion, § 3

      —when information insufficient. An Information which charges, in substance, that defendant threatened one N. that unless N. delivered to defendant the sum of one hundred dollars, defendant would cause N. “to be placed in prison,” is not sufficient to charge an offense under Criminal Code, sec. 93, (J. & A. U 3647), which provides that one who “threatens to accuse another of a crime or misdemeanor * * * with intent to extort money” shall ' be punished by fine and imprisonment.

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

   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Smith

text:
    Emma L. Schlottke, Appellant, v. Frederick K. Schlottke, Appellee.
    Gen. No. 19,811.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook County; the Hon. Marcus A. Kavanaqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 23, 1915.
    Statement of the Case.
    Bill for separate maintenance filed by Emma L. Schlottke, complainant, against Frederick K. Schlottke, defendant.
    The evidence shows that complainant and defendant, who had .been married and living together more than twenty-six years, were living in Indiana, together with their daughter and son-in-law. The defendant and his son-in-law were jointly operating a farm. A controversy arose, which provoked and excited the defendant, and in which the son-in-law struck the defendant in the face, knocking him down. Defendant’s glasses were knocked off his nose by the blow and broken and the pieces of glass cut his face to some extent. The daughter made some unpleasant remarks to him, and thereupon the father slapped her in the face with the back of his hand. The son-in-law then gave defendant a severe beating, whereupon the defendant packed up his clothing and asked his wife to come to Chicago, telling her that it was a shame for a man to be beaten by his son-in-law. The complainant took the part of the son-in-law and daughter and in response to uncomplimentary remarks by defendant called the defendant disagreeable names and refused to go with him to Chicago. Two weeks later, after he had requested her to go to Chicago with him, without writing him or making any demand on him for support and maintenance, filed her bill in this cause.
    In his answer the defendant offered to take his wife back and support her. The defendant came to Chicago and secured employment and remained in Chicago.
    The complainant was always intrusted by the defendant with the family purse, and, as far as the record shows, had been treated up to the time of the occurrence above mentioned with great consideration by the defendant, and there had been no quarrel or controversy between them. At the hearing the defendant offered to receive the complainant as his wife, to live with her, provide for her and give her a home as soon as he could remove or get rid of one of his tenants so that they could occupy one of the flats which they owned. The complainant refused, however, to have anything to do with defendant, and insisted upon living apart from him.
    From a decree denying the relief sought, complainant appeals.
    John Stelk, for appellant.
    William T. Payne, for appellee.

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

   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

Husband and wife, § 264 —when evidence insufficient to warrant decree for separate maintenance. Evidence examined and held insufficient to warrant a decree for separate maintenance.


text:
    Chicago Title & Trust Company, v. Alexander E. MacDonald, Appellee. William Allen, Appellant.
    Gen. No. 19,931.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 23, 1915.
    Statement of the Case.
    Bill of interpleader by the Chicago Title & Trust Company, complainant, against Alexander R. MacDonald and William Allen, defendants.
    The bill sets up that complainant had $1,400 and a contract held subject to the joint order of defendants and that they refused to give such order and each claimed the money.
    Each defendant answered setting up his claim.
    The pleadings and evidence show that on February 15, 1912, Allen and MacDonald entered into a written agreement whereby Allen was to sell and convey to MacDonald by warranty deed certain property in Chicago subject to a first mortgage of $10,000, with five per cent, interest, and to a $6,000 mortgage bearing interest at five and one-half per cent.
    MacDonald was to sell and convey to Allen by warranty deed certain property in Texas and pay Allen $2,000 in cash, of which sum $400 was to be deposited in escrow with complainant. MacDonald was to furnish to Allen, within ten days, proper abstracts of title to the Texas land, showing a good title to the same in MacDonald. Allen was to furnish a guaranty policy showing title in vendor subject to the above mentioned incumbrances. Deeds were to be passed and the transaction closed within ten days. It was provided that time was of the essence of the agreement.
    On the same day an escrow agreement was signed by the parties providing that the contract, money and escrow agreemént were to be deposited with complainant, to be delivered by it only upon their joint order, and the papers and money were deposited in accordance therewith.
    The evidence shows that in the afternoon of the same day, Allen recalled that the interest on the first mortgage was five and one-half per cent, instead of 5 per cent, as mentioned in the contract... He thereupon called up the office of MacDonald’s agent who had initiated the trade and left word about it. The next day he told the agent of the error in the rate of interest, and requested him to see MacDonald and inform him of the interest error, and if that made any difference the trade would be dropped immediately. Subsequently Allen asked the agent if he had seen MacDonald in regard to the difference in the rate of interest, and the agent stated that it was all right, that MacDonald would understand it.
    A few days after the contract was signed, Allen procured a guaranty policy for $16,000, and submitted it to MacDonald, who then for the first time was informed as to the difference in the rate of interest on the mortgage from the guaranty policy. After his attention was called to the difference in the rate of interest between the mortgage and the contract, he always insisted that Allen would have to allow him $250 on his purchase price in order to provide for the difference in the rate of interest, MacDonald also insisted that the guaranty policy furnished by Allen should cover the value of the property instead of merely the amount of the incumbrances thereon, and refused to complete the transaction unless these conditions were complied with.
    The master found and the decree of the court finds that at no time during the negotiations did Allen offer or agree with MacDonald to adjust these differences, nor was any tender of the money and policy made by Allen to MacDonald. .
    The contract had been extended by mutual agreement to March 16, 1912, and on that date the parties met for the purpose of closing the contract. At this meeting, according to the testimony, these matters were discussed and MacDonald proposed that Allen make good the difference in the rate of interest and carry out the contract, and that Allen declined to accede to MacDonald’s request and left the meeting.
    Subsequently the abstracts to be furnished by MacDonald were placed in the hands of Allen’s attorney for examination. Several objections were raised by the attorney to the title to the Texas lands, some of which were afterwards waived, but one objection was not cured.
    It appeared from the evidence that the title to the Chicago property was not in Allen’s name, but was in the name of a person by the name of Stinson, to whom the guaranty policy ran. The answer of Allen asks for a specific performance of the contract. The answer of MacDonald demands the surrender of the contract and the return of the money which he had deposited.
    The bill of complainant was sustained and a decree entered ordering complainant to pay the money into court, and complainant, having done so, was dismissed out of court with its costs.
    The cause having been referred to a master, he took proofs and reported that MacDonald was entitled to the money and contract. Allen objected to the master’s finding’s but his objections were overruled. The objections were ordered to stand as exceptions. On a hearing’ before the court, the exceptions were overruled, the report approved and a decree entered in accordance with the findings. To reverse the decree, Allen appeals.
    Abstract of the Decision.
    1. Specific performance, § 11

