text:
    Mathilda A. Ford, Appellee, v. Percy James Ford, Appellant.
    Gen. No. 20,251.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 11, 1915.
    Statement of the Case.
    Bill by Mathilda A. Ford against Percy James Ford for separate maintenance. From a final decree entered in that cause on July 19, 1913, the complainant perfected an appeal to the Appellate Court. Complainant then filed a petition praying for an order requiring defendant to make suitable allowance for temporary alimony pending said appeal and for solicitor’s fees and expenses in defending same. On the hearing had on the petition and answer, the chancellor entered a decree requiring defendant to pay complainant during the pendency of the appeal the sum of thirty dollars per week, from which decree defendant appeals.
    Abstract of the Decision.
    1. Appeal and error, § 1002

      —when statements in answer not considered. Where the certificate of evidence merely presents an answer as a verified pleading on file, and does not show that it was offered in evidence, the court, on review, cannot consider the facts set forth therein in support of defendant’s contention that the decree should be reversed.
    2. Appeal and error, § 1302*—when chancellor presumed to have judicially noticed decree. Upon appeal from a decree awarding expense money and counsel fees pending an appeal from a decree in a separate maintenance proceeding, upon proceedings supplementary to the original decree and after hearing upon the pleadings and transcript of the testimony taken upon the trial of the cause and the final decree therein, it will be presumed that the chancellor in arriving at his conclusions took judicial notice of the record upon which the original decree was entered and of that decree itself.
    3. Evidence, § 4*—when court records judicially noticed. In awarding expense money and counsel fees pending appeal from a decree in separate maintenance proceedings, the chancellor may take judicial notice of the record and proceedings in the court.
    4. Appeal and error, § 1034*—what not judicially noticed. On appeal from a decree in a supplementary proceeding awarding expense money and counsel fees pending an appeal from a decree in separate maintenance proceedings, the court cannot take judicial notice of the record in the original proceeding.

      Beach & Beach, for appellant.
    Brundage, Landon & Holt and Bluim & Teed, for appellee.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

5. Appeal and error, § 1269 —when findings presumed sustained T)y evidence. Where on appeal from a decree in a supplementary proceeding awarding expense money and counsel fees pending an appeal from a decree in separate maintenance proceedings, which former decree was rendered upon the pleadings and transcript of the testimony upon the trial of the original cause and upon the final decree entered therein, neither the record nor the final decree in the original cause were included in the .transcript of the record, it will be presumed that the facts appearing therein warranted the decree complained of.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Able Transfer Company, Defendant in Error, v. William E. Dee Company, Plaintiff in Error.
    Gen. No. 19,451.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and judgment here.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by Able Transfer Company, a corporation, against William E. Dee Company to recover a balance of two hundred dollars alleged to be due under a written agreement for the sale of an engine and generator. From a judgment for two hundred dollars against defendant in favor of plaintiff, defendant brings error.
    Plaintiff shipped an engine and a generator to defendant for which three hundred dollars was to be paid at the signing of the contract and the balance of two hundred dollars to .be paid when engine and generator were tested and found to be in satisfactory condition. Shortly after the receipt of the machine defendant tested the same and notified the plaintiff that it was not in a satisfactory condition, stating that it would put it in a satisfactory condition at the expense of plaintiff. The defendant not hearing from the plaintiff thereafter expended two hundred dollars in rewinding the armature of the generator and putting the machine in a satisfactory condition. Defendant never offered to rescind the contract of sale or to return the engine and generator to the plaintiff and it has since continued to operate the same at its place of business. Plaintiff sued to recover the unpaid balance of two hundred dollars alleged to be due under the contract of sale.
    Abstract of the Decision.
    1. Sales, § 285

      —form and, requisites of express warranty. No particular form of words is necessary to constitute an express warranty in a sale, but it is a question of intention to be gathered from the words used and from the circumstances and subject-matter of the case.
    2. Sales, § 237*—representation of facts constituting warranty as opposed to matters of opinion. Where in a sale a representation is positive and relates to a matter of fact it constitutes a warranty, but where the representation relates to that which is a matter of opinion merely, it does not constitute a warranty.
    3. Sales, § 238*—language constituting warranty of machine. Where a contract of sale expressly provided that a balance of two hundred dollars should be paid “when engine and generator are tested and found to be in satisfactory condition,” held the language constituted a warranty that the machine would be in a satisfactory condition when delivered.
    John M. Quinlan, for plaintiff in error.
    Donald McEachern, for defendant in error.

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

4. Sales, § 389 —right of recoupment for breach of warranty. Where a contract expressly provided that a balance of two hundred dollars was to be paid when an engine and generator were tested and found to be in satisfactory condition and the plaintiff failed to deliver the machine in a satisfactory condition, there was a breach of warranty on the part of the plaintiff so that under the circumstances the defendant was not required to rescind the contract and to return the machine, but had the right to recoup the damages sustained by reason of the breach in an action for the balance due on the machine.

5. Sales, § 389*—right to recoup for breach of express warranty. Where it was not denied by the plaintiff that the defendant after the receipt of a machine was compelled to expend two hundred dollars in putting the same in a satisfactory condition, and it was not disputed by the plaintiff that the repairs were proper and necessary under the warranty, if the contract contained such an alleged warranty, helct that upon finding such a warranty to exist, judgment should have been entered in favor of defendant for costs rather than in favor of plaintiff for two hundred dollars as a balance due for machinery sold and delivered on a written contract..


text:
    Christiana Dombrowski, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 19,608.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by Christiana Dombrowski against the Metropolitan Life Insurance Company, a corporation, to recover on a policy of life insurance for one thousand dollars. From a judgment for one thousand dollars against defendant in favor of plaintiff, defendant appeals.
    Abstract of the Decision.
    1. Instructions, § 87

      —when erroneous as to burden of proof. It is erroneous to instruct a jury in a civil case that the party having the burden of proof must furnish evidence which will satisfy the jury, since the jury are only required to find from a preponderance of the evidence.
    2. Insurance, § 908*—error of instructions requiring jury to be satisfied from evidence. In an action upon a life insurance policy, an instruction that it was for the jury to determine from the evidence the extent of the sickness of the insured and whether it was of such a character or nature as to make his reply to interrogatories material misstatements; that it was for them to say, from the evidence in regard to the extent of the nature and kind of sickness, whether the attack from which the insured suffered was of a character to make his answer “never sick since childhood” a material statement, that the burden of proof was on the defendant; that the defendant set up the defense and that the jury must be satisfied from the evidence that the untruth of the statement had been established, held to be prejudicially erroneous, since, in requiring the jury to be satisfied, it imposed a higher degree of proof than the law required.
    Hoyne, O’Connor & Irwin, for appellant; Carl J. Appell, of counsel.
    Forest Garfield Smith and Robert E. Cantwell, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Patrick T. McBride and Abbie McBride, Appellees, v. Edgar E. Seney and Rowland T. Rogers, trading as Seney, Rogers & Company, Appellants.
    Gen. No. 19,739.
    Abstract of the Decision.
    1. Building and construction contracts, § 94

      —what constitutes variance. In an action for breach of building contracts, where at the time the contracts were offered in evidence it was contended that plaintiffs had declared on a contract signed and executed by the plaintiffs, held that an objection, predicated upon the theory that the contracts offered in evidence were not the ones described in the statement of claim, was without merit on the question of variance, since the statement did not allege that the contracts were signed by the plaintiffs.
    2. Building and construction contracts, § 101*—effect of lach

      of party’s signature upon contract as to admissibility in evidence. In an action for damages for breach of building contracts by husband and wife, the fact that the wife did not sign the contracts offered in evidence, becomes immaterial where she accepted and adopted the written contracts and assented to their terms and conditions so as to be bound by them, and defendants treated and dealt with her throughout the entire transaction as a party to the contracts.

      (Not to be reported in full)
    Appeal from the Municipal Court of Chicago; the Hon. Fred C. Hue, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by Patrick T. McBride and Abbie McBride against Edgar P. Seney and Bowland T. Bogers, trading as Seney, Bogers & Company, to recover for the alleged breach of building contracts. From a judgment for $2,560 against defendants in favor of plaintiffs, defendants appeal.
    Adams, Crews, Bobb & Wescott, for appellants.
    Kruse, Peden & Merrick and Morgan, McFarland & Goodman, for appellees.

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

3. Action, § 22 —persons entitled to sue. In an action by husband and wife for breach of building contracts, where defendants treated and consulted the wife as a real party to the transaction, with some legal or equitable right in the property in question, held that the defendants were not in a position to assert that she had no interest in the suit such as to preclude her joining with her husband in the action.

4. Witnesses, § 36*—where competency is unaffected by marriage. Where a wife is a proper party to a suit, she is not incompetent as a witness because she is the wife of a coplaintiff with whom she has joined in a suit.

5. Appeal and error, § 472*—necessity of objection to remark of court. An Appellate Court will not review a statement of the court to which no objection was made at the trial.

