author: Mr. Presiding Justice Brown

text:
    Charles H. Aldrich, Appellee, v. Lee D. Mathias, Appellant.
    Gen. No. 16,007.
    1. Negotiable instruments—when want of consideration cannot he ■shown. In an action upon promissory notes, the defense of a want of consideration cannot be shown, if, in order to do so, it is necessary to open up partnership accounts which have been settled by agreement of the parties.
    2. Partnership—jurisdiction in matters of account. A court of ■equity has exclusive jurisdiction to settle and determine disputed items involved in a partnership accounting.
    3. Assumpsit—what does not preclude maintenance of action. The fact that promissory notes sued on, represent a settlement between the partners of their accounts as such, does not preclude an action thereon in a court of law.
    Appeal from the County Court of Cook county; the Hon. David T. ■Smiley, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 26, 1912.
    Goodrich, Vincent & Bradley, for appellant.
    George W. Plummer and Charles G. McBoberts, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The plaintiff, Aldrich, sued the defendant, Mathias, before a justice of the peace in January, 1906, on seven promissory notes payable to Aldrich, signed by Mathias, each for $25. They were dated February 28,-1904, and due respectively on the. 15th days of June, July, August, September, October, November and December, 1904. Aldrich recovered a judgment before the justice on these notes for $196 and costs of suit. The defendant Mathias appealed to the County Court of Cook county. There were no written pleadings before the justice or in the County Court. A jury in the County Court returned a verdict for the defendant, but the Judge sitting in the County Court, on motion of the plaintiff, entered a judgment non obstante veredicto in favor of the plaintiff for $205.62 and costs. The defendant appealed to this Court and the Branch. Appellate Court on June 16, 1908, reversed the judgment on the ground that there being no formal written pleadings required before the justice, the general issue was presumed to have been pleaded, and that in the face of a good plea the plaintiff could not have a judgment non obstante veredicto. The cause was remanded to the County Court “for such proceedings subsequent to verdict as the Court might deem proper.” Presumably the verdict was set aside and a new trial granted, for the cause comes up to us again on an appeal from a judgment of the County Court for $219.85 and costs rendered on a directed verdict of a jury returned December 24, 1908.

After the verdict a motion was made by the defendant for a new trial on written grounds and denied by the Court. A motion to arrest the judgment on the same grounds was also denied.

The defendant at the trial produced certain evidence which was received, and tendered much besides which on objection was excluded.

The argument here for appellee describes the holding below with substantial accuracy in the statement, “The trial Court held that this proposed testimony, and the documents tendered in connection with it, involved an opening up of partnership matters which the partners had settled among themselves, and that a court of law with a jury to decide the issues was not the proper forum for such defense, and refused to allow the testimony to go to the jury.” We think it might be added that all the evidence adduced by the defendant and that offered would not together, even if the latter had been admitted, have made a defense justifying any other verdict and judgment than that rendered.

The notes sued on were seven of a series of forty-three given in accordance and connection with an agreement between the parties, dated May 29, 1904. The notes were then executed and dated back to February 28th.

This agreement, which was introduced in evidence, recites the giving of the notes by Mathias to Aldrich, and provides that “Whereas there are certain accounts due the late firm of Aldrich, Mathias & Phipps, in all which accounts Mathias has an interest equal to fifteen per cent,” upon collection being made on them the share of Mathias shall be credited on the notes last maturing; that Mathias will, if he is able, in certain contingencies, anticipate payments, and. that Aldrich will assist Mathias, so that the payments shall cause as little inconvenience as possible.

The agreement of May 29, 1904, and the giving of the notes was the sequel of an agreement entered into on March 1, 1902, by Aldrich, Mathias and a third lawyer named Phipps. The three up to that time had been partners in a law firm under the name of Aldrich, Mathias & Phipps. At that time the partnership was dissolved. The books of the firm showed that the plaintiff Mathias had drawn more of the receipts than his share according to the partnership agreement, and that on a settlement of the partnership affairs without further realization on the assets Mathias would be indebted to Aldrich. The agreement of March 1, 1902, was as follows:

