text:
    John D. Casey, Administrator, Plaintiff in Error, v. Chicago Consolidated Traction Company, Defendant in Error.
    Gen. No. 16,714.
    1. Street railroads—core required of motorman correct. In an action against a street railway company for alleged wrongful killing of a child three years of age, struck by a car, instructions are not objectionable as expressing a rule inapplicable to a child of three years, but are correct where they require the jury to find from the evidence whether the car was being driven with reasonable care and state that if so driven it was not the motorman’s duty to stop or slacken speed merely because he saw the child in the street, unless her conduct was such as to indicate to an ordinarily prudent man that she was about to come upon the tracks, and that defendant should be found not guilty if from the evidence and instructions they find that the motorman as soon as he knew, or by ordinary care could have known deceased was about to come upon the tracks, exercised the care expected of one of ordinary coolness under similar circumstances, or if the deceased ran in the way of the car so suddenly that the motorman had no such notice as to give an opportunity to avoid the danger by exercising such care.
    2. Street railroads—instructions. A provision in an instruction requiring a motorman to exercise the care “possessed by a man of ordinary prudence” is preferable to a requirement of “ordinary coolness,” but the latter is not misleading.
    Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 16, 1912.
    Johnson, Belasco & McCabe, for plaintiff in error; Joel Baker, of counsel.
    John A. Rose and Frank L. Kriete, for defendant in error; W. W. Gurley, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

In a suit instituted in the Superior Court by plaintiff in error against defendant in error to recover damages for the alleged wrongful killing of Jadwiga Poduch, a child of the age of three years, there was a verdict in favor of defendant in error and judgment against plaintiff in error for costs, to reverse which judgment this writ of error is prosecuted.

The declaration charges that on April 21, 1906, defendant in error so carelessly and negligently managed and operated its street car on Elston avenue at and near the intersection of Elston avenue and Binzo street that it struck the deceased and thereby caused her death.

Elston avenue runs northwest and southeast and 400 feet south of Fullerton avenue is intersected by Kuehl Place, and 400 feet south of Kuehl Place is intersected by Binzo street. Neither of .said two last named streets are projected east of Elston avenue. About 100 feet north of Binzoeetreet an alley projects east from Elston avenue. At the time in question defendant in error operated electric cars on Elston avenue, using the east track for north bound cars and the west track for south bound cars. The deceased was struck and killed by a south bound car at a point a short distance north of the alley between Kuehl Place and Binzo street. The accident occurred at about 5:30 o’clock in the afternoon. Proceeding south from Fullerton avenue, the cars, a motor and a trailer, did not stop at Kuehl Place, and the deceased was then standing unattended on the curb on the west side of Elston avenue, looking west. The evidence is conflicting as to the speed at which the cars were running and also as to the distance that intervened between the cars, as they ran south, and the deceased, at the instant that she left the curb and started to run across the south bound track. It is not claimed by plaintiff in error that the cars were running at a speed in excess of that permitted by the ordinance. The evidence of the motorman and of two apparently disinterested witnesses, who were standing on the front platform of the motor car and were in a better position to observe what actually occurred than any of the other witnesses who testified in the ease, tends to show that, when the cars had attained a speed of from eight to ten miles an hour and were within about 60 feet of the deceased, she suddenly left the curb and ran across the street in front of the approaching cars, where she was struck by the motor car; that as soon as the motorman observed the movements of the deceased he made every possible effort to stop the cars by a proper use of the appliances provided for that purpose in order to avoid injuring the deceased. The jury were not unwarranted in finding that the cars were managed and operated with reasonable care, and that the injury to the deceased was unavoidable. It is not claimed that the cars were not provided with sufficient and efficient brakes.

At the instance of defendant in error the court gave to the jury the following, among other, instructions:

“If you believe from the evidence under the instructions of the court that at the time and place in question said car was being operated and driven with due care, then it did not become the duty of the motorman to stop said car or slacken its speed merely because he may have seen deceased in the street, unless the conduct of deceased was such as to indicate to an ordinarily prudent and cautious person that she was about to come upon or cross the said tracks, and if you believe from the evidence under the instructions of the court, that the motorman of said car as soon as he knew, or by the exercise of ordinary care could have known, that deceased was about to come upon or cross said tracks, exercised such care to avoid injuring deceased as is to be expected of a man of ordinary coolness under similar circumstances, then you should find the defendant not guilty.”
“If the jury believe from the evidence under the instructions of the court, that in approaching the place in question the car was being operated with ordinary care, and that the deceased ran in the way of the car so suddenly that the motorman had no such notice of any danger to the deceased as to give him an opportunity to avoid the danger by the exercise of such ordinary care as is to be expected of a man of ordinary coolness under such circumstances as were then surrounding him, then the court instructs the jury to find the defendant not guilty.”

It is insisted by plaintiff in error that while the doctrine sought to be announced in these instructions might be applicable to an adult or to a child over seven years of age, it has no application to a child of the age of three years, and in support of such insistence counsel rely upon the language of the court in Chicago City Ry. Co. v. Hackett, 136 Ill. App. 594, as follows:

“The motorman was required to operate his car with reference to perils which reasonably might be expected to occur, and if from and because of the presence of so many young children on the sidewalk who had just been dismissed from school, the jury might, as reasonable men, find that the motorman should reasonably have anticipated the danger that any of such groups of children might run into the street and upon the track in front of the car, then a duty on his part in respect to the operation of the car existed, and he was required in the discharge of that duty to act before the plaintiff disclosed an intention to cross the street.”

What was there said by the court is not controlling here, because the facts in the two cases are variant. In that case, several hundred children, many of them under six years of age, had just been dismissed from school and were romping and playing upon the sidewalk. Furthermore, the evidence in that case tended to show that the brake-chain was in improper condition. In the case at bar, the deceased was alone and when first seen and until she hurriedly started to cross the street was standing quietly on the curb.

It will be observed that the instructions in question require the jury to find from the evidence in the first instance that at the time in question the said car was being operated and driven with reasonable care. The instructions, therefore, do not assume that the motorman operated and drove the car with reasonable care.

In Rack v. Chicago City Ry. Co., 173 Ill. 289, where a boy four years and seven months old was injured under somewhat like circumstances, it was held that until the boy indicated an intention to cross the track the gripman was not required to stop or slacken the speed of his train, and that if upon seeing the boy start to run across the track the gripman stopped the train as soon as possible the defendant was not chargeable with negligence, in the absence of any claim that the train was not properly equipped with brakes.

In Perryman v. Chicago City Ry. Co., 242 Ill. 269, which involved an injury to a boy about four years of age, it was said:

“It must be admitted that if the plaintiff was standing still a sufficient distance from the tracks to enable the cars to pass him without coming in contact with him, and there was nothing in his action which indicated to the gripman that he was about to attempt to cross the tracks in front of the approaching cars, and that without warning to the gripman he suddenly and unexpectedly started to cross the tracks in front of the approaching cars and was injured, there could be no recovery. Rack v. Chicago City Ry. Co., 173 Ill. 289.”

In this case, the instructions complained of were in accord with the rule announced in the Back and Perry-man cases, supra, and are not subject to the objection above stated.

It is further urged against said instructions that they erroneously state the degree of care required to be exercised by the motorman to avoid injuring the deceased, as such care “as is to be expected of a man of ordinary coolness under similar circumstances, ’ ’ instead of such care “as is possessed by a man of ordinary prudence” under similar circumstances. While the latter form of expression is to be preferred, we are not disposed to conclude that the jury were misled or misinformed by the form of expression adopted.

The objection' to what is designated as the “third instruction,” given at the request of defendant in error, has no substantial basis.

The form of the instruction, given at the instance of defendant in error, relating to the measure of damages to be applied in the event that the jury found defendant in error guilty of the negligence charged, is not to be commended, but in view of the verdict a discussion of the instruction is unnecessary.

There is no reversible error in the record and the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    Sage & Company, Plaintiff in Error, v. Chicago Steel Foundry Company, Defendant in Error.
    Gen. No. 16,729.
    1. Sales—motion to direct verdict. In an action to recover the price of a car of coal, it is error to direct a verdict where there is evidence of delivery, the mine weight, and selling price.
    2. Account stated—admission of correctness question for jury. It is a question for the jury as to whether holding an invoice a week, without objection, is an admission of its correctness.
    3. Account stated—account rendered. Where defendant receives an invoice for a car of coal purchased from plaintiff, and retains the same a week without objecting, it is to be regarded as prima facie correct and raises a question for the jury as to whether there is an account stated.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 16, 1912.
    Pope, Hoig & Fuller, for plaintiff in error.
    Loesch, Scofield & Loesch, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

Plaintiff in error, Sage & Company, a corporation, brought suit against defendant in error, the Chicago Steel Foundry Company, to recover $68.93, for a car of coal. At the close of the evidence for plaintiff in error the court directed a verdict for defendant in error, and rendered judgment on the verdict against plaintiff in error for costs.