      —when performance of contract for exchange of real estate not compelled. Where a contract for the exchange of real estate provides that the first party will sell and convey to the second by warranty deed certain property and the evidence shows that the title to the land is in a third person who is not a party to the bill, there is such a lack of mutuality in the contract as will prevent the first party from obtaining a decree of specific performance.
    2. Vendor and purchaser, § 152*—when tender of warranty deed requisite. A party to a contract for a conveyance by warranty deed cannot tender, as a compliance therewith, a deed executed by a third person.
    Vail & Vette, for appellant William Allen.
    Lee & Lee, for appellee.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    Frank Handtoffski, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 19,988.
    1. Cashiers, § 478

      —what basis for measure of damages in action for breach of contract to carry passenger safely. In an action of assumpsit against a carrier for breach of an implied contract to carry a passenger safely, the injury to the person is the basis for determining the measure of damages for the breach.
    2. Limitation of actions, § 12*—what provision applicable to assumpsit for breach of contract to carry safely. An action of assumpsit against a carrier for breach of an implied contract to carry a passenger safely falls within the provisions of section 15 of the Limitation Act (J. & A. j[ 7210), and is not governed by section 14 of that Act (J. & A. If 7209).
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 23, 1915.
    Rehearing denied April 8, 1915.
    Weymouth Kirkland and Alfred B. Davis, for appellant ; John B. Guilliams and Frank L. Kriete, of counsel.
    Emery S. Walker and Julius Limbach, for appellee.

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

   Mr. Justice Smith

delivered the opinion of the court.

Appellee, plaintiff in the trial court and herein designated as plaintiff, recovered a judgment in the Superior Court against appellant, Chicago Consolidated Traction Company, defendant in the trial court and designated defendant herein, in the sum of ninety-two hundred dollars, in an action of assumpsit for damages for breach of contract to convey plaintiff safely. To reverse the judgment this appeal is prosecuted.

The action as originally brought was in case against the receivers of the defendant. On September 23, 1910, more than two years after the injury occurred, as shown by the evidence, on motion of the plaintiff it was ordered that the form of action be changed from case to assumpsit, and an amended declaration in assumpsit was thereafter filed, consisting of three counts against Sampsell, receiver, and the Traction Company as defendants. June 18, 1913, the suit was dismissed as to the receiver and all papers and files in the case were amended accordingly, thus leaving appellant the sole defendant. No point is made as to the regularity of these amendment proceedings, and hence it is unnecessary to state them with more particularity.

Defendant filed a plea of the general issue of not guilty, also a plea of nonassumpsit and a plea of the Two-Year Statute of Limitations.

A general demurrer was interposed by plaintiff to defendant’s plea of the statute of limitations which was sustained by the court on April 12, 1911. Later, on June 2,1913, the demurrer was again called up for argument and was again sustained by the court, and the defendant elected to stand by its plea.

The trial of the cause resulted in a verdict for the plaintiff, assessing plaintiff’s damages at ninety-two hundred dollars, and a judgment thereon.

On this appeal no question is raised as to defendant’s liability if the cause of action is not barred by the statute of limitation’s, or as to the amount of damages. The only point here urged by defendant is that the cause of action set forth in the amended declaration is barred by the Two-Year Statute of Limitations. Upon this question it is contended that the action falls within section 14 of the Limitation Act (J. & A. ¶ 7209) and is barred in two years, and that section 15 of the Act (J. & A. ¶ 7210) does not apply. It is contended that section 14 includes within the scope of its language any action at law for damages for injury to the person; and that this provision applies whether it operates either as an exception to section 15 with reference to actions on implied contracts, or cuts down or narrows the meaning of the term “implied contracts” as used in section 15, so as to exclude from the purview of the latter section actions of assumpsit on the implied contract of carriage for damages for injury to the person.

This action is assumpsit for a breach of an implied contract to carry the plaintiff safely. It is not an action to recover damages for injury to the person, for the tort is waived. The injury to the person is the basis for determining the measure of damages for the breach of contract. Howard v. Ritchie, 9 Kan. 102.

In the above case Mr. Justice Brewer said: “The fact that the breach of the contract resulted in injury to the specific personal property would not reduce the time within which an action might be brought below that which a party would have in case of any other breach of contract.”

In Kansas Pac. Ry. Co. v. Kunkel, 17 Kan. 145, the same learned Justice, speaking for the court, said: “The plaintiff has his election upon the same state of facts, whether to bring an action ex contractu or one ex delicto. Here the pleader alleges that the defendant was a common carrier, that it made a certain contract of carriage and received its pay therefor, and then alleges that defendant broke said contract and how it broke it. True, in showing how defendant broke the contract it discloses wrongful acts done by defendant; but still the manifest gist of the action is the breach of the contract, and the tortious acts are simply the manner of the breach. The ease was tried in the district court upon the theory that it was an action ex contractu, and the first briefs of the learned counsel w;ere prepared upon the same understanding; and this was correct.”

