text:
    Thomas L. Robertson, Appellee, v. Northwestern Elevated Railroad Company et al., on appeal of Northwestern Elevated Railroad Company, Appellant.
    Gen. No. 23,238.
    1. ¡Limitation of actions, § 74

      —when amendment to declaration does not set up new cause of action. A declaration in an action at common law to recover damages for personal injuries, brought by an employee of a construction company against an elevated railroad, held to set up a good cause of action, although it made no reference to the Workmen’s Compensation Act and did not contain an allegation to the effect that the defendant had elected not to be bound by the act, and an amended declaration adding such an allegation to those contained in the original declaration does not set up a new cause of action subject to the bar of the statute of limitations.
    2. Railroads, § 578*—when evidence as to manner of running elevated trains is immaterial. In an action by an employee of a construction company against an elevated railroad company for personal injuries, certain train sheets and other testimony offered to show that on the only night the plaintiff had worked on the certain job as an employee of the construction company at work on defendant’s elevated railroad tracks previous to the occasion of his injury, defendant’s trains were running on the west track where the work was being done at 11 o’clock at night, were properly excluded as immaterial, where defendant’s superintendent had notified the superintendent of plaintiff’s employer that the west track would be dead at 11 o’clock on the night in question.
    3. Railroads, § 582*—-when negligence in operation of elevated train shown. Evidence held to warrant the finding that defendant was negligent in the operation of its elevated railroad train which caused injury to plaintiff, an employee of a construction company.
    ""Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Rehearing denied March 25, 1918.
    Raymond H. Schultz, for appellant.
    Earl J. Walker, for appellee; A. R. Miller, of counsel.

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

   Mr. Justice Thomson

delivered the opinion of the court.

This was a suit brought by Thomas L. Robertson, appellee, hereinafter referred to as the plaintiff, for damages alleged to have been suffered as a result of personal injuries, in which a judgment was entered in favor of the-plaintiff for the sum of $2,750, from which judgment the Northwestern Elevated Railroad Company, hereinafter' referred to as the defendant, has appealed.

The declaration alleged, in the first two counts, that the defendant had engaged .the Brennan Construction Company to repair or alter its railroad structure; that the plaintiff was in the employ of that company; and, in the last two counts, that the defendant had arranged with the plaintiff and divers other persons to assist in the repair or alteration of its structure. All counts then proceeded to allege that while the plaintiff was engaged in the performance of his duties in connection with the making of such repairs or alterations and in the exercise of due care, the defendant so negligently operated one of its trains as to strike the plaintiff and seriously and permanently injure him. The specific acts complained of as negligent differ somewhat in the different counts.

To this declaration the defendant pleaded the general issue. During the progress of the trial, the plaintiff was given leave to amend his declaration over defendant’s objection, whereupon the plaintiff filed an amended declaration which was substantially the same as the original declaration except that the following allegation was made a part of each count:

“And the plaintiff further alleges that said defendant herein, on, to wit, September 22, 1913, rejected the provisions of the Workmen’s Compensation Act of Illinois, in force May I, 1912, and that such rejection was not thereafter withdrawn.”

To this amended declaration, the defendant pleaded the general issue and a special plea of the statute of limitations. The plaintiff demurred to the special plea and the demurrer was sustained and the defendant elected to stand on the plea. The trial proceeded and the jury returned a verdict in favor of the plaintiff and against both defendants then remaining in the case. This verdict was set aside and a new trial granted, and, upon the second trial, the jury returned a verdict finding this defendant guilty and the other defendant not guilty. Motions were made by the defendant for a new trial and an arrest of judgment, both of which were overruled, and judgment was entered on the verdict.

The defendant contends that this judgment should be reversed by reason of the alleged error of the trial court in sustaining the demurrer to the defendant’s plea of the statute of limitations, citing Kleet v. Southern Illinois Coal & Coke Co., 197 Ill. App. 243; Yeancey v. Taylor Coal Co., 199 Ill. App. 14; Means v. Terminal R. Ass’n of St. Louis, 202 Ill. App. 591. Belying upon these cases, the defendant contends that the amended declaration set up facts showing that it was not within the Workmen’s Compensation Act at

the time the plaintiff was injured, but, not having been filed within 2 years after 'the cause of action arose, the cause of action is barred by the statute of limitations, the action having been brought at common law and the declaration prior to its amendment having set up no facts showing that the act did not apply. Since the first two decisions referred to were rendered, the case of Von Boeckmann v. Corn Products Refining Co., 274 Ill. 605, was decided by our Supreme Court. This later decision was handed down about 2 weeks prior to the filing of the decision in the case of Means v. Terminal R. Ass’n of St. Louis, supra. In connection with the latter case the court’s attention had doubtless not been called to the then very recent ruling of the Supreme Court. In the Supreme Court decision referred to, a common-law action was brought by an employee against his' employer for damages as a result of injuries allegéd to have been suffered by him and caused by the negligence of the employer. The declaration was similar to the original declaration in the case at bar in that it made no reference whatever to the Workmen’s Compensation Act. The case involved other issues which are not material here. The Supreme Court said in that case that the declaration stated a good cause of action if the defendant had elected and given notice that it would not be bound by the Compensation Act, but that if the parties were under the Compensation Act the defendant could make that proof under the general issue and thereby interpose a complete bar to the plaintiff’s suit as stated in his declaration. In a later decision of the Supreme Court in the case of Keeran v. Peoria, B. & C. Traction Co., 277 Ill. 413, a declaration was filed in a common-law action for damages suffered by the plaintiff by reason of the alleged negligence of the defendant, the latter being a third person and not the employer of the plaintiff, and this declaration also seems to have

omitted any reference to the Workmen’s Compensation Act. The defendant did not demur to the declaration nor contend that the declaration failed to set forth a good cause of action but pleaded the general issue and also certain special pleas in which it set up facts in support of its contention that the parties involved were covered by the Workmen’s Compensation ’Act. While the court in that case did not have occasion to pass upon the precise point involved here, there is nothing said by the court in that opinion which would in any way indicate that the pleadings involved in that case were not good pleadings.. A still later decision of our Supreme Court was rendered in the case of Zukas v. Appleton Mfg. Co., 279 Ill. 171, which also involved a declaration similar to the original declaration in the case at bar. The action was a common-law action and the declaration did not negative the operation of the Workmen’s Compensation Act in that it did not allege that the defendant had elected not to provide compensation under the act. As pointed out by the Supreme Court in that case, if the defendant had elected to be bound by the Workmen’s Compensation Act it would not be liable in a common-law action for injuries to an employee. In that case the defendant pleaded only the general issue, and during the trial when the plaintiff sought to introduce evidence to show that the defendant was not operating imder the Workmen’s Compensation Act but had elected to the contrary, the defendant objected to the testimony and the objection was sustained. On appeal the defendant contended that inasmuch as the declaration had failed to negative the presumption that it was operating under the Workmen’s Compensation Act it had failed to state a case, and that the court was without jurisdiction to hear and determine the case. The court said on page 175:

“Whether the court had jurisdiction to determine defendant’s liability to an injured employee in a common-law action depended upon the fact whether defendant had elected not to be bound by the statute. Plaintiff offered to prove it had so elected, and defendant does not deny the truth of the fact offered to be proved and which was prevented from being made on its objection that it was not an issue in the casé. If, in truth and in fact, it had made such election, then the court had jurisdiction to entertain a suit at common law to determine defendant’s liability to an injured employee. We are warranted in inferring from the record that such was the fact.” It is not disputed that in the case at bar the proof shows that the defendant had, in fact, made such election, namely, not to be bound by the statute.

In view of the language which our Supreme Court has used in the decisions referred to, we hold that a declaration such as that involved in the case at bar sets up a good cause of action, although it makes no reference to the Workmen’s Compensation Act and does not contain an allegation to the effect that the defendant has elected not to be bound by the act. Therefore an amended declaration which adds- such an allegation to those contained in the original declaration does not set up a new cause of action. It follows that the action of the trial court in sustaining the plaintiff’s demurrer to the defendant’s special plea of the statute of limitations was not error.

