text:
    Adolph Nix, Plaintiff in Error, v. Brunswick-Balke-Collender Company, Defendant in Error.
    Gen. No. 19,592.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 24, 1915.

      Statement of the Case.
    Action by Adolph Nix against Brunswick-Balke-Collender Company, a corporation, to recover for personal injuries. The substantive facts are stated in Brunswick-Balke-Collender Co. v. Nix, 138 Ill. App. 559, on a former appeal. From a judgment upon a verdict in favor of defendant, plaintiff brings error.
    The plaintiff, a boy of seventeen years of age, was employed by the defendant on a lathe which for temporary purposes was fitted up for boring small holes in the side of stoppers to be fastened to wires and used in keeping the counts in billiards. There were thirty-three counters made to every one stopper. The holes bored in the side of the stopper were for the purpose of inserting a screw by which the stopper was made rigid on the wire. The lathe was ordinarily used for another purpose, and was prepared for the purpose of boring these holes by the insertion of a wooden plug into the spindle on the lathe. The spindle was made of metal with an opening at the outside and which was five-eighths inches in diameter and tapered down towards the end that went into the lathe head. The inside of the spindle was smooth, not threaded, and the plug was not threaded. The plug was held in the spindle only by being firmly driven into the end of the spindle, The plug contained a gimlet or bit which bored the holes. Fitted out in this way, the lathe was operated by steam, connected by belts and pulleys to a power shaft which caused the bit or gimlet to be revolved at the rate of 3,300 to 4,000 revolutions per minute. The machine had no regular attachment to place on it for use in boring holes. It was in reality an automatic woodcutting machine, and was used only occasionally for the use to which it was devoted when the plug flew out of the spindle and destroyed one of plaintiff’s eyes.
    The evidence of the plaintiff tended to show that the plug, when fastened into the spindle the last time before the accident, extended into the spindle a distance of only one-half to five-eighths-of an inch. The defendant’s evidence tended to show that the plug extended into the spindle anywhere from one to two and one-half inches.
    Plaintiff had used the machine about four times before he was hurt, or only about fifteen hours covering a period of about three weeks. He never set the plug into the spindle himself. The plug had to be set exactly true and was set by Schwartz, a skilled wood turner. The defendant’s foreman told Schwartz to set the plug for plaintiff and he did so on each occasion. The plug was set by driving it in tight to secure it, hammering the sides and turning the belt until it was exactly true. On August 10, 1901, the plug and bit which it contained flew out of the end of the shaft in which it was held, striking the plaintiff in the eye. He at that time was not engaged in boring a piece of wood, but was reaching for a piece to be bored when the wooden plug "with the bit flew out of its socket. On August 9th, the day before the accident, plaintiff went to Schwartz, as directed by the general foreman, and told him that he had some boring to do and requested him to place the plug in the spindle. Schwartz put it in and the plug came out after being used a while and fell upon the floor. Plaintiff went to Schwartz and told bim that the plug had come out and Schwartz put it in again, saying, “It is all right. It won’t come out again,” and thereupon plaintiff resumed the use of the machine, and was shortly thereafter injured. Schwartz was a skilled wood turner, and testified that he drove the plug into the hole in the lathe in such a manner that the bit would run perfectly true and that it required skill to do it.
    B. J. Wellman and Richard J. Finn, for plaintiff in error; George H. Foster, of counsel.

      Abstract of the Decision.
    1. Appeal and ebbob, § 1526

      —immateriality of erroneous instructions where verdict proper. If, in an action for personal injuries, a verdict of not guilty is sustained by the evidence, errors in instructions upon plaintiff’s appeal become immaterial, since he has no right of action upon the evidence or the law applicable thereto.
    2. Instructions, § 10*—where unnecessarily numerous. The practice of tendering numerous instructions, where only a few are needed to properly submit the issues to the jury, is to be condemned as tending to mislead the jury and to bring error into the record, apart from placing an unnecessary burden upon trial and reviewing courts.
    3. Master and servant, § 690*—when master liable for defective machine. Where it appeared that plaintiff, who was seventeen years of age was working at a machine under the direction of defendant’s foreman and he was struck in the eye by a plug and bit flying out of a shaft, after it had been secured by a skilled workman delegated by defendant to set it aright, and after he had been assured by him that it was in proper condition, held that a verdict in favor of defendant was against the weight of the evidence.
    4. Master and servant, § 363*—necessity of obvious danger for assumption of rislc. In an action for loss of an eye through being struck by a plug and bit flying off of a spindle upon which plaintiff was at work, where it did not appear that he knew the plug might become loose and fall out of the spindle, and he was ordered to do the work by the foreman and a skilled workman, delegated by defendant to insert and adjust the plug, who assured him that the plug was in proper condition for use, and it did not appear that plaintiff, a boy seventeen years of age, with little experience in the particular kind of work, knew that the flying out of the plug was an ordinary risk and danger incident to the work, or that he was competent to comprehend and appreciate the risks and dangers, an instruction that plaintiff could not recover if the injury was the result of a danger which he appreciated or which he should have appreciated, held erroneous, the risk and danger of employment being not open and obvious under the proof.
    P. L. McArdle and F. J. Canty, for defendant in error; J. C. M. Clow, of counsel.

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

      See Illinois Notes Digest, Yols. 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.

5. Master and servant, § 782 —necessity of basing instruction as to assumed risk on the evidence. In an action for personal injuries sustained by reason of being struck in the eye by a plug and bit flying out of a spindle at which plaintiff was employed, an instruction ignoring an order to do the work and the assurance of defendant’s properly delegated skilled workman that it was in proper condition, and assuming that there was evidence tending to show that the plaintiff appreciated and understood the danger of the plug’s flying out in the operation of the machine, and that such danger was open and obvious to the plaintiff, held erroneous.

6. Master and servant, § 782*—instructions as to assumed risk. In an action against a master for injuries to an eye struck with a plug flying from a spindle at which plaintiff worked, an instruction to the jury that if they found from the evidence that a lathe and plug had been in use by the plaintiff from the time he was first employed by the defendant, and that whatever danger was involved in the use of the same was obvious and patent to the observation of any person of ordinary intelligence, age and experience of plaintiff, and that the condition of the lathe and plug remained the same during the entire time of the service of the plaintiff in and about the same, and if the jury further found from the evidence that the plaintiff was a person of ordinary intelligence for one of his age and-capable of understanding and appreciating the conditions and dangers involved in the use of the lathe and plug, then they were instructed that the plaintiff assumed the risk involved in the use of the same and could not recover, held erroneous, since plaintiff, under the evidence, only worked at the lathe, not to exceed fifteen hours in all, on four different occasions in the course of one year’s employment, and since it did not take into consideration the order to do the work and the assurance of defendant’s properly delegated agent that the machine had been put in good working condition.

7. Master and servant, § 782*—where instructions improper as to assumed risk. 'In an action for personal injuries, an instruction to the jury that if they’ believed from the evidence that the plaintiff, by giving ordinary care and attention to things about him and to the mechanism arid operation of the machine, should have known and understood that there was a possibility that a bit in question might become loose in the socket of the spindle and fly out of that socket while the spindle was in motion, then the plaintiff assumed the risk and the jury should find the defendant not guilty, held objectionable and misleading for want of evidence on which to base it, and in that it stated the plaintiff assumed the risk on the mere possibility that the bit and plug in question might fly out of the socket, no account being given to the effect of the specific order to do the work and the assurance of a skilled and properly authorized employee that the plug and bit were in proper condition after being set.

8. Master and servant, § 698 —evidence insufficient to show assumption of rislc. In an action for injuries received from the flying off of a plug in the operation of a machine, where there was no evidence that the employee knew or should have known that the plug might fly out and injure him, although he had seen it drop out on the floor when it was replaced by one properly authorized with the assurance of one qualified to know that it was all right and would not come out again, held there was no basis in the evidence for the jury to find that the danger of the plug’s flying out was so obvious and patent that a seventeen-year-old boy could know and appreciate the danger to which he was exposed or to justify the giving of instructions on the question of assumed risk.

9. Master and servant, § 777*—when instruction misleading as not hosed on evidence. Where there was no evidence furnishing a basis for a “simple accident” theory embodied in a peremptory instruction, held that such instruction, was misleading in its effect upon the jury.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Foster Drug Company, Defendant in Error, v. Zeller & Sons Company, Plaintiff in Error.
    Gen. No. 19,668.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Action' by Foster Drug Company, a corporation, against Zeller and Sons Company, a corporation, to recover the invoice price of goods returned. From a judgment for $84.15 against defendant in favor of plaintiff, defendant brings error.