“Articles of Agreement entered into this 1st day of March, A. D. .1902, Wituesseth :
That the partnership heretofore existing between the undersigned under the firm name of Aldrich, Mathias & Phipps is dissolved by mutual consent.
The books shall be closed and the dissolution date from the evening of February 28th, 1902. Charles H. Aldrich will retain the custody of the books and papers of the late firm, collect all accounts due to it and pay all debts against the said firm, paying the surplus, if any, after paying said debts and the amount due and to become due to Charles H. Aldrich by reason of advancements, to Lee D. Mathias and Park Phipps according to their interest in said firm.
Clients of the firm shall be permitted to designate without solicitation the member of the firm by whom they desire their business hereafter conducted, and upon such designation being made such member shall be entitled to the papers pertaining to such client’s business.
The stock in the Chicago Cattle Company shall be retained by Charles H. Aldrich to secure advancements and overdrafts and if within two years from this date such advancements and overdrafts shall not he fully pmd, then the undersigned Lee D. Mathias and Park Phipps severally hut not jointly agree to pay upon demand his proportionate share of such overdraft remaining unpaid.
The books of Aldrich, Mathias and Phipps shall be continued without cost or expense to Lee D. Mathias or Park Phipps, and the said Mathias and Phipps shall have access thereto at all proper times for the purpose of examining' the same or taking copies thereof.
In the liquidation of the accounts due the firm no member of the firm shall extend the time or make diminution of the amount due from clients as shown by the books on the evening of February 28th without the consent of all the members of the firm first had thereto.
In Witness Whereof the parties have hereunto set their hands and seals the day and year first herein named.
Charles H. Aldrich (seal).
Lee D. Mathias (seal).
Park Phipps (seal).”

(The italics are ours.)

It is conceded that on May 29, 1904, when the notes were given, the books then showed that the amount for which they were given was the amount in which Mathias appeared, on account of the partnership affairs, to he indebted to Aldrich after the two years’ liquidation provided for in this agreement of March 1, 1902, had gone on.

By leading questions which were put by defendant’s counsel on the trial of this cause below to the defendant and to one F. C. Butan and one John A. McShane, who were icalled as witnesses by the defendant, which questions were apparently treated by the parties and will be treated by us as offers to prove the recitals embodied in them, we are informed of the defense which the defendant desired to introduce to the notes. These questions were all objected to by the plaintiff and ruled out. The defendant excepted in each case and complains here of the exclusion of the evidence thus impliedly offered, and of the directed verdict which, when this evidence was excluded, was inevitable.

The defense thus outlined was that in September or October, 1905, about a year and a half after the giving of the notes, Mr. Mathias dined with Butan and McShane at a hotel in Chicago, and in conversation with them then learned for the first time certain facts concerning a contract between Butan and McShane, which showed that the plaintiff Aldrich had, by wrongful conduct, induced him, Mathias, to accept on August 1, 1901 (seven months before the firm of Aldrich, Mathias & Phipps was dissolved) as an asset of the firm, a charge of $30,000 against McShane (which charge would have otherwise been the property of Aldrich) in lieu of a charge that should rightfully have been made by the firm against Aldrich himself for time he had devoted to his own business in violation of the partnership agreement; that had such charge against Aldrich been made, the books would not have shown Mathias overdrawn or indebted to Aldrich on March 1, 1902, or May 29, 1904, and the notes would not have been given. The notes were therefore, it is claimed, without consideration.

The facts actually shown by the evidence admitted and those implied in the questions rejected about this exchange of charges constituted the proffered defense. They were these:

The original partnership was between Aldrich, Mathias & Phipps and a fourth party, one James D. Andrews. It was entered into by written agreement dated May 21, 1900. Andrews retired in November, 1900, and by supplemental agreement the business was continued “by the other members of the firm under the name of Aldrich, Mathias & Phipps, to whom” (we quote from the agreement) “all accounts belong,” “and by whom all indebtedness of the firm has been assumed.” (Certain exceptions as to accounts and liabilities were made in the supplementary agreement, but they are not involved in or material to this statement). On the first of April, 1901, another agreement “continued and renewed” the partnership of Aldrich, Mathias & Phipps, and under this renewal the firm continued to act until the dissolution by agreement already recited on March 1, 1902. The only changes made by the renewal agreement of April. 1, 1901, of the original partnership terms were the increase of the share of Mathias and Phipps, respectively, in the profits from 10 to 15 per cent each (to date from the withdrawal of Andrews), and a release of Aldrich from a guaranty existing in the original contract as to the amount of net income to be derived by his partners from the business. We may therefore consider the provisions of the original agreement of May 21, 1900, as those involved in this discussion.