The defendant urges, further, that the'judgment of the trial court should be reversed because of the alleged error by that court in excluding certain train sheets and other testimony offered by it to show that on the only night the plaintiff had worked on this job previous to the occasion of his injury the trains were running on the west track at 11 o’clock p. m. The defendant was the owner of the elevated railroad structure on which the work in question was being done. The men were engaged in the work during the night as well as during the day, and, whenever the men were at work during the night, the movement of trains over the west track was stopped as the work was being done on that side of the structure. One Burke, superintendent of erection for the Brennan Construction Company, testified that he had always made his arrangements with Perkins, superintendent of erection for the defendant, for the night work, and that he saw Perkins on the day in question and that the latter asked him what time he wanted the track that night. The witness said he wanted it as early as he could get it and Perkins told him he could have it at 11 o’clock. The witness then testified that he arranged with Hunter, his assistant foreman, for the work that night, telling him that the track would be dead at 11 o’clock and that the work could be started at 11:30, the reason for this being, as stated by the witness, to give the defendant’s men a chance to get the guardrails up at the crossover to the east track before the work was begun. Hunter testified that on the night in question at the hour of 11 o’clock he told his men to go to work. There were two large plates down on the street which were to be put into place that night and he said he put the men to work at l^L o’clock so that they could proceed to get these plates up onto the structure and be in a position to proceed with the work at 11:30. "When directed to go to work at 11 o’clock the men put on their overalls and procured their tools from the tool box, unbolted the plates which were fastened together and proceeded to carry them up onto a station platform which was adjacent to the point at which the work was being done. The plaintiff assisted in carrying up the first plate. Upon reaching the platform the plate was lowered to the floor of the platform and extended out some inches over the west track. While the plate was in this position, being supported by the plaintiff, who was leaning down towards the south, one of the trains of the Metropolitan West Side Elevated Railway Company, a lessee of the defendant, came up from that direction, striking the plate and thus knocking plaintiff over and injuring him.

There was some testimony by plaintiff’s witnesses, some of which was brought out by the defendant on cross-examination, to the effect that on previous nights the movement of trains over the west track had been stopped at 11 o’clock, and the defendant offered to prove by these train sheets and otherwise that this was not the case, thereby meeting the inference that the plaintiff was justified in supposing that the movement of trains would be stopped on the same hour on the night in question. It was not error to sustain objection to this testimony, for the question of the hour at which the movement of trains was stopped on previous nights was immaterial. We have referred above to the testimony indicating that the defendant’s superintendent had notified the superintendent of the Brennan Construction Company that the west track would be dead at 11 o’clock and that the latter had so notified the assistant foreman who had direct charge of the men on the night in question €,nd directed them to go to work when that hour arrived. But quite beside this question, and without regard to it, was the further question of whether or not the defendant’s lessee was guilty of such negligence in the operation of its train which caused the injury to the plaintiff as to make the defendant liable. 'This was one of the questions for the jury to pass upon, and from the record we cannot say that the jury were not warranted in reaching the conclusion that they did. This applies also to the further contentions urged by the defendant as to the presence of negligence on defendant’s part and contributory negligence on the part of the plaintiff as shown by the evidence.

For the reasons stated, the judgment of the trial court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thomson

license: Public Domain

text:
    A. Anderson Decorating Company, Appellee, v. Nels Gross, Appellant.
    Gen. No. 23,254.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and eebob, § 1414

      —when finding of trial court not disturbed. Where the testimony on a trial before the court without a jury was sharply conflicting, and much depended on the manner in which the witnesses testified, their appearance on the stand, and such kindred matters as the trial court was in best position to observe but which could not be shown by the record, held that it would not be reasonable for the court of review to say the trial judge was not warranted in his finding.

      Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by A. Anderson Decorating Company, a corporation, plaintiff, against Neis Gross, defendant, to recover for services rendered and materials furnished in decorating an apartment in a building owned by defendant. From a judgment for plaintiff for $265.70, on trial by the court without a jury, defendant appeals.
    Walter H. Eckert, for appellant.
    . Beach & Beach, for appellee.

      See Illinois Notes Digest, Vola. 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 Thomson

delivered the opinion of the iourt.

2. Evidence, § 73 —what is not proper rebuttal testimony. Certain photographs offered by defendant as demonstrating and illustrating certain claimed defects in plaintiff’s work were properly excluded in rebuttal to plaintiff’s rebuttal which had brought no new matter into the case but had merely denied the existence of each and every defect testified to by defendant and defendant’s witnesses, in an action to recover for services rendered and materials furnished.


text:
    Victor P. Frank, Administrator, Appellee, v. Garrett W. Woodward and Fred Miller Brewing Company, on appeal of Fred Miller Brewing Company, Appellant.
    Gen. No. 23,256.
    (Hot to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action in replevin by Victor P. Frank, administrator of the estate of Julius Frank, deceased, plaintiff, against Garrett W. Woodward and Fred Miller Brewing Company, a corporation, defendants, to recover certain saloon fixtures. From a judgment finding the right of property in the plaintiff, the defendant corporation, the other defendant having been defaulted before trial, .appeals.
    The plaintiff’s decedent and his brother, whom he bought out after this controversy arose, owned a certain saloon and the premises on which they conducted it. They entered into contracts with defendant Woodward, one a bill of sale for the stock and business, expressly excepting the saloon fixtures, the other an agreement to lease the premises, containing a provision giving the defendant Woodward an option at the termination of the lease, which was for a term of 10 years, upon payment of $100 to the lessors, to purchase all of the personal property then on the premises belonging to the lessors “should the said party of the second part elect to purchase said property upon said terms during the period between the second and fifteenth days of April, A. D. 1923, but time, however, is the essence of this option to purchase,” if all the terms, conditions and covenants mentioned in the lease shall be kept and performed by the party of the second part, and all moneys provided to be paid are promptly paid as rental, and all taxes, charges, licenses, etc. Woodward, 6 months after execution of the lease, assigned same to one Thie, who complied with the lease for 2 years, when a bankruptcy petition was filed against him upon his default in the rent, and the trustee in bankruptcy sold all of Thie’s interest except as to the fixtures. Woodward executed a chattel mortgage to the defendant corporation to secure certain notes to it, and the corporation at the time of the filing of the bankruptcy petition paid plaintiff a month’s rent, and on the day of the trustee’s sale posted notice of a sale under its mortgage. On the same day the decedent purchased of the trustee the trustee’s interest in the fixtures, and a representative of decedent at that time refused a demand made upon him by one of the corporation’s attorney’s for the fixtures, tendering $100 twice, once either before or after this action was brought. At the time of seiwi.ce of writ the fixtures were in possession of the custodian under the foreclosure proceedings of the corporation.
    Abstract of the Decision.
    1. Landlord and tenant—when right to purchase fixtures under option in lease lost. Where a lease gave to the lessee an option at the termination of the lease and after a certain specified date to purchase certain fixtures, provided he should perform and keep all terms and conditions of the lease, held that upon default of the lessee or his assignee under the lease neither the lessee .nor his assignee nor his mortgagee would be entitled to exercise such option, irrespective of the date after which the option might he exercised, the lease specifying that time was the essence of the contract.
    2. Replevin, § 41

      —when formal demand unnecessary. Where defendant was In possession as mortgagee under a foreclosure of certain fixtures which it had no right to include in its foreclosure, no formal demand was necessary for return of the fixtures before institution of a replevin suit.
    3. Replevin, § 41*—when demand of mortgagee is unnecessary. Where one purchases or takes a mortgage on personal property in good faith from one who proves not to he the owner, a demand must precede institution of a replevin suit for possession of the property by the owner, but demand is unnecessary where the mortgagor’s rights are conditional and the mortgagee or purchaser has notice of the condition.
    Taylor, P. J., took no part in this decision.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and Bupert D. Donovan, of counsel.
    Mayer, Meyer, Austrian & Platt, for appellee; Victor P. Prank, of counsel.