6. Appeal and error, § 1035*—necessity of assignments of error. A statement of the court at the trial will not be reviewed on appeal unless it is assigned as error.

7. Building and construction contracts, § 105*—instructions as to the measure of damages. In an action for breach of building contracts, an instruction that “the measure of the damage is the difference between the value of the building as constructed and the value of the building as it would have been constructed, if it had been constructed according to the plans and specifications except in so far as any of the provisions of the plans and specifications may have been waived by the plaintiffs herein, if any such waiver has been shown by the evidence,” held correct.

8. Building and construction contracts, § 108*—amount of recovery for breach. In an action for breach of building contracts where a contractor and builder of twenty years’ experience testified in behalf of plaintiffs that the difference between the value of the building as constructed and the value of the building if it had been constructed according to the contract was $2,560, and an architect of twenty-four years’ experience in behalf of plaintiffs placed the difference at $2,935, and defendants did not introduce any evidence bearing on the question of damages, the finding of the trial court of damages in the sum of $2,560 is held to be justified.


text:
    Thomas W. Kelly, Appellee, v. Federal Improvement Company, Appellant.
    Gen. No. 19,812.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John D. Tuknbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by Thomas W. Kelly against Federal Improvement Company, a corporation, to recover upon an account stated. From a judgment for $3,458 against defendant in favor of plaintiff, defendant appeals.
    Under the terms of employment of the plaintiff by defendant he was to receive thirty-three and one-third per cent, of the actual net profits of the paving and sidewalk departments of the defendant corporation in addition to his salary. Defendant offered to show that the plaintiff and its treasurer in adjusting and settling their accounts made a gross mistake in estimating the earnings of the paving and sidewalk departments for the years in question and that as a result of this mis-' take both parties supposed that the two departments had made net profits for the said years of $8,815.30, but as a matter of fact no profits were made by these two departments. Defendant contended that the court committed reversible error in excluding defendant’s offer to show the account stated was the result of mistake of fact.
    Adler & Lederer, for appellant.
    Thomas W. Kelly, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.'

Abstract of the Decision.

1. Account stated, § 17 —mistake or fraud as ground for opening. The law will not hind a party to an account stated that is shown to he unjust and to have occurred by mistake or fraud in the settlement of the same.

2. Account stated, § 17*—necessity of olear evidence of fraud or mistake for opening. Where parties after full and fair opportunity for examination and deciding upon their mutual accounts have adjusted and settled them, the law will not permit the deliberate settlement to be reopened, except for the clearest evidence of fraud or mistake in the settlement, the burden of proving which rests upon the party asserting it.

3. Account stated, § 24*—effect of refusal of evidence to show mutual mistake as ground for opening. In an action upon an account stated, where defendant offered to show that the account stated was made by the parties while laboring under a mistake of fact as to the actual earnings of certain departments of defendant corporation for certain years, held the trial court’s refusal to permit the defendant to show such mutual mistake and that there were no profits in the departments for the years in question constituted reversible error.


text:
    Bridget A. Cowan, Appellee, v. Albert I. Bouffleur, Appellant.
    Gen. No. 19,883.
    (Not to be reported in full.)
    Appeal from the Circuit of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 4, 1915.
    Rehearing denied February 16, 1915.
    Statement of the Case.
    Action by Bridget A. Cowan against Albert I. Bouffleur for malpractice. From a judgment for $10,000 against defendant in favor of plaintiff, defendant appeals.

      The plaintiff claimed that the defendant, during an operation to remove an ovary, the appendix, hemorrhoids, etc., inserted a certain piece of gauze in the plaintiff’s vagina, and that he failed to remove the same, and that he allowed it to remain in the plaintiff’s body for a long time (thirty-three days); that he discharged the plaintiff from his care without removing the gauze or causing the same to be removed, and without informing the plaintiff of the presence of the gauze in her body; that as a direct result of the defendant’s failure to remove or cause to be removed the gauze, it became rotten and putrid, and the plaintiff’s health was seriously injured thereby.
    The defendant was the Chief Surgeon of the Chicago, Milwaukee and St. Paul Railroad Company, and the plaintiff’s husband was the chief inspector of the same company, and the plaintiff procured the services of the defendant through her husband. The plaintiff, in accordance with the defendant’s orders, was taken to the Monroe Street Hospital in Chicago, on December 31, 1908. The defendant was the president of this hospital and hired and discharged the internes and other attaches connected with the same. The husband of the plaintiff testified that the defendant referred to this hospital as “his own private hospital.” He also testified that the defendant agreed to perform the operation and to look after the plaintiff personally after the operation. The defendant testified that he agreed to perform the operation personally, but that nothing was said by either the plaintiff’s husband or himself as to the care of the plaintiff after the operation. The defendant performed the operation, assisted by an interne and a house physician connected with the hospital. The plaintiff remained in the hospital until February 1,1909, when she was discharged. The defendant admitted that he inserted a piece of gauze in the plaintiff’s vagina at the time of the operation, but he insisted that he removed the same after the completion of the operation. The plaintiff testified that no gauze was ever placed in her body by anyone after the time of the operation. The defendant introduced evidence tending to show that after the operation in question one of the two assistants in the operation placed gauze in the vagina of the plaintiff while she was in the hospital. The operation was performed January 4,1909. On February 27th, Dr. Hyde removed a piece of gauze from the vagina of the plaintiff, and same was putrid and had an exceedingly bad odor. The evidence tended to show that the gauze removed by Dr. Hyde on February 27th was the same that was placed in the vagina of the plaintiff by the defendant at the time of the operation.
    Abstract of the Decision.
    1. Trial, § 187

      —preponderance of evidence not raised by motion for directed verdict. Where a trial court passes upon a motion for a peremptory instruction the question of preponderance of the evidence does not arise.
    The- theory of the plaintiff was that the defendant agreed not only to perform the operation, but to give the plaintiff his personal care and attention after the operation. The theory of the defendant was that he agreed to give the plaintiff his personal care and attention only as to the operation, and that he was not responsible for any consequences to the plaintiff occur.ring through a lack of care and attention on the part of others after the operation.
    H. L. Howard, for appellant.
    Charles J. Trainor, for appellee.

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

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

2. Physicians and surgeons, § 15 —effect of gauge left in wound as causing pain and sickness. In an action for malpractice, evidence held to tend to prove that plaintiff’s sickness, pain and suffering sustained after an operation were caused by gauze being allowed to remain in her body for an unwarranted period of time.

3. Physicians and surgeons, § 23*—proper refusal of instructions ignoring special contract of employment. Where there was evidence tending to show that a surgeon, by special contract, agreed to give to the plaintiff his personal care and attention after the performance of an operation and in connection therewith, instructions which directed a verdict and which ignored the alleged special contract were properly refused.

4. Physicians and surgeons, § 23*—when instruction as 'to mistake of judgment inapplicable. Where plaintiff’s claim for malpractice was not in any way predicated upon an alleged mistake of judgment on the part of the defendant, an instruction that if the defendant used ordinary skill and care in the treatment of plaintiff, but made a mistake in judgment, that the defendant was not liable for the result of such mistake under the law, held properly refused as misleading.

5. Physicians and surgeons, § 23*—where instructions requested are covered by instructions given. In an action for malpractice, it is not erroneous to refuse to give an instruction, the subject-matter of which is fully covered by other instructions given at the instance of the same party.

6. Physicians and surgeons, § 21*—where expert testimony not based on personal knowledge. In an action for damages for malpractice, a physician testifying as an expert as to the consequences that would follow from an assumed state of facts need not have personal knowledge as to the position of gauze in the plaintiff’s body after an operation or its condition when removed.

7. Appeal and error, § 472*—necessity of exceptions to remarks of court for review. Where no exception is taken by counsel for defendant to a statement or to the ruling of the court, defendant is not in position to complain of same on appeal.

8. Physicians and surgeons, § 21*—waiver of right to object to evidence for variance. Where it was contended that the declaration did not charge the defendant with being negligent through any other person than himself, and that it specifically averred that the negligent acts or omissions were the personal acts and omissions of the defendant, and that it was error to instruct the jury that the defendant was liable for negligence on the part of others or to refuse to instruct the jury that the defendant was not liable for the acts of negligence of servants, or agents or house physicians of a hospital, held defendant waived whatever right he had to insist upon the alleged variance, since he did not object to any evidence bearing on the question of his alleged negligence through others on the ground of variance, and did not at any time in any way, point out any alleged variance to the trial court. ■

9. Physicians and surgeons, § 21 -—necessity for objecting to evidence on the ground of variance. In an action for malpractice, where defendant fails to object to the introduction of evidence or to point out an alleged variance between the declaration and the proof, so that the declaration may be amended at the trial if desired, the objection of variance cannot be raised for the first time bn appeal.

10. Instructions, § 121*—when may be based on improper evidence admitted without objection. Where the plaintiff introduced evidence tending to prove defendant’s negligence, through the acts of others, and the defendant accepted such evidence as competent and introduced evidence for the purpose of rebutting the same, it was proper, under such circumstances, to base instructions on this evidence introduced by the plaintiff, even though such evidence might have been excluded had the defendant objected to the same when offered.