In Bates v. Bates Machine Co., 230 Ill. 619, the Court said (p. 622): “* * * and it is generally held in those States where, as in Illinois, the common law forms of action remain in use, that the statute does not fix the bar by the cause of action but by the form of the action. 19 Am. & Eng. Ency. of Law (2nd ed.) p. 268.”

We think this action falls within the provisions of section 15, and it is not governed by section 14. The language of these sections is clear and "explicit. We perceive no obscurity or contradiction in the provisions of the sections. There is no room for construction, and we need not discuss, therefore, whether or not the provision for actions for damages for injury to the person in section 14 constitutes or operates as an exception to section 15, or affects in any way the meaning of the terms used in section 15. We think the argument on behalf of defendant in support of such a theory is obviously untenable.

The trial court did not err in sustaining the plaintiff’s demurrer to the defendant’s plea of the statute of limitations. The judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Charles F. Hille, Plaintiff in Error.
    Gen. No. 20,521.
    1. Contempt, § 69

      —what evidence necessary to establish direct criminal contempt. On a proceeding for criminal contempt, where the act of contempt charged is the making by defendant to the court, on the call for trial- of certain criminal prosecutions in which defendant represented the complaining witnesses, representations that the complaining witnesses had left the State and that before leaving they stated to him that they did not wish to have anything further to do with the prosecutions and would not return to the State, in order to show that the making of the representations by the defendant on the occasion and in the circumstances was a contempt, it must appear beyond a reasonable doubt from the personal knowledge of the court, or by admissions of the defendant himself in open court and in the presence of the court, and from no other source, that the representations were false when made, that defendant knew of their falsity when he made them and that he made them knowing their falsity and with a wilful and malevolent intention of assailing the dignity of the court, or of interfering with its procedure and the due administration of justice.
    2. Contempt, § 68

      —when evidence inadmissible to support charge of direct criminal contempt. On a proceeding for criminal contempt charged to have been committed by making false representations to the court, as to the absence of complaining witnesses in criminal cases called for trial, where the court had no personal knowledge of the falsity of the representations nor of the intention or motives of defendant in making them, and defendant, under oath, stated that he believed at the time of making the representations that they were true, from what the witnesses themselves had told him and what he had learned from other sources; that he would not have made them had he known them to be untrue; that he had no intention of deceiving or misleading the court and had no interest in the disposition of the cases in which they were made, the testimony of witnesses brought before the court in other proceedings to which defendant was not a party, and reports and rumors brought to its notice in private, are insufficient to support the charge, even though such reports and rumors are subsequently made a part of the record.
    3. Contempt, § 61*—what sufficient to purge. A joint operation of act and criminal intent being necessary to support a charge of criminal contempt, a person may purge himself of contempt by showing that he acted innocently or through ignorance and without any intention wrongfully to mislead or deceive the court.
    4. Contempt, § 61*—when testimony under oath sufficient to purge. In purging of contempt, the contemnor’s testimony under oath is the equivalent of a sworn answer.
    Error to the Criminal Court of Cook county;. the Hon. George Kerstbn, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed March 23, 1915.

      William A. Morrow, for plaintiff in error.
    Maclay Hoyne and Marvin E. Barnhart, for defendant in error; Francis E. Hinckley, of counsel.

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

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

   Mr. Justice Smith

delivered the opinion of the court.

This writ of error to the Criminal Court of Cook county brings before us the record of a certain proceeding in that court, which resulted in the plaintiff in error, Hille, being adjudged guilty of direct criminal contempt of court and being sentenced to confinement in the county jail of Cook county for a period of one hundred and twenty days.

It appears that on April 13, 1914, the case of The People v. Flannery et al., charged with robbery, and the case of The People v. Flannery, charged with assault, with attempt to commit murder, were called for trial before his Honor, Judge Kersten, in the Criminal Court, and that upon alleged representations made by the defendant, Charles F. Hille, plaintiff in error, that the complaining witnesses were absent, the cases, by order of the court, at the suggestion of the State’s Attorney and with the acquiescence of the defendants, were stricken off the docket with leave to reinstate.

It further appears from a statement of the Court that on the following morning, April 14, 1914, reports were brought to the Judge that undue influence had been resorted to by someone for the purpose of causing the complaining witness in the Flannery cases to absent themselves so that there would be no prosecution of the cases; that collections were made and that money was raised, and that some money was paid over to the prosecuting witnesses, and for that reason they did not appear.