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

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    C. A. Wilson et al., copartners, trading as Produce Dealers' Service Bureau, Appellees, v. Ellen Larson, trading as Oxford Produce Company, Appellant.
    Gen. No. 23,261.
    1. Trial, $ 191

      —when direction of verdict for plaintiff proper. A trial court may properly direct a verdict for plaintiffs upon a definite offer by defendant of proof which the court, on motion, excludes.
    2. Pleading, § 431*—when exclusion of evidence proper. Evidence offered by a defendant as to matters without his affidavit of merits is properly excluded.
    3. Appeal and error, § 433*—what point may not he first raised on review. The point that plaintiffs’ affidavit of claim was not sworn to cannot be raised first on review.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Rehearing denied March 26, 1918.
    Stedman & Soelke, for appellant; Swan M. Johnson, of counsel.
    Frank Schoenfeld, for appellees.

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

   Mr. Justice Thomson

delivered the opinion of the court.

This was a suit brought by C. A. Wilson, J. B. Rockwell and W. T. Vickers, copartners, trading as the Produce Dealers’ Service Bureau, appellees, hereinafter referred to as the plaintiffs, against Ellen Larson, trading as Oxford Produce Company, appellant, hereinafter referred to as the defendant, in which the plaintiffs filed a declaration consisting of the common counts with an affidavit of claim, and the defendant filed a plea of the general issue with an affidavit of merits in which she s.tated that her defense was as follows: “That the said defendant never ordered or received the goods, wares and merchandise alleged as sold and delivered, of said plaintiff, to the value of five hundred forty-nine dollars and fifty cents, or any sum whatsoever.”

.At the close of the plaintiffs’ case, counsel for the plaintiffs moved to exclude some of the evidence brought out on cross-examination. There was some argument on' this motion during which the jury were excluded. Before the jury were excluded, counsel for the defendant had begun his opening statement to the jury but had only uttered a few words when he was interrupted by plaintiffs ’ motion just referred to. In the absence of the jury, and during' the argument on this motion, counsel for the defendant stated what his defense would be. Counsel for plaintiffs made the point that the defense as stated was without the issues made by the affidavit of merits and he insisted, and the court ruled, that the defendant’s evidence would be limited to the issues as made by the affidavit' of merits the defendant had filed. Defendant’s counsel stated he would like to make his offer of proof, whereupon the jury were recalled, and counsel for the defendant then offered to prove that the goods in question “were never ordered or delivered to the defendant * * *; that there was a sale by sample; * * * that the goods delivered were not of the grade of the sample; * * * that the defendant never ordered or received the goods, wares or merchandise of the character purchased of the plaintiff, to the amount of $547.50 or any sum whatsoever. ’ ’ Counsel for the defendant objected to the offer. The objection was sustained and a motion to instruct the jury to find for the plaintiffs was allowed. The verdict and judgment for the plaintiffs followed.

In urging that the judgment should be reversed,

the defendant alleges that it is error for the trial court to direct a verdict on counsel’s opening statement to the jury, citing Pietsch v. Pietsch, 245 Ill. 454, but that"case is not in point. In the case at bar, the defendant made a definite .offer of proof which is quite different from an opening statement, and, upon his offer, the court had the power to rule. As the evidence offered was in regard to matters without the issues made by defendant’s affidavit of merits, the court ruled properly.

The defendant further urges that the ruling was improper for the reason that plaintiffs’ affidavit showing the nature of the demand was not sworn to, and that, therefore, the defendant need not have filed an affidavit of merits and it should be disregarded and the issues considered as made up by the common counts and the general issue, which would create a situation broad enough to admit the evidence which was the subject of the defendant’s offer. As to. this point, it need only be said that it was not raised below and cannot be urged here .for the first time. Further, it appears from the record that the original declaration was lost and was restored under an order of court based on proper affidavits, in which it is set forth that, whereas the carbon copy of the declaration in the court files did not show that plaintiffs’ affidavit of claim was sworn to, the lost original declaration did so show, and the copy filed in lieu of the lost original does so show.

Finding no error in the record, the judgment of the County Court is.affirmed.

Affirmed.


text:
    J. M. Grace, Appellee, v. Frank G. Wright & Company and D. F. Reid, Appellants.
    Gen. No. 23,263.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Brokers—when justification for reliance upon statements of employee of broker in sale of stock shown. Evidence held to warrant the finding "that plaintiff was justified in relying upon the assurances given him by defendant corporation's employee as to the value of certain stock purchased by plaintiff, although the books of the company whose stock he purchased were available for his examination, in an action against brokers for fraud and deceit in the sale of the stock.
    2. Brokers—when exclusion of evidence as to attempted adjustment of affairs between seller and employee erroneous. The exclusion of evidence of the vice president of the company in which plaintiff purchased certain stock, offered by defendant, in an action against brokers for fraud and deceit in the sale of the stock, as to plaintiff’s efforts to secure a settlement of his affairs with the company as an employee and stockholder with the witness and as to conversations between them, was erroneous, as such evidence was material, but not reversible error.

      Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Rehearing denied March 26, 1918.
    Statement of the Case.
    Action by J. M. Grace, plaintiff, against Frank G. Wright & Company, a corporation, and D. F. Reid, defendants, for fraud and deceit in the sale to plaintiff by' defendants of certain preferred stock of the Advance Radiator Company. From a judgment for plaintiff for $2,814, defendants appeal.
    Brothers & Fairfield, for appellants; Elmer D. Brothers, of counsel.
    Cheney & Evans, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.

3. Brokers, § 101 —what does not affect right of recovery for fraud by in sale of stock. In an action for fraud and deceit in the sale by defendants as brokers to plaintiff of stock in a certain company, held that any arrangement made by plaintiff with the company looking towards a return of his money could have no effect upon his right to recover in such action except in so far as it might affect his measure of damages.

4. Brokers—when instruction on fraud by is correct. An instruction, in an action against brokers for fraud and deceit, that if the jury believed from the evidence that the defendants made the representations and statements alleged and that the same were false or fraudulent and were made with intent as alleged and that plaintiff relying thereon was thereby induced to part with his money, they should find for the plaintiff, held not erroneous because not requiring the jury to find from the evidence that the alleged false representations were of such character or made under such circumstances as to justify a reasonably prudent person in believing them to be true and directing his conduct accordingly, where the evidence showed defendants said and did much to throw plaintiff off his guard.

5. Damages, § 102*—when punitive awarded. It is within the province of the jury to award punitive damages in an action for fraud and deceit.

6. Damages, § 244*—when giving of instruction as to punitive harmless error. The giving of an instruction as to punitive damages, in an action for fraud and deceit, where there was no evidence of such damages and the same were not included in the jury’s verdict, held not prejudicial error.

7. Brokers—when instruction on measure of damages in action for fraud correct. An instruction, in an action against brokers for fraud and deceit, that if the jury found for the plaintiff they might give in estimating damages the amount of the money paid by plaintiff according to the terms of the contract, with interest to date, and such sum as would indemnify plaintiff for all damage directly sustained by him by reason of defendant’s misconduct, including exemplary damages, held proper under the facts.

8. Apreai and error, § 244*—when instruction not reversibly erroneous. The omission from an instruction as to damages, in an action for fraud and deceit, of a limitation of the recovery to such damages as were shown by the evidence, or to such interest as should be shown by the evidence, held not reversibly erroneous, where the evidence fully warranted the award made. •


text:
    City of Chicago, Appellee, v. Mrs. Henry Wahl, Appellant.
    Gen. No. 23,268.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal corporations, § 867

      —when presumed evidence supports finding for violation of ordinance. In the absence of an ordinance made the basis of a complaint preserved in the record, the sufficiency of the evidence to support the finding in a prosecution for violation of a city ordinance will be presumed.