This original agreement of May 21, 1900, after providing for the membership and style of the firm and the respective interests of the parties, contained some stipulations about the payments of current expenses, distribution of profits and management of firm funds, and the following clauses claimed by the plaintiff to. bear on the matters put forward as a defence to the. notes sued on in this case:

“7. It is understood and agreed that all moneys, collected or received by any member hereof on account of the business of the firm shall be immediately turned into the treasury of the firm. * * *
9. It is also understood and agreed that in the prosecution of the business of the said partnership each partner shall keep a personal journal and each hereby agrees daily to write up a true and correct account of the business upon which he is engaged, with such charges as he has made in such a manner as will enable the bookkeeper to make the proper charges upon the firm books. * * *
11. It is further understood that the current and unfinished business of Charles H. Aldrich shall betaken over by the partnership, and in the final settlement of all such business due allowance shall be made for the work done by the firm from this date to the date of the completion of any such business, and the balance, if any, shall be paid to Mr. Aldrich on account of services heretofore rendered prior to the beginning of this partnership.
12. It is understood that the fee heretofore agreed, upon between Mr. Aldrich and Byrd Syndicate, Limited, is the property of Mr. Aldrich when paid, also the fees arising from the sale of the Byrd, Culmer, St. Louis and other properties, also from the-Company taking over the Simpson business in New York, provided, however, that said Aldrich shall in the event of success therein make due allowance to the partnership for such time as he may give to such business after this date, and if unsuccessful therein-no allowance to be made for such time.—all other business done or upon which said Aldrich has heretofore- or shall hereafter enter, to he deemed partnership business for all the purposes of this agreement.
13. Bach and every member of the partnership agrees to devote his time and energies to the interests of the partnership, and to accept no employment requiring time or effort aside from the partnership business.”

August 1, 1901, Mr. Aldrich made the following charge upon his personal day book provided for in the partnership agreement, to be carried therefrom to the books of the firm:

“Chicago, Aug. 1st, 1901.
Omaha-Texas Syndicate.
To services in connection with promotion of oil syndicate and disposition of lands which is payable contingently from oil marketed from lands and when marketed at the rate of one cent per barrel until total sum is paid,..............................$30,000.”

At the same time the three partners signed the following document:

“August 1, 1901.
Memorandum.
Whereas Mr. Aldrich has made a charge on his books, under date of August 1, 1901, against the Omaha-Texas Syndicate for services as expressed on his Day Book amounting to $30,000.00 this memorandum is designed to show that it is the understanding that this sum is payable by John A. McShane on the terms and conditions set forth in correspondence between Mr. Aldrich and John A. McShane in the files and Mr. McShane’s answer, which correspondence will be found in an envelope in Mr. Aldrich’s strong box. The only additional matter to be taken into account in the said settlement is that Mr. McShane does not have this liability to us if he is compelled to pay F. O. Butan. He has agreed however to resist any payment to Mr. Butan through all the courts, and we on our part to perform all legal services required in making such resistance without expenses. This money, if and when received, is subject to the existing partnership arrangement.
Charles H. Aldrich,
Lee D. Mathias,
Park Phipps.”

Although no reference to any prior ownership of this claim for services was made in the terms of the entry or of the contemporaneous memorandum, the defendant proposed to show that this claim for services was in connection with “the sale of the Byrd, Culmer, St. Louis and other properties” referred to in Paragraph 12 of the partnership agreement, and must therefore, under that agreement, have been, if it existed at all, the property of Aldrich.

He also proposed to show that at the time the charge was entered and the memorandum made on August 1, 1901, Aldrich stated to him, Mathias, that he, Aldrich, felt that he had devoted a great deal of time to his personal business, and that under the provisions of the partnership contract his partners had a claim against him on account of this, and that he had consequently decided to assign to the firm, in lieu of the charge that might properly be made against him for the time thus devoted to personal matters, this fee of $30,000 which he said he had earned.

Further the defendant proposed to show that he had then asked Aldrich whether the fee would be paid, and that Aldrich told him it was good; that Aldrich presented him the memorandum and that he, Mathias, asked Aldrich what the reference to Butan meant, and that Aldrich replied that Rutan’s claim was merely color able and that the fee would unquestionably be collected by the firm.

In the memorandum, it will be noted, it is stated that the charge is “payable by John A. McShane on the terms and conditions set forth in a correspondence between Mr. Aldrich and John A. McShane,” “which correspondence will be found in an envelope in MrAldrich’s strong box.”

It does not, appear that the defendant makes any •claim that he then, or when he gave the notes three years afterward, or at any time before September, 1905, after his conversation at dinner with Rutan and McShane, asked to see or took any pains to see the ■correspondence in question. He proposed to show, however, that when the charge and memorandum were made “he did not know much about the transaction, and did not have much of anything to do with Mr. Rutan’s business or the Byrd Syndicate business.” He also proposed to show that at or about the time of the execution of the notes in May, 1904, he told Aldrich that it did not seem fair to him (Mathias) that he should give the notes in question considering the relative amount of business brought to the firm by the partners, and that Aldrich again assured him that the charge against the “Omaha-Texas Syndicate” was a valid charge and would be collected sometime; that 15 per cent of it would amount to $4,500, and that consequently the defendant would not fare so badly for his two years’ work in the firm.