It further appears from the record that the Judge, upon receiving this report, deemed it advisable to call together in his chambers for a conference Hille, plaintiff in error, the assistant State’s Attorney and others, and this was accordingly done on the afternoon of April 14, 1914. ■ At this conference Judg*e Kersten introduced the subject of the hearing by saying that he wanted the record to show what proceedings were had in court the day before, and then proceeded to state that the Flannery cases were called; that Cant-well appeared for the defendants, McKay for the State and Hille as representing the complaining witnesses, and that this record showed that “Mr. Hille in court stated that he represented the complaining witnesses and that they had left the State, and before leaving they had stated to him that they would not prosecute the defendants; also that the complaining witnesses would not return to the State; that the state’s attorney then suggested that the cases be stricken off, which was accordingly done with the acquiescence of the defendants.” One Briggs was then called upon to give such information as he might have on the subject, and in response stated that his information was based on héarsay; that Smith of the “Daily News” was the man who could tell what evidence his paper had; that he had heard from him that these Flannerys had been making boasts; that they were collecting money and that they were going to use it to settle the case. At this point the presiding Judge reminded those present that it is also claimed that the State’s Attorney was to receive a part of the money that was raised. Hille, plaintiff in error, was then called upon for such information as he might have on the subject, and, in response, stated that he had been in the cases since the Flannerys were arrested, nearly two years before; that he had been in communication with the Chinese involved in the assault and robbery more or less since the occasion thereof, until the time the prosecuting witness, Pon Lee, left for Indianapolis, approximately a year prior to the date of that conference; that he saw Pon Lee before he left and that he, Pon Lee, then stated that he was not coining back if the cases were ever tried. Hille further stated that the other two complaining witnesses, Sam You Sieu and Lee Wing, had been at his office many times; that they had expressed themselves as being tired and disgusted with the cases, and that they did not want anything more to do with them and particularly were they of this frame of mind following the acquittal of Ward, one of the defendants in the assault and robbery case, upon his second trial. It was further stated by plaintiff in error, Hille, that he last saw Lee Wing just before the officer in the ease left for his trip abroad, .which was some time in November, 1913, and that Wing had told Hille at that time that he was going to leave Chicago and was going to Tennessee; that Sam You Sieu, when seen by Hille about two weeks before the conference, declared that he was going to leave Chicago and that he did not want anything more to do with the cases, and wanted Hille to so represent to the court when the cases were called for trial. Hille further stated that the Flannerys and Sullivan were nothing to him and that there was no attempt on their part or on the part of anyone else, so far as he was advised, to make arrangements to settle or dispose of the cases. Hille further stated to the court when the Flannery cases were.called that it was immaterial to him what disposition was made of the cases.

After" the conference in chambers was concluded, court was convened and on motion of the assistant State’s Attorney, the Flannery cases previously stricken off were reinstated.

On April 16th, pursuant to the order of court, a writ of attachment for contempt of court was issued for Sam You Sieu, one of the complaining 'witnesses in the Flannery cases. Under the attachment he was arrested and brought before the court and his bail fixed at $5,000, and, in default thereof, he was sent to jail. On the same day a subpoena was issued and served on plaintiff in error, Hille, requiring him to appear as a witness on April 23rd, to testify in the matter of The People v. Sam You Sieu, charged with contempt. From a writ of attachment and not otherwise it appears that the nature of the contempt of Sam You Sieu consisted in his failure to appear as a witness in the Flannery cases.

On April 23, 1914, the contempt case against Sam You Sieu was called for hearing. Various witnesses were heard. Among others, the plaintiff in error, Hille, testified that he had seen Sam You Sieu in February and that Sam You Sieu had then told him that Pon Lee was in Indianapolis or Minneapolis, the wit-, ness not remembering’ which, and that Lee Wing was also away, and that Sam You Sieu, when told that the Flannery cases would soon be up for trial, stated that he did not want anything to do with them. Hille further testified that he did not see Sam You Sieu again until a little over a week before the Flannery cases were called for trial, and that on that occasion Sam You Sieu again declared that he did not want anything further to do with them, and made the request of Hille that he appear when the cases were called for trial and express to the court his, Sam You Sieu’s, attitude towards the matter. He further stated that inasmuch as the other witnesses wer,e away, he was going away himself and that he was going South where Lee Wing was.

Sam You Sieu, in his testimony, substantially corroborated Hille’s testimony regarding the witness’ attitude towards the cases and his intention of leaving the State.

Thereupon several other witnesses were called in that proceeding and the record shows that at the close of the taking of the testimony on that day the assistant State’s Attorney in charge suggested that, in view of the contradictory statements of the witnesses, a rule be entered against plaintiff in error, Hille, to show cause why he should not he held for contempt. To this suggestion the Court replied that he thought it would he better “not to act hastily but to wait and try to get all the light possible into the case,” and that he would not order an attachment unless he felt it was absolutely justifiable upon further developments in the case. That case was then continued until May 1,1914. The record then shows that on April 24, 1914, an order for an attachment for contempt was issued against Lee Wing, another one of the complaining witnesses in the Flannery cases, and that he was arrested thereunder and brought before the court and his bail fixed at $1,000, and, in default thereof, he was sent to jail.

On May 1st, pursuant to the adjournment of court, there appeared Sam You Sieu, the plaintiff in error, Hille, and Lee Wing. Lee Wing was put on the stand by the State and testified to the effect that he had not been out of the city of Chicago; that he was in the city on the day the Flannery cases were called, but had no knowledge of the cases being called, and that he was at all times ready and willing to appear as a witness and prosecute the cases.

Stewart, who was the officer in the Flannery cases, was called as a witness and in his testimony impeached the testimony of Lee Wing in important particulars.

At the close of the testimony that day the court adjourned hearing until May 7th, on which day plaintiff in error, Hille, took the witness stand, and, under oath, testified that on the morning the Flannery cases were called for trial, he in a general way and, in substance, stated to the court that the complaining witnesses had left the State and before leaving had stated to him that they would not prosecute the defendants, and that they would not return to the State; and that he then detailed to the court the information he had of the whereabouts of the complaining witnesses by stating to the court that one of them, meaning Pon Lee, was in Indianapolis, and that he saw him before he left the State, and that Pon Lee told him, Hille, that he was going to Indianapolis; that he did not expect to return and that he did not want anything further to do with the cases; that another of the witnesses, meaning Lee Wing, was in Tennessee and that he ■ had stated before leaving Chicago that he did not expect to return and did not want anything further to do with the prosecution of the cases; that the other complaining witness, Sam You Sieu, whom defendant had seen recently, made similar statements and had expressed his intention of going where Lee Wing was. .