      Appeal from the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Prosecution by City of Chicago,. plaintiff, against Mrs. Henry Wahl, defendant, charging defendant with making, aiding, countenancing and assisting in making an improper noise, disturbance, breach of the peace, and diversion tending to a breach of the peace,. in violation of section 2012 of the Revised Municipal Code of plaintiff. Prom a judgment finding defendant guilty, on trial by the court without a jury, and fining her one dollar, defendant appeals.
    P. C. Harbour, for appellant.
    Samuel A. Ettelson and Harry B. Miller, for appellee; Daniel Webster, of counsel.

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

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Ruth Whitney, by Arthur Whitney, Appellee, v. Frank N. Derby and William M. Derby, Jr., Appellants.
    Gen. No. 23,279.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Ruth "Whitney, by Arthur Whitney, her next friend, plaintiff, against Frank ¡N". Derby and William M. Derby, Jr., defendants, to recover damages for personal injuries sustained by plaintiff when a stone balustrade, on the front steps of a building owned by defendants, in which plaintiff’s father was a tenant, fell on her, injuring her left leg and knee. From a judgment for plaintiff for $1,000, defendants appeal.
    For the case on a former appeal, see Whitney v. Derby, 197 Ill. App. 309.
    Warren Pease, for appellants.
    Coburn & Bentley, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 257*—what not variance between declaration and proof in action for injuries to tenant’s child. Where a declaration alleged that a large stone balustrade on the front steps of the building in which plaintiff’s- father was a tenant became loose, that defendants, owners of the building, were aware of its dangerous condition, and that notwithstanding this they permitted the balustrade to remain as it was, and that plaintiff, while in the exercise of proper care for her own safety, was on the steps and the balustrade fell or toppled upon her, injuring her, and the proof showed that plaintiff, a young girl, took hold of the balustrade and began to move it back and forth, swaying it further each time, for five or six times, when it fell over against her and injured her, held that there was no variance between declaration and proof.

2. Landlord and tenant, § 234*—when tenant’s child swaying stone balustrade not contributorily negligent. Where a stone balustrade, on the front steps of the building in which plaintiff, 11 years old, lived with her father, was so loose that it could be moved back and forth and was in a dangerous condition, of which her father had warned her, and told her to keep away from it, but she had a number of times moved it back and forth without injury to herself and believed it would not harm her, and she finally was injured -while so playing with it, swaying it back and forth, further and further, until it fell- over against her, she was not guilty of contributory negligence!

3. Damages, § 122 —when verdict for personal injuries not excessive. A verdict for $1,000 damages held not excessive for injuries to plaintiff’s knee and leg, in view of all the circumstances shown, her physician testifying that he did not believe a joint so severely injured would ever fully recover or become as strong and resistant to disease as if never injured.

Taylor, P. J„ concurring specially.


text:
    Hannah McCarthy, Appellee, v. National Council, Knights and Ladies of Security, Appellant.
    Gen. No. 23,293.
    Insurance, § 760

      —what constitutes waiver of provisions of "bylaws as to ineligible members. Where the by-laws of a fraternal beneficial insurance society provided that no subordinate body of the society should receive certain specified classes of persons, and that the society would not be liable for any negligence in the admission of members, collection and transmission of assessments, nor by any irregularities, neglect or illegal action by any subordinate body or any of its officers, and a member to whom a certificate was issued agreed both therein and in his application to be bound by the laws of the society, the admission by a subordinate body of the society of a person as a member who belonged to some of such specified prohibited classes and collection and transmission by it of assessments paid by the member constituted a waiver of the provisions of the by-laws, where the subordinate body acted with full knowledge of the facts as to the member and in good faith, believing the member to be eligible.
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Rehearing denied March 26, 1918.
    A. W. Fulton, for appellant.
    Daniel M'. Healy and Thomas J. Hbaly, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.

This was an action brought by the appellee, hereinafter referred to as the plaintiff, against the appellant, hereinafter referred to as the defendant, on a fraternal beneficiary certificate issued by the defendant to the husband of the plaintiff, payable to her at his death. At the close of the evidence', the court overruled defendant’s motion for a peremptory instruction and allowed a similar motion tendered by plaintiff, whereupon the jury returned its verdict for the sum of $2,000, on which judgment was entered, from which the' defendant has appealed.

There is little or no dispute about the facts. At the time the deceased made application for membership in the defendant society, he owned a saloon and also a grocery store, neither of which he operated. His wife ran the saloon and his daughter ran the grocery store. He seems to have put in his time raising fancy dogs. In his application for membership he gave his occupation as that of a grocer and stated that he had no" other business regularly or occasionally, and, further, that he was not engag’ed in any of the occupations mentioned in section 107 of the laws of the order printed on the reverse side of the application, and, in his application, agreed that if engaged in any of such occupations he would recognize that the liability of the order was thereby extinguished. Section 107 of the laws of the order set forth certain prohibitive risks which it recites no subordinate council should receive, among which is the following: “Persons engaged either as manufacturer of or wholesale dealer in spirituous, malt or vinous liquors, or as saloon owner, saloon keeper, or. bartender engaged in the sale of spirituous, malt or vinous liquors as a beverage.” Both in the application and in the certificate he agreed to be bound by the laws of the society, which provided, among other things, that the National Council would not be liable for any negligence in the admission of members, collection and transmission of assessments, nor by any irregularities, neglect or illegal action by any subordinate council or any of its officers. A deputy organizer for the defendant order, the president of the council the deceased joined, and another who had been its financial secretary all testified that they knew that the deceased owned a saloon and that at several meetings of the council the entire situation was discussed and that the opinion prevailed that he was eligible to membership under the laws .of their order, notwithstanding his ownership of the saloon, provided he was not connected with the active management of it, and that therefore the council received him into its membership.

In urging that the judgment of the trial court be reversed, the defendant contends that the court erred in denying its motions for a peremptory instruction and in allowing the plaintiff’s motion for such an instruction. •

It is well settled in this jurisdiction that a subordinate lodge or council of a beneficiary society is the agent of the supreme lodge or council. Coverdale v. Royal Arcanum, 193 Ill. 91. This is true notwithstanding the declarations or by-laws of such societies to the contrary. Dromgold v. Royal Neighbors of America, 261 Ill. 60, and cases cited. If a subordinate lodge, with full knowledge of a fact which would render a certificate void, continues to receive dues from a member, the right to forfeit the certificate on account of that fact is thereby waived. A subordinate lodge, receiving dues and paying them over to the principal lodge, necessarily treats the insurance as in force. Dromgold v. Royal Neighbors of America, supra; Coverdale v. Royal Arcanum, supra. In the latter case it was alleged that the trial court had erred in refusing to hold as law the following proposition: “If, at the time of the making of the application by the deceased, William Wasserman, to become a member of the defendant order, he was a saloon keeper, and served or sold drinks to be drunk upon the premises, and the officers and members of the local council, to which such application was made, had knowledge of such fact, but such information was not conveyed to the supreme officers of the defendant order, then, in such case, there was no waiver of the by-laws of the defendant, forbidding persons, engaged in the business of selling or serving intoxicating liquors to be sold on the premises, to become a member of the defendant order; and plaintiffs cannot recover from the defendant.” The court held that the trial court committed no error in refusing this proposition. Restrictions in the by-laws upon the power of any subordinate officer or local council of the order to waive any of the conditions of the contract or of the provisions of the by-laws are themselves conditions of the contract which may be waived the same as any other conditions of the policy. Dromgold v. Royal Neighbors of America, supra, and cases cited.

In most of the cases involving this sort of a situation, the fact in question, which is not communicated by the local council to the general council, is one which the local council appreciates as a fact which makes the certificate of membership void, and, in their failure to communicate the fact to the national council, the local council can be said to be acting in bad faith. In the case at bar, it seems that the local council was acting in good faith. They seemed to have been of the opinion that, under all the facts as they knew them, the deceased was eligible to membership. The fact that they were in error in this matter certainly can-, not put the deceased or his beneficiary in any worse position than they would be in if the local council had deliberately withheld the fact which they knew was one which would void the certificate. In view of the knowledge possessed by the local council in this case, and their course of conduct, it must be held that the provisions of the by-laws of the defendant order, which might have operated to have rendered his certificate void, have no effect and were duly and effectively waived.