11. Physicians and surgeons, § 18*—amount of damages recoverable. In an action for malpractice in performing a surgical operation, a verdict for $10,000 is held not to be excessive as against the weight of the evidence.


text:
    William C. Van Gilder, Plaintiff in Error, v. John Kamper, Defendant in Error.
    Gen. No. 20,049.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by William C. Van Grilder against John Hamper to recover a real estate commission as broker. The trial court refused to allow the case to go to the jury on an issue other than that of an account stated. From a judgment on a verdict in favor of defendant, plaintiff brings error.
    Plaintiff’s bill of particulars was as follows:
    “Plaintiff’s claim is for brokerage fees or commissions due the plaintiff from defendant for services rendered by plaintiff as a real estate broker in the matter of an exchange of certain real estate located in Clarke County, Mississippi, for real estate located in the City of Chicago, Cook County, Illinois, and resulting in the execution of a contract between defendant .and George M. Lyle on July 15, 1905, and another written contract of September 16, 1905, between said Lyle and defendant relating to said real estate; and also resulting in the acquiring of said Chicago real estate by the defendant and in the procuring of a purchaser of said Mississippi real estate. Amount of commissions, $3,000. Interest on said $3,000.
    “Plaintiff’s claim is also for amount due on an account stated and an agreement made between plaintiff and defendant at Enterprise, Mississippi, about the month of April, 1906, by which it was agreed between plaintiff and defendant that defendant would pay plaintiff the sum of $1,800 within ten days, and the further sum of $1,200,when the said defendant should receive payment of $20,000 due defendant on certain real estate. Said' payments amounting to $3,000 to be in settlement of the above mentioned claim for commissions.”
    Defendant filed a plea of nonassumpsit and a special plea setting up the ordinance of the city of Chicago requiring real estate brokers to be licensed, and averring that the plaintiff was not a licensed real estate broker at the time of the transactions mentioned in the declaration.
    Plaintiff’s license as a real estate broker expired April 30, 1905, and he failed to renew it until July 28, 1905. In July or August, 1904, defendant employed plaintiff to sell 6,000 acres of land located in Mississippi, a contract dated July 15, 1905, was entered into between defendant and a third party to exchange the land for Chicago property. The contract, however, was never consummated, and both parties to the same, as well as the plaintiff, treated the contract as null and void. On September 16, 1905, the same parties in the absence of plaintiff entered into a second written contract to exchange the same properties. Defendant-contended that the contract of September 16, 1905, was executed and consummated without the aid of the plaintiff and that plaintiff did not render any services to defendant after July 28, 1905. Plaintiff contended that the contract of September 16, 1905, was made and carried out as a result of his efforts after the renewal of his license on July 28, 1905. There was proof tending to support the theories of both parties.
    Abstract of the Decision.
    1. Trial, § 193

      —impropriety of directed verdict if evidence to sustain recovery. In an action for a real estate commission, where the evidence was conflicting, the court’s refusal to allow the cause to go to the jury does not raise the question of preponderance of the evidence, but whether the jury could without acting unreasonably, in the eye of the law, find a verdict in favor of the theory of the plaintiff under the evidence.
    2. Bbokebs, § 89*—sufficiency of evidence as to whether contract was covered hy license. Where plaintiff’s theory of the evidence was that a contract for the exchange of properties dated prior to the renewal of his license as a real estate broker was treated by all parties as null and void and that after another license had been issued to him he renewed his efforts to procure an exchange of the properties, inducing defendant to come from Mississippi to Chicago to negotiate another contract in regard to the same properties, and that the terms were agreed upon in plaintiff’s office and that instead of returning to his office to close the deal, according to their understanding, defendant and the purchaser a few days later signed a written contract, in Michigan, for the purpose of avoiding the commission, under the terms of which contract the properties were transferred, held that it was error to refuse to allow the cause to go to the jury on plaintiff’s theory.

      Charles C. Spencer, for plaintiff in error.
    J. H. Westover, for defendant in error.

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

3. Brokers, § 90 —evidence as to ability,of purchaser to perform. In an action by a broker for a real estate commission, where although it appeared that a third party did not have title to property which he agreed to exchange for defendant’s, there was evidence tending to prove that he had a right to demand that the property be deeded to himself or to any one whom he might designate, and he actually procured the delivery of the property to the defendant in exchange for the property mentioned in the contract as belonging to the defendant, evidence held to require submission to the jury the question whether such third party was ready, able and willing to carry out his part of the contract for the exchange of the properties.


text:
    Estelle Hilton, Defendant in Error, v. Theophilis B. Hilton, Plaintiff in Error.
    Gen. No. 20,087.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed in part, reversed and remanded in part.
    Opinion filed February 4, 1914.
    Statement of the Case.
    Bill by Estelle Hilton against TheopMlis B. Hilton for separate maintenance. Defendant filed a cross-bill for a divorce. A decree for separate maintenance was entered in favor of the complainant, and the defendant’s cross-bill was dismissed for want of equity. To reverse a part of the decree, defendant brings error.
    Abstract of the Decision.
    1. Husband and wife, § 267

      —necessity of preserving evidence to support decree of separate maintenance. The party in whose favor a decree for separate maintenance is entered, to maintain it must in some way preserve the evidence, by a certificate of evidence or otherwise, or the decree must find specific facts, proven at the hearing, sufficient to support it, the duty not devolving upon the party against whom such decree is rendered.
    2. Husband and wife, § 267*—necessity for preserving evidence for review of decree of separate maintenance. Where the complainant failed to preserve in the record a certificate of the evidence upon which a decree for separate maintenance was entered and the decree did not recite a specific finding of facts, simply finding “that the allegations in the said bill contained are true, as therein stated; and that the equities of this cause are with the complainant,” held the findings were insufficient to sustain an order for separate maintenance.
    3. Husband and wife, § 267*—necessity of finding specific facts to support decree of separate maintenance. The fact that the certificate of the clerk shows that the transcript is not complete will not give rise to a presumption that a decree is properly supported by the evidence in the absence of a recital of a finding of specific facts sufficient to support the decree.
    4. Appeal and error, § 1035*—necessity of assignments of error. Where defendant does not assign any error for the dismissal of his cross-bill for divorce, in his appeal from a decree for separate maintenance, the court will not review the dismissal of the cross-bill by the trial court.

      The record did not contain a certificate of evidence. The certificate of the cleric, attached to the transcript of the record, recited that the transcript was complete, except as to certain orders, affidavits, appearances, substitutions, stipulations and notices.
    Charles S. Graves, for plaintiff in error.
    Michael D. Dolan, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    John F. Devine, Administrator, Appellee, v. Rosenbaum Brothers, Appellant.
    Gen. No. 19,935.
    1. Trial, § 163

      —when construction of contract question of law. Where a contract is in writing its construction presents a question of law, if its terms are unambiguous.
    2. Master and servant, § 856*—when relation of independent contractor may exist as to part of work. One employed to do certain work may be an independent contractor as to certain parts of the work and merely a servant or agent of the party employing him as to the residue of the work.
    3. Master and servant, § 857*—what is effect of retention of partial control. One entering into a contract with another, who reserves the right to control the contractor in a given particular, thereby reserves to himself the powers of a master as to that particular.
    4. Master and servant, § 857*—retention of right to supervise. While the owner of premises contracting with another for the improvement of same has the right to see that the work is performed in accordance with the contract, and an independent contractor is not converted into a servant by provisions in the contract reserving to the employer certain rights of supervision during the progress of the work, and upon its completion, such right of supervision implies merely the right to approve or disapprove the results of the work, and does not give the owner the right to make directions as to the mode of arriving at such results.
    5. Master and servant, § 857*—what is test in determining relationship as servant or contx-actor. The absolute test in determining whether one employed to do certain work is a servant or contractor is not the exercise of control by the employer, but it is the right to exercise control; it is the possession by the employer of the right of interference that puts upon the employer the duty of seeing that the employee does his duty properly.