The evidence introduced by plaintiff in error tended to show the following facts: On January 15, 1910, Donald A. Sage, the president of plaintiff in error, had a conversation over the telephone with some one in the office of defendant in error, wherein, in reply to the question whether he had any coal, Sage said he had a small car on the Illinois Central tracks in Chicago, which he would sell to defendant in error. He further said he would not make a delivered price, but if defendant in error would state how much the charge for switching would be, he would figure it out and bill the coal at a delivered price, defendant in error to pay the freight and switching charges; that he would guarantee the coal to be in Chicago; that it had been there for three days and he would bill it to defendant in error at $2.90 per ton. The person acting for defendant in error then said: “We will take the car.” On the same day Sage gave an order to the Illinois Central Railroad Company to deliver the car of coal in question, billed- as No. 83649, which was then at Ford-ham, the distributing point for carload freight on the Illinois Central Railroad, to defendant in error, consignee, destination 19th and Rockwell streets, Chicago, via C. B. & Q. Ry., and received from the Illinois Central Railroad Company a receipt for such order. Also on the same day plaintiff in error mailed to defendant in error a written communication, acknowledging the order for the carload of coal and advising defendant in error that a receipt had been issued by the Illinois Central Railroad for the delivery of the car to defendant in error, and plaintiff in error enclosed in said communication an invoice of the coal billed at the mine, weight 64,400 pounds at $2.90 per ton, total $93.38, with a notation thereon as follows: “Freight and switching chargeable to consignee.” This invoice was received by defendant in error on January 17, 1910. On January 19, 1910, plaintiff in error received through the mail a written confirmation order from 'defendant in error bearing date January 17th, for “one car Mine Run coal $2.90 delivered our switch.” Upon receipt of this order Sage informed defendant in error by telephone that he could not accept the order upon the terms indicated; that he did not agree to make delivery at the switch of defendant in error. Evidence was also introduced of the existence of a uniform trade custom in the Chicago wholesale coal market that the delivery of coal in carloads was effected by directing the initial carrier to deliver the same to the consignee, and that such direction to the initial carrier and an acceptance by it constituted a delivery to the consignee; that the freight and switching charges followed the coal, and it was the duty of the final consignee to pay such freight and charges, for which, when ascertained and paid, he was entitled to credit. It was admitted by counsel for defendant in error that such custom existed. On January 25, 1910, plaintiff in error received in due course of mail the identical invoice sent by it to defendant in error on January 15, preceding, upon which invoice, when returned and received by plaintiff in error, there appeared written in lead pencil the word “Freight,” followed by the figures “24.45” beneath the invoice price $93.38, and also the figures “57.93” beneath a line drawn below the figures ‘ ‘ 24.45. ’ ’ These figures, as they thus appeared, manifestly indicated an intention on the part of some one to deduct a freight charge of $24.45 from $93.38, the invoice price, and to designate the difference or balance which was computed at $57.93. The difference should properly have been computed as $68.93, but the error in computation is without significance.

Sage testified that the notations appearing upon the invoice in lead pencil did not appear thereon when the same was sent to defendant in error on January 15.

The record discloses that the motion to direct a verdict was urged upon the ground that there was no evidence from which the jury could determine the weight of the car of coal, and the amount due, if any, from the defendant to the plaintiff.

It is a well established and oft repeated rule that on a motion to direct a verdict the trial court is not permitted to weigh the evidence, but should submit the case to the jury if there is any evidence, which, with all reasonable inferences that may be drawn therefrom, fairly tends to prove the plaintiff’s case.

Upon the evidence adduced, as herein before stated, the jury without acting unreasonably might have returned a verdict finding the issues for plaintiff in error. By the trade custom proven and admitted to exist the delivery of the car of coal to the Illinois Central Railroad, consigned to defendant in error, constituted a delivery of thé coal to defendant in error. The invoice of the coal stating its weight and gross price, sent by plaintiff in error to defendant in error, was an account rendered in the usual course of business, which account was subject to a deduction for freight and other charges to be paid by defendant in error. The account, as rendered, was received by defendant in error and retained by it for at least one week without objection, and when returned by it to plaintiff in error it bore upon its face some evidence of the amount of the freight charged by the carrier.

It has been held that an account rendered and not objected to within a reasonable time is to be regarded as admitted by the party charged to be prima facie correct, and to make the account rendered an account stated. Wiggins v. Burkham, 10 Wall. (U. S.) 129. See also B. S. Green Co. v. Smith, 52 Ill. App. 138; Weigle v. Brautigam, 74 Ill. App. 285; Rudolph Wurlitzer Co. v. Dickinson, 153 Ill. App. 36. Whether the retention by defendant in error of the account rendered, without objection, for the length of time stated,, amounted to an admission that the account was correct, and the force and effect to be given the notations in lead pencil upon the account rendered, were questions for the jury. Moran v. Gordon, 33 Ill. App. 46.

For the error in directing a verdict for defendant in error the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Julia Maher, Defendant in Error, v. Clyde C. McDonough, Plaintiff in Error.
    Gen. No. 16,749.
    1. Sales—burden of proof as to warranty. In an action for the price of a mare, the buyer who claims she is not sound as warranted has the burden of proof.
    2. Appeals and ebboes—when court of review does not disturb judgment. Where there is doubt as to the evidence, and no errors of law, a judgment will not be disturbed.
    Error to the Municipal Court of Chicago; the Hon. Henby C. Wabd, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 16, 1912.
    Michael D. Dolan, for plaintiff in error.
    Harry L. Shaver, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

On April 28, 1910, plaintiff in error went to the premises of defendant in error for the purpose of negotiating for the purchase of a mare. After plaintiff in error had inspected and examined the mare she was hitched to a road-cart and driven by a son of defendant in error, so that plaintiff in error might observe her in action. Plaintiff in error then gave defendant in error' a check for $160, the agreed purchase price, and took the mare to his store, hitched her to a buggy and drove her about two miles about the city. During the drive plaintiff in error observed that the mare traveled lame and that she had a curb on her right hind leg. Plaintiff in error then immediately returned the mare to the premises of defendant in error and stopped payment upon the check and claimed the right to rescind the sale upon the ground that defendant in error had warranted the mare to be sound. Defendant in error directed the mare to be returned to plaintiff in error who again brought her back to the premises of defendant in error, and left her there. Payment having been refused upon the check given by plaintiff in error for the purchase price of the mare, defendant in error brought suit against plaintiff in error in the Municipal Court to recover the purchase price, together with the reasonable expense of keeping the mare. A trial by the court without a jury resulted in a finding and judgment against plaintiff in error for $180, to reverse which judgment he prosecutes this writ of error.

Defendant in error made an attempt to show that the mare became lame, if at all, by reason of the manner in which she was driven by plaintiff in error upon the hard pavements, but the main question involved is whether or not defendant in error warranted the mare to plaintiff in error to be sound. Upon this issue the burden of proof was upon plaintiff in error. The evidence bearing upon this issue is close and conflicting, and a careful consideration of the same, as it appears in the record, has merely produced a doubt in our minds as to whether or not defendant in error in fact warranted the mare to be sound, and as to the propriety of the finding and judgment. When a court of review, upon a consideration of the evidence in a record, merely entertains a doubt whether or not the finding and judgment of the trial court was justified, and no errors of law intervene, it is not warranted in disturbing such finding and judgment. There is no claim that the judgment is excessive, if defendant in error is entitled to recover.

We are unable to say that the finding is against the manifest weight of the evidence and the judgment will be affirmed.

Judgment affirmed.


text:
    Calvin T. Hood, Defendant in Error, v. George E. Laubenheimer, Plaintiff in Error.
    Gen. No. 16,768.
    Appeals and errors—findings of court held conclusive. The findings of a court sitting without a jury, held to be conclusive where they appear to be supported by the preponderance of the evidence.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 16, 1912.
    Newton A. Partridge and Charles Arnd, for plaintiff in error.
    C. Stuart Beattie, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

Defendant in error, a physician and surgeon, brought suit in the Municipal Court against plaintiff in error to recover $197 for professional services performed for one Bouland, upon an alleged original undertaking by plaintiff in error to pay him for such services. Upon a trial by the court without a jury there was a finding and judgment against plaintiff in error for the amount sued for.

Bouland, while in the employ of George E. Laubenheimer & Company, a corporation, of which plaintiff in error was president, sustained an injury to his hand in the copper and iron works plant operated by said corporation, and was taken by one of his co-employees to a drug store, where defendant in error gave Bouland the necessary and proper treatment.

The testimony of witnesses called on behalf of defendant in error tends to show that after defendant in error had dressed the injury, he told Bouland to see plaintiff in error and find out if the concern had a company doctor, as his hand would have to be dressed the next day; that Bouland saw plaintiff in' error the next morning and told him of the injury to his hand, occasioned by a riveter and asked plaintiff in error if they had a company doctor, which inquiry plaintiff in error answered in the negative; that plaintiff in error then asked Bouland who had dressed his hand and upon being informed that defendant in error had dressed it, and that it would have to be dressed again that afternoon, told Bouland he had better go back and have defendant in error fix him up; that when Bouland returned to the office of defendant in error, he told defendant in error what plaintiff in error had said; that on the day following the injury to Bouland plaintiff in error called up defendant in error by telephone and inquired about the extent of the injury to Bouland, and upon being informed by defendant in error, and being asked by defendant in error what plaintiff in error wanted him to do with reference to the injury, plaintiff in error said, “Fix it up, we take care of our employees; take care of it,” and that on several occasions thereafter plaintiff in error called up defendant in error and inquired how Bouland was getting along. While this version of what was said and done is contradicted by plaintiff in error, his main contention is that the liability, if any exists, is against the corporation and not against himself personally, and in support of such contention our attention is directed to a line of cases wherein it is held that, where an agent makes a contract and discloses at the same time his principal or the principal was known at the time by the other party, the agent is not personally liable, unless he expressly makes himself so; or it may be fairly inferred from the nature of the contract itself and concurring circumstances. There is no pretense in this case that plaintiff in error disclosed his principal to defendant in error, and it does not appear from a preponderance of the evidence that defendant in error knew the principal.