There being no error in the record, the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Illinois Flower Box Company, Appellee, v. William H. Dunn, Appellant.
    Gen. No. 23,300.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action of the fourth class by Elinois Flower Box Company, a corporation, plaintiff, against William H. Dunn, defendant, to recover rent for desk space and telephone service furnished to defendant by certain individuals described as copartners, trading as the Elinois Flower Box Company, alleged to have assigned, transferred and set over to plaintiff all their interest in the account to the date of the incorporation of plaintiff. From a judgment for plaintiff for $140, on trial before the court without a jury, defendant appeals.
    Charles S. McNett, for appellant; Edward M. Burke, of counsel.
    No appearance for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.

Abstract of the Decision.

Assignments, § 33 —when pleadings comply with statute relative to necessary allegations by assignee suing. A statement of claim in an action of the fourth class in the Municipal Court of Chicago, based upon an assigned chose in action, stating that the debt upon which the chose in action is based “is due the plaintiS,” with affidavit also so- stating, complies sufficiently with section 18, ch. 110, Rev. St. (J. & A. ¶ 8555), providing that such assignee may sue in his own name and shall allege in his pleading or affidavit, where pleading is not required, that he is the actual bona fide owner of the chose in action, and set forth how and when he acquired title.


author: Mb. Justice Thomson

text:
    Helen Warren, by John Warren, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,304.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of facts.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Helen Warren, a minor, by John Warren, her next friend, plaintiff, against Chicago City Railway Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $500, defendant appeals.
    William H. Stmmes and Frank L. Kriete, for appellant ; J. R. Guilliams and Warner H. Robinson, of counsel.

      Abstract of the Decision.
    Stbeet railroads, § 69

      —when motorman not negligent in failing to slow up car or ring bell. A street car motorman was not guilty of negligence in not slowing up his car or ringing his bell when he first saw a child, 10 years old, after he had passed a certain street crossing and while running at the rate of 10 miles an hour, where there was nothing to obstruct the child’s view of the car, there were no people on the street or vehicles obstructing the car’s progress, and the motorman had no reason to believe the child would suddenly proceed across the street in front of him, as he had the right to assume she would stop before crossing the track.
    Charles J. O’Connor and Morton J; Stevenson, for appellee; Morton J. Stevenson and Edward C. Kesler, of counsel.

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

   Mb. Justice Thomson

delivered the opinion of the court.


text:
    Maud Wentworth, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,315.
    (Not to be reported in full.)
    Abstract of the Decision.
    L Appeal and ebbob, § 1411

      —when verdict based on conflicting evidence not disturbed. Where the evidence is conflicting and that of the plaintiff when taken alone is sufficient to support the verdict, the verdict will not be set aside and the judgment reversed although the testimony of the plaintiff may be the only evidence supporting the verdict, and there may be the testimony of several witnesses contradicting that of the plaintiff, except where a careful examination of the record leads to the conclusion that the verdict and judgment are clearly against the manifest weight of the evidence.

      Appeal from the Superior Court of Cook county; the Hon. Theodore Beentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of facts.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Maud Wentworth, plaintiff, against Chicago City Railway Company, defendant, to recover damages for personal injuries sustained while plaintiff was attempting to board one of defendant’s street cars. From a judgment for plaintiff for $500, defendant appeals.
    William H. Stmmes and Frank L. Kriete, for appellant; J. R. Guilliams and Warner H. Robinson, of counsel.
    William Gillespie, 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.

   Mb. Justice Thomson

delivered the opinion of the court.

2. Evidence, § 475 —when preponderance of is with defendant. The preponderance of the evidence held to be clearly against the plaintiff and in favor of the defendant, where plaintiff was the only witness in her behalf and her testimony was unconvincing and uncorroborated, and the testimony on behalf of the defendant was clear and convincing and uncoritradictory.

3. Damages, § 240*—when verdict is based upon sympathy of jury. Where plaintiff alleged damages for injuries, claimed to have been caused by defendant’s negligence, at $5,000, and the injuries were severe and painful and such as to entitle her to substantial damages, and plaintiff was a woman 50 years of age, practically alone in the world, and dependent upon herself for a living, and the • preponderance of the evidence was clearly against her and in favor of defendant, held that a verdict of $500 indicated that the jury were moved to find in her favor and give such damages because of sympathy for her.


text:
    Edward F. Keebler, trading as E. F. Keebler & Company, Appellant, v. A. J. Franks, Appellee.
    Gen. No. 23,322.
    (Not to be reported in full.)
    Abstract of the Decision.
    Bbokebs, § 61

      —when disobedience of instructions does not worh forfeiture of commissions. Where the owner of certain premises employed a real estate broker to negotiate a lease for the premises at a certain increased rental, promising to pay him a commission therefor, with specific instructions not to approach the present tenant in the matter, whom he wished to retain if possible but wished first to secure another in case the present tenant would not pay the increased rental, and the broker disregarded the instructions and approached the. tenant and secured his renewal of the lease at the increased rental, held that the broker did not forfeit his commission.
    Appeal from the Municipal Court of .Chicago; the Hon. Chaeles N. Gooditow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and judgment here.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Edward, F. Keebler, trading as E. F. Keebler & Company, plaintiff, against A. J. Franksj defendant, to recover commissions alleged to be due for services rendered in negotiating a lease of certain property. From a judgment for defendant, on trial before the court' without a jury, plaintiff appeals.
    Sabath, Stafford & Sabath, for appellant; Charles B. Stafford and Thomas M. Zasadil, Jr., of counsel.
    Litzinger, Healy & Reid, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    William H. Steiner, Appellee, v. John F. Higgins, Appellant.
    Gen. No. 23,344.
    (Not to be reported in full.)
    Abstract of the Decision.
    Instructions, § 96

      —when instruction on credibility of witnesses is erroneous. The giving of an instruction that if the jury believed from the evidence that any witness had knowingly and wilfully testified falsely to any fact material to the issue, then they might disregard all the testimony of any such witness excepting in so far as it might have been corroborated by other credible witness or witnesses whom they believed, or by other facts and circumstances in evidence, held to be reversible error, where the evidence was conflicting and the instruction was vital from the viewpoint of the other party to the action.
    Appeal from the Circuit Court of Cook county; the Hon. Habby C. Mokan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by William G. Steiner, plaintiff, against John F. Higgins, defendant, to recover damages as the result of an assault and battery. From a judgment for plaintiff for $200, defendant appeals.
    Fyffe, Byner & Dale, for appellant.
    Albert B. George, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court. .


text:
    J. Hacken, v. Harris Isenberg et al. Harris Isenberg et al., Appellees, v. Christina Rollberg, Appellant.
    Gen. No. 23,345.
    1. Mechanics^ mens—who may file hill or petition for general settlement. The owner of a leasehold interest in property may file a bill or petition for general settlement against the original' contractor and subcontractors claiming mechanics’ .liens, as provided in section 30 of the Mechanics’ Liens Act (J. & A. If 7168), providing that “the owner or any person having such a lien * * * may file his or her bill or petition * *
    2. Mechanics’ mens, § 33*—when attach against interest of landlord. Where a lease for a term of lb years provided that the lessee should make all repairs at his own expense, that he would not permit any alteration except by written consent of the lessor, and that all alterations and additions should remain for the benefit of the lessor, the authority given to repair was a proper basis for the attachment of mechanics’ liens in favor of the contractors to the interest of the owner-lessor, notwithstanding the agreement, as between the owner and tenant, that the latter was to pay for the repairs.
    3. Mechanics’ mens, § 33*—when shown that owners of premises knowingly permitted repairs hy tenant. Evidence held to support a finding that the defendants, owners of the premises involved, knowingly permitted the repairs for the tenant in question, in a suit for general settlement of certain mechanics’ liens brought under section 30 of the Mechanics’ Liens Act (J. & A. If 7168).
    4. Mechanics’ mens—when special leave of court unnecessary to make owners parties in suit for general settlement. Special leave of court was not necessary to make owners of premises involved in a suit for general settlement of mechanics’ liens brought by the lessee of the premises against the general contractor and subcontractors, where the latter filed answers in the nature of intervening petitions, naming the owners parties defendant thereto.
    5. Mechanics’ mens, § 150