      Abstract of the Decision.
    1. Depositions, § 38

      —grounds for suppression. Where a deposition is taken upon oral interrogatories propounded by the commissioner in person to the witness, a motion to suppress the deposition on such a ground is not well taken under Hurd’s R. S. ch., 51, sec, 30 (J. & A. IT 5547).
    Plaintiff bought silverware of defendant for $127. The written contract contained the following provision:
    “If proposition is unsatisfactory after six months’ trial, all goods on hand to be repurchased by Zeller & Sons Co., Inc., Chicago, 111., at original invoice price.”
    Upon being reminded by defendant that if plaintiff desired to avail itself of the repurchase provision of the contract it must first pay for the goods, plaintiff sent a check for the original purchase price, with an indorsement thereon substantially as follows:
    “This check is given in payment of invoice dated July 28, 1911, for silverware, and is given with the distinct understanding that the firm Zeller & Sons Company * * * will repurchase the remainder of all the original purchase as per above dated invoice of silverware remaining on hand February 15, 1912, at the original invoice price. The acceptance of this check is an acceptance of the above conditions.
    Foster Drug Co.,
    per M. M. Lyons.”
    Defendant accepted and cashed the check.
    Albert O. Olson, for plaintiff in error; James J. Leahy, of counsel..
    Hoyne, O’Connor & Irwin, for defendant in error; Carl J. Appell, 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.

2. Municipal Coubt of Chicago, § 13 —insufficiency of defense as ground for striking affidavit of merits. Portions of an affidavit of merits filed in the Municipal Court may be stricken where the same do not present a defense to the action.

3. Appeal and ebbob, § 1488*—effect of improper evidence where other evidence sufficient to sustain court’s finding. Where it was contended that the trial court erroneously admitted a letter from defendant to plaintiff and the invoice of articles thereon referred to, without any proof that the letter was properly addressed and mailed, with postage prepaid, or that it was received by the plaintiff, held that even if the evidence was improperly admitted it would not constitute reversible error, since it will be presumed that the trial court disregarded any improper evidence when there is sufficient competent evidence to justify the finding of the court on a trial without a jury.

4. Depositions, § 42*—waiver of insufficiency of foundation for introduction of letter. The objection that a trial court improperly admitted a letter from defendant to plaintiff and an invoice of articles therein referred to, without any proof that the letter was properly addressed and mailed, with postage prepaid, or was received by plaintiff, cannot be taken advantage of where such evidence was in a deposition and the objection was not raised before the trial.

5. Sales, § 199*—effect of delivery to carrier to pass title to consignee. Where the purchaser of goods delivers the same to a carrier for transportation to the seller under an express contract providing for the return of the same, the title to the goods passes to the consignee when they are delivered to such carrier.

6. Sales, § 430*—waiver of right to object to return of goods. In an action for the invoice price for goods returned under the provisions of an express, contract providing for the return of the same, where defendant’s agent testified that defendant was prepared to repurchase the goods as soon as it had an opportunity to inspect them, and that it had at all times been prepared to accept the goods as soon as it had an opportunity to inspect and had been given the information as to the quantity and quality on hand, the refusal of the goods upon such ground by the consignee was a waiver of all other grounds of which the consignee then had knowledge, such as the claim that they should not have been shipped by express.


text:
    Jens Jacobsen, Petitioner, Plaintiff in Error, v. City of Chicago et al., Defendants in Error.
    Gen. No. 19,784.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 24, 1915.
    Statement of the Case.
    Proceedings for writ of mandamus by Jens Jacobsen against the City of Chicago, the Fire Marshal and the Civil Service Commission to reinstate petitioner as driver in the fire department in said City and to place petitioner’s name on the pay roll of said department. From a judgment denying the writ of mandamus the petitioner brings error.
    The petitioner held the position of driver in the fire department of the City of Chicago under certification and appointment under the terms of the Civil Service Act, on September 19,1910. On that day, on account of the illness of his wife, he applied to the Fire Marshal for a leave of absence for a year. The Fire Marshal advised the petitioner that he could not grant leave of absence for more than thirty days at a time, but that he would extend his leave from time to time. The petitioner thereupon obtained leave of absence for a period of thirty days from September 19, 1910, and removed with bis family to Indiana, where he had leased a farm. On October 19, 1910, he made application for extension of his leave of absence for another period of thirty days. The extension was allowed but the petitioner received no notice thereof, and made no further application for extension of his leave of absence or claim for reinstatement to his office or position until he returned to Chicago on or about August 15, 1911. He was then informed that his resignation had been accepted on October 25, 1910.
    Abstract of the Decision.
    1. Mandamus, § 15

      —where ineffectual. The granting of a writ of mandamus is descretionary with the court in view of all the existing facts and with due regard to the consequences which may-result, and in the exercise of this judicial descretion the court may refuse the writ though the petitioner has a clear legal right for which mandamus is an appropriate remedy, where it can be seen that it cannot accomplish any good purpose or where it will fail to have any beneficial effect.
    It appeared that Driscoll, battalion chief over Jacob-sen, and Capt. Strook, not being- informed that the Fire Marshal had extended Jacobsen’s leave of absence, investigated the action of Jacobsen, and Capt. Strook went to Jacobsen’s farm near Valparaiso, Indiana, for the purpose of making an examination and report concerning his absence. Strook did not see Jacobsen but left word with his wife that Jacobsen should either return to work or send in the city prop- . erty, such as the badge, cap, insignia, etc., which belonged to the City of Chicago. Within a week thereafter the insignia of office or position were received by Capt. Strook through the mail accompanied by a letter, the contents of which do not appear in the record. Thereupon Capt. Strook made out and signed Jacobsen’s resignation of his position and his name was dropped from the pay roll of the department.
    William E. Rafferty, for plaintiff in error.
    William H. Sexton, for defendants in error; Joseph F. Grossman and John E. Foster, 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.

2. Municipal cobpobations, § 147 —where laches precludes mandamus for officer’s reinstatement. Where a petitioner had been advised that a leave of absence could not be granted for a period longer than thirty days at a time from his position as an officer in the fire department of the City of Chicago and a period of over fifteen months elapsed between the time of his removal and the day of his filing a petition for a writ of mandamus for reinstatement, and no excuses or justification for his long absence from duty or for his ignorance that his leave of absence had not been extended were shown, held that the writ was properly denied because of the unreasonable delay of the petitioner in presenting his petition for the writ.

3. Municipal cobpobations, § 147*—laches as har to proceedings for reinstatement. Where a petitioner had a position as a driver in the fire department and upon his application for leave of absence for a year he was told that a leave could not be granted for a greater period than thirty days, but that an extension would be given at the end of that time, and he made application for an extension of his leave of absence but received no notice of the granting of the same and did not make any inquiries as to whether the extension had been actually made, and also did not concern himself in any way about the visit of an officer of the department to his residence in' another State for the purpose of investigating his absence from duty, and upon whose request he claimed to have surrendered all his insignia of his position, held, if the petitioner did not intend to resign, he was clearly guilty of such laches in neglecting to keep himself informed as to his status such as to preclude him from the right to a writ of mandamus for reinstatement.

4. Officebs, § 24*-—resignation 6y implication. A resignation of a public office by implication may take place by an abandonment of official duty without leave of absence or without good cause shown.

5. Officebs, § 24*—sufficiency of parol resignation. A resignation of a public office may be made by parol, no written resignation being necessary.

6. Officebs, § 24*—effect of nonuser or neglect to effect vacation of position. The intention to resign or abandon a public office may be inferred from the conduct of the officer if that conduct takes the shape of nonuser or neglect of duty so as to amount in itself to an actual vacation, the same constituting a sufficient abandonment or resignation of the office without express renunciation.

7. Wobds and phrases,—resignation of office. The resignation of an office is the act of giving it up and is synonymous with surrender, relinquishment, abandonment or renunciation.

8. Oitioebs, § 24*—sufficiency of evidence to show resignation or abandonment. In a proceeding for a writ of mandamus for reinstatement as an officer in the fire department of the City of Chicago, evidence held sufficient to justify the judgment of the trial court in denying the writ of mandamus upon the ground that the petitioner had resigned or abandoned his position.


text:
    Frances Mary Wellman, Appellant, v. Wayne Paige Wellman, Appellee.
    Gen. No. 20,315.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Divobce, § 41

      —admissibility of specific acts of cruelty under general allegation. In an action for divorce on the ground of cruelty, where the trial court by its rulings required the complainant to confine her proof and testimony strictly to the dates specifically alleged in her amended bill and refused to allow her to put any testimony under a general allegation 'of acts of cruelty alleged to have been committed by the defendant from September 7th to the middle of October, 1912, held this was material error since the rule as to proof of general allegations of acts of cruelty in a bill for divorce, while they should be alleged with reasonable certainty as to time and place, does not require the exact date and place of each particular act to be alleged, and when the conduct complained of is continued and not confined to any particular time or locality the specific allegation of time and place is impracticable and not required.

      Appeal from the Superior Court of Cook county; the Hon. Dents E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed February 24, 1915.
    Statement of the Case.
    • Bill of Frances Mary Wellman against Wayne Paige Wellman for divorce and alimony on the ground of extreme and repeated cruelty. A jury, demanded by the complainant, returned a verdict finding defendant not guilty. From the verdict and decree in favor of defendant, complainant appeals.
    Carl A. Waldron and Archibald Cattell, for appellant.
    Edward Maher and Arthur A. House, for appellee.

      See Illinois Notes Digest, Vole, 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.

      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.

2. Divorce, § 41 —admissibility of specific acts of cruelty to give color to acts charged. In an action for divorce and alimony on the ground of cruelty, wherever there is a general allegation of divers acts of cruelty at other times than those specifically mentioned, evidence is permissible to supplement the evidence produced under the specific allegations, to give color to the acts charged and to inform the court or the jury of the general conduct of the parties and their duty towards each other.