Upon the issues of fact involved, the findings of the court must, in this case, be held to be conclusive, and the judgment is affirmed.

Judgment affirmed.


text:
    The City of Chicago, Defendant in Error, v. George J. Schweinfurth and Frank P. Schweinfurth, Plaintiffs in Error.
    Gen. No. 16,789.
    1. Weights and measures—bread ordinance. The ordinance of the City of Chicago defining a standard loaf of bread and providing that bread sold or offered for sale shall be labeled as to its weight in pounds or fractions, and that a fine may be imposed if such bread does not weigh as much as the amount marked thereon, was enacted to prevent fraud and imposition.
    2. Weights and measures—tread ordinance. Under the ordinance of the City of Chicago requiring that the weight of bread sold or offered for sale must be labeled thereon in pounds or fractions and providing for a fine if such bread does not weigh as much as the amount marked thereon, a finding that such ordinance is violated is not warranted where loaves labeled as “% lb.” all exceed that weight and some exceed one pound.
    Suit for penalty for violation of ordinance. Error to the Municipal Court of Chicago; the Hon. J. C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed October 16, 1912.
    Harris S. Keeler and Fred N. Keeler, for plaintiffs in error.
    George H. White, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

The City of Chicago brought suit in the Municipal Court against George J. and Frank P. Schweinfurth to recover a penalty for the alleged violation by said defendants of an ordinance regulating the sale and prescribing the weight and quality of bread in the loaf, made and sold or offered for sale within the city. The statement of claim or bill of particulars filed by plaintiff, charges “that the defendants on, to-wit: the 22nd of March, 1910, in the City of Chicago, did make, and procure for the purpose of sale, sell, offer and expose for sale certain loaves of bread weighing one pound or more each, without having affixed thereon labels stating the weight of such loaves in pounds avoirdupois.” Upon a trial by the court without a jury the defendants were found guilty and adjudged to pay a fine of $10 and costs, to reversé which judgment they prosecute this writ of error.

Defendant in error, the City of Chicago, has filed no appearance in this court.

The ordinance involved, in so far as it is pertinent here, is as follows:

“Section 2. Every loaf of bread made or procured for the purpose of sale, sold, offered or exposed for sale in the City of Chicago, shall weigh a pound avoirdupois (except as hereinafter provided), and such loaf shall be considered to be the standard loaf in the City of Chicago. Bread may also be made or procured for the purpose of sale, sold, offered or exposed for sale in half, three-quarter, double, triple, quadruple, quintuple or sextuple loaves, and in no other way. Every loaf of bread made or procured for the purpose of sale, sold, offered or exposed for sale in the city shall have affixed thereon in a conspicuous place a label at least one inch square, or if round, at least one inch in diameter, upon which label there shall be printed in plain type, * * * the weight of the loaf in pound, pounds or fraction of a pound avoirdupois, whether the loaf be a standard loaf or not. The business name and address of the maker, baker or manufacturer of the loaf shall also be printed plainly on each label.

“Section 3. Every maker, baker or manufacturer of bread, ever proprietor of a bakery or bakeshop, and every seller of bread in the City of Chicago shall keep scales and weights, suitable for the weighing of bread in a conspicuous place in his bakery, bakeshop or store, and shall, whenever requested by the buyer and in the buyer’s presence, weigh the loaf or loaves of bread sold or offered for sale.

“Section 4. If any person, firm or corporation shall make or procure for the purpose of sale, sell, offer or expose for sale, within the City of Chicago, any bread * * * the loaf or loaves of which are not standard, half, three-quarter, double, triple, quadruple, quintuple, or sextuple loaves, as defined in Section 2 of this ordinance, * . * * or shall make or procure for the purpose of sale, sell, offer or expose for sale, within the City of Chicago, any standard loaf or loaves of bread which do not weigh one pound each, or any bread the loaf or loaves of which do not weigh as much as the weight marked thereon, or any bread the loaf or loaves of which do not have affixed thereon the label marked as hereinbefore provided, contrary to the provisions of this ordinance, such person, firm or corporation shall be fined not less than ten dollars nor more than one hundred dollars for each offense.”

In the City of Chicago v. Schmidinger, 243 Ill. 167, this ordinance was held to be a constitutional exercise by the city of its police powers. See also City of Chicago v. Schmidinger, 245 Ill. 317.

The uncontroverted evidence in the record discloses that on March 22, 1910, plaintiffs in error were conducting' a wholesale and retail bakery business in the City of Chicago; that on said date two deputy city sealers called at the place of business of plaintiffs in error and weighed ten loaves of bread which were there kept for sale; that seven of said loaves each weighed more than three-quarters of a pound, but less than one pound, and three of said loaves each weighed one pound, one and one-half ounces; that each of said loaves so weighed had affixed thereon a label, of the size and printed in the type required by the ordinance, bearing the designation Lb.”

The case was apparently determined in the court below upon the theory advanced by defendant in error, that a manufacturer or vendor of a loaf of bread actually weighing more than the weight designated on the label would not be guilty of violating the ordinance, provided such excess in weight did not equal or exceed the next greater weight designated in the ordinance, but that where such excess in weight equals or exceeds the next greater weight designated in the ordinance and the label on the loaf indicates its weight as being the next lesser weight designated in the ordinance, the manufacturer or vendor of such loaf would be guilty of violating the ordinance. In other words, that the manufacture or vending of a loaf weighing 18 ounces, labeled “% lb.” would constitute a violation of the ordinance, while the manufacture or vending of a loaf weighing 14 ounces and bearing a like label would not.

The manifest purpose in enacting the ordinance was to prevent fraud and imposition. In City of Chicago v. Schmidinger, 243 Ill. 167, it was said:

There is nothing in the ordinance which limits the weight of a loaf to a pound or the fractional part of a pound or the multiple of a pound. The ordinance was passed with a view only to prevent the sale of loaves of bread which were short in weight * *

Clearly, one who purchases a loaf of bread labeled “% lb.” which in fact weighs more than one pound is not defrauded or imposed upon.

The finding and judgment in this case are not warranted upon any theory consistent with a proper and reasonable construction of the ordinance involved and the judgment is, therefore, reversed.

Judgment reversed.


author: Mr. Justice Graves

text:
    Salmon O. Levinson, Appellant, v. George W. Thomas, Appellee.
    Gen. No. 16,479.
    1. Malicious prosecution—lack, of probable cause. To maintain an action for malicious prosecution, plaintiff must aver and prove defendant acted maliciously and without probable cause.
    2. Malicious prosecution-—when party acts on advice of attorney. A party is not responsible in malicious prosecution where he acts on the advice of a competent attorney after presenting to him all the facts; this rebuts the presumption of malice and negatives want of probable cause.
    3. New trial—newly discovered, evidence. A motion for new trial, by party seeking to introduce newly discovered evidence, is properly denied, where such evidence was always obtainable and no sufficient excuse is shown for failure to produce it at the trial.
    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 16, 1912.
    Rehearing denied and opinion modified October 30, 1912.
    Newman, Northup, Levinson So Becker and Rosenthal So Hamill, for appellant; Charles H. Hamill and Chester E. Cleveland, of counsel.
    West & Eckhart, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

Appellant was arrested on a warrant issued on the complaint of appellee, in which appellant was charged with perjury in verifying a bill in chancery filed by him under the Burnt Records Act. A preliminary hearing was had and appellant was discharged. Appellant then brought this suit against appellee for malicious prosecution. Issue was joined and the trial resulted in a verdict of not guilty. Judgment was entered on the verdict, and the cause comes here on appeal.

In order to maintain a suit for malicious prosecution the plaintiff must aver and prove, among other things, that the defendant, in procuring the arrest of the plaintiff, acted maliciously and without probable cause for believing the defendant to be guilty of the crime charged.

It is the well established law in this State that where a prosecuting witness presents all the facts within his knowledge, or that he could have ascertained by reasonable diligence, fairly and without reserve to a state’s attorney, or some other lawyer of recognized ability and good standing, and in good faith acts on his advice, he cannot be held responsible in an action for malicious prosecution. Anderson v. Friend, 71 Ill. 475; Neufeld v. Rodeminski, 144 Ill. 83; Calef v. Thomas, 81 Ill. 478; Roy v. Groings, 112 Ill. 656. If that course is pursued, it is held to negative the want of probable cause and to rebut the presumption of malice, even though such counsel gives him bad advice and even if the facts made the basis of the charge do not constitute the crime charged. We think the proof in. this case clearly shows that before appellee procured the warrant on which appellant was arrested, he fairly and fully presented the facts in the case to the then state’s attorney of Cook County, who, through his assistants in charge of that class of work, advised him to procure the warrant and that there was sufficient ground to warrant him in so doing; that in pursuance of that advice he in good faith did procure the warrant in question. There is no claim that the state’s attorney or his assistants were not attorneys of standing or ability, or that they acted in bad faith, or that appellee would not be justified in acting on their advice. Upon that state of facts appellee was not liable in damages for malicious prosecution, and the jury could not have properly found a different verdict than not guilty.