      —what constitutes commencement of suit as to owner. The filing of an intervening petition by a subcontractor in a suit for general settlement of mechanics’ liens under section 30 of the Mechanics’ Liens Act (J. & A. If 7168), providing for such suits, within 4 months of the time final payment became due, or of an intervening petition by the general contractor within 2 years after the contract was completed, claiming subcontractor’s and general contractor’s liens, respectively, against the owner of the premises, constituted the commencement of suit as to the owner within the meaning of sections 33 and 7, respectively, of the Mechanics’ Liens Act (J. .& A. Iff 7171, 7145), prescribing those respective periods for the commencement of such suits by subcontractors and general contractors.-
    6. Mechanics’ liens, § 59"—when statute construed as continuation of prior statute. Sections 33 and 7 of the Mechanics’ Liens Act, approved July 1, 1903 (J. & A. ff 7171, 7145), providing for suits by subcontractors and contractors, respectively, are substantial re-enactments of sections 34 and 7 (J. & A. ff 7172, 7145), respectively, of the Mechanics’ Liens Act of 1895, and continuations of same, under section 2, ch. 131, Rev. St. (J. & A. f 11103), providing that the provisions of any statute, so far as they are the same as any prior statute, shall be construed as a continuation of such prior statute and not as a new enactment.
    7. Tobeens Act—what is effect of Mechanics’ IAens Act on claims registered under Torrens Act. Sections 33 and 7 of the Mechanics’ Liens Act of 1903 (J. & A. ff 7171, 7145), providing for suits by subcontractors and general contractors, respectively, do not repeal by implication those sections of the Torrens Act affecting claimants for mechanics’ liens so far as the claims have to do with land registered under the provisions of that act, notwithstanding the provision of the Mechanics’ Liens Act that “all acts and parts of acts inconsistent with this act are hereby repealed.”
    8. Tobeens Act—necessity that mechanics’ liens claimants comply with. In order to successfully prosecute claims for mechanics’ liens as to property registered under the Torrens Act, the requirements of that act as to mechanics’ liens must be complied with.
    9. Lis pendens, § 9

      —how mechanic’s lien claim made within Torrens Act. A subcontractor or a general contractor who has commenced suit under the Mechanics’ Liens Act within the period fixed by that act to establish his lien may bring his claim within the provisions of the Torrens Act, under which the premises involved are registered, by filing with the Registrar of Titles a notice of lis pendens as contemplated by section 84 of that Act (J. & A. f 2360), providing that no suit affecting registered land shall be deemed to be Us pendens until a certificate of its pendency shall be filed with the registrar.
    10. Tobeens Act—what constitutes memorial of mechanics lien. A certificate of Us pendens filed with the Registrar of Titles under section 84 of the Torrens Act (J. & A. f 2360), providing that no suit affecting registered land shall be deemed to he lis pendens until a certificate of its pendency shall be filed with the registrar, as to a suit by a subcontractor under the Mechanics’ Liens Act to establish his lien, constitutes such a “memorial thereof” as satisfies the language of section 90 of the Torrens Act (J. & A. If 2366), providing that no lien shall be deemed to affect the title to registered land until after a memorial thereof is entered on the register as provided in the act.
    11. Torrens Act—what constitutes perfection of Hen of subcontractor on land registered under. So far as the interest of the owner of land registered under the Torrens Act is concerned, in a suit by a subcontractor under the Mechanics’ Liens Act to establish his lien, the subcontractor must be deemed to have perfected his lien if he begins suit within 4 months after the time final payment is due him and later files with the Registrar of Titles such certificate of the pendency of his suit as is required by the Torrens Act, but as to the rights of purchasers or other third parties such certificate must be filed within the period of 4 months.
    12. Torrens Act—what constitutes notice of subcontractor’s lien within. A certificate of Us pendens filed with the Registrar of Titles under section 84 of the Torrens Act (J. & A. If 2360), providing that no suit affecting registered land shall be' deemed to be lis pendens until a certificate of its pendency shall be filed with the registrar, as to a suit by a general contractor under the Mechanics’ Liens Act to establish his lien, held to- be such notice of lien as to satisfy the requirements of section 89 of the Torrens Act (J. & A. If 2365), providing that where any mechanic’s lien claim or notice is authorized to be filed in any court or office, the same when it relates to registered land may be filed in the registrar’s office and a memorial of such filing entered, and that proceedings to enforce the lien may be held as provided in the act creating the same, and until so filed and registered no lien shall be created.
    13. Torrens Act—when mechanic’s lien claim or notice bp contractor complies with. It is not essential that a mechanic’s lien claim or notice referred to in section 89 of the Torrens Act (J. & A. H 2365) shall contain all the elements of the claim for lien set forth in section 7 of the Mechanics’’ Liens Act (J. & A. 7145), as to the filing of a claim with the clerk of the Circuit Court, but it is sufficient if a general contractor files with the Registrar of Titles a statement or notice to the effect that he claims a mechanic’s lien on the premises therein described, especially if it states that a suit to enforce such lien is pending.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windbs, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Culver, Andrews, Kingi & Stitt, for appellant.
    Hyman Soboroep, for appellees.

      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 Thomson

delivered the opinion of the court.

This is a proceeding in equity for general settlement brought by the lessee of certain premises against the original contractor and a number of subcontractors claiming mechanics’ liens. Henry A. Bollberg and the appellant, Christina Bollberg, were owners of the premises in question in joint tenancy. They were not made parties to the original suit but the general contractor and the subcontractors filed answers to the bill in the nature of intervening petitions, and they named the Bollbergs as parties defendant, but without leave of court having been obtained to add them as parties to the suit. Thereupon Henry A. and Christina Bollberg filed special pleas alleging that the court was without jurisdiction as to the property in question because the property was registered under the Torrens Act and the provisions of that act as to mechanics’ liens had not been complied with. They later filed answers to the intervening petitions in which they endeavored to preserve all defenses, including the jurisdictional question raised in their special pleas. The case proceeded to a hearing and the trial court found that the original contractors were entitled to a lien for $2,925, for which a decree was entered, and the court also decreed a lien in favor of the subcontractors for various amounts, specifying that the claim of the original contractor should be decreased to the extent of the liens allowed to subcontractors. Pending the hearing of the case, Henry A. Rollberg died, and Christina Rollberg, his wife, has appealed from the decree of the trial court.

In urging that the decree be reversed, it is first contended -that a lessee has (no right to maintain such' proceeding as this but that the statute confers that right only upon the owner, or one claiming to have a lien against the property. This action is brought under section 30 of our Mechanics’ Liens Statute (J. & A. 7168), which provides that, under the conditions therein set forth, “the owner or any person having such a lien * * * may file his or their bill or petition * * It has been frequently held that the word “owner,” as used in the Mechanics’ Liens Act, means the owner of any interest in the land, and, although the decisions which give this construction to that word are those involving other sections of the act than the one now before us, they are applicable to the wording of this section. Therefore, under the provisions of section 30, the owner of a leasehold interest in property may file such a bill or petition as is therein provided for.