Plaintiff in error, Hille, further testified that the statement made to the court on the occasion in question regarding the complaining witnesses was based upon information given him by all three of the prosecuting witnesses, and on further information given firm by three or four different persons of whom he had made inquiries concerning the whereabouts of the prosecuting witnesses; that he believed at the time he made the statement to Judge Kersten on April 13, 1914, that these witnesses were out of the State of Illinois, and that he would not have made the statements had he not believed this to be a fact; that he did not know that the witnesses or any of them were within the State of Illinois or the city of Chicago at the time he made the representations to the court, but believed to the contrary; that he had no intention of deceiving or misleading the court, nor any purpose for so doing; that he had no interest in the disposition of the Flannery cases and that he came to the court that day because the witness, Sam You Sieu, had asked him to appear in court when the case was called, and express to the court his attitude and the attitude of the other witnesses towards the further prosecution of the Flannery cases, and that he had no other object in making the said representations as to the whereabouts and attitude of these witnesses other than to give the court the facts as he believed and understood them to be.

Thereupon, after arguments of counsel were made, the proceedings were continued until the following day at ten o ’clock, at which time the court entered an order finding the plaintiff in error guilty of contempt in stating to the court on the hearing of the Flannery cases that the prosecuting witnesses were out of the State, and that they did not want to prosecute the said cases, and fixed his punishment at one hundred and twenty days in the county jail.

The act of contempt charged in this case consists in the making by the plaintiff in error to the court, on the occasion of the call for trial of the Flannery cases, the representations, in substance, that the complaining-witnesses in the cases had left the State of Illinois, and that before leaving- it they stated to the plaintiff in error that they did not want anything further to do with the cases, and that they would not return to this State. Before it can be successfully maintained that the making of the representations on the occasion and under the circumstances in question was a contempt of the court, it must appear beyond a reasonable doubt from the personal knowledge of the court, or by admissions from the lips of the defendant himself in open court, and in the presence of the court, and from no other source whatsoever, that (1) the representations so made were false and untrue when made; (2) that the defendant knew of their falsity when he made them; and (3) that he made them knowing their falsity and with a wilful and malevolent intention of assailing the dignity of the court, or of interfering with its procedure and the due administration of justice. From what occurred in court on the day the Flannery cases were called for trial, and from the proceedings contained in this record, it must be conceded that the court had no personal knowledge of the falsity of the representations made by plaintiff in error, nor of the intention or motives of the plaintiff in error in making them. The record does not show that the plaintiff in error admitted that he knew that the representations made by him were false at the time that he made them. On the contrary, the plaintiff in error, under oath, stated that he believed at the time of making the representations that they were true from what the witnesses had told him themselves, and from what he had learned from other sources; that he would not have made the statements had he known them to be untrue; and that he had no intention whatever of deceiving or misleading the court,' and that he had no interest in the disposition of the Flannery cases. It was wholly improper for the court to consider in reaching its finding the testimony of witnesses brought before him and the reports and rumors brought to his notice in private, although such reports and rumors were made subsequently to appear in the record. Where the contempt charged is criminal in its nature, as in this case, the contemnor may answer the charge under oath either orally or in writing, as he choses, and his answer must be accepted as true except in so far as it may contradict the records of the court, or the facts that transpired in the presence of the court, and if by his answer he purges himself of the contempt charged against him, he must be acquitted thereof. “The defendant determines, by his own answer, under oath, whether he is guilty of that which is charged against him as a contempt of court, and if he fail thereby to purge himself, the court may, at once, impose the punishment.” Storey v. People, 79 Ill. 45, 52. It was therefore improper and erroneous for the court to receive or consider any evidence or facts in determining the guilt of the accused outside of his sworn answer, and what occurred in court when the cases were stricken off. Early v. People, 117 Ill. App. 608, 617; People v. Cochran, 149 Ill. App. 369; Oster v. People,192 Ill. 473.

Before a person can be found guilty of contempt of court it must clearly appear that in committing the offense complained of he was actuated by some malevolent intention to assail the dignity of the court, or to wilfully and knowingly interfere with its procedure or due administration of justice. There must be a union or joint operation of act and criminal intention. Consequently a person may purge himself of contempt by showing that he acted innocently or through ignorance and without any intention to wrongfully mislead or deceive the court. Powers v. People, 114 Ill. App. 323; Kanter v. Clerk of Circuit Court, 108 Ill. App. 287, 305.

It is evident that the court reached its conclusion as to the falsity of plaintiff in error’s statement, not from the defendant, but from the testimony of other witnesses heard during the proceedings aforesaid. The first essential element necessary to be established before the guilt of plaintiff in error could be maintained was not established, therefore, through recourse to the court’s own personal knowledge, nor to the record, nor to admissions made by defendant, but rather to the testimony of the witnesses called in the contempt cases against Sam You Sieu and Lee Wing. The court in a direct proceeding for contempt could not resort to such testimony nor to testimony taken in other proceedings to which plaintiff in error was not a party.

As to the second and third necessary elements to be established in order to hold defendant guilty of contempt, namely, knowledge on the part of the plaintiff in error as to the falsity of the representations made by him regarding the whereabouts of the complaining witnesses, and as to his purpose in making the representations, the court, in its order adjudging defendant guilty of contempt, recites that it finds from admissions made by the plaintiff in error to the court at the time the Flannery cases were called for trial, that the said representations so made were false and that the plaintiff in error knew they were false at the time he made them, and that he had no reasonable grounds to believe otherwise, and that he made the representations for the purpose of impeding justice. As we read the testimony of the plaintiff in error, it was impossible to reach any such conclusion or finding from anything that the plaintiff in error said or testified to during the course of the proceedings in question. There is nothing in the testimony of the plaintiff in error upon which a finding could be predi-, cated that at the time he made the statements to the court he knew that the prosecuting witnesses were in the city. It seems to us apparent that the court considered other testimony than that of the sworn testimony of the plaintiff in’ error in coming to its conclusion of guilt as to plaintiff in error. When the assistant State’s Attorney suggested to the court that a charge of contempt be preferred against the plaintiff in error and that a rule be entered against him to .show cause, the court used the language quoted above. This was after the plaintiff in error had made a statement to the court of the facts and of his sources of information. The court clearly did not regard the plaintiff in error guilty from the plaintiff in error’s own statement of the facts, for it clearly appears from what was said that the court was still seeking further evidence to establish a case against the plaintiff in error.