It is contended that the court below should have awarded a new trial to appellant to permit him to introduce newly discovered evidence. The claimed newly discovered evidence was the testimony of the state’s attorney concerning certain conversations between appellee and the state’s attorney, occurring after the discharge of appellant on the preliminary hearing above referred to, by which appellant claims the motive of appellee is disclosed. An examination of the record discloses that this evidence was cumulative in character and was known to appellant before the trial began, and that appellant exercised no diligence whatever to have the witness present at the trial. Appellant undertakes to excuse his lack of diligence in this respect by saying he did not suppose appellee would rely in this case for a defense on the fact that he had acted under the advice of the state’s attorney in suing out the warrant, because on a former trial he had said he acted on his own initiative. That is not sufficient excuse for two reasons. First, because a partizan has no right to assume that because his opponent has failed to interpose a proper defense oh a former trial or in a former case, he will not rely on it when the next opportunity arises (Toledo, P. & W. E. Co. v. Endres, 57 Ill. App. 69); and, second, because the record discloses that when counsel for appellee made his opening statement of facts to the jury on which appellee would rely for his defense, it was plainly stated that what he did in causing appellant’s arrest was done under the advice of the state’s attorney and his assistants. If appellant was taken by surprise by that announcement and could present any sufficient excuse for his not being then able to meet the defense, because of his inability to produce the state’s attorney as a witness, he should then have made his motion for a continuance. This he did not do, presumably because he appreciated that he could not show such diligence in preparing for trial as would be necessary to warrant a continuance. We know of no instance where a party has been allowed to speculate on the result of a trial and when the verdict was adverse to him has been awarded a new trial to allow Trim to introduce evidence he negligently failed to produce at the first trial. This so-called newly discovered evidence not being in fact newly discovered, it being in any event cumulative, and no diligence having been shown on the part of appellant to produce it on the trial and no sufficient excuse being shown for the lack of diligence to so produce it, the motion for a new trial to permit its introduction was properly denied.

Complaint is made as to the giving and refusing of instructions. These instructions relate to issues in the case other than the question of appellee’s reliance on advice of proper counsel as a defense, and have no bearing on that question. As to that question which we regard as controlling in this case, there is no claim that the jury were not properly instructed. The verdict of the jury is in accord with the decided weight of the evidence and the rulings of the court are in accord with the law. The judgment of the court below is, therefore, affirmed.

Judgment affirmed.


text:
    Thomas W. Keelin, Appellee, v. Postlewait Company, Appellant.
    Gen. No. 16,508.
    1. Chattel mortgages—rights of second mortgagee. The provision of a note, secured by a chattel mortgage, to the effect that the monthly payments shall be taken out of the monthly bills for livery furnished mortgagee, may be waived, and although such bills are applied on' other indebtedness existing between the parties, a second mortgagee cannot complain, since he has only a right to redeem from the first mortgagee.
    2. Chattel mortgages—mortgage on livery stable does not cover the business. The general proposition, that proceeds realized from specific property will be applied toward payment of indebtedness against such property, does not apply where a livery stable is under chattel mortgage, since the mortgage is only a lien on the livery stock and not on the business.
    3. Chattel mortgages—mortgagor may pay first mortgagee a commission. An agreement that a chattel mortgagor, a liveryman, shall pay the mortgagee a percentage of the gross income on a hearse and ambulance left at the stable, and a commission on business sent by him, is not fraudulent with reference to a second mortgagee.
    4. Chattel mortgages-—not fraudulent for first mortgagee to wait until entire debt is due. -While a chattel mortgagee has the option to declare forfeiture upon default in one of a series of payments, .he is not bound to act until the entire debt is due, and such delay is not fraudulent with reference to a second mortgagee.
    5. Chattel mortgages—new note does not release lien. In an action in chancery, by second chattel mortgagee against the mortgagor and first mortgagee, a new note taken by first mortgagee for balance unpaid will not be held to release the mortgage lien as to the unpaid part.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded with directions.
    Opinion filed October 16, 1912.
    Rehearing denied October 30, 1912.
    DeWitt C. Jones, for appellant.
    William A. Doyle, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

On May 1, 1903, one Luke Wheeler bought of appellant, Postlewait Company, a livery stable. For part of the consideration he gave a $2,000 note, due in ninety days, and a $5,400 note, due in twenty-three months. These two notes were secured by a purchase .money chattel mortgage on the property purchased. On the $2,000 note $1,500 was paid at maturity and a new note, designated as the Daum note, was given by Wheeler for the other $500. The $5,400 note was in the following words and figures:

“ Chicago, May 1, 1903.
“ On or before twenty-three months • after date I promise to pay Postlewait Co. five thousand four hundred dollars, with interest thereon from date at the rate of six per cent, per annum. Value received. This note is secured by a chattel mortgage.
“Payment thereon is to be made in monthly installments of two hundred and fifty dollars each'; the first payment to be June 20, 1903. It is agreed that said monthly payments are to be taken in livery hire by said Postlewait Co., which livery hire and service are to be satisfactory to said Postlewait Co. If the livery bill of said Postlewait Go. at the end of any month shall exceed two hundred and fifty dollars, the excess shall be paid to me; if the livery bill in any month shall be under two hundred and fifty dollars, the adjustment shall be delayed until the following month, and until the livery bill amounts to the sum of two hundred and fifty dollars or more. It being the intention to pay said indebtedness in livery hire to said Postlewait Co. as aforesaid within the period above specified at the rate of two hundred and fifty dollars per month.
“Luke Wheeler.”

The $250 monthly payments provided for by the terms of the note were made according thereto for nine consecutive months. By these monthly payments the principal of the $5,400 note was reduced to $3,150. No other payments on either of these mortgage notes were made.

It is thus seen that there was still unpaid of the principal of the two notes secured by the mortgages the total sum of $3,650. The court later found that on the $500 still unpaid on the $2,000 note there was $47.50 accrued interest at the time the decree was entered and that at that time on the $5,400 note there was $362.25 accrued interest. Computation shows that to be correct. On the two notes, counting the accrued interest up to the time the decree was entered, there was then still unpaid $4,059.75, unless appellant had failed to give Wheeler credit for money that should have been applied to the payment of one or both of these notes

In August, 1904, Wheeler surrendered possession of the mortgaged property to appellant to be sold under the power given in the mortgage, and appellant proceeded to advertise the same for sale to take place August 27, 1904. On August 26, 1904, the day before the date fixed for the sale appellee filed his bill in chancery in the Circuit Court, in which he says that on July 16, 1903, Wheeler had given him a mortgage on the same property to secure the payment of a $2,000 obligation, which mortgage was in fact and by its terms subject to the mortgage of appellant; that the mortgage to appellant was fully paid; that there was no debt due appellant for which the property should be sold, and that appellant and Wheeler were conspiring together to defraud appellee of his rights. By the prayer he asks discovery of the property of Wheeler and that Wheeler be decreed to pay appellee the $2,000, and for the appointment of a receiver. By an amended bill appellee prays that appellant be required to set forth the amount of money received by it from Wheeler and all moneys coming into its hands from the business carried on by Wheeler or otherwise, and that appellant’s mortgage be declared satisfied and for an accounting of all moneys in appellant’s hands belonging to Wheeler in excess of the amount of money found due from Wheeler to appellant. An appropriate answer was filed to this bill by appellant. Wheeler who "was made defendant made no answer to the bill and was defaulted.

On a hearing of the bill on the motion of appellee for the appointment of a receiver Samuel C. Postlewait was, on the same day the bill was filed, appointed receiver. On the following day the property was sold by the receiver as previously advertised by appellee as mortgagee for the foreclosure sale, and brought the gross amount of $4,450.40. The expenses of the receiver in and about completing the mortgage sale amounted to $264.25. And the expense of appellant in connection with the taking and advertising the property for sale up to the time the receiver was appointed, as allowed by the court, amounted to $778.49, making the total expense of the sale $1,042.74. Taking this amount from $4,450.40, the gross receipts of the sale, leaves in the hands of the receiver $3,407.66 as the net proceeds of the sale, which is less by $652.09 than the amount unpaid on the notes of Wheeler to appellant, which appellant claims were secured by the first mortgage, provided, as already suggested, that all the moneys that had come into the hands of appellant that should have been applied to the payment of these notes were so applied.