After his conversation with Rutan and McShane in September or October, 1905, the plaintiff says he saw, for the first time, the correspondence alluded to, presumably .on request to Aldrich, as he proposed to show that he then called on Aldrich and accused him of acting dishonestly “in charging that big fee on the books of the firm” in lieu of a charge properly to be made against Aldrich for the time devoted to his personal matters,—the ground of such accusation being that the claim of Rutan was “good” and not mere-Iv “colorable,” and the claim of Aldrich merely “colorable” and not “good.”

To prove this ground the defendant endeavored to introduce an agreement of lease from some oil lands in Tp^as dated November 2, 1899, from McShane and Creighton of Omaha—presumably the “Omaha-Texas Syndicate”—to one Graham, an assignment of the same from Graham to the “Byrd Syndicate” of London, and another agreement of lease dated May 18, 1901, from MeShane and Creighton direct to the “Byrd Syndicate” of “substantially the same lands.” He also offered to show that when the second agreement was made the first was cancelled and a suit between MeShane and the Byrd Syndicate dropped.

He also proposed to introduce an agreement, dated November 4, 1899 (two days after the agreement of lease from MeShane and Creighton to Graham was made), between MeShane and Rutan, and to show that Aldrich prepared it as attorney for Rutan. This document, he says, he was shown by Rutan at or after the dinner with him of 1905, and first learned of it then. By this agreement MeShane promised Rutan in consideration of his “services rendered in aiding and negotiating a certain lease” between MeShane and Graham to pay him “one cent per barrel” on all oil on which he, MeShane, should receive royalty under the lease, until Rutan should have received thirty thousand dollars, or “in the event” that MeShane “should sell said lands or any part thereof to any assignee of said lease contract upon any terms the purpose or effect of which is to obviate the payment of royalty to the party of the first part under the terms of said lease contract,” to pay said Rutan the sum- of thirty thousand dollars.

Finally, as a part of his case in defence, Mathias -offered in evidence the correspondence between Me-Shane and Aldrich alluded to in the memorandum of August 1, 1901. It consisted of a letter signed by Aldrich, Mathias & Phipps to MeShane, dated June 3, 1901, which letter, after reciting the negotiations by MeShane of the lease to Graham in November, 1899, and the agreement with Rutan of November 4, 1899, above mentioned, proceeds:

.1 ‘ The Byrd Syndicate, to whom this lease had been assigned, did not by the resolution of its directors accept the assignment by Graham to it of said leasehold rights and afterwards forfeited its rights under said lease. This forfeiture was confessed by it, as. I understand, and you have since negotiated a new Gease with said Syndicate for a portion of the property and at a less royalty per barrel, and take the position that you are not indebted to F. C. Butan under the before mentioned contract.
“Upon our understanding of the facts, we concur in this position and have agreed to assist you without expense to you in the event that Mr. Butan brings action against you to recover said commission. We have also been of assistance in other matters and in consideration of which contract on our part and services, you have agreed, only in the event that you are not held liable to Mr. Butan, in payment of our legal services to you to pay us $30,000 at the rate of one cent per barrel on oil produced under the present lease with the Byrd Syndicate as and when produced and not otherwise until the total payments amount to the-sum of $30,000.
“This letter is intended as an agreement on our part to render the services expected of us as and when required, and is designed to contain a statement of the conditions upon which you are to make the payments aforesaid. Will you kindly advise us by letter if you so agree? Upon receiving an answer in the affirmative, the correspondence will constitute a contract which can be put in more formal shape at any time if you so desire.”

The answer of McShane is dated June 29, 1901, and is addressed to Aldrich personally. On the subject discussed in the preceding letter it says:

“With reference to the matter of icommission to F. C. Butan as mentioned in your favor of the 3rd instant, I would say in the main the same is correct, which was that should I not be called upon to pay Mr, Rutan or Ms assigns the commission, it was my intention to pay the amount to you.”

Although this detailed recital of the proposed defense has seemed necessary in order fairly to state it, its discussion can be made brief. It was rejected by the court below on the ground that it was not witMn the jurisdiction of a court of law to take cognizance of it; that if it justified any relief, that relief involved equitable jurisdiction. This view is, in our opinion, in accordance with authority. It is apparent that this defense, under the guise of asserting a want of consideration, “seeks to open partnership accounts,” which the Supreme Court of Illinois in Johnson v. Wilson, 54 Ill. 419, said could not be done in a court of law, citing Rogers v. Rogers, 1 Hall Reports, 391, (436 in the 2nd edition), in which the Supreme Court of New York used language very applicable to the case at bar: “If the defendant relies on partnership transactions as a defense to an action at law, his course obviously is to go into a court of eqmty, which alone has the power to investigate accounts between partners and to do justice between them.”