3. Divorce, § 36*—abuse of court’s discretion in denying amendment to bill. While the right to amend a verified bill for divorce does not exist as a matter of course, still where the complainant presents an amendment that appears to be germane to the original bill with an affidavit giving a reasonable excuse why such matter was not inserted in the first instance, equity will favor such an amendment even on the hearing, provided it is not inconsistent with the original pleadings and does not entitle the complainant to a different sort of relief, the court’s refusal to grant such an amendment constituting an abuse of its discretion, reviewable upon appeal.

4. Divorce, § 36*—where refusal to permit amendment to bill at trial constitutes reversible error. Where the trial court refused the complainant leaver to amend her amended bill for divorce on the ground of cruelty, during the trial, by setting up an act of cruelty committed on a specific date by defendant, held erroneous under the facts and circumstances set forth in the affidavits presented and filed in support of the motion, where it also appeared that the court permitted the defendant and his mother and father to testify to a quarrel that occurred on that day and counsel for complainant attempted to cross-examine as to occurrences on that day, but the court denied him the right because the date was not specifically set out in the amended bill, such rulings serving to emphasize and make more grievous the court’s error in refusing the complainant leave to amend her hill and to set up the act of cruelty that occurred on that date.

5. Trial, § 46 —where remarlos of court tending to influence verdict. Where a statement of the court in the presence of a jury of what occurred in chambers in an effort of the court to obtain a reconciliation of the parties in a case for a divorce after the case had been on hearing before the jury during the day and the testimony of the complainant had been delivered, tended to convey to the jury that the impression that in view of the court complainant had failed to make out her case and that she ought not to litigate further but be reconciled to her husband, held prejudicially erroneous since the jury having been thus informed of the view the court took of the alleged act of cruelty might be led to take the view, which they evidently did take, that the actual cruelty shown by complainant’s testimony was too trivial to become the basis for a divorce and the parties ought to become reconciled and live together as husband and wife, the jury ordinarily attaching much importance to the remarks and opinions of the court.

6. Trial, § 45*—effect of court’s expression of opinion in divorce proceeding. In an action for divorce on the ground of cruelty it is important that no act or expression of opinion of the court should be allowed to come to their knowledge regarding the merits of the controversy on the trial before them.

7. Trial, § 136*—effect of counsel’s comment on matters not in evidence. In an action for divorce and alimony where counsel in his closing argument to the jury for defendant, over objection by complainant, was permitted by the trial court to comment on the action of the complainant during the selection of the jury in excluding from the jury all jurors except one of a certain religious faith, naming it, held such action of the court constituted error, since that question was not before the jury for consideration.


author: Mr. Presiding Justice Brown

text:
    George Siegfried, Defendant in Error, v. George Fritze, Plaintiff in Error.
    Gen. No. 19,660.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fbank H. Graham, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action in forcible detainer by George Siegfried against George Fritze for the possession of a six room flat. From a judgment in favor of plaintiff for possession, defendant prosecutes a writ of error.
    Before the tenancy began defendant paid two dollars to plaintiff and took the following receipt:
    “Chicago, October 14, 1911.
    Received of G. P. Fritze Two Dollars to apply on November 1911 rent for first flat at 3423 Perry St., rental to be at the rate of $20 per month for the year. To be put in first-class repair as agreed.
    Geo. Siegfried.”
    Plaintiff’s claim was for forty dollars for rent alleged to be due for May and June, 1913, upon a basis of twenty dollars per month. On June 4, 1913, plaintiff gave defendant a statutory five days’ notice to pay the forty dollars in question or to terminate the tenancy. On June 9,1913, defendant offered to pay twen-' ty dollars but no more, insisting that that was all that was due. Plaintiff declined to receive anything less than forty dollars and brought action for rent and possession.
    Plaintiff testified that the condition of the tenancy was that the rent of twenty dollars should be payable in advance on the first of the month; that he told the defendant so when he called to rent the flat and that for three or four months the defendant paid the rent in advance.

      Abstract of the Decision.
    1. Landlord and tenant, § 5

      —where lease is distinguished from receipt. In an action of forcible detainer, an instrument purporting to be a receipt for a certain sum to apply on a subsequent month’s rent for a certain flat at a certain rate per month for the year, with the condition that the premises were to be put in first-class repair as agreed, held to be a receipt rather than a lease containing all the conditions of the renting.
    2. Landlord and tenant, § 325*—sufficiency of evidence to show rent payable in advance. In an action of forcible detainer evidence held sufficient to sustain the court’s finding that the rent was payable in advance and to warrant a judgment in favor of plaintiff for possession of the premises in question.
    Defendant denied that there was anything said about payment in advance and contended that the rent was not payable until the end of the month, but he himself introduced several receipts which showed that he did not wait until the end of the month before paying.
    C. L. Cassiday, for plaintiff in error.
    Martin C. Koebel, for defendant in error; E. M. Seymour, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Mark Burns and John Barnes, Appellants, v. Jennie Myers and Louis M. DeCosta, Appellees.
    Gen. No. 19,817.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mabcüs A. Kavanagh, Judge, presiding.' Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed March 8, 1915.

      Abstract of the Decision.
    1. Fbattotjisnt conveyances, § 42

      —when evidence insufficient to show insolvency of grantor. In an action to have certain Probate Court judgments against an estate declared a lien upon real estate standing in defendant’s name and for collateral relief within the general purpose of a creditor’s bill, evidence held to establish that decedent was not insolvent when he conveyed the property without consideration to his wife, one of the defendants.
    2. Feaudotent conveyances, § 58*—where anticipatory Jcnowledge of insolvency immaterial. In an action to subject real estate to the lien of a judgment and for collateral relief within the general purposes of a creditor’s bill, held anticipatory knowledge of the subsequent failure of a corporation in which the grantor was interested cannot be invoked to render a voluntary conveyance to his wife invalid or objectionable.
    3. Feauditlent conveyances, § 185*—rule as to pre-existing creditors. Where it was sought to subject real estate standing in the wife’s name to the lien of a judgment against the husband’s estate, held, in the absence of evidence of insolvency, a voluntary conveyance to the wife will not be adjudged fraudulent and invalid as against pre-existing creditors who alone can complain.
    Statement of the Case.
    Bill by Mark Burns and John Barnes against Jennie Myers and Louis M. DeCosta primarily to subject certain real estate, the title to which was in defendants, to the payment of certain claims allowed by the Probate Court of Cook county against the estate of Herman R. Myers, deceased, husband of one of the defendants and father-in-law of the other. From a decree in favor of defendants dismissing the bill for want of equity, complainants appeal.
    Caswell & Healy, for appellants.
    Bither, Goff & Francis, for appellees.

      See Illinois Notes Digest, Vois. 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. Presiding Justice Brown

delivered the opinion of the court.

4. Fraudulent conveyances, § 49 —effect of solvency as to conveyance of husband to wife. In an action to subject real estate standing in the name of a wife to the lien of judgment against her deceased husband’s estate and for relief within the general purpose of a creditor’s bill, the question is one of the grantor’s solvency at the time of the voluntary conveyance, in spite of the rule that such a conveyance under former decisions seems to have been held invalid unless the grantor is pecuniarily able to withdraw the amount of his donation from his estate without the least hazard to his creditors.

5. Fraudulent conveyances, § 45*—how solvency bears on fraud. In an action for relief as against a conveyance of real estate, while, if a fraudulent intent is shown by, or can be properly inferred from competent evidence presented, the conveyance can be set aside, and insolvency in such a case may be only one of the circumstances from which the intent may he inferred and the absence of insolvency . may not be conclusive against such fraudulent intent to hinder and delay creditors, yet solvency at the time of the conveyance tends strongly to negative said intent.

6. Fraudulent conveyances, § 91*—effect of husband’s acting as agent for wife. In an action to subject to a lien of a judgment against a husband’s estate, real estate conveyed without consideration by him to his wife, held the wife’s title was not affected by the fact that the husband afterwards acted for her in the collection of rents or by the fact that such income was mingled with his own money in his bank account.

7. Executors and administrators, § 467*—insufficiency of evidence to show purchase on behalf of executrix. Where, in an action to subject real estate to the lien of a judgment, it was contended that a sale under order of the Probate Court was only colorable, fraudulently designed to defraud creditors and void as a sale really to the executrix herself, held that the sale was valid in the absence of a showing of bad faith.