As said in Powers v. People, supra, “There must be an intention to do wrong. ’ ’

If the representations made by the plaintiff in error were false but were made by him in the belief that they were true and without any wilful intent to deceive or mislead the court, the plaintiff in error should have been acquitted of the charge of contempt preferred against him. From the sworn -testimony of the plain tiff in error no inference can be drawn, we think, that he made the statement to the court with any intent to do wrong. From his testimony it appears-clearly that he believed the witnesses were out of the State and that, therefore, the misrepresentations to the court were not wilful, but were based upon the belief that the prosecuting witnesses in the Flannery cases had left the city with the intention of not returning. Plaintiff in error in his testimony, which was equivalent to a sworn answer, specifically denied the facts upon which the charge against him was founded, and he should have been discharged, for his answer presented an issue of fact which could not he tried by the court in a proceeding of this character.

In our opinion the judgment is erroneous and must be reversed.

jReversed.


text:
    Margerete Hengen, Appellee, v. Gustave B. Hengen, Appellant.
    Gen. No. 20,981.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGookty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed March 23, 1915.
    Rehearing denied April 8, 1915.
    Statement of the Case.
    Proceeding by Margerete Hengen, plaintiff, against Gustave B. Hengen, defendant, to compel the payment of a money decree for the payment of alimony.
    The evidence and pleadings disclose that in a separate maintenance proceeding brought by plaintiff against defendant, an order was entered July 14, 1911, requiring the appellant to pay the sum of $150 a month temporary alimony and $200 solicitor’s fees. From that order an appeal was taken by the defendant to this court and an appeal bond was given in the sum of $2,000. The order was affirmed by another branch of this court at the October Term 1913 (182 Ill. App. 25). On November 11, 1913, the affirmance of the Appellate Court was filed in the Circuit Court and on the same day notice was given to the appellant’s solicitor and an affidavit of complaint filed showing that none of the instalments of alimony nor solicitor’s fees had been paid, and that there was due under the order of July 14,1911, $4,250. On November 17,1913, it was ordered that the defendant should show cause why he should not be punished for contempt for failure to make payment of alimony and solicitor’s fees. On April 27, 1914, the defendant was brought before the bar of the court, and he was again ruled to show cause forthwith why he should not be committed to the jail of Cook county for contempt of court in failing to pay alimony in the sum of $4,250, as required by the order of July 14, 1911. Thereupon the defendant was placed upon the witness stand and examined in the presence of the court and cross-examined by counsel for complainant and by the court.
    The appellant testified that he was not in a position to pay the alimony awarded and had not been at any tithe since the order was entered; that he had had various amounts of money since the order was made, sometimes up to $1,500 possibly, but he had used the money to pay living expenses, office expenses and pay interest on his indebtedness, which amounted to $90,000. He further testified that he had no income from any source; that he was not employed on salary; that he was a promoter; that no interest had been paid on any of the securities which he owned. The appellant further testified that on that day he was in position to pay $700 or $750 on the alimony decree and not fail on other indebtedness which he owed and which was due.

      Abstract of the Decision.
    Divorce, § 121

      —when commitment for failure to pay alimony and solicitor's fees improper. Where the evidence shows that a defendant against whom temporary alimony and solicitor’s fees have been awarded in a proceeding for separate maintenance has failed to pay them from pecuniary inability and not from wilfulness, an order adjudging him in contempt and committing him to jail until the amounts decreed shall have been paid will be reversed.
    Gridley, J. dissenting.
    He further testified that the complainant had $1,600 in money which he had given her and she had loaned the money; that she also had $50,000 of stock which he had given her and which could be sold readily for $15,000. Appellant was adjudged in contempt and ordered to be committed to jail for six months or until he shall have paid the sum of $4,250 to complainant or be released by due process of law. To reverse the judgment, defendant prosecutes this appeal.
    E. G. Lancaster, for appellant.
    Manierre & Pratt, for appellee.

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

   Mr. Justice Smith

delivered the opinion of the court.


author: Mr. Presiding Justice Brown

text:
    William Eckert, Defendant in Error, v. Edward H. Marhoefer et al., Plaintiffs in Error
    Gen. No. 19,094.
    (Not to be reported in full.)
    Error to the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 29, 1915.
    Statement of the Case.
    Action by William Eckert, plaintiff, against Edward H. Marhoefer, Wellington T. Stewart and William A. Thompson, defendants.
    The action involves collaterally the contract between Wellington T. Stewart, William A. Thompson and Edward H. Marhoefer, described in the opinion in Hoffman v. Stewart, 184 Ill. App. 66, and in the opinion in Cross & Banta Show Printing Co. v. Marhoefer, 185 Ill. App. 360.
    The contract on which the action is founded was entered into in'July, 1911, and was completed before September 1st.
    The only contract of partnership between defendant and the persons who claimed to have incurred the liability as partners introduced in evidence was dated September 1, 1911.
    To reverse a judgment for plaintiff, defendants prosecute this writ of error.
    Bunge, Harbour & Chadwick, for plaintiffs in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

Abstract of the Decision.

1. Partnebship, § 1144 —when partner not liable for antecedent indebtedness of other member. Where the only evidence showing the formation of a partnership on an alleged indebtedness of which it is sought to hold defendants liable as partners shows that the alleged partnership was entered into on September 1, 1911, while the contract on which plaintiffs claim is based is shown to have been entered into in July, 1911, and to have been entirely or substantially completed before September 1, 1911, defendants are not liable.