The issues made by the bill and answer of appellant were referred to a master in chancery to take proofs and report the same with his conclusions of law and fact to the court. Before he had concluded his duties as master in chancery his term as such officer terminated, and he was appointed special commissioner to complete his work under the original reference. In due time he filed his report as special commissioner, and all objections theretofore filed with the master to his report were ordered to stand as exceptions to the report in the Circuit Court. The Circuit Court overruled all the exceptions of appellant and all but two of the exceptions of appellee and entered a decree finding that Wheeler owed appellee for principal and interest on the note secured by the second mortgage the sum of $1,585.21, and that appellee had a superior and preferred lien on the funds in the hands of the receiver as against the claim of appellant for that amount and ordered the receiver to first pay that amount to appellee and then to pay two-thirds of the costs out of the balance left in his hands and, lastly, to turn over the remainder to appellant. There is no finding in the decree as to whether there was anything due from Wheeler to appellant or not, and if so, how much. From that decree appellant has prosecuted this appeal.

The decree does not contain sufficient findings of fact to disclose upon what theory it was entered, and we have searched the record in vain for evidence to warrant it. Appellee undertakes to justify it upon several grounds. He first calls attention to the terms of the $5,400 note and to the fact that after February 1, 1904, the $250 monthly payments that by the terms of the note were to be made out of the monthly bills for livery furnished by Wheeler to appellant were not so made, but that the same was applied to the liquidation of other obligations, and insists that appellant had no right so to do, and that it is estopped as against appellee from saying that such amounts were not applied to the payment of the $5,400 note according to its terms. In disposing of that contention, as well as others to be considered later, let it be remembered that the only right a second mortgagee of chattels, made expressly subject to a first mortgage, acquires by virtue of his mortgage, as against a first mortgagee, so long as the first mortgage is in force, is the right to redeem from the first mortgage, that is, pay. the debt secured by it. Arnold v. Stock, 81 Ill. 407; Sondheimer v. Graeser, 172 Ill. 293-297; Magerstadt v. Harder, 95 Ill. App. 303-308; Cunningham v. N. O. Nelson Mfg. Co., 17 Ill. App. 510; Pecker v. Silsby, 123 Mass. 108-110; Sawyer v. Pennell, 19 Maine, 167-171; Jones on Chattel Mortgages, sec. 494. The stipulation in the $5,400 note for the monthly payments to be made thereon out of the livery bills of appellant was clearly made for the benefit of Wheeler, and to bind appellant to patronize Wheeler’s stable to the amount of at least enough to pay that note by or before the time of its maturity, and was one that the parties to it had the undoubted right to waive by mutual agreement. Whitney v. Traynor, 74 Wis. 289-297; Mack v. Adler, 22 Fed. 570; Capen v. Alden, 46 Mass. 268. Appellee’s only right under his mortgage being to pay the first mortgage debt as it existed at the time he accepted the second mortgage he is in no position to complain of any one, if no part of that first mortgage debt was ever paid by Wheeler, or if he is compelled to pay it all, for that was the right he contracted for when he accepted his second mortgage. If the debt secured by the first mortgage was reduced by payments by Wheeler in any form, appellee was fortunate to that extent, but he had no right to demand that Wheeler should pay any part of it. The special commissioner found that by a mutual agreement between Wheeler and appellant, which he found they had a right to make, the $250 that was originally intended to be applied monthly to the payment of the $5,400 was rightfully applied to defray the running expenses of the stables and other obligations due appellant. To this finding appellee excepted, in the Circuit Court, but the court overruled the same and thereby confirmed the finding. Waiving the question of the conclusiveness on this court of that finding, in view of the fact that appellee has assigned no cross-errors, we have carefully examined the evidence and are satisfied that the findings of fact are fully supported by the evidence, and that the findings of law are fully sustained by the authorities.

It is next insisted that where moneys are realized from some specific property or fund the courts will apply such moneys to the payment of indebtedness standing against such property or' fund. The statement is correct enough as a bald proposition of law, but it has no application here, because neither of the mortgages were liens on the proceeds of the livery business. The funds in question were the proceeds of the livery business and not the proceeds of sale of the mortgaged livery stock.

Appellee next contends that because some of the monthly payments on the $5,400 mortgage were not made when due, that the whole debt secured by the mortgage became due and that as the mortgagee did not take possession within a reasonable time after the first default, the continued possession of the mortgaged property in the mortgagor was fraudulent as to appellee. It is undoubtedly the settled law of this State that a mortgagee has the option to declare a forfeiture upon a default in one of several payments maturing at different times, and to declare the whole debt due and take possession of the mortgaged property, but that he is not bound to do so until the entire debt secured by the mortgage is due. Cleaves v. Herbert, 61 Ill. 126; Wilson v. Rountree, 72 Ill. 570; Friend v. Johnson, 68 Ill. App. 661. In this case, the last installment of the indebtedness secured by the first mortgage was not due.until April, 1905, more than a year after the first default. Appellant by exercising, as he might lawfully do, his option not to declare a forfeiture until August, 1904, lost none of his rights and the lien of his first mortgage on the property was unimpaired.

It is next urged by appellee that appellant was not entitled to 35% of the gross income of the livery stable from the use of a hearse and ambulance kept and used there, or to 10% on the livery business sent to Wheeler by appellant. Before Wheeler purchased the livery stable of appellant, there was in the stable a hearse and ambulance belonging to appellant, which was in the undertaking business, that Wheeler did not,purchase, but which both Wheeler and appellant desired to have remain in the stable. A contract was, therefore, entered into between Wheeler and appellant that these vehicles should remain in the stable and be cared for, used and operated by Wheeler, but owned by appellant; that of the proceeds derived from the use of the same 35% should belong to appellant and 65% should belong to Wheeler. This contract was carried out during the entire time Wheeler ran the stable. The special commissioner found that the 35% of the proceeds of the use of these vehicles properly belonged to appellant and that it was entitled to retain the same. The Circuit Court overruled exceptions to that finding. Appellee has not challenged the correctness of this finding by any cross-error and the law and the facts, as disclosed by the evidence, fully support it.

The special commissioner found that appellant was not entitled- to the 10% retained by it on the livery business that was brought or sent by appellant to Wheeler and the court sustained that finding. This finding is assigned by appellant as error. We think a clear preponderance of the evidence shows that an agreement was entered into between appellant and Wheeler that, as to such livery business as appellant, in connection with its undertaking business, should bring or send to Wheeler, and which appellant should assume and guarantee the bills for, appellant should have 10% upon.

Furthermore, the accounts sent by appellant to Wheeler from month to month disclosed that appellant deducted said 10% upon said accounts, ¿nd said accounts were accepted by Wheeler without complaint or protest. Furthermore, it is uncontroverted that the arrangement for said 10%, as testified to by witnesses for appellant, was in accord with a uniform custom and usage in the business.

It is next contended that the taking of a new note for the $500 not paid on the $2,000 note is a release of the mortgage lien as to that unpaid part of the $2,000 note, and that such $500 cannot be counted as part of the debt secured by appellee’s mortgage. In Flower v. Elwood, 66 Ill. 438, the Supreme Court, on page 446, said:

“As a general rule, the mere change in the form of the debt does not satisfy a mortgage given to secure it, unless it is intended to so operate. The lien of the debt attaches to the mortgaged property, and the lien can, as between the parties, only be destroyed by the payment or discharge of the debt, or hy a release of the mortgage. Mere change of the form of the evidence of the debt in nowise affects the lien. A renewal of the note, its reduction to a judgment, or other change, not intended to operate as a discharge of the lien, still leaves it, as between the parties, in full vigor.” See also Wilhelm v. Schmidt, 84 Ill. 183.

There is no evidence in this record tending to show that it was the intention of the parties to release the lien of the mortgage as to this $500 balance of the $2,000 note. On the contrary, the evidence tends to show that the new note was not given as an extinguishment or payment of the debt, but as an evidence of its continuance. The mortgage was given as a security for the debt and the lien of the mortgage continued as to that $500 balance after the giving of the $500 note the same as before, and the same should be counted as part of the debt secured by the mortgage.

It is next contended that appellant chargéd and collected $105 per month rental on the stable, when it should have been $90 per month, and that the amount overcharged and collected should be applied to the payment of the mortgage debt. The proof shows that the lease was originally made to the party from whom appellant purchased the stable; that the rental by the terms of the lease was $90 per month; that when appellant purchased the stable it not only assumed the lease and agreed to pay the stipulated $90 per month, but gave $250 as a bonus for certain repairs put on the premises by the tenant; that the $250, when divided into monthly stipends for the time the lease had to .run and added to the $90 stipulated rental, made the real rental paid by appellant to its assignors $105 per month and that Wheeler agreed to pay appellant the same amount. He in fact did pay that amount whenever he paid anything. There is nothing in this record to justify a holding that any part of the $105 per month rent collected by appellant from Wheeler should be credited on the mortgage indebtedness.

There are two other items aggregating $114.58 and made up of $83.33 for rent unpaid for the fraction of the month of August, 1904, up to the day the property was sold and $31.25 for telephone bills up to the same period and paid by appellant, which appellee claims should be charged to appellant as payments on the mortgage indebtedness. It is diffcult to tell from the evidence whether these bills were paid out of the proceeds of the business or the proceeds of the sale. The money was in the hands of appellant and was paid out by it. The burden was on it to show that it came from some source other than a sale of the mortgaged property, and not having done so, we are inclined to charge it with the amount of these two bills as a payment on the mortgaged indebtedness.