8. Executors and administrators, § 454*—mere inadequacy of price insufficient for vacating judicial sale. The fact that real estate sold under an order of the Probate Court to pay debts fails to bring its full value in the absence of bad faith is not sufficient to require that it be set aside, inadequacy of price being not infrequently associated with judicial sales, especially of property subject to mortgage and dower claims.


text:
    Maria Romani, Appellee, v. Shoal Creek Coal Company, Appellant.
    Gen. No. 19,888.
    1. Pleading, § 459

      —effect of pleading over and going to trial after demurrer sustained to plea. In an action by a widow for the death of her husband under the Mines and Miners’ Act, a plea of the statute of limitations is waived where, after demurrer sustained, defendant, instead of standing by its plea, files the general issue and goes to trial on the second plea.
    2. Pleading, § 45*—sufficiency of defective statement of good cause of action to save amended counts from statute of limitations. Where a widow sought recovery for the death of her husband under the Mines and Miners’ Act of 1899, as amended in 1907, secs. 18, 33, a defective statement of a good cause of action in the original counts held to have saved amended counts stating the same cause of action from a plea of the • statute of limitations, on the ground that the amended counts were not filed within the statutory period of a year after the death.
    3. Parties, § 35*—when marriage of woman does not constitute misnomer. Where a woman’s name as plaintiff was properly given upon the institution of an action for the wrongful death of her husband, her subsequent marriage does not constitute a misnomer, as a designation of the person plaintiff.
    4. Mines and minerals, § 173*—sufficiency of evidence to show statutory duty. In an action by a widow for the death of her husband from an explosion in defendant’s mine, evidence held sufficient to warrant the jury’s finding that defendant owed statutory duties under the Mines and Miners’ Act of 1899, as amended in 1907, secs. 18, 33.
    5. Mines and minerals, § 182*—when violation of statutory duty for jury. In an action under the Mines and Miners’ Act of 1899 and 1907, secs. 18, 33, held the questions whether defendant owed a statutory duty to the deceased and whether there were violations of such a statutory duty were proper issues for the jury.
    6. Mines and minerals, § 173*—where evidence supports finding of violation of statutory duty. In an action by a widow for the death of her husband in an explosion in defendant’s mine, evidence held sufficient to warrant the jury in finding that statutory duties were violated.

      Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed March 8, 1915.
    Mastin & Sherlock and W. B. McBride, for appellant.
    Charles Cheney Hyde and Charles B. Elder, for appellee.

      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.

Raphael Romani, the husband of the appellee in this case, the plaintiff below, met his death through an explosion in the mine of the appellant, the defendant below, on November 11, 1910. The plaintiff, as “his widow, dependent on him for support and damaged by his death,” brought suit against the defendant Company and on March 22,1913, on the verdict of a jury recovered judgment for fifty-five hundred dollars. The appellant asks this court to reverse this judgment on grounds hereinafter set forth.

When this accident occurred section eighteen (as amended by Act approved May 27,1907) and a portion of section thirty-three (as amended by Act approved May 17, 1907) of the Act of April 18, 1899, concerning Mines and Miners, were respectively in force and this cause was governed by them. They read as follows:

“Sec. 18. (a) A mine examiner shall be required at all mines. His duties shall be to visit the mine before the men are permitted to enter it and first he shall see that the air current is traveling in its proper course and in proper quantity. In order to correctly determine the quantity of air in circulation in different portions of the mine it is hereby made his duty to measure with an instrument for that purpose the amount of air passing in the last cross cut or break through each pair of entries or in the last room of each division in a long wall miné and at all "other points where he deems it necessary, the same to be noted in the daily book kept for that purpose. He shall then inspect all places where men are expected to pass or to work and observe whether there are any recent falls or obstructions in rooms or roadways or accumulations of gas or other unsafe conditions. He shall specially examine the edges and accessible parts of recent falls and old gobs and air courses. As evidence of his examination of all working places he shall inscribe on the walls of each with chalk the month and the day of the month of his visit.
(b) When working places are discovered in which accumulations of gas or recent falls or any dangerous conditions exist, he shall place a conspicuous mark thereat as notice to all men to keep out, and at once report his finding to the mine manager. No one shall be allowed to remain in any part of the mine through which gas is being carried into the ventilating current, nor to enter the mine to work therein except under the direction of the mine manager until all conditions shall have been made safe.
(c) The mine examiner shall make a daily record of the conditions of the mine, as he has found it, in a book kept for that purpose, which shall be preserved in the office for the information of the company, the inspector and all other persons interested, and this record shall be made each morning before the miners are permitted to descend into the mine.”
“Sec. 33. * * * For any injury to person or property occasioned by any wilful violation of this act or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby, and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children or to any other person or persons who were before such loss of life dependent for support on the person or persons so killed for a like recovery of damages for the injuries sustained by reason of such loss of life or lives not to exceed the sum of ten thousand dollars: Provided, that every such action for damages in case of death shall he commenced within one year after the death of such person.”

The case went to the jury on certain amended counts of the declaration (the 1st, 2nd, 4th, 5th, 6th, 8th and 9th of those filed December 5, 1912) and the general issue pleaded thereto.

One complaint of the defendant is that a demurrer to the plea of the statute of limitations to these counts was improperly sustained, that the original counts in the declaration stated no cause of action, that the amended counts were the first counts that did state a cause of action and that they were filed more than a year after the death. We do not think the defendant is in a position to raise this point. The statute of limitations was filed to these counts as a single plea, not in connection with the general issue. When a demurrer to this plea was sustained, an order on defendant to plead further to the declaration was entered, with which the defendant complied. Instead of standing by its plea of the statute of limitations it filed the general issue and on that plea went to trial. The error, if it had been an error, of sustaining the demurrer to the plea of the statute of limitations was thereby waived. Spencer v. Aetna Indemnity Co., 231 Ill. 82. But we do not think there was any error in that ruling. The original counts were, in our opinion, at the worst, defective statements of a good cause of action.

Another point made by the appellant is that there was a misnomer of the plaintiff. The plaintiff’s name was correctly given when the suit was brought. The evidence showed that she had afterwards intermarried with one Almerigi, but her identity remained unchanged, and was made sufficiently certain by the continued use of the name of Maria Bomani.

The first of the counts on which the case went to the jury avers the duty of the defendant under the statute not to allow any of the men engaged in work in the underground workings of said mine to remain in any part of said mine through which gas was being carried into the ventilating current nor to allow any of said men to enter said mine to work therein except under the direction of the mine manager until all conditions should have been made safe, and the wilful violation of this duty in the case of Raphael Romani by the defendant’s allowing him to enter a portion of the mine in which it had allowed a dang’erous condition to exist by the generation and accumulation of gas in the ventilating current, and by its allowing said Romani to remain down in said portion of the mine not under the direction of the mine manager—by reason of all which the death of Romani occurred.

The next count avers the duty of the defendant under the statute to have a mine examiner visit the mine each day before the men were permitted to enter it and to inspect all places where men were expected to pass or to work and to observe whether there were any recent falls or obstructions in rooms or roadways or accumulations of gas or recent falls or obstructions in rooms or roadways or accumulations of gas or other unsafe conditions, and to inscribe on the walls of each with chalk the month and the day of his visit, and when working places were discovered in which accumulations of gas or recent falls or any dangerous conditions existed, to.place a conspicuous mark thereat as notice to all men to keep out, and at once to report his finding to the mine manager, and the wilful violation of these duties and the consequent death of Romani when “in the performance of his duty as an employee of said defendant and by its direction,” he “entered into* a portion of said mine in which men were expected to pass and to work.”

The next "count alleges the same duty of the defendant set up in the preceding count and its violation by failing to have its mine examiner visit said mine on the day of the accident before the men were permitted to enter it, and the consequent death of Romani, who “was permitted by said defendant to descend into its said mine for the purpose of removing his tools therefrom with the knowledge and consent of said defendant,” and avers Romani, “although not then in said defendant’s employ, entered into a portion of said mine where men were expected to pass or work and where there were accumulations of gas and other unsafe conditions which could and would have been observed had said inspector visited said mine” before Romani was permitted to descend into it, etc.

The next count alleges the same statutory duties and their violation by the defendant by wilfully failing “to place a conspicuous mark in a certain working place in said mine” where accumulations of gas and other unsafe conditions had been discovered; by reason whereof Romani, “who, as a miner then and there in the employ of said defendant had entered into said mine of said defendant with the full knowledge and consent of said defendant and for the purpose of removing his tools therefrom,” was killed by an explosion of gas.

A further count alleged substantially the same matter as that just recited, but describes Romani as “permitted by said defendant to descend into its said mine” with its knowledge and consent, “although not then in said defendant’s employ, for the purpose of removing his tools therefrom.”

Still another count alleged that Romani had been employed by the defendant up to within a short time before the day of his death, when, by reason of dangerous conditions existing in the passageway or gallery leading to his working place, he was instructed by said defendant to stop work in the portion of said mine where he was then working. After averring, like the other counts, the statutory duties of the defendant to have a mine examiner visit the mine each day before the men were permitted to enter it and in case of discovering dangerous conditions in any place to place a mark thereat, and the violation of said duties, the count asserts that Romani, who had been a miner in the employ of the defendant to within two weeks before, and “who in anticipation of performing other work in said mine in the employ of defendant had left his tools in a certain portion of said mine of said defendant with the full knowledge and consent of said defendant, was permitted by said defendant to descend into its said mine, and with the knowledge and consent of the defendant entered by way of a passageway and gallery other than that which was in a dangerous condition into said portion of said mine where he had left his tools,” which had been his working place, for the purpose of removing his tools, and that there was an accumulation of gas there, but no conspicuous mark, and that thereupon there was an explosion which caused Romani’s death.