      6. Master and servant, § 856

      —how relationship between employer and contractor determined. The relationship between an employer and one contracting with him is to be determined by the contract as a whole, by its spirit and essence, and not by the phraseology of a single sentence or paragraph.
    7. Master and servant, § 857*—when contract creates relationship of master and servant. Contract between the owner of premises and a contractor construed as giving the owner the right to control the selection of material under the contract and, hence, to render the owner liable for injury to an employee caused by a defect in the material selected.
    8. Master and servant, § 856*—what is effect of provision requiring superintendence by contractor. A provision in a contract between the owner of premises and a contracting company, which required the president of the latter to personally, daily, superintend the work, is not inconsistent with a construction of the contract giving the owner power to control the selection of materials for use in the performance of the work contemplated by the contract.
    9. Master and servant, § 856*—what is effect of provision for compensation on commission basis. A provision fixing a contract- or’s compensation at a certain percentage of the amount fixed as the maximum cost of the work, all savings in the actual cost to accrue to the employer, is not inconsistent with the latter’s power to control the selection of material under the contract.
    10. • Master and servant, § 857*—what is effect of stipulation in contract for maximum cost. A provision in a contract between the owner of premises and a contractor fixing a certain amount as the maximum cost of the work, including the contractor’s commissions, does not defeat a construction of the contract rendering the contractor a mere employee in so far as the contract permitted the owner to control the selection of materials for use in the performance of the work, on the theory that such control would vest in the owner power to require the use of materials of a value far in excess of the stipulated cost and thereby render the contract unconscionable, since the question whether the contract was unconscionable as between the contracting parties could not arise in an action against the owner for injury to an employee.
    11. Master and servant, § 870*—when instruction on liability ■ for acts of contractor correct. In an action against the owner of premises for injury to an employee due to the use of insufficient material in the performance of work under a contract giving the owner power to control the selection of materials, an instruction on the liability of the owner for the acts of the contractor “in and about providing the materials used in the construction,” held, correct.
    12. Appeal and error, § 1100

      -—when questions raised in reply brief not considered. A point raised for the first time in the reply brief will not be considered.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed March 11, 1915.
    Rehearing denied March 24, 1915.
    Miller, Gorham & Wales, for appellant.
    James C. McShane, for appellee.

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

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

This was an action in case, brought in the Superior Court of Cook County by John F. Devine, administrator of the estate of John Gambon, deceased, appellee, hereinafter designated as the plaintiff, against Rosenbaum Brothers, a corporation, appellant, hereinafter designated as the defendant, to recover damages for the death of the said Gambon, alleged to have' been caused by the negligence of the defendant. The defendant was engaged in the general grain trade, and owned a grain elevator located at 87th street and Stewart avenue, in the city of Chicago. The Seckner Company was a corporation engaged in the reinforced concrete construction business in said city. C. M. Seckner was the president of the latter corporation. About August 20, 1910, the defendant concluded to improve its elevator property by having a large cement storage tank erected as an adjunct thereto. In looking about for a contractor to do the work, it learned of The Seckner Company and certain telephone conversations thereafter took place between Mr. Seckner, representing The Seckner Company, and the secretary of the defendant Company, William Renstrom. Thereafter, on September 1, 1910, The Seckner Company wrote the defendant the following letter: '

“Chicago, Illinois. September 1st, 1910.
Rosenbaum Brothers,
Chicago, Ill.
Gentlemen: We, the undersigned, agree to build one 40 by 50 concrete tank at plant, 87th street and Stewart avenue, complete, for the sum of four thousand twenty-eight ($4028.00) dollars; or you pay the bills and give us six (6) per cent of cost, and we to assist in buying when we can be of benefit. The figures are as follows, as we have estimated. If 42 feet
in diameter, add 5 per cent.
Excavation....................... $ 250.00
Gravel ........................... 431.00
Cement .......................... 448.00
Iron ............................. 558.00
Forms ........................... 479.00
Jacks ............................ 54.00
Roof ............................. 56.00
Hoist ............................ 245.00
Labor ........................... 1279.00
$3800.00
Very respectfully,
The Seckner Company,
C. M. Seckner, President.”

On the receipt of the same, the defendant sent to The Seckner Company the following letter:

“Chicago, Illinois, September 1, 1910.
The Seckner Company, Chicago.
Gentlemen: We hereby accept your proposal of this date to build one concrete tank 40x50 feet at our plant at 87th St. & Stewart Ave. at a sum not to exceed $4,028.00 which includes your commission' of 6 per cent. We are to pay all bills and vouchers must be presented to us for all material and labor. It is also understood that if there is any saving in the cost of material as shown by your estimates, such saving acernes to us. The work is to be superintended by your Mr. C. M. Seckner, who will watch the work daily until completed. It is understood that the above figures are on basis of a 40-foot tank, and if it is found practical to erect a 42-foot tank, the above estimate will be increased 5 per cent.
Kindly acknowledge receipt, and oblige, ,
Tours truly,
Bosenbaum Brothers,
Wm. Benstrom.
W. R. M.
We will pay you commission on the figures in your estimate, so if there is any reduction in price of material or less cost of labor it will not affect your commission.
Wm. Benstrom.”

The Seckner Company, on receipt of the last letter, wrote the defendant as follows:

“Chicago, Illinois, September 1, 1910.
Bosenbaum Brothers, 77 Board of Trade.
Gentlemen : We are in receipt of your acknowledgment of our proposition and will begin work at once.
Bespectfully yours,
The Seckner Company,
per C. M. S.”

The Seckner Company immediately commenced the building’ of the tank, and when the work was within a few hours of completion, a certain I-beam and truss rod, used for the purpose of supporting the roof of the tank, gave way (because they were insufficient in size and strength for the purpose for which they were provided and used), causing a collapse of the roof, and several workmen, one of them the plaintiff’s intestate, were precipitated to the bottom of the tank, and the plaintiff’s intestate was killed. The case was tried before a court and a jury and a verdict was returned by the latter, finding the defendant guilty and assessing the plaintiff’s damages at the sum of $8,000. Judgment was entered on the verdict and this appeal followed.

The defendant contended in the lower court that the contract between it and The Seckner Company (evidenced by the three letters heretofore referred to) is plain and unambiguous; that by its terms The Seckner Company is made an independent contractor and not an agent or servant of the defendant, and that the defendant is therefore not liable to the plaintiff in this case. This was the sole defense interposed by the defendant to the claim of the plaintiff. To quote from the defendant’s brief: “At the trial the only defense urged upon the court by Eosenbaum Bros, was that they were not responsible for the negligence of The Seckner Company, since the latter was an independent contractor.” This is the only defense interposed in this court, and the only grounds urged by the defendant for a reversal of the judgment are, that the trial court erred in refusing to give to the jury, at the request of the defendant, a peremptory instruction in favor of the defendant, and in giving to the jury, at the instance of the plaintiff, the following instruction: “The court instructs the jury that, under the law and the evidence, The Seckner Company was not an independent contractor, but was merely defendant’s agent in what it, The Seckner Company, did, or omitted to do, in and about providing the materials used in the construction of the tank and roof; and if you believe from the evidence that the I-beam and truss rod that fell were of insufficient size and strength, for the purpose for which they were provided and used, and that either the defendant, or The Seckner Company, was guilty of negligence in providing said I-beam and truss rod, for such use, as alleged in the declaration; and that such negligence, if any, of the defendant, or The Seckner Company was a proximate and concurrent cause of the collapse of the roof of the tank; and that deceased did not assume the risk of such negligence, if any, and was not guilty of contributory negligence, then you should find the defendant guilty.”

The trial court admitted, over the objection of the defendant, a mass of evidence as to what the parties did under the contract. This evidence was 'admitted by the court for the sole purpose of showing the interpretation given to the contract by the parties themselves, as shown by their acts, and while the defendant in this court still insists that this action of the trial court was improper (for the reason that the written contract was plain and unambiguous), it has not assigned error in that regard, and it is therefore not necessary for us to pass upon the question as to whether the trial court erred in admitting the said evidence. It may be said here, however, that some of this evidence tended strongly to show that the defendant exercised a control over the material that went into the construction of the tank, and that none of the said evidence, either for the plaintiff or for the defendant, was inconsistent with the theory that the defendant reserved the right of control in the matter of the material.

The defendant insists that the written contract between it and The Seckner Company (evidenced by the ‘ three letters) is plain and unambiguous; that by its terms, The Seckner Company is made an independent contractor, and that therefore the defendant is not liable to the plaintiff in this case; and the defendant further insists that the relationship between it and The Seckner Company must be determined solely from the terms of the written contract. We think that the written contract is reasonably plain and unambiguous, and as neither party to this case claims that there was any departure from the terms of the said contract, the relationship between the defendant and The Seckner Company must be determined solely from the terms of the said contract. Where the contract is in writing, its construction is a matter of law, if its terms are plain. Pioneer Fireproof Const. Co. v. Hansen, 176 Ill. 100.

“The test generally applied in answering the question, who are independent contractors? is ‘independence of control in employing workmen and in selecting the means of doing the work.’ ‘The proper criterion by which to determine whether in a given case the relation of master and servant exists is found in the right of the master to order and control the other in the performance of the work. A master is one who not only prescribes to the workman the end of his work, but directs, or at any moment may direct, the means also; or as it has been put, “retained the power of controlling the work.’ ” Again it is said the true test by which to determine whether one who renders service for another, does so as a contractor or as a servant, is to ascertain whether he renders service in the course of an independent occupation in which he represents the will of his employer only as to the result of the work and not as to the means by which it is accomplished.” Moll on Independent Contractors and Employers’ Liability, pp. 30, 31. “In actual affairs an independent contractor generally pursues the business of contracting, enters into a contract with his employer to do a specified piece of work for a specified price, makes his own sub-contracts, employs, controls, pays and discharges his own employees, furnishes his own material and directs and controls the execution of the work. Where these conditions concur there is, of course, no difficulty in determining his character as such. It is only where one or more of them is lacking that a question arises. The one indispensable element to his character as an independent contractor is that he must have contracted to do a specified work and have the right to control the mode and manner of doing it.” 1 Shearman & Redfield on Negligence (6th Ed.), p. 396. To the same effect is 16 Am. & Eng. Encyc. Law (2nd Ed.), p. 187.