We, therefore, find that it is established by the evidence that at the time the decree was entered there was unpaid on the $2,000 note $500 of the principal and $47.50 interest, and on the $5,400 note there was unpaid on the principal $3,150 and $362.25 interest, a total on the two notes of $4,059.75, less $114.58 not credited on the note, or a net balance of $3,945.17; that this balance was secured by appellant’s mortgage; that this balance was a first lien on the mortgaged property and must be first satisfied out of the proceeds of the sale of the property after the proper costs and expenditures of the sale are paid. We further find that the evidence shows that the gross proceeds of the sale were $4,450.40; that the proper costs and expenses of the sale, as allowed by the court below, were $1,042.74; that the net proceeds of the sale were $3,407.66; that after applying the entire net proceeds of the sale to the payment of the amount due on the debt secured by appellant’s mortgage, there is still unpaid thereon $537.51. It conclusively follows that appellee’s bill was not sustained by the proof. The decree of the Circuit Court is, therefore, reversed and the cause is remanded with directions to that court to dismiss the hill for want of equity at the costs of the complainant therein.

Decree reversed and cause remanded with directions to dismiss the bill.


text:
    Minnie Offner, Administratrix, Appellee, v. Chicago & Erie Railroad Company and Chicago & Western Indiana Railroad Company, Appellants.
    Gen. No. 16,558.
    1. Master and servant—when special verdict not inconsistent. Where in an action by a car repairer, injured when the car under which he was working was moved, a general verdict for plaintiff is returned, an answer of “no” to a question as to whether a flag was displayed on the car as required by the company’s rules is not inconsistent therewith.
    2. Verdicts—presumptions. Every reasonable presumption is used in favor of a general verdict, but nothing is presumed in favor of a special finding.
    3. Practice—order of introducing evidence. No abuse of discretion is shown where plaintiff was permitted to introduce evidence after he closed his case.
    4. Practice—introduction of evidence. The introduction of proof out of its proper order is in the discretion of the trial court.
    5. Master and servant—evidence. Where in an action for injuries to a car repairer, received where the car was moved, a witness who according to plaintiff’s theory was a foreman, who knew where deceased was working under his directions, and should have known of the operations of the switching crew and prevented the moving of the car, may properly be examined as to his duties with reference to the men who worked with or under him.
    6. Witnesses—when question not mixed question of law and fact. A question as to who was in charge of work in a railroad yard, in the absence of the foreman, is not objectionable as being a mixed question of law and fact.
    7. Master and servant—refusal of instructions proper where element omitted. Refusal of instructions is proper where they direct a verdict on the theory that a car repairer failed to comply with a rule requiring him to place a flag on cars he was repairing, and omit the possibility of wilfulness by the train crew.
    8.. Instructions—refusal proper where reference to persons not parties. In an action against a railway company for alleged negligence an instruction is properly refused which authorized a finding that “the trainmen” were not guilty of negligence, where they were not parties to the suit.
    9. Instructions—properly refused which disregard evidence. An instruction is properly refused where it states that there is no evidence from which it can be inferred that any of a switching crew had notice that a car repairer was under a certain car, unless a flag was displayed, where the evidence shows that the crew previously passed within a few feet of such repairer who was in plain sight.
    10. Railroads—liability for negligent operation. Both the owner and one authorized or permitted to use a railroad are liable for injuries resulting from negligent operation thereof by either.
    11. Railroads—liability of lessee for owner’s negligence. A corporation authorized to use certain railroad yards may be held responsible for the yard owner’s mode of operating a switch engine or for acts of its switching crew.
    12. Witnesses—credibility. Testimony of a witness who made positive statements is more worthy of credit than that of one who contradicted him, but often stated “it is my recollection,” concerning facts previously stated positively.
    13. Master and servant—servant’s right to assume that rules of railroad will be observed. A car repairer has a right to assume that others will obey the rules concerning switching cars on the track on which his car is placed.
    14. Master and servant—assumed risk. A car repairer does not assume the risk of injury, where another car is improperly placed on the track which obstructs the view of his flag and where a switching crew improperly moves his car.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Jessb A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 16, 1912
    William S. Kies and Walter M. Johnson, for appellant, O. J. Austin, Jr.; and Francis Adams. Jr., of counsel.
    Adler & Lederer, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

Appellee’s intestate, Jacob Offner, at the time of his death, and for many years prior thereto, a car repairer employed by appellant, the Chicago & Erie Railroad Company, died October 5, 1903, as a result of injuries received that day while he was working in the line of his employment in the yards owned by appellant, the Chicago & Western Indiana Railroad Company, in Chicago, known as the Taylor street yards, and which appellant, the Chicago & Erie Eailroad Company, had by agreement with the Chicago & Western Indiana Eailroad Company acquired a right to use.

There were no tracks in these yards set apart or exclusively used for repair work, but such work was done in all parts of the yards. By the rules of these yards persons repairing ears there were required to place a blue flag on one or both ends of the car being repaired, or, when the car being repaired was one of a train of cars, to place a blue flag at each end of the train, and no one but such person was permitted to remove such flag. By such rules, when such blue flag was exposed, the same was to be taken by all persons to indicate that workmen were under or about such car or train, and to mean that such car or train must not be coupled to or moved, and that other cars must not be placed on the same track so as to intercept the view of the blue flag signal without first notifying the workmen. On the day in question Offner went to work repairing a car on track 8 in the yards. After he had been at work some little time, variously estimated from twenty minutes to an hour and a half, a switching crew in the employ of appellant, the Chicago & Western Indiana Railroad Company, pushed some cars in on track 8 from the south, either against the car under which Offner was working, or against a car or cars on the same track south of the car under which he was working, in such manner as to move that car north several feet and cause it to run over Offner, resulting in the injuries from which he died. Appellee obtained a verdict for $4,000 against both appellants. In addition to the general verdict the jury answered “no” to the interrogatory, “Was a blue .flag displayed on the south end of the car on track 8 to which Conductor McNeary made the coupling at the time when the Grand Trunk cars in question were pushed in on track No. 8?”

Appellants moved for judgment on the special finding non obstante veredicto, which motion was denied by the court and judgment was entered on the general verdict.

The errors urged for a reversal of the judgment of the court below are the action of that court in denying the motion of appellants for judgment on the special finding; in admitting improper evidence; in refusing to submit certain special interrogatories to the jury at the request of appellants; in rulings on the admissibility of evidence and in refusing to give to the jury certain instructions asked by appellants; and that there is no evidence to support the general verdict.

Before a special finding can be treated as controlling and as entitling a party to a judgment notwithstanding the general verdict, such special finding must be as to an ultimate fact and must be inconsistent with the general verdict. In determining whether a special finding is inconsistent with and controlling of the general verdict the court cannot consider the evidence as in fact introduced at the trial. The general verdict must prevail over the special finding if under the issues in the case there could have been proof of supposable facts not inconsistent with the special finding, sufficient on any theory to warrant the general verdict. Chicago & N. W. R. Co. v. Dunleavy, 129 Ill. 132; Stein v. Chicago & G. T. R. Co., 41 Ill. App. 38; Barnes v. Rembarz, 150 Ill. 192; St. Louis, A. & T. H. R. Co. v. Eggmann, 161 Ill. 155. Every reasonable presumption will be entertained in favor of a general verdict, while nothing will be presumed in favor of a special finding. Chicago & N. W. R. Co. v. Dunleavy, 129 Ill. 132; Barnes v. Rembarz, 150 Ill. 192. Whether a blue flag was displayed on the south .end of the car McNeary coupled the car to, that he caused to be pushed in on track 8 when Offner was injured, is, to say the most for it, no more than an evidentiary fact. It may well be the car he so coupled to was not the car Offner was working under, nor in any way attached to it or closely adjacent to it. It may be the car coupled to had been previously pushed in on track 8 by this same switching crew in direct violation of the rules of the yards, after Offner had placed a blue flag on the south end of the car he was working under and the view of such blue flag had been thereby obstructed. It may be the switching crew had actual knowledge of the position in which Offner was working and willfully or negligently pushed the car coupled to against the car under which he was working, with unnecessary force, in any of which events the fact that a blue flag was not exposed on the south end of the car coupled to would not be inconsistent with a verdict of guilty. It follows that the motion for judgment non obstante veredicto was properly denied. For like reasons the court properly refused to submit to the jury the other special interrogatories asked for by appellants.

The complaint that the court erred in permittingappellee to introduce proof tending to show that the bell on the switch engine was not rung or the whistle sounded at the time in question is without force in view of the fact that the objection made to its introduction was that appellee had then closed his case, and that no objection was then made to its materiality. It is within the discretion of the trial court to permit proof to be introduced out of its order in proper cases, and the overruling of the objection made here was no abuse of such discretion. The question as to the materiality of this evidence is not presented by this record for our determination.

While the witness Spriggs was on the stand as appellee’s witness, he was asked, “What were your duties with reference to the men who worked with or under you?” This was objected to as not material and not redirect. Appellee’s theory was that Offner was working where he was injured under specific orders from Spriggs acting as foreman for appellant, the Chicago & Erie Eailroad Company, and that Spriggs as such foreman knew not only where Offner was working, but also knew or should have known what the switching crew was doing and where they were placing cars, and that it was the duty of Spriggs, as foreman, to have prevented the switching crew of appellant, the Chicago &’ Western Indiana Railroad Company, from pushing the cars they were handling in on track 8. Upon that theory the question was not subject to the objection of immateriality, and its admission put of its regular order was discretionary with the court. The witness answered: “My duties were to direct such work as the foreman would tell me to have done.” He was then asked, “Who was in charge of the work in that yard when the foreman was away?” This question was objected to as being a mixed question of law and fact. This objection the court properly overruled. The question in effect was “who acted as, or took the place of, the foreman in his absence?” and called for a fact unmixed with questions of law.