2. Payment, § 6*—when action will not lie by original holder after negotiation of note. One who takes a note of his debtor in payment and disposes of it to a presumably innocent purchaser cannot, while the note is outstanding, recover a judgment against the maker on the original indebtedness.


text:
    Edson Keith & Company, Defendant in Error, v. N. J. Eisendrath, Plaintiff in Error.
    Gen. No. 19,990.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.
    Statement of the Case.
    Action by Edson Keith & Company, a corporation, plaintiff, against N. J. Eisendrath, defendant, to recover the purchase price of certain goods sold defendant.
    The defense was that the order for the goods was not an absolute, unconditional order, but was an “open or conditional order” setting aside certain goods for later selection and later shipping instructions to - be given by defendant’s department buyers.

      Abstract of the Decision.
    1. Sales, § 329

      —when evidence sufficient to show order for goods absolute and not conditional. Evidence examined and held to support a finding that an order for goods was absolute and not an open or conditional order.
    2. Tbial, § 45*—when conduct of court not an interference with functions of jury. Rulings and conduct of trial court examined and held not to have been a usurpation of the functions of the jury.
    3. Evidence, § 69*—when proof of other and independent transactions inadmissible. In an action for the purchase price of goods which defendant claimed were sold conditionally, evidence of other and independent transactions where orders were cancelled and the cancellation accepted are not admissible.
    4. Trial, § 164*—when rulings on admission and exclusion of evidence not error. Evidence examined and held that rulings as to admission and exclusion were not erroneous.
    5. Appeal and ebrob, § 590*—when exception to oral charge to be made. An exception to an oral charge should, before the jury leave the box, point out specifically the portion of the charge objected to. Semble, that it is sufficient if such objections be made in chambers in the presence of both counsel and the court be given thereby opportunity to correct and amend the instructions which he intends to give.
    6. Instructions, § US*—when not erroneous. Instructions examined and held not erroneous as applied to the facts.
    To reverse a judgment for plaintiff for $422.50, defendant prosecutes this writ of error.
    David S. Eisendrath, for plaintiff in error.
    Eastman & White, for defendant in error; Ralph R. Hawxhurst, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Guy B. Reynolds, Administrator, Defendant in Error, v. John Brod Chemical Company and John Brod, Plaintiffs in Error.
    Gen. No. 20,002.
    1. Negligence, § 23

      —what sufficient to constitute person on premises an invitee. Where the evidence shows that a practitioner, by arrangement with a drug company,• used the company’s store as a waiting room for patients desiring to see him, a patient using the store for such a purpose is an invitee both as to the drug company and the practitioner and is on the same footing as though he were there for a purpose connected with the drug company’s business.
    2. Negligence, § 24*—what care owed to invitee. Where by an arrangement between a practitioner and a drug company, the company’s store was used as a waiting room for the practitioner’s patients, the drug company and the practitioner are required to exercise reasonable care for a patient’s safety, not only while she is waiting in the drug store, but also while she is going to the toilet connected with the premises.
    3. Negligence, § 198*—when contributory negligence a question for fury. In an action for personal injuries there was evidence that a drug store owned by a drug company, one of the defendants, was used under an arrangement with a practitioner, the other defendant, as a waiting room for the latter’s patients; that plaintiff, a patient, while waiting to see the practitioner, desired to use the toilet; that she asked one of the clerks if there was a toilet there and he responded affirmatively and indicated the way; that, following his direction, she went out into an area-way from which the toilet door opened; that the areaway was unlighted and that the door of the toilet room, which contained a light, was closed; that, being unable to open the toilet door, she turned in the opposite direction and fell down a stairway and received the injuries complained of. It was held that the question of plaintiff’s contributory negligence was for the jury.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.

      Edwin H. Cassels, Francis Adams, Jr., and Kenneth B. Hawkins, for plaintiffs in error.
    Charles O’Donnell, for defendant in error.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This writ of error is brought to reverse a judgment of one thousand dollars rendered September 20, 1913, by the Municipal Court of Chicago in favor of Mary E. V. Cunningham and against the John Brod Chemical Company, a corporation, and John Brod.

After the defendants sued out this writ of error Mary E. V. Cunningham died and the administrator of her estate has been duly substituted as the defendant in error.

The judgment was rendered on the verdict of a jury. The action was one for personal injuries.

The facts which the evidence for the plaintiff tended to prove were these: The John Brod Chemical Company occupied the ground floor at. 1758 West North avenue as a retail drug store. It also occupied the ground floor of No. 1754 (which was next east) as an office. Above the office at 1754 on the second floor, John Brod, who was president of the John Brod Chemical Company, had a suite of offices. Whether or not on October 9, 1912 (which, although there is a little uncertainty in the evidence about it, appears to have been the date of the accident), he had a waiting room on the second floor connected with his offices is left somewhat doubtful by his own testimony. He said that he had such a waiting room on the second floor when he was testifying, which was September 11,1913, but on cross-examination he said that whether he had a waiting room on October 9, 1912, he did not know, he could not remember.

It is, in our opinion, immaterial. The evidence showed without dispute that it was customary for persons who wished to see Mr. Brod for treatment to come to the drug store and ask for him; that it was customary for them to be told by the attendants of the drug store to wait there until he was ready for them; that he had a buzzer connecting with the drug store or so arranged that it could be heard in the drug store; that he sounded this buzzer when he was ready for a patient waiting-in the drug store and that the patient would then be sent up to him by the attendant in the drug store. This arrangement made the drug store of the John Brod Chemical Company the waiting room of John Brod for his patients, and as it was one which to exist must have been acquiesced in and carried out by both parties, it made, in our opinion, both parties inviters of those members of the public who had business as patients with Mr. Brod to occupy the drug store temporarily, and imposed upon both such duties towards such visitors as one in occupancy or control of premises owes to persons present by his implied invitation, —that is, such duties as he owes to one who is “there for a purpose connected with the business in which the owner of the premises is engaged or which he permits to be carried on,” to quote the language of the Supreme Court of Illinois. Pauckner v. Wakem, 231 Ill. 276, 279; Purtell v. Philadelphia & R. Coal & Iron Co., 256 Ill. 110,114.