The last'count specifically avers the violation of its statutory duties by the defendant to have been “wilfully failing on the day aforesaid to have its mine examiner inspect a certain portion of said mine where men were expected to pass or to work” and “wilfully failing to observe that there were accumulations of gas or other unsafe conditions in said portion of said mine,” and alleges that the fatal explosion occurred when Romani, with the knowledge and consent of the defendant, had been permitted by said defendant to descend into a portion of the mine to remove his “tools Which he had left there, “which portion of said mine was a place where men were expected to pass and to work, but which had not been inspected by the said defendant on the day aforesaid, and wherein the defendant had failed to observe accumulations of gas or other unsafe conditions then and there existing.”

The attack on the judgment most insisted on is based on the position that the case should have been taken from the jury by a peremptory instruction for the defendant. This position is in turn based on the assumption that it was disclosed by the evidence that Romani was killed at a place where he had no right to be. The defendant’s counsel say in their argument:

“ * * * the deceased was killed in a part of plaintiff in error’s mine which had been closed to him, which was not his working place at that time.
This question goes to the very essence of the case and is decisive of every question involved in the case. There is no principle of law or consideration of justice or public policy which would require an employer to" compensate for the death of an employee which was caused by his. entering a place where his duties did not call him.”

The contention of the defendant is that the evidence showed Romani to be “a legal trespasser or intruder” on the defendant’s property at the time of the explosion, to whom the defendant ‘ ‘ owed no duty except not to wilfully or wantonly injure him.”

It is undoubtedly true that if Romani was a trespasser, going without right where he had no warrant for going when the explosion occurred, this judgment is wrong. But we cannot assume this, and we think there was evidence from which the jury were at liberty to find the contrary. There was a conflict of testimony at the trial on several points of importance, hut there was certainly evidence that, as the'plaintiff’s counsel puts it:

“He (Romani) was employed by the defendant as a miner and had been given a working place. He was paid in accordance with the amount of coal he mined. He had a regular pay day on the 15th and 30th of each month. His pay day had not arrived on the 11th and he was still carried on the books of the Company. To get his pay he had to go to the mine manager at the bottom of the mine. He had left his tools in the mine at his working place in accordance with the custom. He would not be paid off until he went to the office at the top of the mine. He had a right to go to get his tools.”

And although there was contradiction of the further statement that follows in counsel’s argument—

“The mine manager authorized him to go there and there was no danger sign to prevent his going there”— there was ample evidence to go to the jury to sustain that assertion, and the jury were from it at liberty to find and evidently did find that this was the fact. Under the conditions that the jury were warranted in finding existed, it seems to us that there can be no doubt that towards Bomani the defendant at and immediately before the time of the accident owed statutory duties. Brunnworth v. Kerens-Donnewald Coal Co., 260 Ill. 202, p. 218; Riley v. W. Holland & Sons, Ltd., Law Reports, 1 King’s Bench Div. (Court of Appeal) p. 1029 (1911); Molloy v. South Wales Anthracite Colliery Co., 4 Butterworth’s Workmen’s Compensation Cases, p. 65 (1910).

It further seems to us that there was evidence warranting the jury in finding that those duties were violated. The rulings on the instructions were, to speak generally, in accordance with this theory. The court left to the jury the questions whether the conditions we have described existed, and whether the violations of duty alleged occurred. We do not think a more detailed discussion of them or of the evidence would serve any good purpose. We find no substantial error in the record, and the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Procter & Gamble Company, Defendant in Error, v. H. Emerman, trading as American Iron & Supply Company, Plaintiff in Error.
    Gen. No. 20,073.
    I. Interest, § 8

      —what constitutes instrument in writing within statute. Where recovery was sought for breach of contract to supply cast borings held that a letter of offer, neither before nor after acceptance, was such an instrument in writing as to come within the sense of such words used in the interest statute.
    2. Sales, § 382’5-—where huger may charge resulting loss on purchase elsewhere. In an action by a buyer for breach of contract for failure to deliver cast borings, where the buyer made request for quotations for a like quantity and they were bought at the lowest price that they could be bought and they cost the buyer a certain sum more than the purchase price, held, under the circumstances, in the absence of a standard market price, the proper measure of damages was used in awarding an actual compensation and no more for the loss sustained by reason of the seller’s repudiation of the contract, since the buyer took the usual best and probably only way of supplying the default made by the seller- by ■ buying at the best price possible.
    3. Interest, § 6*—when not allowed in action on breach of contract of purchase. In an action for breach of .contract to supply cast borings where the damages were unliquidated and determinable only upon proper proof as to the amount, thereof, held that interest could not be properly allowed, as on money withheld for unreasonable and vexatious delay.
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed on ‘ remittitur, otherwise reversed and remanded.
    Opinion filed March 8, 1915.
    H. C. Levinson, for plaintiff in error; Leo W. Hoffman, of counsel.
    Holt, Cutting & Sidley, 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.

February 15, 1912, the Procter & Gamble Company, having a manufacturing plant at Ivorydale not far from Cincinnati, Ohio, wrote to the “American Iron & Supply Company,” a name under which one Herman Emerman of Chicago was doing business, asking for a quotation of prices on 500 tons of clean cast borings “delivered Ivorydale, Ohio, in equal quantities, delivered during February and March.” In answer the Procter & Gamble Company received by mail two days afterwards the following letter:

“American Iron & Supply Co.,
Chicago 2-16-12.
Procter & Gamble Company,
Ivorydale, Ohio.
Gentlemen: In answer to your letter of the 15th beg to advise we would be glad to sell you 500 tons Good Clean Cast Iron Borings at $7.00 net ton. Delivered your works Ivorydale. For shipment to be made as you mention during the months of February and March. If this price is satisfactory to you, kindly favor us with your order by return mail and oblige,
Tours very truly,
American Iron & Supply Co.,
per H. Emerman.”
On the 19th of February the Procter & Gamble Company inclosed the following order to the “American Iron & Supply Co.”:
“This is our Order No. 4926.
Ivorydale Purchasing Department.
Ivorydale, Ohio, Feb. 19, 1912.
, To American Iron & Supply Co.,
Chicago, His.
Enter for prompt attention our order as below: 500 tons good clean cast iron borings—price $7.00 per net ton delivered Ivorydale. Should it be necessary to communicate with us regarding this order, refer to the above number and show our order number on your invoice without fail.
Shipping Directions:
Ship Deliveries during Via — Route
February and March.
The Procter & Gamble Company,
by A. Fowler.”

Accompanying the order was a letter from the Procter & Gamble Company to the American Iron & Supply Company acknowledging the receipt of the letter of the 16th from the Supply Company, noting that an order for 500 tons of borings was inclosed, and concluding:

“Please see that deliveries are made promptly as we will depend on you for our requirements. After these deliveries are completed we will contract for a further supply. Borings to be shipped in box cars. ’ ’

The borings were not shipped. The order was returned by “The American Iron & Supply Co.” in a letter signed “The American Iron & Supply Co. per H. Emerman,” dated February 24, 1912, in which it was said that “a stenographical error” had been made in the letter of the Supply Company of February 16th, “as the price of borings should have been $7.00 net ton F. O. B. cars Chicago, instead of Ivorydale. The rate is $1.80 per ton from Chicago to Ivorydale. ’ ’

The' Procter & Gamble Company declined to accept or accede to this repudiation of the contract which they maintained had been made, and a correspondence ensued in which the Procter & Gamble Company demanded a performance of the alleged contract and “The American Iron & Supply Company” refused it. In a letter of February "27th, Emerman, under the name of the American Iron & Supply Company, insisted again that a “stenographical error” had been, made. He said:

“The letter was dictated by the writer but not reread and it was signed by the stenographer. Our stenographer finds in looking over her notes that she has $7.00 F. O. B. Chicago, but that in transcribing same she made an error and wrote F. O. B. Ivory dale instead of F. O. B. Chicago, and she is ready to testify to that effect.”

March 1st Emerman wrote:

“We are herewith again returning your order, as we have already advised you the reason in our letters of February 24th and 27th. This is final.”

Writing apparently to lawyers for the Procter & Gamble Company, who had intervened in the matter, Emerman, writing as before under the name of the “American Iron & Supply Co.” said:

“We received your letter of the 6th and contents noted. In reply wish to advise that the only thing we can say is that {here has been a stenographical error made as to the price. The price on the borings was to be $7.00 net per ton Chicago, instead of delivered. Our stenographer made a mistake in transcribing her notes.”

No other reason than the alleged “stenographical error” was given by Emerman or ‘ ‘ The American Iron & Supply Company” in any of this correspondence for the nondelivery of the borings according to the tenor of the claimed contract. Nothing was said of any want of authority in the stenographer of Emerman to sign the letter of February 16th nor of the letter of Procter & Gamble Company of February 19th, covering the order, injecting any new condition into the order or proposed purchase. After the cessation of the correspondence the Procter & Gamble Company sent out inquiries by mail to various parties dealing in “clean cast iron borings,” asking for quotations on '500 tons. Mr. Fowler, for the Procter & Gamble Company, testified that he bought such borings at the lowest. price he could get them at; that the price kept advancing, and that when he had obtained at the lowest price at which he could buy substantially 500 tons— that is, 500 tons lacking a few pounds—they had cost :the Procter & Gamble Company $662.04 more than it would have been obliged to pay Emerman for them under the terms of the contract which it claimed he had made with it.