“An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result.” 1 Jaggard on Tort, sec. 73, p. 228. “In every ease, the decisive question is, Had the defendant the right to control, in the given particular, the conduct of the person doing the wrong? Does he reserve to himself the essential powers of a master?” 1 Thompson on Negligence (2nd Ed.), sec. 622, pp. 570, 571.

“The absolute test is not the exercise of power of control, but the right to exercise power of control. * * * Although the trustees should be across the Atlantic, nevertheless, * * * if they retained the power to control and direct the work, they would be liable; because it is the possession of the right of interference, the right of control, that puts upon a party the duty of seeing that the person who stands in that relation does his duty properly. If they have retained to themselves the right of directing the mode of doing the work, then, if the work is done wrong, the simple principle is that they are responsible.” Linnehan v. Rollins, 137 Mass. 123. To the same effect are 16 Am. & Eng. Encyc. Law, supra, p. 188; 26 Cyc. of Law and Proc. p. 1547, and Moll on Independent Contractors and Employers’ Liability, p. 43: “The relation of master and servant does not cease ‘so long as the master reserves any control or right of control over the method and manner of doing the work, or the agencies by which it is to be effected. ’ ” Speed v. Atlantic & P. R. Co., 71 Mo. 303.

_ A person employed to do certain work may be an independent contractor as to certain parts of the work and merely a servant or agent of the party employing him as to the residue of the work. Moll on Independent Contractors and Employers’ Liability, p. 40. To the same effect is Shearman & Redfield on Negligence (6th Ed.), p. 399, and Speed v. Atlantic & P. R. Co., supra, pp. 303, 309. If a defendant has retained the right to control in the given particular the conduct of the person doing the wrong, he has reserved to himself the powers of a master as to that particular. 1 Thompson on Negligence, supra, p. 570. The relation of master and servant exists “so long as the master reserves any control or right of control over the method and manner of doing the work, or the agencies by which it is to he effected.” Wood on Master and Servant, sec. 281.

“A reservation by the employer of the right by himself or his agent to supervise the work for the purpose merely of determining whether it is being done in conformity to the contract does not affect the independence of the relation.” 16 Am. & Eng. Encyc. of Law (2nd Ed.), p. 188. This well-known doctrine is followed in Illinois. Pioneer Fireproof Const. Co. v. Hansen, supra. While the owner has a right to see that the work is constructed according to contract, and an independent contractor is not converted into a servant by provisions in a contract which reserve to the employer certain rights of supervision during the progress of the work and at its completion, nevertheless, this right of supervision means merely a right to approve or disapprove the results of the work, and it does not give the owner the right to make directions as to the mode of arriving at such results.

The relationship between the defendant and The Seckner Company “is to be determined by the contract as a whole,—by its spirit and essence,—and not by the phraseology of a single sentence or paragraph.” Foster v. City of Chicago, 197 Ill. 268.

It is clear that if the defendant had accepted the first proposition in the letter of The Seckner Company, the latter, in the performance of the work, would have been an independent contractor; it is equally clear that if the defendant had accepted without qualification the second proposition of The Seckner Company in the same letter, the latter would have been the agent or servant of the defendant. The question to be determined is, what relationship was created between the defendant and The Seckner Company by the written contract between the said parties, evidenced by the three letters heretofore referred to in this opinion?

The defendant contends that by its letter of September 1, 1910, it accepted neither the first nor the second proposition made by The Seckner Company, but that it made a new proposition to The Seckner Company, the terms of which were as follows: “That The Seckner Company shall, for the maximum price of $4,028, construct a concrete tank forty by fifty feet, for the storage of grain, at the plant of the defendant at 87th street and Stewart avenue, the price also not to be greater than the actual cost plus six per cent, of the estimated cost. The contract further provides that the defendant shall pay all bills, and vouchers must be presented by the defendant to The Seckner Company for all material and labor, and the president of The Seckner Company shall superintend the work;” that “the contract in question did not give defendant the right to specify or control the kind or character of materials going into this tank; and that the case was a proper one for a directed verdict for the defendant;” but that even “if this contract had given defendant a power of control over the materials used for this tank, that fact would not have deprived The Seckner Company of its character as an independent contractor in any respect.”

The plaintiff contends that the defendant by its letter accepted the second proposition of The Seckner Company, subject to the following modifications: “ (a) That the acceptance obligated The Seckner Co. to see that the total cost, including its commission, did not exceed the estimated cost of $4,028; and (b) that the acceptance provides that any reduction in the cost of labor and material below that contained in the proposition should not affect The Seckner Co.’s commission; and (c) that the acceptance required that Seckner should personally, daily, superintend the work;” and that the said modifications “did not affect the proposition in so far as it relates to the question, which is important here, namely, as to whether the proposition did, or did not, cast upon defendant the duty to provide the material, and as to whether it did, or did not, reserve to defendant the right of control over The Seckner Co., in and about providing the material. The question, therefore, is: Did the contract as made by the Seckner proposition, and its acceptance, cast upon defendant the duty to provide the material; or, at least, did it reserve to it the right of control over The Seckner Co. in that respect?” that the contract reserved to the defendant the right of control over The Seckner Company in reference to providing the material for the tank and that therefore the latter was but an agent or servant of the defendant and not an independent contractor, in that regard. The plaintiff further contends that The Seckner Company, under the contract, was a servant or agent of the defendant in all respects, but that as the insufficiency of the I-beam and trust rod was the cause of the accident, it is immaterial whether or not The Seckner Company was an agent or servant of the defendant in reference to the manner in which the work was performed.

As we have heretofore pointed out, an employee may be an independent contractor as to part of the work and a mere servant of the person employing him as to the residue of the work, and therefore the defendant’s contention that even if the contract had given it a power of control over the materials used for the tank, nevertheless, The Seckner Company would have been an independent contractor in all respects under the contract in this case is without merit. The defendant cites in support of its contention a number of cases, where the right reserved by the owner was merely one of inspection or supervision; also cases to the effect that an owner may provide material or labor and nevertheless the contractor be an independent contractor. It is true that under the terms of certain contracts an owner may provide material or labor or both, and nevertheless be not liable for the happening’ of an accident where it appears that the same occurs as a result of the negligence of the contractor, in performing a part of the contract over which the owner has no right of control. None of the Illinois cases cited by the defendant (Pioneer Fireproof Const. Co. v. Hansen, supra; Foster v. City of Chicago, 197 Ill. 264; Vacker v. Yeager, 151 Ill. App. 144; Stanley v. Aurora, E. & C. R. Co., 166 Ill. App. 132) supports the defendant’s contention.

The vital question for us to determine in this case is, therefore, narrowed down to this, had the defendant the right under the contract to provide the material, or at any rate, had it the right of control over The Seckner Company in the matter of the providing the material used in the construction of the tank? The plaintiff claims that the defendant had such power; the defendant insists that it did not, and we must, therefore, construe the contract, as malde by the letters in question, for the purpose of determining, if possible, the intention of the parties on this vital question.

In its reply to The Seckner Company’s letter, tiie defendant commences with the following: “We hereby accept your proposition.” The first proposition of The Seckner Company was that it would build the tank for a lump sum, and it is clear from a reading of the entire letter of the defendant, not only that it did not accept this proposition, but that it wished to make one of an entirely different kind. It is clear, also, that it did not accept the second proposition unqualifiedly, but we think that it is plain that it accepted the second proposition, subject to certain modifications. The material modifications are, that The Seckner Company was obligated to see that the total cost of the tank to the defendant, including the commission of the said Company, did not exceed the amount of the estimated cost, $4,028; that C. M. Seckner should personally, daily, superintend the work, and that if there was any saving in the cost of labor or material from the figures contained in the estimate of The Seckner Company, that fact should not affect the amount of the commission of the said Company. Any of the other “provisions” in the defendant’s letter of acceptance were but reiterations of what was contained in The Seckner Company’s second proposition or express statements of what would be implied from, the terms of the said proposition. The Seckner Company used the following’ language (inter alia) in making its second proposition: “You pay the bills and give us six (6) per cent, of cost, and we to assist in buying when we can be of benefit.” This language plainly means that the defendant should provide the material to be used in the construction of the tank and should pay for the same, and The Seckner Company, in anything it might do in that regard, under a contract with such a provision, would be but the agent or servant of the defendant and subject to its control. After a very careful examination of the defendant’s letter of acceptance, we have been unable to find anything in it that changes or modifies the second proposition in the particular to which we have called attention. The provision that Mr. Seclmer should personally, daily, superintend the work is entirely consistent with the construction that the defendant reserved the right of control in and about providing the material used. In fact, we think there is considerable force in the contention of the plaintiff, that the defendant, by this provision, emphasized its right of control over The Seckner Company even as to the persons who should directly carry on the work. The provision as to the commission of The Seckner Company is also entirely consistent with the theory of the defendant’s right of control in the matter of material; and the purpose of the same, as we interpret it, was to cause The Seckner Company to use its best skill and care in the matter of the buying of the material when the defendant desired its assistance in that regard, and to bring about that result, the defendant was willing that the pay of The Seckner Company (fixed on a commission basis) should be figured on the amount of the maximum cost of the work to the defendant instead of on the actual cost of the same.