On or about October 9, 1912, between nine and ten o’clock in the forenoon, Mrs. Cunningham, the plaintiff, called at the drug store for the purpose of being treated by Brod. When she came into the store she asked the clerk in charge for “Dr. Brod;” he told her that Dr. Brod was in and told her to take a seat, which she did. After she had been there for a considerable time she asked the clerk if there was a “dressing” room or “toilet” room there. He told her there was and indicated the way to it. Mrs. Cunningham testified he said, “Yes, just go around the corner.” She went in the direction indicated through a door in the east side of the drug store leading on to an areaway or landing three and a half feet square. Opposite the entrance door was a blank wall, to the left was a second door leading to a toilet room. There was no light on the landing or areaway, but a gas jet burning in the toilet room. To the right was an opening leading down a stairway." There is some conflict in the testimony as to the degree of light on the landing place, and some evidence for the defendant that the toilet room door was not closed, as plaintiff testified. But there was evidence proper for the jury to consider, and which it was at liberty to believe, that the toilet room door was closed, that the small areaway was dark and that the stairway leading from the opening at the right to the basement was steep. The plaintiff did not get into the toilet room. After going through the entrance door to - the landing, she says she could not open “the second door.” She turned and fell down the stairs to the right, opposite the toilet room door, and was severely injured, so that she was many weeks in hospitals. She sued the defendants and recovered the judgment before described. The defendants maintain that this judgment and the verdict on which it is founded were unwarranted, first, because the plaintiff was a mere licensee in the drug store. She was not, they say, the invited guest of either of them— still less of both. We have already indicated that we do not agree with the defendants’ contention on this point.

The defendants say, secondly, that even if the plaintiff could be considered invited by the defendants to use the main drug store, she could not be so considered invited to use the toilet distinct and apart from the main store; that as to the landing or areaway from which she fell she must be deemed a mere licensee.

Counsel have noted eases from other jurisdictions to sustain this view, and have ingeniously endeavored to distinguish certain cases in this State which have been cited against it. We think, however, that they have not succeeded, and that following the reasoning and the decision in John Spry Lumber Co. v. Duggan, 182 Ill. 218, as the Branch Appellate Court did in the opinion in Wakem v. Pauckner (not reported), No. 13,176, filed June 14, 1907, and as the Supreme Court did in affirming that decision (Pauckner v. Wakem, 231 Ill. 276), we must hold that the defendants were obligated to exercise reasonable care for plaintiff’s safety while upon the premises which they used under their joint arrangement, even though the precise part of the premises were only used by the plaintiff because of “a call of nature.”

Finally, the defendants contend that no negligence on their part was shown whether plaintiff be regarded as a person invited to their premises or not, and that she was at least guilty of contributory negligence which resulted in her fall. The question raised by these propositions we think were for the jury.

There was evidence, in our opinion proper for the jury to consider, sufficient to warrant their verdict.

We do not think that the trial judge’s oral instructions are subject to the criticism made of them even if the defendants were in a position to object to them, which we do not think they are.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


text:
    Bartholomae & Roesing Brewing & Halting Company, Appellant, v. Helen Modzelewski and Brun Modzelewski, Appellees.
    Gen. No. 20,289.
    Injunction, § 210

      —when reversal of interlocutory order and award of damages to defendant proper. The rulings made in Bartholmae & Roesing Brewing & Malting Go. v. Modzelewslci, 183 Ill. App. 352, reversing an order for an interlocutory injunction pendente lite adhered to and an award of damages for the wrongful suing out of the injunction, affirmed.
    Appeal from the Superior Court of Cook county; the Hon. John M. O’Connob, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.
    Winston, Payne, Strawn & Shaw, for appellant; George A. Kelly, of counsel.
    No appearance for appellees.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

In this cause an interlocutory order for an injunction pendente lite was reversed by this court on December 12, 1913. 183 Ill. App. 352. There was a formal order dissolving the injunction also in the court below, and on a suggestion of damages an award of $250 as and for damages of the defendants for the wrongful suing out of said injunction was assessed against the complainant. As the other questions in the case had been apparently disposed of by the Appellate Court in the decision referred to, the bill was then dismissed for want of equity.

An appeal was thereupon taken from the final decree, which included the assessment of damages, to the Appellate Court, and is now before us for disposition.

Apart from the question of the propriety of the judgment for $250 for damages for the wrongful suing out of the injunction, which upon consideration of the record we see no error in, there is nothing in the cause to be considered by us additional to or different from the questions which were presented to us in the former appeal. We therefore affirm the judgment of the Superior Court, and refer to our opinion in the former appeal, reported, as before stated, in 183 Ill. App. 352. We still think the distinctions which we made in that opinion correct and are still of the opinion that no case in this State has gone so far as to sustain the contention of the complainant in its full extent. The establishment of that contention, as we said before, would turn over to courts of equity and to their summary processes for the enforcement of their orders, including fine and imprisonment, the practical supervision of the specific performance of any personal contract for the future purchase or sale of commodities or the rendition of services in the future, if only there were added to the affirmative agreement a supplementary negative one that the intending purchaser would not buy the commodity from, or the intending employee would not perform the services for, any other person than the contractee.

Affirmed.