September 30, 1912, the Procter & Gamble Company brought suit against Emerman in the Municipal Court of Chicago for the damages thus sustained by it by the breach of the alleged contract of sale, and on a trial before the court without a jury obtained judgment October 20, 1913, for $704.48, being the amount before named of $662.04, with interest on it at the rate of 5 per cent, per annum from July 1, 1911, to October 20, 1913, the first named date being arbitrarily selected as one later than all payments made by the Procter & Gamble Company on account of the borings bought in substitution for those contracted for with Emerman.

A writ of error has been sued out of this court to reverse this judgment. We see no sufficient reason to disturb it except in the matter of interest allowed. It is argued that the correspondence between the plaintiff and the defendant did not constitute a contract because the acceptance of the defendant’s offer was not in the exact terms of the offer, but contained a material additional element, namely, that the borings should be shipped in box cars. The so-called “condition” was not in the order, but might well be considered as a mere request by the purchaser. Although Mr. Fowler in answer to questions on cross-examination said he wanted the borings shipped in box cars and wouldn’t have accepted them any other way, it remains the fact that he was not given the chance either to take or reject them on account of the way they were shipped. Wliether a liability for a breach of contract would have attached to the Procter & Gamble Company had'it refused the borings because not shipped .in box cars, is the test of whether a contract existed, irrespective of this request or “condition” concerning box cars.

- But the question is academic and immaterial in this case. ■ No objection to the performance of the contract was made before this suit was brought because of this suggestion of “box cars.” The sole reason assigned for the refusal was the alleged error made by the stenographer in transcribing her notes.

“Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law.” Railway Co. v. McCarthy, 96 U. S. 258; Schuyler County v. Missouri Bridge & Iron Co., 256 Ill. 348.

The same reasoning holds good as to the alleged want of authority on the part of Emerman’s stenographer to sign the letter of February 16, 1912, after dictation to her.

As the Court very properly said in refusing to hold the so-called “Proposition of law” which set forth that the said letter “was never signed by the defendant and that the signature thereto was never authorized by the defendant,” this is a question of fact, not of law. The defendant is not at liberty under the circumstances how to raise it; but if he were, there was quite enough evidence in the record to warrant the trial judge in holding that the stenographer had the requisite authority, despite the somewhat unconvincing testimony of the defendant on the witness stand.

Whether or not the alleged mistake in “transcription” was so “proven” as-to prevent the trial judge from justifiably holding that there was no mistake, is much more than doubtful. The statements made by Emerman in letters to the plaintiff after the order had been sent are not evidence of the fact; nor is the properly excluded “certificate” of Muriel G-oldstine, which the defendant tried to introduce. We fail to find that Emerman testified in this case that he did not dictate to his stenographer the words which occur in the letter sent—“Delivered your works, Ivory dale.” It may be noted that the excluded statement of the stenographer says she made a mistake and wrote “$7.00 F. O. B. Ivory dale”—a manifestly incorrect assertion.

Bnt not only did Emerman himself neglect at least to swear that he dictated anything different from that which was transcribed, he did not call on the stand the stenographer who he maintains made the mistake. She was present in the court room. It was for him to prove the mistake if he deemed it material, and the quotation in his own brief from Wigmore on Evidence applies to the situation:

“The non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant, permits the inference that its tenor is unfavorable to the party’s cause.”

Emerman’s best excuse, however, for not attempting to produce this testimony is inconsistent with his main contention. It was not material. Even if the mistake in the quotation of price existed, it did not prevent the formation of a contract. It could not do so unless the price quoted was so low as to make the mistake obvious. Steinmeyer v. Schroeppel, 226 Ill. 9; Singer v. Grand Rapids Match Co., 117 Ga. 86; Crilly v. Board of Education, 54 Ill. App. 371.

“Where there has been no misrepresentation and where there is no ambiguity in the terms of the contract, the defendant cannot be allowed to evade the performance of it by the simple statement that he has made a mistake. Were such to be the law, the performance of a contract could rarely be enforced upon, an unwilling party who was also unscrupulous.” Baggallay, Lord Justice, in Tamplin v. James, Law Reports, 15 Chancery Div. (1880) 215.

In this case, although it is maintained by the plaintiff in error that the alleged mistake was obvious because the price quoted was so low, the contention seems almost frivolous in view of the existence in the same argument, when the question of damages is considered, of the assertion that the price quoted was above the current prices. We are of the opinion that the “mistake, ’ ’ if there were a mistake, was not obvious.

The complaint made that the trial judge committed error and vitiated the findings by adding explanations to his holdings on propositions of law is without merit. We see nothing improper in his action or wrong in his holdings.

The measure of damages is the only matter which can be considered as suggesting a question of doubt in this case. On full consideration, however, we deem that the testimony of Mr. Fowler for the plaintiff shows that a correct theory was adopted and that justice has been done by awarding an actual compensation and no more for the loss sustained by the defendant in error through the breach of the contract.

We think it sufficiently appears that it took the usual, best and, probably, the only way of supplying the default made by the plaintiff in error—that it bought the goods at the best price possible; that there was at the time no standard “market price” to be consulted and from which damages could be now computed. We therefore hold that $662.04 was the proper amount of damages for the court to assess. But we cannot see justification for adding interest to this. We are unable to accede to the position that the letter of offer, before or after acceptance, was “an instrument in writing” in the sense in which those words are used in our interest statute. And as the damages were unliquidated and could only be determined when proof was made that the correct method of determining their amount had been used, we cannot see how it is properly allowed, as on money withheld by “an unreasonable and vexatious delay of payment.”

If the defendant in error remits within ten days from the amount of the judgment the sum of $42.44, the said judgment will be affirmed; otherwise it will be reversed and the cause remanded.

Affirmed on remittitur; otherwise reversed and remanded.


author: Mr. Justice Baker

text:
    Charles B. Richter, Appellee, v. Chicago & Erie Railroad Company, Appellant.
    Gen. No. 19,284.
    1. Appeal and ebbob, § 839

      —when extension of time following Lincoln’s birthday inoperative. Where plaintiff secured a verdict and judgment, and the court gave defendant sixty days from December 14, 1912, to file a bill of exception, the time for the filing of the bill under the order ordinarily expiring on February 11, 1913, an order of court on February 13, 1913, extending the time for filing of the bill comes too late and the Appellate Court will strike from the record a bill of exceptions filed within the attempted second extension since Lincoln’s birthday, February 12th, is not a holiday with reference to the performance of judicial functions or clerical duties by the officers of the court such as to excuse the failure to 'file the bill of exceptions within the time allowed by the court expiring on that day.
    2. Holidays, § 1*—how Lincoln’s birthday not dies non juridicus. On a motion to strike a bill of exceptions filed after the expiration of the time given within which to file such bill of exceptions, the fact that the time given expired on Lincoln’s birthday, held not to excuse the filing of the same, since Lincoln’s birthday is not a ■holiday with reference to the performance of judicial functions or clerical duties by officers of the court.
    3. Appeal and ebbob, § 1595*—when declaration aided by verdict. Upon a motion in arrest of judgment upon a verdict in favor of plaintiff, if the declaration contains terms sufficiently general to include by fair and reasonable intendment any matters necessary to be proved and without which the jury could not have given the verdict, the want of an express averment is cured by the verdict.
    4. Masteb and sebvant, § 555*—when verdict negatives assumption of rislc. In an action by á brakeman for the loss of a foot while uncoupling cars in a moving train, upon a motion in arrest of judgment upon a verdict, held that the declaration must be construed to state a cause of action and to negative the assumption of risk by the plaintiff, after verdict all intendments and presumptions being in favor of the pleader.
    Appeal from the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed March 8, 1915.

      W. O. Johnson and Bull & Johnson, for appellant.
    I. T. Greenacre, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff Bichter, a brakeman in the service of the defendant, the Chicago & Erie Bailroad Company, brought this action to recover for the loss of his foot while uncoupling cars in a moving train. There was a verdict and judgment for the plaintiff for nineteen hundred and fifty dollars damages, from which the defendant appealed. The court gave the defendant sixty days from December 14, 1912, to file a bill of exceptions. The time for filing the bill under this order would ordinarily expire February 11th, and no bill of exceptions was signed or filed on or before that date. February 13th, over the objection of plaintiff, an order was made extending the time for filing the bill to March 1st, and February 28th the bill was filed. In Trustees of Schools v. Griffith, 263 Ill. 550, it was said (p. 552) that the bill of exceptions was not filed until after the time fixed by the order of the court had expired, and the motion of the defendant to strike the bill from the files was sustained and the holding of the court announced in open court at the February term. The files and record of the Supreme Court show .the motion of appellees and that appellants filed in opposition thereto points in which it was admitted that under the order the time for filing the bill of exceptions would ordinarily have expired August 31st, and that the bill was not filed until September 2nd; but it was contended that as September 1st was Labor Day and a legal holiday, that therefore the time for filing the bill was by operation of law extended to September 2nd. The oral announcement of Mr. Justice Cartwright was as follows:

“There is also a motion by appellee to strike the bill of exceptions because not filed within the time allowed by the Court. It was not filed within the time and the reason or excuse offered is that the time expired on the 2nd of September, on Monday, which was Labor day and consequently a holiday. Labor day is a holiday for certain purposes specified. It is not a holiday with reference to the performance of judicial functions or clerical duties by officers of the Court and is no excuse for not filing the bill of exceptions in the time allowed by the Court. The motion is allowed and the bill stricken from the files.”