The defendant strenuously contends that the provision in its letter to the' effect that the tank should be built at a cost not to exceed $4,028, including The Seckner Company’s commission of 6 per cent., conclusively shows that the defendant did not intend to reserve the right of control in and about providing the material to be used in the construction of the tank; that the construction contended for by the plaintiff would give the defendant the right to extort from The Seckner Company material worth far in excess of $4,028, and that such provision in a contract would be so unconscionable that a court would refuse to enforce it, and the defendant insists that its construction of the contract produces a conscionable agreement between it and The Seckner Company, and therefore it should prevail. This is not a suit between The Seckner Company and the defendant. It is a suit of a third party against the defendant, and the contract is competent evidence in this case only for the purpose of determining the relationship between The Seckner Company and the defendant, and the sole question to be determined from the contract is, did it reserve to the defendant the right to provide the material or the right of control over The Seckner Company in the matter of providing the material used in the construction of the tank. So far as the rights of the plaintiff in this case are concerned, the question as to whether or not the contract would be held to be an unconscionable one, in a proceeding brought by The Seckner Company against the defendant, is of no importance here, if it clearly appears from the entire contract that the defendant retained control of The Seckner Company in the matter, of the material. The clause relied upon by the defendant must of course be considered together with all other parts of the contract in determining the intent of the parties in that regard.

The Seckner Company in its second proposition expressly stated that the defendant should have the control in the matter of the material, and the defendant in its modified acceptance of this proposition certainly did not expressly relinquish this right of control, and we are unable to see anything in its letter from which it could be reasonably held that the defendant impliedly relinquished the said right. When its entire letter—“its spirit and essence,”—and not the phraseology of a single sentence or paragraph, is considered, we do not think that it can be reasonably said that the defendant relinquished all right of control, in and about providing the material to be used in the construction of the tank. . And if it did not, The Seckner Company was not an independent contractor in that particular. As we interpret the contract, the defendant desired the knowledge, skill and experience of the president of The Seckner Company, and it expected him to take an active part in the buying of the material and the construction of the tank, but, nevertheless, it wished to reserve to itself the essential powers of a master over the said Company. Mr. Seckner was to superintend the work, and if The Seckner Company assisted the defendant in buying material the same was to be billed to the defendant, who was to pay for it. The defendant could not retain the power of a master without assuming its responsibilities.

The writer of this opinion (speaking for himself alone) thinks that the contract might well be construed to mean that $4,028 was an estimated cost' and not a fixed maximum cost for the tank; that when the entire, language of the defendant’s letter, including the postscript of the same, is considered together, it is reasonably clear that the defendant meant to accept $4,028 as an estimated cost of the tank. The Seckner Company, in its second proposition, clearly stated that $4,028 was the estimated cost of the work, and while it is true that the defendant, in the first paragraph of its letter of acceptance says, “at a sum not to exceed $4,028.00, which includes your commission of six (6) per cent.,” nevertheless, in the second and third paragraphs of the letter, and in the postscript thereto, it refers to the $4,028 as an estimate. The first sentence of the defendant’s letter purports to be an acceptance of the proposition of The Seckner Company, but it contains a misstatement of the proposition, in so far as it makes $4,028 a maximum cost, instead of an estimated cost.

We are of the opinion that the trial court did not err in refusing to give the peremptory instruction offered by the defendant, or in giving to the jury the instruction for the plaintiff that has been heretofore quoted in this opinion. In this instruction given for the plaintiff, the court instructed the jury that The Seckner Company was not an independent contractor but was merely the defendant’s agent, “in what it, The Seckner Company, did, or omitted to do, in and about providing the materials used in the construction of the tank and roof.” It will be noted that the trial court did not hold, by this instruction, that The Seckner Company was defendant’s agent in all respects. If we are right; in our construction of the contract, the trial court was certainly justified in giving this instruction.

In its reply brief the defendant contends that the accident happened, not because the I-beam and truss rod were insufficient for the purpose for which they were intended, but because they were used improperly; that if they had not been used improperly, they would have been entirely sufficient and safe for the purposes for which they were intended, and the defendant argues that, as it had no control under the contract, over the use of the I-beam and truss rod, it is therefore not liable in this case. It would be a sufficient answer to this contention to say that this point is raised for the first time in the reply brief, and therefore, cannot be considered by us. Morton v. Pusey, 237 Ill. 26; People v. Gray, 251 Ill. 431. However, we find ample evidence in the record tending to prove that the roof collapsed because of the insufficient size and strength of the I-beam and truss rod to do the work for which they were provided, in fact, the defendant has not, by any assignment of error, questioned the sufficiency of the plaintiff’s case in that regard. Nor has the defendant made any point, by assignment of error, that the verdict is manifestly against the weight of the evidence.

The judgment of the Superior Court of Cook County will be affirmed.

Affirmed.


text:
    Samuel G. Alschuler, Defendant in Error, v. Postal Telegraph-Cable Company, Plaintiff in Error.
    Gen. No. 20,061.
    1. Telegraphs and telephones, § 27

      —when limitations on liability inapplicable. Conditions on the back of a telegraph blank limiting liability in certain cases, which upon their face apply only to “unrepeated messages,” are inapplicable where the sender contracted and paid the additional charge imposed for a “repeated message.”

      2. Telegraphs and telephones, § 27

      —what not an assent to limitations on liability. Where the face of a telegraph blank bore a printed direction to the sender to “read the conditions on the back and sign name and address thereon for reference,” the fact that the sender signed his name and address on the back of the blank in the place provided for that purpose, followed by the printed words “sender’s name and address,” is not tantamount to an assent to be bound by conditions limiting liability in certain cases, which appeared above such signature.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 11, 1915.
    Jacob E. Dittus, for plaintiff in error.
    Leon S. Alschuler, for defendant in error.

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

Samuel G. Alschuler, defendant in error, hereinafter called the plaintiff, sued the Postal Telegraph-Cable Company, plaintiff in error, hereinafter called the defendant, in the Municipal Court of Chicago, in an action of the fourth class to recover $154.95 damages alleged to have been sustained by the plaintiff by reason of an error in the transmission of a cablegram sent from Chicago by the plaintiff to one Edler at Berlin, Germany. The case was tried by the court without a jury and a judgment was entered against the defendant in the sum of $154.95, and this writ of error followed. The cablegram was delivered to the defendant on August 30, 1913, and the message, as written by the plaintiff, read as follows: ‘ ‘ Five Hundred pencil sets fifty-nine nought nine bill July twenty-fourth, stamped Sulzberger & Sons Co. Conditional fifteen day shipment. Cable acceptance.” The message was delivered to Edler with the word “Sulberger” in the place of the word “Sulzberger,” and Edler made the pencils with the stamp thereon reading “Sulberger & Sons Co.” instead of “Sulzberger & Sons Co.” Sulzberger & Sons Co., for whom the pencils were ordered, refused to accept them from the plaintiff, because of the said misspelling, and the plaintiff was therefore compelled to sell,the pencils for $26.45, whereas he would have received $178.50 from Sulzberger & Sons Co. had the pencils been properly stamped. The case was tried on a stipulation of facts. The material parts of the same, so far as the defendant is concerned, are as follows: “That the

Postal Telegraph-Cable Company did in fact transmit said message correctly to New York City over defendant’s lines and repeated the same to its Chicago office and delivered said cablegram to the Commercial Cable Company, a corporation, for further transmission; that the said Commercial Cable Company correctly transmitted said message to its office connecting with the German Government cable lines, and repeated the same to its New York office and delivered said message to the German Government cable office for further transmission, and that the error in question was due to the negligence of some employe of the German Government lines;” that that following “conditions” (inter alia) are upon the back of" the cablegram blank: “This Company will not assume any responsibility in respect to any message beyond the terminus of its own lines. ” “ This Company is hereby made the agent of the sender without liability to forward any message by the lines of any other company to reach its destination;” that the plaintiff signed his name and address at the foot of the back of the cablegram. This last circumstance will be hereafter referred to more specifically in this opinion.