The action of the court in refusing instructions Nos. 21, 22, 25, 26, 27 and 28, asked by appellant, is complained of. Refused instructions Nos. 21, 22 and 26 expressly direct a verdict for the defendant, and are based on the theory that Offner had failed to comply with the rule of the yards requiring him to place a blue flag on cars he was repairing, and omit the element of a possible finding by the jury that the switching crew acted willfully and with actual notice of Offner’s position and danger. Refused instruction No. 27 directs the jury under certain contingencies to find “the trainmen” not guilty of negligence. The trainmen were not on trial or parties to the suit. Refused instruction No. 28 announces the fact that there is no evidence in the case from which the jury can infer that any of the switching crew had any knowledge or notice that Offner was at work under the car, unless a blue flag was displayed on the south end of the car or cars standing there. The evidence shows that this crew in passing south by these standing cars, preparatory to and immediately before pushing the cars they were handling in on track 8, passed within a few feet of where Offner and Spriggs were working in plain sight, at the north end of one of these standing cars. This was a fact the jury clearly had a right to consider on the question of the knowledge of or notice to the switching crew of the presence of Offner, and of the danger he was exposed to. Refused instruction No. 25 announces that there is no proof that appellant, the Chicago & Brie Railroad Company, had the control or management of the switch engine and that it cannot he held responsible for the mode in which it was operated, or for any act of any member of the switching crew. The appellant, the Chicago & Western Indiana Railroad Company, was the owner of the yards in question. The appellant, the Chicago & Erie Railroad Company, had secured from the owner by contract a right to use the yards for the purposes it was using the same at the time Offner was injured. When injury results from the negligent operation of a railroad, whether such negligence is that of the owner, or of some other corporation whom the owner authorizes or permits to use the tracks, both the owner and the user of the track are liable. West Chicago St. Ry. Co. v. Home, 197 Ill. 250. Refused instruction No. 25, in so far as it announced the rule that the appellant, the Chicago & Erie Railroad Company, could not, under the facts in this case, be held responsible for the mode or manner of the operation of the switch engine of appellant, the Chicago & Western Indiana Railroad Company, or for any act on the part of the switching crew, is in conflict with the express holding of the court in the Home case cited. For the reasons given we think no error was committed by the trial court in refusing any of the instructions referred to.

Appellants contend that the verdict is in conflict with the evidence in that the evidence shows Offner failed to display a blue flag, as required by the rules of the yards, and that his injury and death were the result of his own negligence in failing so to do. The evidence of the witness, John Heinz, is that when Offner went to work on the car where he was injured he placed a blue flag on the south end of the car in the usual and proper place, and proceeded to work on the other end of the same car, and that when he so placed the blue flag on the car, it was the only car on that track. He described the flag as to its use, of what it was made, how and where Offner placed it on the car, where he obtained it, and where he went after he had placed it on the car. He also testified that when Offner placed the flag on the car no one was present except Offner and himself, but that about twenty-five minutes after he went to work Dick Spriggs, a colored man, came and helped him. The colored man, Dick Spriggs, contradicts Heinz in several important particulars, but he does so in such a way as to materially depreciate his own testimony. He interchangeably testified positively to facts and then used with reference to the same facts such expressions as, “It is my recollection;” “To the best of my recollection;” “It seems to me;” and “I think I remember.” In this qualified manner he testified he went with Offner when he went to work on the afternoon he was killed; that there were two or more cars then on track 8; that he did not see the witness Heinz there and that Offner did not place a blue flag on the car or cars. On cross-examination he said, “I never gave a thought about the flag, I never considered it a moment, about the flag. I never stopped to think about it.” These two witnesses, Heinz and Spriggs, were the only two witnesses who undertook to say, or who pretended to know, whether Offner placed a flag on the car or cars where he went to work. We think as between these two witnesses the testimony of Heinz is much more worthy of credit, and that the jury were warranted in finding, as they evidently did, that Offner complied with the rules of the yards as to putting up the blue flag. There was nothing in the rules of the yard that required Offner to keep watch of the flag after he had placed it in position to see that no one else took it down, or to watch the track to see that no cars were pushed in on it so as to obscure the flag from view in violation of the rules of the yard. He had a right to assume that others working there would obey the rules and the fact that, when the switching crew pushed in on track 8 the car that caused the injury, there was another car there besides the one Offner was working on, on which other car no flag was exposed, instead of being evidence of negligence on the part of Offner, strongly tends to show that such other car had been improperly placed there after he went to work and in violation of the rules referred to. There is nothing in the record to warrant this court in holding that Offner was guilty of contributory negligence.

On the question of the negligence of appellants, the law is that it was the duty of them both to see to it that their trains and cars were so operated as to do no unnecessary damage to the person or property of any one. A failure in the performance of that duty by either of appellants would be negligence for which they would both be liable under the holding in West Chicago St. Ry. Co. v. Home, 197 Ill. 250.

The jury found both appellants guilty of negligence and a careful study of the evidence convinces us that the verdict was right; that appellants knew, or by the exercise of ordinary care would have known, where Offner was at work, and of the danger to which he was exposed, and that he came to his death because of the heedless disregard of his danger on the part of both appellants. Upon appellant, the Chicago & Erie Railroad Company, by whom Offner was employed, a special duty rested to see to it that the place where he was sent to work should remain at least as safe as when he began his work there. As already stated, the evidence fairly tends to show that when he went to work there was but one car on the track, and that on that car he placed, in the appropriate place, a blue flag as required by tbe rules of the yards and that between the time he went to work and the time he was injured, some one, in violation of those rules, had pushed in another car on that track in such a position as to obstruct the view of the flag by the switching crew. This rendered the place more dangerous, and in permitting it to be done the employer failed in a duty and was guilty of negligence.

It is next contended that Offner, as to appellant, the Chicago & Erie Railroad Company, assumed the risk of the injury he received and therefore cannot recover. It is true a servant assumes the risk of the ordinary, usual and obvious dangers of an employment into which he voluntarily enters, but he never assumes such risks and dangers as arise from a neglect of duty on the part of the master to keep the place where the servant is at work reasonably safe. We can not hold that Offner assumed the risk of his employer’s failing to keep the place, where he was at work, reasonably safe.

The last contention is that the injury to Offner was caused by the negligence of a fellow-servant. There is absolutely nothing in this record on which to base such a contention.

Finding no error in the record, the judgment is affirmed.

Judgment affirmed.


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    E. Peterson, Trading as Crescent Mosaic & Tile Co., Defendant in Error, v. Frank P. Bauer and Martin Purcell, Trading as Bauer-Purcell Marble Mill, Plaintiffs in Error.
    Gen. No. 16,741.

      Contracts—breach. Where defendant contracts to furnish and put in certain steps for plaintiff, who changes the plans whereby an additional step is required and dimensions of others are changed, refusal by defendant to perform without additional compensation is not a breach, but where plaintiff hires another, there is a breach for which defendant may recover if damaged.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleeand, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with finding of fact.
    Opinion filed October 16, 1912.
    John B. Heinemann, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

Plaintiffs in error entered into a written contract with defendant in error to furnish and place in a certain building then being constructed by defendant in error certain marble work for an agreed price of $370. .When plaintiffs in error went to the building to place the marble work therein, they found the plans had been changed so as to incease the number of steps that were to be put in as part of the work contracted for, from six, the number included in the original specifications, to seven, according to the new plans, which change required furnishing the marble for one step not contracted for, and the work in putting it in. Jt also required alterations in the shape and dimension of certain other pieces of marble which were to go into the work. Plaintiffs in error, upon discovering the changes in the plans and figuring up the cost of the work made necessary by the alterations, told defendant in error they would do the work according to the altered plans for $20 additional compensation. This proposition was not accepted and plaintiffs in. error did not do the work. Defendant in error procured the work to be done and the materials to be furnished by one Davia, at a cost of $550, and brought this suit to recover the additional cost of the work and material as damages for breach of the contract, and obtained a judgment in the Municipal Court for $160, to reverse which this writ of error is prosecuted. Defendant in error has not appeared in this court or filed any brief and argument.

The bare recital of the facts is enough to show that the judgment must be reversed. No breach of the contract on the part of plaintiffs in error is shown. On the contrary, the evidence presented by this record clearly shows a breach of the contract on the part of defendant in error that might well have been made the basis of a judgment for plaintiffs in error, if they could show they were damaged thereby. The judgment of the court below is reversed without remanding, with a finding of fact to be incorporated in the judgment.

Judgment reversed with finding of fact.

Finding of Fact: We find as an ultimate fact that plaintiffs in error are not indebted to defendant in error.