But apart from the incompetency of the proposed defense in a court of law, as distinguished from one of equitable jurisdiction, we think it had the inherent defect of insufficiency in either jurisdiction. In all the evidence suggested and rejected, even if it should be accepted as true, there is nothing showing fraud or fraudulent concealment by Aldrich in treating with Mathias. The contract between McShane and Rutan drafted by Aldrich was not necessarily inconsistent with the opinion of Aldrich expressed in his letter of June 3, 1901, that McShane “was not indebted to Rutan under the before mentioned commission contract.” The indebtedness depended on the circumstances and facts concerning the alleged forfeiture of rights by the Byrd Syndicate under the Graham contract and the negotiation and execution of the subsequent lease directly to that Syndicate.

It may have seemed very plain to Butan that he was entitled to the $30,000 involved, and he may have so informed Mathias at the 1905 dinner, but McShane in his letter of reply to Aldrich in 1901 certainly did not repudiate Aldrich’s assertion that he (McShane) entertained a different opinion. The correspondence, as we have said, was not withheld from Mathias, so far as appears. He could probably have seen it had he asked for it in 1901, as well as in 1905, and it is hardly just that after three times accepting a settlement, which he had opportunity to investigate, of the unliquidated iclaim for the diversion of Aldrich’s time (once when the charge was made on the books in 1901, once when the firm was dissolved in 1902, and once when the notes were given in 1904), he should be allowed in 1905 to repudiate it on learning, as he might on investigation have learned before, that Aldrich’s opinion as to the value of the charge was perhaps or even probably erroneous. For it was not a fact, but an opinion, that Aldrich is charged to have stated in asserting that it was “good,” and the statement of an opinion of this kind to one who has the means of testing it is not a misrepresentation that can be treated as a fraud.

We think the settlement of the partnership affairs between the plaintiff and defendant in May, 1904, must, for the purposes of this case at least, be held final.

So holding, we see no merit in the contention that this suit on promissory notes could not be brought by the plaintiff at law. “When parties have settled their partnership accounts and a balance is ascertained, an action of assumpsit will lie for money due on an account stated.” Hanks v. Baber, 53 Ill. 292, 294. A fortiori, when the account stated has been evidenced by and converted into promissory notes, will such an action of assumpsit lie. Unpaid bills and accounts due to the firm are not “partnership accounts” in the sense in which those words are used in the preceding quotation. Their existence and the fact that if and when collected they are to be divided between the parties according to a predetermined rule of division, does not render the “settlement” between the parties less final.

The judgment of the County Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The Butterick Publishing Company, Limited, Appellant, v. Fort Dearborn National Bank, Appellee.
    Gen. No. 16,035.
    1. Municipal Court—within what time hills of exception must he •filed. The municipal court act as amended in 1907 limits the time within which the municipal court has jurisdiction in the first class cases to act with reference to bills of exceptions, to 60 days, and such time in addition as within 60 days may be on application granted.
    2. Verdict—when separate documents constitute single. Held, that the several documents referred to in this case were in reality, as they were treated, instruments which constituted one single verdict.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Bred L. Bake, Jr., Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 26, 1912.
    Pliny B. Smith, for appellant.
    Pattison & Shaw, for appellee; Douglas C. Gregg, of counsel.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

In this case, which was brought as a case of the first class in assumpsit, in the Municipal Court of Chicago, on July 10, 1908, a judgment was on March 27, 1909, rendered by that Court against the defendant, the Fort Dearborn National Bank of Chicago, in favor of the. plaintiff, The Butterick Publishing Company (Limited). The judgment was based on the verdict of a jury to whom the cause was submitted. The jury found the issues for the plaintiff and on March 10, 1909, returned two verdicts in the following forms:

“We, the jury, find the issues joined in favor of the plaintiff and assess its damages at the sum of One Hundred no-100 Dollars with interest at the rate of 5% per annum from February 10th, 1908, to date.”
• “We, the jury, find the issues joined in favor of the plaintiff and assess its damages at the sum of One-Hundred Five 42-100 Dollars, being $100.00 with interest at 5% per annum from February 10th, 1908, to-date, $5.42-100.”

Each “verdict” was signed by all the jurymen. The judgment rendered by the Court was for $105.42 and costs.