There is but one question presented by this writ of error. The defendant contends that it had the right under the law to contract with the plaintiff to limit its liability to damages occurring by reason of errors on its own lines; that by the contract between the parties in this case “the plaintiff was required to subscribe his name to the conditions on the back of the blank, and he did so subscribe his name,” and that he thereby agreed to have the message sent subject to all the said conditions, and that by reason of the two conditions, heretofore referred to, the defendant was relieved from any negligence occurring beyond its own lines, and that as the error in the transmission of the message was due to the negligence of some employee of the German Government lines, the defendant is not liable in this case. Plaintiff contended in the lower court, and contends here, that by reason of the Car-mack Amendment to the Interstate Commerce Act of Congress, the defendant could not contract to avoid liability for the negligence of the employees of the German Government lines, but in the view that we have taken of the case it will not be necessary for us to pass upon this contention of the plaintiff.

It appears from the stipulation of facts that the defendant accepted the cablegram from the plaintiff “as a repeat message, in order that any mistakes occurring in transmission might be apprehended and corrected, and that the defendant for such repeat service made an additional charge of one-quarter of the regular rate in accordance with its established customary rates.” The blank was furnished to the plaintiff by the defendant," and it is very evident from an inspection of it that it was a form used by the telegraph company for unrepeated messages. Just above the place on the face of the blank, where the sender of a cablegram writes the message, is printed the following words: “Send the following cablegram, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to.” On the back of the blank is printed (inter alia) the following : “To guard against mistakes or delays, the sender of a message should, write it legibly and order it REPEATED ; that is, telegraphed back to the sending station for comparison. For such repeating, an additional charge of one-quarter the regular rate will be made. It is agreed between the sender of the message on the face hereof and this Company, that said Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, or mis-delivery, of any unrepeated message, beyond the amount of that portion of the charge which may or shall accrue to this Company out of the amount received from the sender for this Company and the other companies by whose lines such message may pass to reach its destination ; and that this Company shall not be liable for mistakes in the transmission or delivery, or for nondelivery, or mis-delivery, of any repeated message beyond fifty times the extra sum received by this Company from the sender for repeating such message over its own lines. * * * This is an uhrepbated message and is transmitted and delivered by request -of the sender under the conditions named above.”

As we understand the argument of the defendant, it does not contend that the plaintiff would have been bound by the conditions on the back of the blank had he not signed his name and address on the back of the same, but it insists that the plaintiff, by subscribing his name as he did, assented to the said conditions and is bound by them. Whether we correctly understand the defendant’s contention or not, we are satisfied that the plaintiff was not bound by the conditions relied upon by the defendant, because he contracted and paid for a repeated message and the said conditions clearly did not apply to a message of that character. Even if he read all the conditions on the back of the blank, he would be justified in assuming that the two now relied upon by the defendant only applied to an unrepeated message, and he would be further justified in assuming that he would avoid the effect of those very conditions by ordering and paying for a repeated message. The fact that the plaintiff signed his name and address on the back of the blank in the manner that he did does not help the defendant’s case at all. On the face of the blank and immediately under the place where the sender writes the message are printed the following words: ‘ ‘ The sender will please read the conditions on the back and sign name and address thereon for reference.” (Italics ours.) On the back of the blank and below the printed conditions, appear two horizontal lines close together and extending across the entire sheet, and below these lines is printed the following: “Sender’s name and address.” It was opposite these last words that the plaintiff wrote his name and business address.

It is idle for the defendant to argue that the plaintiff bound himself to the conditions on the back of the blank because of the fact that he signed his name and address in the manner that he did. The plaintiff paid for a repeated message, and to hold that he assented to conditions that on their face applied only to unrepeated messages, merely because he wrote his name and address as he did, would be to make of the law a snare. The law is a destroyer, not a creator, of traps.

In the statement of facts in the brief of the defendant, it is stated that the trial court awarded the plaintiff larger damages than he was entitled to under the facts and the law, but as the defendant has not assigned as error nor argued that the damages are excessive, the question of the amount of damages awarded is not before us.

The judgment of the Municipal Court of Chicago will be affirmed.

Affirmed.


text:
    Ed. Gemberling, Defendant in Error, v. Grand Trunk Western Railway Company, Plaintiff in Error.
    Gen. No. 20,107.
    1. Cabbiebs, § 248

      —when Mil of lading need not he introduced to recover for delay. In an action against a carrier to recover damages for the negligent delay of a shipment of live stock, the introduction in evidence of the bill of lading is not essential to a recovery.
    2. Evidence, § 99*—competency of portion of instrument. In an action against a carrier to recover damages for the negligent delay of a shipment of live stock, the plaintiff is entitled to introduce in evidence merely the face of the bill of lading, and the defendant, if it sees fit, may introduce the conditions appearing on the back of same in so far as they are pertinent and material to the case.
    3. Appeal and ebbob, § 1185*—when conditions on hack of hill of lading not reviewahle. Conditions appearing on the hack of a bill of lading will not be reviewed where the plaintiff in an action against a carrier merely introduced the face of the bill in evidence and defendant did not see fit to introduce the remainder.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 11, 1915.
    Kretzinger & Kretzinger, for plaintiff in error.
    Eugene L. Garey and Archie J. Deutschman, for defendant in error; Frank D. Fulton and John M. Rankin, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

Ed. Gemberling, the defendant in error, hereinafter referred to as the plaintiff, brought suit in the Municipal Court of Chicago, in an action of the fourth class, against Grand Trunk Western Railway Company, plaintiff in error, hereinafter referred to as the defendant, to recover damages for alleg’ed negligent delay by the defendant in the transportation of a car of live stock, belonging to the plaintiff, from Marcellas, Michigan, to Union Stock Yards, Chicago. The case was tried before a court and jury and a verdict in favor of the plaintiff for $54.72 was returned. Judgment was entered on the verdict and this writ of error followed.

The defendant contends that “the court erred in refusing to direct the jury to return a verdict for the defendant, because (1) the evidence was undisputed that the failure of the car to arrive at Chicago in time for the early market was caused by plaintiff’s agent, at Wakely, Michigan; (2) plaintiff not being entitled to recover without the introduction in evidence of the bill of lading, was bound to introduce the whole bill and not a part thereof. The conditions on the back of the bill of lading provide that the carrier is not bound to transport the property by any particular train or in time for any particular market, and that claims for delay must be made within four months after the arrival of the stock at destination.”

In reference to defendant’s first contention it is sufficient to say that we are satisfied, after a careful examination of the evidence in the case, that there is. no merit in the defendant’s argument that the failure of the car to arrive at Chicago in due time was caused by the fact (as defendant asserts) that Sperry, plaintiff’s agent at Wakely, was not on hand to load the car when the train of the defendant arrived at Wakely. The evidence, in our judgment, shows that Sperry was on hand when the train arrived at Wakely and that he promptly loaded the car as soon as it was “set at the stock yards,” the regular place for loading at Wakely.

During the testimony of the plaintiff his counsel produced the bill of lading, issued by the defendant to the plaintiff, and offered in evidence the face of the same. The counsel for the defendant objected to the said offer on the grounds that the plaintiff was obliged to introduce in evidence the bill of lading in order to recover in the case, and that it was therefore incumbent upon him to introduce the face and back of the said bill and that he had no right to introduce the face of the same only. The court allowed the plaintiff to introduce the face of the bill, to which action of the court the defendant excepted. The defendant did not, at any time during the trial, offer to introduce the back of the bill of lading. The back of the said bill contains, in printed type, ten “conditions.” The following is the only part of the ‘1 conditions ’ ’ that the defendant considers material to its defense:

“Sec. 3. No carrier is bound to transport said property by any particular train or vessel, or in time for any particular market or otherwise than with reasonable dispatch, unless by specific agreement indorsed hereon. * * *

‘ ‘ Claims for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable. ”

The face of the bill contains (inter alia) the following:

“Received, subject to the classifications and tariffs in effect on the date of issue of this shipping order, at Marcellus, Mich., Oct. 25, 1911, from Ed. G-emberling the property described below * * *, which said company agrees to carry to its usual place of delivery at said destination, * * *.

It is mutually agreed * * *, that every service to be performed hereunder shall be subject to all the conditions, whether printed- or written, herein contained (including conditions on back hereof) and which are agreed to-by the shipper and accepted for himself and his assigns.”

In support of its contention that the plaintiff could not recover in this case without introducing the bill of lading in evidence, the defendant cites the following cases: Kitza v. Oregon Short Line R. Co., 169 Ill. App. 609; Burtless v. Saone, 180 Ill. App. 249; Ricks Sheep Co. v. Same, 180 Ill. App. 220. The first two of these citations sustain the contention of the defendant, but the last one is adverse to it. However, our Supreme Court has passed upon the question now before us in Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400, and the decision in that case is adverse to the contention of the defendant.