In the present case February 12th was Lincoln’s birthday, and under the rule announced in the case cited it was not a holiday, and it was no excuse for not filing the .bill of exceptions in the time allowed by the court that February 12th was Lincoln’s birthday. For the reason stated the bill is stricken from the files.

The striking of the bill of exceptions from the files leaves only the question whether the court erred in overruling defendant’s motion in arrest. After verdict all intendments and presumptions are in favor of the pleader, and if. a declaration contains terms sufficiently general to include, by fair and reasonable intendment, any matters necessary to be proved and without which the jury could not have given the verdict, the want of an express averment of such matter is cured by verdict. Sargent Co. v. Baublis, 215 Ill. 428.

• We think that after verdict the declaration must be held to state a cause of action and to negative the assumption of risk by the plaintiff, and that the court did not err in overruling defendant’s motion in arrest.

T¡he motion to strike the bill of exceptions from the record is sustained, and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    H. N. Lund, Plaintiff in Error, v. A. H. Zimmermann, Individually and as Trustee, Defendant in Error.
    Gen. No. 19,666.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scuixy, Judge, presiding. Heard in this court at the' October term, 1913.
    Affirmed.
    Opinion filed March 8, 1915.
    Rehearing denied March 22, 1915.
    Statement of the Case.
    Action by H. N. Lund against A. H. Zimmermann as an individual and as trustee, upon a written transfer and assignment of all interest in certain property From a judgment of nil capiat in favor of defendant, plaintiff brings error.
    On March 1, 1913 the Hildebrandt Fuel Company, being in financial trouble, executed a written assignment and transfer to defendant of all its assets consisting of accounts receivable, horses and wagons, tools and machinery, wood and lumber in a yard, other personal property and an interest in a certain lease, subject to the approval of its creditors. More than seventy-five per cent, in the amount of the creditors of the Company consented to such assignment. On March 15, 1913, upon plaintiff’s paying defendant eight hundred dollars, Zimmermann executed the following instrument:
    “Chicago, Mar. 15, 1913. In consideration of the sum of Eight Hundred Dollars ($800) in cash to me in hand paid, I hereby sell, transfer and assign all interest I now have or may-have as Trustee or otherwise given to me under an assignment made by one H. Hildebrandt, Jr., on behalf of the H. Hildebrandt Fuel Company, and dated March 1st, 1913, and approved by the creditors of the said H. Hildebrandt Fuel Company; to all the property of the said Company, to one H. N. Lund. It is, however, understood that I do not in any way represent or warrant that I have perfect title to said property, or that I can deliver perfect title or possession of same, except as is shown in the above named instruments, and the purchaser, H. 1ST. Lund, hereby assumes all risks of loss and damage of any kind, nature or description. And it is further agreed that the only effect of this assignment is to transfer whatever title I now have or may have without question of legality or without any warranty on my part whatsoever. Witness my hand and seal this 15th day of March, A. D. 1913.”
    Abstract of the Decision.
    1. Champerty and maintenance, § 5

      —when property not in adverse possession of another. Where a corporation executed an assignment to a trustee with the consent of a majority of its creditors and the trustee made a written assignment of the property in question to plaintiff, after which the corporation filed a voluntary petition in bankruptcy in an action upon the trustee’s transfer or assignment, held the facts did not bring the case within the rule that a sale of personal property in the adverse possession of another is void.
    2. Assignments fob benefit of creditors, § 97*—where instrument inoperative as warranty. In an action to recover upon a written transfer and assignment by a trustee of a corporation made shortly before the filing of a voluntary petition of bankruptcy, held that the instrument sued on constituted neither a warranty nor a fraudulent misrepresentation, its effect being only to transfer whatever title the grantor had, the grantee expressly assuming all risks or loss.

      A few days later the Hildebrandt Fuel Company filed a voluntary petition in bankruptcy. The action in question was instituted on April 4, 1913. It did not clearly appear whether Zimmermann took formal possession of the property assigned him. He and Lund went to the yard and examined and checked over the property.
    Frederick Sass and Daniel A. Roberts, for plaintiff in error.
    Boyle, Mott & Haight, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    The A. H. Andrews Company, Defendant in Error, v. C. P. Lautenschlager, Plaintiff in Error.
    Gen. No. 20,008.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by The A. H. Andrews Company, a corporation, against C. P. Lautenschlager to recover damages for breach of a written contract of purchase of seating for a theater. From a judgment in favor of plaintiff for $349.62, defendant brings error.
    By written agreement defendant purchased and ordered from plaintiff seating for a theater to the number of 650 (more or less, according to plan) at $1.70 “per setting” according to the specifications attached to the contract and made a part thereof. By the original contract defendant also agreed to buy back approximately sixteen chairs at $1 per chair. 'Two days after the instrument was signed Lautenschlager went to plaintiff’s office for the purpose, as he testified, of canceling the contract. With him was the representative of a rival seating concern, but that fact was not disclosed to plaintiff. Lautenschlager complained to Merle, secretary and general manager of the corporation, that the prices named in the instrument were too high. Merle consented, to a reduction of the price of the chairs from $1.70 to $1.6iy2 “per setting” and to an increase of the price of the sixteen chairs which plaintiff was to take back from defendant from $1 to $1.35 per chair, and Merle drew his pen through the original figures and wrote in the figures above named. Lautenschlager then, on the suggestion of the man who came with him that the contract had been changed and was void, refused to “O. K.” the changes so made in the instrument, and left plaintiff’s office, saying that he would have to see his father before indicating by his initials his consent to the changes, and now contends that by such alteration in the instrument that the same was altered and either made void or as modified became the contract of the parties, and that the recovery must be made on the contract as so altered and modified.
    Abstract of the Decision.
    1. Corporations, § 430

      —what constitutes acceptance of contract. In an action for breach of contract of purchase of seating for a theater, held that the jury might properly find that the contract was accepted by the plaintiff corporation since immediately after the instrument was signed by plaintiff’s salesman and defendant it was exhibited to the secretary and general manager of the plaintiff, when his oral approval was given.
    2. Corporations, § 430*—effect of officer’s oral approval of contract. In an action for breach of a -written contract for seating In a theater, where the instrument provided that the passing on and acceptance of the contract by an officer of the corporation should be an approval of it by the corporation, such approval of the contract may be shown by the officer’s oral acceptance of same.

      Defendant failed to furnish a seating plan and the plan furnished by the plaintiff provided for 648 seats, upon which recovery was based.
    George H. Mason, for plaintiff in error.
    Gregory & McNab, for defendant in error; Albert S. Long, of counsel.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

3. Sales, § 62 —when contract may state approximation. In an action for breach of contract where defendant was to furnish a seating plan for chairs purchased for a theater, on his failure to do so within the time given he cannot complain that the contract is void for uncertainty because it provided for the furnishing of an approximate number of chairs, the exact number of which could not be ascertained until the seating plan was furnished, especially where recovery was based on a less number than the approximation.

4. Alteration of instruments, § 14*—where inoperative to effect original obligation. Where recovery was sought for breach of a contract of purchase óf seating for a theater, evidence held insufficient to show mutilation of the instrument since the proposed alterations were innocent, failing to become effective because of the defendant’s refusal to ratify the contract as altered, so that plaintiff could recover on the original obligation.

5. Sales, § 331*—where amount of recovery not excessive. Where defendant in an action for breach of contract of purchase of seating for a theater contended that the damages were excessive, because if a plan of circular seating were adopted a less number of seats could have been placed in the theater than the number on which the recovery was based, held that the damages were properly estimated on the number furnished under the plan provided by the plaintiff, as the jury might take that number as the basis for estimating plaintiff’s damages, the contract not providing for a circular plan of seating.


text:
    Alexander Lips and Benjamin F. Nysewander, Jr., by J. L. Nysewander, Plaintiffs in Error, v. Anton J. Cermak and Anna L. McCoid, Defendants in Error.
    Gen. No. 20,236.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Pbindivilee, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Proceeding for trial of right of property in an automobile by Alexander Lips and Benjamin F. Nysewander, Jr., the latter suing by J. L. Nysewander, his next friend, against Anton J., Cermak and Anna L. McCoid. From a judgment in favor of defendants, plaintiffs bring error.
    The machine was taken by defendant Cermak as bailiff, under an execution on a judgment in favor of defendant, Anna L. McCoid, against Benjamin Nysewander, Sr. The evidence tended to show that Nysewander, Sr., the judgment debtor, had no interest in the machine. Benjamin Nysewander, Jr., had traded real estate belonging to plaintiff Lips for the machine and was still in possession when it was levied upon under the execution.
    The only evidence offered for the defendants was the files in a suit in replevin in the Municipal Court to recover possession of the automobile, in which Lips was plaintiff and Cermak and McCoid defendants and the following entry:
    “July 2/13. Booney. Tr. by Ct. Fndg. right prop, in repn. not in plff. Judg. for Lefts in repn. reto hab & C. Bd. $1500.”
    Harry H. Felgar, for plaintiffs in error.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 19

      —-ineffectiveness of abbreviated judgment. In a proceeding for trial of right of property taken under an execution, an abbreviated record of a judgment in the Municipal Court in replevin between the same defendants and one of the plaintiffs, held not to constitute any evidence of a judgment in the replevin, action.
    2. Judgment, § 539*—where adjudication in replevin not conclusive of trial of right of property. In a proceeding for trial of right of property, a judgment in a prior replevin suit between the same defendants and one of the two plaintiffs in the second action, held not to constitute a bar to the proceeding between the same defendants and the plaintiff for trial of right of the same property taken under an execution.
    Parker & King and John Stelk, for defendants in error; Otto C. Rentner, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Harry Romman, Defendant in Error, v. Walter Z. Marx, Plaintiff in Error.
    Gen. No. 20,253.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Statement of the Case.
    Action by Harry Romman against Walter Z. Marx to recover damages for assault and battery. From a judgment on a verdict for three hundred dollars in favor of plaintiff, defendant brings error.