This amount was much less than that claimed by the plaintiff, whose demand, as shown by the affidavit of amount due attached to its declaration, was for $6875.91 with interest thereon from February 10, 1908. The plaintiff appealed and was, on said 27th day of March, 1909, given thirty days to file an appeal bond and ninety days in which to file its bill of exceptions. Sixty days from March 27, 1909, expired May 26, 1909. Ninety days from March 27, expired June 25, 1909. On the 25th day of June, 1909, a stipulation between the counsel for the respective parties was presented to the court, that the time for “presenting and filing bill of exceptions” be extended to July 25, 1909. An order in accordance with the stipulation was entered by the court on the said 25th day of June, extending the time to July 25, 1909, for “presenting and filing said Bill of Exceptions. ”

On July 27, 1909, another stipulation was presented to the court, signed by the same counsel, for the extension of the time for “filing the bill of exceptions” to include August 7, 1909, and an order to that effect was on that day entered by the Court. On the 6th day of August, 1909, another stipulation was filed and another order entered for the extension of time for “filing the bill of exceptions” until September 20, 1909. On the 17th day of September, 1909, a hill of exceptions, duly signed and sealed by the trial Judge (the time of said signing and sealing or of the presentation thereof not otherwise appearing), was filed in the office of the Clerk of the Municipal Court and is a part of the transcript of the record before us in this appeal.

Counsel for appellee, however, have here raised the question of the jurisdiction of the Municipal Court to grant the various extensions of time to “present” and “file” the bill of exceptions, and in their brief and argument say:

“It is therefore our opinion that there is now no proper bill of exceptions before this Court, and we respectfully ask that the purported bill of exceptions be stricken from the record.”

We are obliged to accede to this request under the authority of Haines v. The Knowlton Danderine Company, 248 Ill. 259.

The Supreme Court in its opinion in that case says that the agreement of the parties does not affect the question. It also says the objection can be availed of at any time. In the case at bar, as in that case, “The appellant by its assignment of errors in the Appellate Court alleges that there is error in the judgment. It refers to the hill of exceptions to show such error, and the appellee answers that the alleged bill of exceptions is no part of the record, for reasons apparent on an inspection of it. The question of what is the record may be tried by the record at any time.”

Irrespective of the inference that might be naturally drawn as to the time at which the bill of exceptions, in the case at bar was presented and signed, from the fact that it was not filed until September 17, 1909, it is clearly shown that it was not so presented and signed at or before June 25, 1909 (which was the last day on which its presentation and signing would have been legally effective), by the stipulated order entered on that day for an extension of time not only for “filing,” hut for “presenting” the bill.

The Supreme Court in the Knowlton case, supra, definitely declares that the Municipal Court Act as amended in 1907 limits the time within which the Municipal Court has jurisdiction in first class cases, to act with reference to bills of exceptions, to sixty days, and such time in addition as within sixty days may he, on application, granted.

In Lassers v. Steamship Co., 244 Ill. 570, it has decided the Act, so far as it affects the completion of a record in the Municipal Court, to be constitutional.

The “bill of exceptions” is stricken from the transcript of the record.

The only assignments of error which do not necessarily fall with the bill of exceptions are the 5th, 6th, 7th, 8th and 10th, which are:

“5 There were two verdicts in the case.
6. The Court erred in receiving two verdicts in the case.
7. The Court erred in entering a judgment in the case.
8. It does not appear on which verdict the judgment was entered.
10. The Court erred in overruling the motion in arrest of judgment.”

It is manifest that in the record without the “bill of executions ’ ’ there is nothing on which to base the 7th and 10th of these assignments, unless the 5th, 6th and 8th are good. It is equally clear to us that there is no merit in the 5th, 6th and 8th. The “verdicts” rendered were in effect identical, and the judgment was the only one which could have been rendered on either. They were in reality, as they were treated, a single verdict, although reduced to writing in practically duplicate documents. There was no injurious error in receiving them.

The judgment of the Municipal Court will therefore be affirmed.

Affirmed.


text:
    J. H. Clark, Appellee, v. Max Weber et al., Appellees, and Jacob Kasofsky, Appellant.
    Gen. No. 16,062.
    Appeals and errors—when findings 6y master presumed supported hy evidence. If it appears from the record presented on review that numerous material documents were offered in evidence and considered by the master, his findings of fact confirmed by the chancellor will be presumed to have been supported by the evidence which was before him.
    Appeal from the Circuit Court of Cook county; the Hon. Chas. M. Walker, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 26, 1912.
    Clarence W. Schaeffer and Harry L. Strohm, for appellant.
    Edward H. Morris, for appellees.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook County dismissing for want of equity an intervening petition of the appellant, Jacob Kasofsky, in a mechanic’s lien proceeding originally brought by J. H. Clark against Max Weber and David Weber, co-partners, doing business as Weber Bros., and containing a money judgment in favor of Weber Bros, against Kasofsky for $1501.05, and also taxing certain costs against him.