It is next contended that the evidence fails to prove that either of the joint owners of the property in question “authorized or knowingly permitted” the lessee to repair or improve the premises, or enter into contracts for such repairs or improvements. In view of all the circumstances, as disclosed by the evidence, we are inclined to believe that the work which was done on these premises was authorized by the lease. There is a written clause in the lease to the effect that the lessee “shall make any and all repairs on the premises at his own expense.” In the printed part of the lease there is another clause to the effect that the lessee “will not permit any alteration of or upon any part of said demised premises * * * except by written consent of the first party (lessor) ; all alterations and additions to said premises shall remain for the benefit of the lessor, unless otherwise specified in said consent as aforesaid.” The words in italics were underlined with a red ink line in the original lease. The lease was for a term of 10 years. The work done by the contractors in this case involved a remodeling of the premises and was entered into very shortly after the tenant took possession. The emphasis which is placed on the provision in the lease to the effect that all alterations and additions shall remain for the benefit of the lessor, the length of the term and the extent of the alterations, all point to the conclusion that when there was inserted in the lease in writing a clause to the effect that the tenant was to make any and all repairs at his own expense, the parties had in contemplation the remodeling work which is the subject of this suit; and the authority thus given to repair is a proper basis for the "ttachment of liens in favor of the contractors to the interest of the owner, notwithstanding the agreement, as between the owner and the tenant, that the latter was to pay for the repairs.

But we think, further, that the trial court was correct in finding, from the evidence, that the work in question was “knowingly permitted” by the owners. The evidence showed that Mr. and Mrs. Bollberg, who owned the property in joint tenancy, lived in a small town just out of Chicago. The property was located on Halsted street near Twelfth street in the City of Chicago. The Bollbergs have an adult son whose home is in Chicago. During the negotiations for the lease, the owners told the tenant that there was an adequate sewer on the premises. During the progress of the remodeling, it was discovered that there was neither a sewer nor a catch basin, and a Mr. Brown, who testified in the case and who acted as the superintendent of the remodeling work, gave evidence to the effect that he called this matter to the attention of the tenant and also Mr. Edward Bollberg, the son, and that the latter inquired about the cost of building a sewer and catch basin and that the witness had figures prepared and informed Edward Eollberg that it would'cost $110, whereupon the latter authorized the work to be done and agreed to pay for it. He further testified that he saw Edward Eollberg on the premises during the progress of the work several times; that at one time a change was made by using a 12" beam instead of an 8" beam and that this change was made at the direction of Edward Eollberg. The witness'further testified: “I superintended the construction of the building, together with Mr. Hacken (the tenant) and Mr. Eollberg (the son of the owners).” Edward Eollberg, the son, being called as a witness, testified that his father was a bedridden invalid and never at the building in question; that he had never discussed the work with his father nor his mother; that in the'5 or 6 months during which the work was in progress he was at the premises five or six times, stopping in as he passed by merely out of curiosity. He denied that he had had anything to do with the changing of the beam above referred to. On cross-examination he admitted he directed the work for the sewerage (which is not involved in this suit). He contended, however, that he did this without talk- . ing to his mother about it. He was asked who paid for that work and his reply was that he did not remember. He was asked further whether it was not a fact that his mother had given him the money to pay for that work, and again his memory failed him. He testified that he did not order any work on these premises besides the sewerage. One of the general contractors, called as a witness, testified that Edward Eollberg was the one who suggested the 12" beam in place of the 8" beam and that he was about the premises while the work was going on every other day; that he had frequent talks with him about the different ways of constructing the alterations. In view of this testimony, we cannot say that the master was not warranted in his finding that Edward Rollberg was about the premises as ike agent of his parents, the owners, and that the work in question had been “knowingly permitted” by them. We are of the opinion that the trial court was correct in sustaining that finding.

The appellant further contends that the decree entered by the trial court should be reversed as to both the subcontractors and the general contractors; as to the subcontractors because they cannot be said to have brought suit against the owners within 4 months from the time final payment became due; and, as to the general contractors, bacause they cannot be said to have begun suit against the owners within 2 years after the completion of the contract. The tenant filed this bill for general settlement shortly after the completion of the work in question, making the general contractors and the subcontractors parties defendant. All the subcontractors filed answers thereto, in the nature of intervening petitions, within 4 months after the final payment became due, and they made the owners parties defendant to those intervening petitions. Upon the filing of these intervening petitions, a summons was duly issued and served on the owners at the instance of one of the subcontractors. It was not necessary to get special leave of court to make the owners parties defendant to these intervening petitions. The subcontractors began suit as to the owners within the meaning of section 33 of the Mechanics’ Liens Law (J. & A. ¶ 7171) on the date of the filing of their intervening petitions, and that being within 4 months of the time final payment became due, they were within the period of limitation prescribed by this statute. The same is true of the general contractors, for they began suit by filing their intervening petition making the owners parties defendant thereto within 2 years after the contract was completed, as required by section 7 of the Mechanics’ Liens Law (J. & A. ¶ 7145).

The last point urged by the appellant is that no lien was ever- created as against the real estate in question, because the title is registered under the Torrens .Act, and it is contended that the provisions of-that act regarding mechanics’ liens were not complied with by either the subcontractors or the general contractors. In meeting this contention by the appellant, the appellees argue that inasmuch as the Mechanics’ Liens Act is an enactment of the Legislature passed after the passage of the Torrens Land Eegistration Act, the" terms of the Torrens Act on the question of mechanics’ liens, so far as they may be said to be in conflict with the provisions of the Mechanics’ Liens Act, must be considered as having been repealed by implication by the enactment of the Mechanics’ Liens Act. Eepeals by implication are not favored, but the terms of an earlier statute should be construed as continuing in force unless they are clearly inconsistent with and repugnant to those of the later statute, or unless, in the later statute, there is some express notice taken of the former, plainly indicating an intention to repeal it. Town of Ottawa v. County of La Salle, 12 Ill. 339; Holton v. Daly, 106 Ill. 131. The so-called Torrens Act became effective May 1, 1897, and our present Mechanics’ Liens Law went into effect July 1, 1903. There is no express repeal of the provisions of the Torrens Act concerning mechanics’ liens in the present Mechanics’ Liens Law, and it is therefore our duty to so construe the provisions of the Mechanics’ Liens Law, if possible, that its provisions shall not repeal the Torrens Act. Bruce v. Schuyler, 9 Ill. (4 Gilm.) 221. The Mechanics’ Liens Law is a general law on the subject of mechanics’ liens. The Torrens Act is a special act concerning the registration of land titles, and, in case of any conflict as between the general law on mechanics’ liens, as contained in the Mechanics’ Liens Law, and the special provisions as to mechanics ’ liens with regard to property, the title of which is registered under the Torrens Act, under the general rule it would be held that the provisions of the special act supersede the general act, although the general act became a law after the special act was passed. City of Chicago v. Quimby, 38 Ill. 274; Card v. McCaleb, 69 Ill. 314; McDonough County v. Campbell, 42 Ill. 490; Hume v. Gossett, 43 Ill. 297; People v. Barr, 44 Ill. 198; Gunnarssohn v. City of Sterling, 92 Ill. 569. And, further, the provisions of the Mechanics’ Liens Law, so far as they affect the general contractors and the subcontractors in this case, are substantially re-enactments of similar provisions contained in the Mechanics’ Liens Law as it existed prior to and at the time of the enactment of the Torrens Act. Section 7 of the Mechanics’ Liens Law defines the rights of the general contractors in-this case, and section 33 has to do with the rights of subcontractors. Those sections are substantial re-enactments of sections 7 and 34 of the Mechanics’ Liens Law of 1895 (J. & A. ¶¶ 7145, 7172). Illinois Laws 1895, pp. 229, 240. Section 2 of chapter 131, Revised Statutes of Illinois (J. & A. ¶ 11103), provides: “The provisions of any statute, so far as they are the same as those of any prior statute, sliall be construed as a continuation of,/such prior provisions, and not as a new enactment.” Therefore the provisions of the Mechanics’ Liens Law of 1913, to which we have referred, did not constitute a new enactment but simply a continuation of similar provisions of prior mechanics’ liens acts and, as such, cannot be held to repeal by implication those sections of the Torrens Act affecting mechanics’ liens claimants so far as those claims have to do with land registered under the provisions of that law. This is true notwithstanding the section of the Mechanics’ Liens Law which provides that: “All acts and parts of acts inconsistent with this act are hereby repealed.” Jefferson Theatre Program Co. v. Crejczyk, 125 Ill. App. 1; Catlett v. Young, 143 Ill. 74; Kelley v. Northern Trust Co., 190 Ill. 401; McGann v. People, 194 Ill. 526; Mette v. Feltgen, 148 Ill. 357; Patterson v. Scott, 33 Ill. App. 348; Elgin City Banking Co. v. Chicago, M. & St. P. Ry. Co., 160 Ill. App. 364, 376.