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    William G. King, Defendant in Error, v. Joseph S. Ralston, Plaintiff in Error.
    Gen. No. 16,758.
    1. Attachment—when personal judgment improper on special appearance being entered. Where a defendant not served with process in a nonresident attachment case files a special appearance for the exclusive purpose of pleading to the jurisdiction of the court and files an appropriate plea, the court is without power to enter a personal judgment against such defendant.
    2. Attachment—how jurisdiction of nonresident defendant may be acquired. Where there is no personal service on a defendant in a nonresident attachment case, and no general appearance, and the suit is dismissed, as to the garnishee, a levy on property of the defendant is the only way in which jurisdiction can be acquired to render a judgment even in re.m.

    3. Attachment—issues that may be tried under plea to jurisdiction. Where a corporation in a nonresident attachment case has been garnished, and the defendant enters a special appearance and a plea to the jurisdiction setting tip that he is a nonresident, has not been served with process, and has no property within the county, the guestions, whether Hurd’s Statutes, 1911, ch. 77, sec. 53, can be construed to authorize a levy of an attachment writ on a share of stock in the manner therein provided for the levy of an execution, and whether a certain return is sufficient to show a levy, are issues that may be tried out under the plea.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed October 16, 1912.
    S. M. Meek, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

This is a suit in attachment begun against plaintiff in error as a non-resident of this state, which in fact he was. No personal service of the writ was had on plaintiff in error. The Ralston Steel Oar Company was served as garnishee and a copy of the writ was delivered to one F. B. Simonds, who is described in one return thereon as “Western Sales Agent,” and in another as “Western State Agent” of the Ralston Steel Car Company, a corporation, and a demand was made on him for a certificate of the number of shares. of stock or amount of interest plaintiff in error held in that corporation, which certificate was not produced.

On the return day fixed in the published attachment notice, plaintiff in error filed his special appearance for the exclusive purpose of pleading to the jurisdiction of the court and filed therewith an appropriate plea of that character in which he set up that he was a nonresident of the state; that he had not been served with process in the action and that he had no property of any kind or nature in Cook County, Illinois, subject to attachment or garnishment. This plea was, on motion of defendant in error, stricken from the files. Plaintiff in error, being then ruled to plead, elected to stand by Ms plea to the jurisdiction of the court, and was then defaulted and a judgment in form personal, was thereupon entered against him for $1,393.02, together with accrued interest thereon to the date of the judgment. No execution either general or special was ordered. The suit was then dismissed on motion of plaintiff in error as to the garnishee. To reverse this judgment plaintiff in error prosecutes tMs writ of error here. Defendant in error has filed no brief and argument.

Plaintiff in error, not having been personally served with process, the court had no jurisdiction to enter a pérsonal judgment against him, unless by entering Ms appearance and filing his plea he voluntarily submitted himself to the jurisdiction of the court for all purposes. The appearance entered by plaintiff in error being special and the plea, filed being a plea to the jurisdiction of the court, the court acquired thereby no jurisdiction to hear or determine any question, except the one raised by the plea, and was wholly without power to enter a personal judgment against plaintiff in error. Pack, Woods & Co. v. American Trust & Savings Bank, 172 Ill. 192. The judgment entered was, therefore, a nullity as a personal judgment. Whether it is a valid judgment in rem depends on whether any of the property of plaintiff in error was levied on under the writ. There being no personal service and no general appearance and the suit being dismissed as to the garmshee, a levy on property of plaintiff in error was the only remaining way in wMch the court could acquire jurisdiction to render a judgment, even in rem. Tennent-Stribbling Shoe Co. v. Hargardine-McKittrick Dry-Goods Co., 58 Ill. App. 368; Plato v. Turrill, 18 Ill. 273; Martin v. Dryden, 6 Ill. (1 Gilm.) 187-212; Smith v. Clinton Bridge Co., 13 Ill. App. 572.

From the wording of the return it is apparent that the officer attempted to make a levy of the attachment writ on any share or interest plaintiff in error might have in the Ealston Steel Car Company, a corporation, in the manner provided by Section 53 of Chapter 77, Hurd’s Statutes, 1911, which provides how such share or interest may be levied on and sold under an execution. Whether that section can be construed to authorize a levy of an attachment writ on a share or interest in a corporation in the manner therein provided for the levy of an execution, we do not decide, neither do we decide whether the return is sufficient to show a levy on the theory that a writ of attachment may he levied on such share or interest in the same manner as an execution may be levied thereon. Those are issues that should have been tried out under the plea that was stricken from the files. Howe v. Thayer, 24 Ill. 246; Pike v. City of Chicago, 155 Ill. 656; Drake v. Drake, 83 Ill. 526; Pooler v. Southwick, 126 Ill. App. 264.

It follows that the plea was improperly stricken from the files. The judgment of the Municipal Court is therefore reversed and the cause remanded with directions to deny the motion to strike the plea from the files, and for such other proceedings as may be had not inconsistent with this opinion.

Reversed and remanded with directions.


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    The People of the State of Illinois, Defendant in Error, v. King Chow Lo, Plaintiff in Error.
    Gen. No. 17,148.

      Dramshops—what does not constitute illegal sales. Customers in a restaurant asked to be served with beer and were informed by their waiter that he had no beer, but if they would give him the money to pay for it, he would go out and get it for them. This was done and he went to a saloon across the street and purchased the beer, the restaurant proprietor having no monetary interest in the transaction. It was the custom of the waiter to do this for other customers. Held, the restaurant proprietor did not violate the Dramshop Act by selling liquor without a license.
    Battme, J., dissenting.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with finding of fact.
    Opinion filed October 16, 1912.
    MhjChrist & Milchrist, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zack Hofheimer, of eonnsel.
   Mr. Justice Graves

delivered the opinion of the court.

Plaintiff in error, King Chow Lo, a restaurant keeper in the City of Chicago, was convicted and fined in the Municipal Court of selling intoxicating liquor in less quantity than one gallon without a license.

The evidence discloses that on the day in question two police officers came separately into the restaurant of plaintiff in error and each ordered a meal of one Tom Yah, the waiter in attendance; that each officer also asked to be served with a bottle of beer; that the waiter informed each officer that he had no beer, but that if he would give him the money to pay for it, he would go out and get it for him; that each officer in turn gave to the waiter a sum of money and the waiter then went to a saloon across the street and bought the beer, returned to the restaurant and delivered to each officer the bottle of beer purchased for him and returned to each officer the change coming to him; that no beer or intoxicating liquor of any kind was ever kept on the premises or sold by plaintiff in error to any one, but that it was a common practice when customers asked for beer and furnished the money to the waiter to buy it with, for the waiter to go out and buy it for and as a favor to the customer; that in such transactions plaintiff in error received no compensation directly or indirectly. There are no controverted questions of fact.

The contention of the State is that the transaction amounts to a shift or device to evade the provisions of the Dramshop Act. Section 1 of that act defines a dramshop to be a place where spirituous or vinous or malt liquors are retailed in less quantities than one gallon. Section 2 prohibits everyone not having a license to keep a dramshop from directly or indirectly selling intoxicating liquor in less quantity than one gallon or in any quantity to be drunk on the premises, and Section 13 provides that the giving away of intoxicating liquors, or other shift or device to evade the provisions of the act shall be held to be an unlawful selling. The plain intent of the legislature in passing this act was to prevent the retail traffic in intoxicating liquor by unlicensed dramshop keepers; to define retail traffic to be sales of such liquor in less quantity than one gallon and to so safeguard the law that a violation of it in fact could not be hidden behind some blind or subterfuge. It was never intended as a snare for the innocent or to cause any one to be punished, unless they were in fact guilty of dealing in intoxicating liquor in violation of the spirit of the act. It is the sale of intoxicating liquor that is prohibited by the second section of the act, and it is only such gifts, shifts or devices, as guilty persons seek to hide- an unlawful sale behind, that the statute requires to be construed to be an unlawful selling. There is nothing in this transaction disclosed by the evidence to indicate an intention to violate, or the violation of the Dramshop Act. The customers gave to the waiter money with which to purchase for each of them a bottle of beer, which he did. They were each told in advance that the waiter would go and get it. The undisputed evidence is that the waiter went across the street to a saloon and purchased the beer for the customers and with their money. There was nothing secret or underhanded in the whole transaction. The transaction was in no way different in fact from what on its face it appeared to he. The fact that the same waiter had done the same thing for other customers at other times, or that it was his custom to do so, would not change an innocent and lawful act into a criminal one. The evidence conclusively shows that plaintiff in error had no beer for sale or on the premises; that he did not sell any or give any away, and had no interest in and received no profit, benefit or compensation from this transaction. The waiter, in going for and procuring the beer, paying for it and delivering it to the customers, was the agent of the customers and not of plaintiff in error. If, under the facts in this case, plaintiff in error can be held to be a dramshop keeper, or to have violated the Dramshop Act, he could be held to be a livery stable keeper if his waiter at the request of a customer had called a hack, or could be held to have violated the internal revenue laws if at their request he had purchased cigars instead of beer for the customers.

For the reasons stated, the judgment of the court below is reversed with a finding of fact to be incorporated in the judgment.

Judgment reversed with, finding of fad.

Finding of Fact : We find as an ultimate fact that plaintiff in error is not guilty of selling intoxicating liquor in less quantity than one gallon without having a license so to do.

Mr. Justice Baume dissents.