Weber Bros were the owners of a building in Chicago. They contracted with Kasofsky for changes and repairs o.n it. J. IT. Clark furnished hardware, and to recover the amount due him began this mechanic’s lien proceeding on October 4, 1906, making the Webers and Kasofsky parties defendant. Kasofsky filed on November 7, 1906, “an answer in the nature of an intervening petition,” claiming a considerable amount from the Weber Bros., but practically making no issue on the petition of Clark. He did, however, allege that the claim of Clark was too large. The Webers filed an “answer”—whether before or after the intervening petition of Kasofsky was filed does not precisely appear, as it is not included in the transcript of the record brought here by the appellant. The certificate of the clerk to the transcript, however, says that the same is a complete transcript “except the answer filed Oct. 29, 1906, and except the answer filed November 23rd, 1906.” By whom these answers were filed does not appear, but as there was no other defendant to the original petition of Clark except the Webers and Kasofsky, and no additional defendant to the intervening petition of Kasofsky, we m,ay perhaps justifiably suppose that the answers were by the Webers and that one was filed October 29, 1906, to the original petition of Clark, and one on November 23, 1906, to the intervening petition of Kasofsky.

The decree which is appealed from by. Kasofsky recites that the case came on to be heard “upon the intervening petition of Jacob Kasofsky, the answer of Max Weber and David B. Weber, copartners, doing business as Weber Bros., the replication to said answer and the report of William Fennimore Cooper, Master in Chancery, to whom this case was duly referred, and the exceptions of said Jacob Kasofsky to said Master’s Report.”

We are strongly inclined to the opinion that on account of the omission of these answers of the Webers in the transcript of the record brought here, it is impossible for us justifiably to make any other disposition of this cause than to affirm the decree. The contention of the appellant Kasofsky in relation to this matter is, however, that the answers could contain nothing which would have affected the appellees ’ case favorably; that their only use, therefore, in the consideration of the cause by us might have been to show admissions by the appellees injurious to them, and that their omission should not, therefore, redound to their advantage. Appellant claims also that if the appellees thought them important, they should have completed the record on a suggestion of diminution.

This is a method of disposing of the absence of pleadings, on which the case was heard, to which we cannot accede; but whatever may be said of it, there are other defects in the transcript concerning which ■similar contentions cannot be reasonably made, which compel affirmance on our part.

As stated in the decree, the cause was referred to a master in chancery. .On the coming in of his report the original petition of Clark was disposed of and a decree entered in said Clark’s favor, and the cause then proceeded to the disposition, in accordance with the Mechanic’s Lien Act of 1903, of the issues raised between Kasofsky and the Weber Brothers.

The decree especially recites that the appellant had notice of the filing of said master’s report and the presentation of the same to the Court for confirmation, and that the Court has considered all the evidence therein contained “and thereto attached,” and the exceptions of Kasofsky to said report. It then overrules the exceptions and declares that the master’s report and findings are approved and confirmed and made the basis of the decree. Following these recitals are many findings of fact, expressed generally to be “from the evidence in this cause as shown by the master’s report and the matters and things appearing of record in this cause,” and specifically and individually in the case of almost every finding “from said master’s report and the evidence thereto attached.”

The master’s report, which is included in the transcript, recites that “the respective solicitors offered certain documentary evidence, which was admitted, as will more fully appear by reference to the attached record.”

Its fifth finding of fact recites that a contract before set forth, “together with certain blue prints which were submitted in evidence and which are transmitted to the Court with this report, is the contract relied on” by the parties respectively.

In his fourth finding he sets out the contract mention in haec verba. But the contract declares that certain plans and specifications are “attached and made a part of the agreement,” and these do not appear in the report, but we think must be presumed, under the recital of the fifth finding, to have been “transmitted to the Court with the report.”

The report of the evidence shows many exhibits offered and allowed in evidence by the Master, and these must be presumed, we think, under the recitals of the decree, to have been returned by the Master with the “testimony” which was “reduced to writing” and “made a part of the report.”

The transcript of the master’s report before us, however, neither contains nor has attached to it any of these exhibits. Neither blue prints, plans of any kind, specifications nor orders and receipts concerning money paid, which were produced, admitted and marked in connection with the testimony, are before us.

We cannot undertake to overrule the master’s report and the decree based on it, which finds facts fully sufficient to sustain it, on this incomplete record.

The decree of the Circuit Court is therefore affirmed. .