But the defendant contends, aside from the question as to whether or not the plaintiff was obliged to offer the bill of lading in evidence before he could recover, “the court erred in admitting in evidence the front page of the bill of lading without admitting therein the whole bill of lading, the front page which by express terms included the conditions on the back thereof.” The plaintiff had the right to offer such portions of the bill of lading as he deemed pertinent and material to his case, and the defendant had the right to introduce such portion of the remainder as it deemed pertinent and material to its case. 9 Encyc. of Evidence, 176; Imperial Hotel Co. v. H. B. Claflin Co., 55 Ill. App. 337; Cramer v. Gregg, 40 Ill. App. 442; Coulter v. Travelers’ Protective Ass’n, 144 Ill. App. 255; Heinsen v. Lamb, 117 Ill. 549; Garrick v. Chamberlain, 97 Ill. 620; Glos v. Patterson, 195 Ill. 530; Slingloff v. Bruner, 174 Ill. 561. From the foregoing authorities it is plain that the court ruled properly in allowing the plaintiff to introduce the face of the bill of lading alone, and as the defendant did not see fit to introduce the back of the same, the alleged “conditions” and the effect of the same are not before us for consideration.

The judgment of the Municipal Court of Chicago will be affirmed.

Affirmed.


author: Mr. Justice Scahlan

text:
    City of Chicago, Defendant in Error, v. Eva G. Moran, Plaintiff in Error.
    Gen. No. 10,123.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 11, 1915.
    Statement of the Case.
    Eva Gr. Moran, the plaintiff in error, was found guilty in the Municipal Court of Chicago of a violation of section 1539 of the Chicago Code of 1911, and a fine of twenty-five dollars was assessed against her. Judgment was entered on the finding and this writ of error followed. The complaint charged that the plaintiff in error, on November 27, 1913, at the City of Chicago, "did then and there sell and give away malt, spirituous and intoxicating liquor in quantities of less than one gallon, to be drank upon the premises within the limits of the city, said premises being situate at 1511 North La Salle avenue, in violation of section 1539 of the Chicago Code of 1911.” The plaintiff in error waived a jury trial and the case was tried by the court without a jury.
    Thomas J. O’Hare, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

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

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

   Mr. Justice Scahlan

delivered the opinion of the court.

Abstract of tlie Decision.

1. Appeal and error, § 1302* —when presumed that court judicially noticed ordinance. Since the Municipal Court Act (J. & A. ¶ 3371) requires the trial court to take judicial notice of general ordinances of the City of Chicago, where the record fails to show that the court did not take judicial notice of an ordinance, the court on review will presume that it did.'

2. Municipal Court oe Chicago, § 26*—record for review. It is the duty of a party seeking to have a judgment of the Municipal Court reviewed on error to prepare and submit a document containing such facts as were before the trial court, whether such facts were offered in evidence or only considered in evidence under the rule of judicial notice obtaining in the Municipal Court, and it will therefore be presumed that facts omitted from the statement were sufficient to justify the ruling below.

3. Appeal anq error, § 1275*—when presumed that evidence showed violation of ordinance. In a prosecution in the Municipal Court for the violation of an ordinance, as against a contention that the record fails to show a violation of the ordinance because the ordinance was not incorporated in the record, it will be presumed that the evidence was sufficient to sustain a finding of the violation of the ordinance, it being the duty of the trial court under the Municipal Court Act (J. & A. If 3332) to take judicial notice of city ordinances, and the burden being upon the plaintiff in error to prepare a statement showing all matter passed upon below.

4. Municipal corporations, § 863*—how action for penalty may he commenced. In an action by a city to recover a penalty for the violation of an ordinance, process may properly be had by summons or by a warrant or by arrest on view.

5. Municipal corporations, § 864*—when evidence sufficient to show date of violation of ordinance. In an action by the City of Chicago for the sale of intoxicants in violation of Chicago Code of 1911, sec. 1539, evidence held sufficient to show the date upon which the offense was committed.

6. Appeal and error, § 462*—when failure to object to court’s talcing judicial notice bars review. Where in a prosecution by the City of Chicago for the sale of intoxicants in violation of Chicago Code of 1911, sec. 1539, the court stated that it would take judicial notice that a bottle and glasses in evidence contained less than a gallon, its action is not subject to review where defendant made no objection and failed to attempt to disprove the court’s contention.

7. Appeal and error, § 996 -—when record insufficient to preserve question for review. Where in a prosecution hy the City of Chicago for .the sale of intoxicants in violation of Chicago Code of 1911, sec. 1539, the court below took judicial notice that a bottle and glasses in evidence held less than a gallon, and the ordinance was not incorporated in the record, the action of the court will not be reviewed, since the materiality of the inquiry as to the capacity of the bottle or glasses was not apparent.

8. Intoxicating liquors, § 105*—when liquor illegally sold need not he introduced in evidence. In a prosecution for violating a city ordinance regulating the sale of liquor, the liquor claimed to have been sold need not be introduced in evidence.


text:
    William O. Swett, Plaintiff in Error, v. City of Chicago (Impleaded with Illinois Tunnel Company), Defendant in Error.
    Gen. No. 20,151.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. William B. Scholeield, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Dismissed for want of prosecution.
    Opinion filed March 11, 1915.
    Statement of the Case.
    Action on the case by William O. Swett against the City of Chicago and the Illinois Tunnel Company, a corporation, to recover damages in the sum of $50,000. To an amended declaration filed by the plaintiff, each defendant filed a separate general demurrer. The defendant, Illinois Tunnel Company, was afterwards given leave to withdraw its demurrer and to file certain pleas to the declaration. The demurrer of the defendant, City of Chicago, was sustained by the trial court, and the plaintiff electing to stand by its declaration as to the defendant, City of Chicago, the suit as to the last named defendant was dismissed and a judgment for costs in favor of the said City and against the plaintiff was entered. The plaintiff excepted to this action of the trial court, and prayed an appeal from the said judgment and afterwards, on February 26, 1914, filed this writ of error in this court.
    Abstract of the Decision.
    Appeal and error, § 1117

      —when writ of error dismissed for want of prosecution. Failure of the plaintiff in error to file an abstract within the period fixed by an extension order requires the dismissal of the writ of error for want of prosecution.
    Pattison & Shaw and Mills & Holly, for plaintiff in error.
    William H. Sexton and William Dillon, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    J. C. Levinson and William Kamin, Defendants in Error, v. G. H. Pieser, Plaintiff in Error.
    Gen. No. 20,169.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBtjy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed March 11, 1915.

      Statement of the Case.
    J. C. Levinson and William Kamin, on November 26, 1913, obtained a judgment by confession against G. H. Pieser for eighty-one dollars, in the Municipal Court of Chicago. The suit was brought upon a lease containing the usual confession of judgment clause for rent due under the lease; also a clause providing for twenty-five dollars attorneys ’ fees in case of judgment by confession. The lease fixed the rent due per month at sixty dollars. The plaintiff’s statement of claim alleged that the defendant owed the plaintiffs the rent for the premises in question for the month of November, 1913, less a rebate of four dollars, making the amount due for rent fifty-six dollars; and also twenty-five dollars for attorneys’ fees. On December 17, 1914, the defendant filed a motion to have the said judgment “opened up” and to allow the defendant to plead. In support of the said motion, an affidavit of the defendant was introduced. In this affidavit, the defendant alleged that the plaintiffs did not keep the said premises “in a good, comfortable and habitable condition, but on the contrary did not provide a heat and temperature of to exceed, to wit, 45 degrees, during the cold weather period covered by the time for which the rent judgment herein has been confessed. * * * Because of said facts defendant was evicted from said premises upon divers occasions, and was obliged to seek refuge in the hospitality of friends having warmer and more comfortable quarters;” and the defendant further alleged that he had been ready and willing to comply with all the terms and conditions of the said lease obligatory upon him, “including the payment of the said rent until evicted as aforesaid.” The trial court denied the motion of the defendant, who sued out error.

      Abstract of the Decision.
    Judgment, § 72

      —when refusal to open judgment by confession proper. Where the lessor of premises, pursuant to a power in the lease, entered judgment by confession against his tenant for a month’s rent, the latter’s application to open the judgment and permit him to recoup damages because of the lessor’s failure to comply with the terms of the lease as to furnishing heat, held properly denied, the allegation of the affidavit to open being most general in character, and failing to specify with certainty the facts relied upon, or to negative a provision in the lease exempting the lessor from liability for damages where failure to furnish heat was caused by unavoidable delay or inability to secure fuel.
    Lewis Edward Dickinson, for plaintiff in error.
    No appearance for defendants in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    D. Groenebeld, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 20,185.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gbmmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed March 11, 1915.
    Statement of the Case.
    Action by D. Groenebeld against Chicago City Railway Company to recover for injuries to a horse, which necessitated its being killed. From a judgment for plaintiff for $125, defendant brings error.

      Abstract of the Decision.
    Appeal and error, § 1786

      —when judgment reversed for insufficiency of record. Where, in an action against, a street railway company for injury to a horse, the evidence contained in the record was insufficient to show where or how the accident occurred, a judgment below for plaintiff was reversed.
    A. C. Wild and Warren D. Bartholomew, for plaintiff in error; J. R. Guilliams and Frank B. Kriete, of counsel.
    James V. Cunningham, for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.