      Abstract of the Decision.
    1. Assault and batteby, § 22*—when damages not excessive. In a civil action for assault and battery, a verdict for three hundred dollars is held not to be excessive.
    2. Assault and batteby, § 13*—admissibility of weapon in evidence. In an action for damages for assault and battery, the admission in evidence of a file, which was not found until two days after the assault and which was not shown to have been used by the defendant, held not to have been prejudicially erroneous, since the jury fnight have properly found from the evidence, that the defendant inflicted the injuries by striking the plaintiff upon the head with some instrument.
    Leo Koretz and Elmer, Cohen & Belasco, for plaintiff in error.
    Arnold Heap, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.


text:
    Curt Teich, Defendant in Error, v. Midland Machine Company et al., Plaintiffs in Error.
    Gen. No. 20, 378.
    1. Appeal and ebbob, § 1833

      —when bill may be amended on general remand. Where a decree in a general creditor’s bill combined with a bill under the Corporation Act, sec. 25 (J. & A. H 2442) was reversed and the cause remanded generally without any specific direction to the court, held that the court had authority to permit an amendment to the bill and to hear the cause de novo.

    2. Creditors’ suit, § 61*—when allegations sufficient to sustain decree pro confesso. The allegations of a general creditor’s bill combined with a bill under the Corporation Act, sec. 25 (J. & A, jf 2442), held sufficient to sustain a decree taken pro confesso upon an election to stand by a demurrer overruled.

      Error to the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 8, 1915.
    Felsenthal, Beckwith, Wilson & Spengler, for plaintiffs in error; David Levinson, of counsel.
    A. G. Dicus, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

. This was a general creditor’s bill combined with a bill under section 25 of the Corporation Act (J. & A. If 2442). The decree granted full relief on each theory of the bill and the defendants sued out a writ of error. The defendants, other than Jones and Linick, did not assign errors, were summoned and severed, and the two defendants above named prosecute the writ. The case was before Branch “D” of this court and the decree was reversed and the cause remanded. Teich v. Midland Mach. Co., 177 Ill. App. 354. After the cause was reinstated in the Circiiit Court the complainant amended his bill, the defendants demurred to the bill as amended, their demurrer was overruled, they elected to stand by their demurrer and the bill was taken as confessed. The court heard proofs offered by complainant in support of the bill.

When the decree was reversed and the cause remanded generally without any specific direction to the lower court, that court had authority to permit a change in the pleadings and to hear the cause de novo. Dinsmoor v. Rowse, 211 Ill. 317; Lang v. Metzger, 206 Ill. 475, citing Chickering v. Failes, 29 Ill. 294; Parker v. Shannon, 121 Ill. 452; Perry v. Burton, 126 Ill. 599; Cable v. Ellis, 120 Ill. 136; West v. Douglas, 145 Ill. 164; Rush v. Rush, 170 Ill. 623.

The original bill alleged the recovery of a judgment by complainant against the Midland Company in 1909 for $1,559.25; that the same was unsatisfied; that execution had been issued and returned nulla bona; that plaintiffs in error each owned $24,900 of .the capital stock of said corporation and that they owed the corporation at least fifty one-hundredths of the amount of their stock. The amendment to the hill alleged that said corporation in November, 1909, sold most of its assets to another corporation for $35,000, of which $25,000 was used to pay the debts of the corporation and $10,000 divided between Jones and Linick, and that as a result thereof the Midland Company became insolvent; that Jones and Linick received $600 rent on a lease owned by the Midland Company and appropriated the same to their own use; that they were at the time directors of the Midland Company and became trustees of said money for the benefit of creditors and particularly trustees for complainant for enough of such money to pay his judgment. The court by the decree found the facts as alleged in the hill as amended, declared that Jones and Linick were trustees of said $10,000 and $600, the money of the Midland Company, for the benefit of complainant, the sole remaining creditor of said Company, that the amount due on said judgment, including interest and costs, was $1,935.94, and decreed that Jones and Linick pay to complainant that sum with interest and costs.

It is to reverse this decree that this writ of error is prosecuted. The bill was taken pro eonfesso, and although evidence was admitted its sufficiency to sustain the decree cannot be questioned. The decree might have been rendered without any evidence, and therefore the only inquiry admissible is as to the sufficiency of the allegations of the bill. Hannas v. Hannas, 110 Ill. 53; Hopkins Amusement Co. v. Frohman, 202 Ill. 543.

The allegations of the bill as amended are sufficient to support the decree and it is affirmed.

Affirmed.


text:
    William B. Walrath, Plaintiff in Error, v. Claude E. Andersen, Defendant in Error.
    Gen. No. 20,427.
    1. Guaranty, § 17

      —when lack of notice fails to affect obligation if liability is primary. In an action on a written guaranty by the assignee of a contract for the sale of real estate on instalments, held by the terms of the guaranty the liability was primary so that the assignee was not required to notify the defendant of the principal’s default since it was the duty of the guarantor to see that payments guarantied by him were made.
    2. Guaranty, § 27*-—necessity of showing damages through lack of notice of principal’s default. In an action upon a guaranty that certain payments would be made on real estate sold upon instalments, held, even if the. guaranty be considered collateral rather than absolute, unless the guarantor suffered loss or injury by want of notice of default in such payments, he is liable on his guaranty.
    3. Guaranty, § 1*—evidence sufficient to support recovery on. In an action on a written guaranty running to the purchaser of an owner’s interest in real estate sold on instalments, evidence held to show a right of recovery of the amount claimed upon the guaranty that instalments would be paid to include a certain minimum sum.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and judgment here.
    Opinion filed March 8, 1915.
    Stewart Johnson, for plaintiff in error.
    Caswell & Healy, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

Defendant, Andersen, owned eight houses and lots and contracted to sell them to different persons. The terms as to each lot were a certain amount in cash, balance by the assumption of a mortgage and the excess of the purchase price over the mortgage to be paid in monthly instalments. September 23,1911, Andersen assigned the contracts and conveyed the lots to plaintiff, Walrath. The instrument by which the contracts were so assigned contains the following provision :

“If any of the contract purchasers default, neglect or refuse to make the payments in accordance with the terms of each respective contract, party of the second part hereby agrees that he will make all of such payments himself out of his own pocket until $400 has been paid on the principal of each respective contract.”

In an action by Walrath against Andersen on this guaranty there was a judgment of nil capiat, to reverse which this writ of error is prosecuted.

The amount claimed by the plaintiff was $449.31 on three of the contracts of sale so made by Andersen, to-wit, 7407 S. May street, 5615 Hoyne avenue and 1528 47th court. The evidence, we think, shows that there was due on the contracts for the sale of said three lots the full amount claimed by the plaintiff after applying the payments by the purchasers, when made, as between principal and interest in accordance with the provisions of the contracts of sale.

The contention of defendant in error is that the guaranty is a collateral and not an absolute guaranty, and that therefore the plaintiff was required to promptly notify the defendant of the principal’s default. In this contention we cannot concur. The debts guarantied were existing debts created by the contracts of sale, and there was not, as in Taussig v. Reid, 145 Ill. 488, a doubt whether a debt would ever exist to which the guaranty could apply. By the terms of the guaranty the liability of the defendant was primary and for the payments, “in accordance with the terms of each respective contract.” It was the duty of the' defendant to see that the payments were made by the persons with whom he had contracted to sell the lots. Voltz v. Harris, 40 Ill. 155; Dickerson v. Dickerson, 39 Ill. 574; Pfaelzer v. Kau, 207 Ill. 116.

If on any ground the guaranty can he held a collateral and not an absolute guaranty, then, unless the evidence shows that defendant suffered loss or injury by want of notice, he is liable on such guaranty. The evidence does not show that he suffered loss or injury for want of notice. All that is shown is that interest accumulated on the contracts, but that is the case whenever a person guaranties in writing the payment of money.

We think the evidence shows a right of recovery of the full amount claimed, and the judgment is reversed with judgment here for $449.31 and costs for the plaintiff.

Reversed cmd judgment here.