In our opinion, however, there is no conflict between the two acts. The law with reference to mechanics’ liens, so far as it has to do with property, the title to which is not registered under the Torrens' Act, is contained' in the Mechanics’ Liens Act. The provisions of the Torrens Act relating to mechanics’ liens take property registered under that act out of the general language of the Mechanics’ Liens Act, and to that extent constitute an exception to the general provisions of the latter act. In passing the Torrens Act, the general assembly intended that real property, the title to which is registered under the provisions of that act, and all rights in or claims against such property, should be governed by the provisions of that act to the extent to which such provisions are therein contained, and, to that extent, such property and the rights in and claims against it must be considered as differing from all property not registered under the provisions of the Torrens Act.

The question of an apparent contradiction between the provisions of land registration acts and other general acts is a new question in this jurisdiction, but it has arisen under similar conditions in New Zealand and in the State of Washington where land registration laws have been in operation longer than they have in Illinois. Where this question has arisen in those jurisdictions, it has been held that the particular provisions of the land registration act should prevail over those of the general law. McMullen 3 Co. v. Croft, 96 Wash. 275; Bishop v. Rowe, 23 N. Zeal. L. 66.

As to this point, therefore, it is our conclusion that inasmuch as the property against which it is sought to enforce the liens in the case at bar is property, which has been registered under the Torrens Act, the"' lien claimants, in order to successfully prosecute their claims for liens, must have complied with the requirements of the Torrens Act as to mechanics’ liens. Did they do so?

The sections of the Torrens Act, so far as they affect the issues involved in the case at bar, are as follows:

“Sec. 84 [J. & A. ¶ 2360]. No suit, bill or proceeding at law or in equity for any purpose whatever affecting registered land or any estate or interest therein, or any charge upon the same, shall be deemed to be lis pendens or notice to any person dealing with the same, until a certificate of the pendency of such suit, bill or proceeding, under the hand and official seal of the clerk of the court in which it is pending, shall be filed with the registrar and a memorial thereof entered by him upon the register of the last certificate of the title to be affected. This section shall not apply to attachment proceedings when the officer making the levy shall file his certificate of levy as herein provided:

“Sec. 89. [J. & A. ¶ 2365]. In all cases where, by any law in relation to the liens of mechanics or others, any claim or notice is authorized to be filed in any' court or office, the same, when it relates to -registered land or any interest therein, may be filed in the registrar’s office, and being so filed, a memorial thereof shall be entered by the registrar, as in the case of other charges, and proceedings to enforce the lien may be had, as provided in the act creating the same. Until it is so filed and registered, no such lien shall be deemed to have been created.

“Sec. 90. [J. & A. ¶ 2366]. No statutory or other lien shall be deemed to affect the title to registered land until after a memorial thereof is entered upon the register as herein provided. ’ ’

Deferring first to the claims of the subcontractors, the record shows that on April 10, 1914, there was filed with the Registrar of Titles and by him duly entered in volume 43, p. 155, of Register of Titles, as document #38262, a notice of lis pendens as contemplated by the provisions of section 84 of the Torrens Act (J. & A. ¶ 2360). This document was a certificate of the clerk of the Circuit Court of Cook county, certifying to the fact that there was at that time pending and undisposed of in that court, this case at bar, giving its title, and further stating that the cause was a bill of interpleader and that certain defendants, who .were named and among whom were included all the subcontractors here involved, had filed answers in the nature of intervening petitions, claiming mechanics’ liens upon -the premises therein described, giving the legal description of the property in question.

In construing the sections of the Torrens Act hereinbefore set forth, it is our opinion that a subcontractor, having begun his suit within the period fixed by the Mechanics’ Liens Act, may bring his claim within the provisions of the Torrens Act by the filing of a notice of lis pendens, as described in section 84, and such as the subcontractors did file in this case. That certificate of the pendency of the suit in which the subcontractors were seeking to enforce their mechanics’ liens is such a “memorial thereof” as satisfies the language of section 90 of the Torrens Act (J. & A. ¶ 2366), and, when they filed that document, they complied with the requirements of the Torrens Act relating to their mechanic’s lien claim, so far as they affect this land, the title to which has been registered under that act. It is claimed by the appellant that, in order to perfect their lien against the property involved in this case, it was not only necessary for the subcontractors to file their certificate of the pendency of their suit with the Registrar of Titles, but that, to be effective, that certificate must have been filed within the period of 4 months prescribed in the Mechanics’ Liens Law for the beginning of suits by subcontractors. We would agree with this contention if the appellant were not the original owner. So far as the interest of the original owner is concerned, the subcontractor must be held to have perfected his lien if he begins suit within 4 months after the timé final payment is due him, as prescribed by the Mechanics’ Liens Law, and later files with the Registrar of Titles such certificate of the pendency of his suit as is required by the Torrens Act. Where, however, the rights of purchasers or other third parties have intervened, they could not be affected unless the certificate of the pendency of his suit was filed by the subcontractor within the period of 4 months.

As to the lien claimed by the general contractors, the record discloses that on May 18, 1914, there was filed with the Registrar of Titles a certificate of the pendency of this suit in all respects similar to the certificate which had been filed in the interest .of the subcontractor and to which we have already referred. It is our opinion that this certificate of the pendency of this suit which was filed in the interest of the general contractors, in which the clerk of the Circuit Court of Cook county certified that there was then pending and undisposed of in that court, this case at bar, giving its title and general number, and further certifying that the bill filed in that cause was in the nature of an interpleader, wherein these general contractors, naming them, were, among others, made parties defendant, and that they had filed their answer to the bill in that cause in the nature of an intervening petition, claiming a mechanic’s lien upon the premises involved, giving the legal description of those premises, was such a notice of lien as satisfies the requirements of section 89 (J. & A. 2365). Construing the words of that section “liberally * * * in order that the true intent and meaning of the Legislature may be fully carried out” (Ill. St. ch. 131, see. 1, J. & A. ¶ 11102), we are of the opinion that it is not essential that the claim for or notice of lien, filed with the Registrar, shall contain all the elements of the claim for lien which are set forth in section 7 of the Mechanics’ Liens Law in connection with those provisions of that section referring to the filing of such claim with the clerk of the Circuit Court, hut that it is sufficient, under the terms of section 89 of the Torrens Act, if the general contractors file with the registrar a statement or notice to the effect that they claim a mechanic’s lien upon the premises therein described, especially where that statement or notice is further to the effect that a suit is pending to enforce that lien. Such a notice, it seems to us, accomplishes all the purposes which can be said tb have been contemplated by the Legislature when they framed the provisions of section 89 of the Torrens Act.

As to this point, therefore, it is our conclusion that the steps taken by both the general contractors and the subcontractors were sufficient to bring their claims for mechanics’ liens within the requirements of the Torrens Act.

There being no error in the record, the decree of the Circuit Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    City of Chicago, Appellee, v. Sam Ferreri, Appellant.
    Gen. No. 23,727.
    (Not to be reported in full.)
    Abstract of the Decision.
    Criminal law, § 409

      —when objection first made on appeal is too late. In a criminal prosecution for keeping a disorderly house in violation of a city ordinance, an objection by defendant that he was arrested without a warrant first being issued or complaint made against him, which is first made on appeal, is too late.
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Sam Ferreri, defendant, for keeping a disorderly house in violation of section 2019 of the Chicago Code. From a judgment of conviction and fining him $200 and costs, defendant appeals.
    A. B. Chilcoat, for appellant.
    Harry B. Miller and Daniel Webster, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.