Affirmed.


author: Me. Justice Smith

text:
    Pherry Johnson, Appellee, v. Elgin K. Perkins, Appellant.
    Gen. No. 15,925.
    1. Statute of limitations—when new cause of action set up. Where a declaration filed within the limitation period fails to state a cause of action, and an amended declaration or additional count stating a good cause of action is filed subsequent to the running of the statue, a plea of the statute of limitations should be sustained.
    2. Statute of limitations—when new cause of action not set up. If the amended or additional count be predicated upon a prior count which effectively stated a good cause of action á new cause of action is not set up.
    3. Pleading—what essential to statement of cause of action. In an action for personal injuries a declaration does not state a cause of action unless it avers facts showing legal liability.

      4. Pleading—when declaration does not state cause of action against landlord for personal injuries sustained. Unless the declaration show that at the time of the injury complained of the. landlord was either in possession of the premises in question, or was under some obligation to repair or keep the same in repair, no cause of action is set up.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 26, 1912.

      Samuel M. Booth, for appellant.
    S. M. Meek, for appellee.
   Me. Justice Smith

delivered the opinion of the court.

The appellee, hereinafter called plaintiff, on December 31, 1897, filed her declaration of one count in a suit in the Circuit Court of Cook county against appellant, hereinafter called defendant, for damages for personal injuries. To this declaration a general demurrer was sustained, and thereupon, on February 17, 1898, the plaintiff filed an amended declaration of one count. To this amended declaration a general and special demurrer was sustained and the plaintiff given ten days to amend. In the years following the record shows demurrers and pleas filed to the second amended declaration and additional counts, but the record shows no second amended declaration or additional counts, nor any entry therein of any such pleadings having been filed. On July 6, 1901, there was" a substitution of plaintiff’s counsel, and on May 14, 1909, leave was given plaintiff to file additional counts, and on the same day there was filed what is termed an amended declaration of one count. To this last amended declaration the defendhnt filed a plea of the general issue and two pleas of the Statute of Limitations. The plaintiff filed a similiter to the general issue and demurred to the two pleas of the Statute of Limitations. The court sustained the demurrer and the defendant elected to abide by his said pleas of the Statute of Limitations. The said two pleas were substantially alike, and being in effect the same shall be hereafter referred to as one plea. The jury returned a verdict finding the defendant guilty and assessing the plaintiff’s damages at the sum of three thousand dollars, upon which judgment was entered, and defendant appealed.

Was the demurrer to the plea of the Statute of Limitations properly sustained? Where a declaration filed within the limitation period fails to state a cause of action, an amended declaration or additional count stating a good cause of action, but filed subsequent to the running of the statute, a plea of the Statute of Limitations to the amended declaration ■or additional count should be sustained. Bahr v. National Safe Deposit Co., 234 Ill. 101, and eases there cited.

The original declaration, to which a general demurrer was sustained, so clearly fails to state a cause of action that it need not be discussed. Did the amended declaration filed February 17, 1898—the only other declaration of record filed within the limitation period of two years,—state a cause of action? This declaration is, as to the averments in question, as follows:

“For that whereas the said defendant before and on to-wit, the 27th day of July, 1897, was the owner and possessor of certain premises-with appurtenances, situated in the county aforesaid, to-wit, commonly known and described as Numbers 2621, 2623, 2625 and 2627 Dearborn street, in the city of Chicago, and plaintiff was then and there a tenant of said defendant, and residing and living in and upon said premises as a tenant of said defendant; and in and upon said premises there now is, and before and on the day aforesaid, was a certain hole opening into a certain vault or catch basin of and belonging to said premises of the said defendant, to-wit, in the county aforesaid; yet the defendant well knowing the matters aforesaid, while he was so the owner and possessor of the said premises with the appurtenances thereto, and while there was such a hole as aforesaid, to-wit, on the day aforesaid, then and there wrongfully and unjustly permitted the said hole to be and continue and the same was then and there so badly, insufficiently and defectively covered that by means of the premises and for want of a proper and sufficient covering to the said hole, the plaintiff, who was then and there residing upon the said premises as the tenant of the said defendants as aforesaid, and who was then and there crossing said premises, then and there necessarily and unavoidably slipped and fell into the said hole, and thereby the plaintiff was then and there greatly injured,” etc.

To this declaration the defendant filed a general and special demurrer, which the court sustained, and which is in part as follows:

“First it is alleged that the defendant Perkins is the owner and possessor of the property described and then alleged that plaintiff is tenant of the same. If the plaintiff is tenant the owner is not in possession.
“Secondly, it is the general rule of law that the tenant must make repairs, and plaintiff by said declaration shows no reason why the rule does not apply here.
“Third, no scienter is properly alleged.
“Fourth, it is not sufficient in a declaration to say generally that it was the duty of the defendant to cover or otherwise protect a dangerous place. The pleader must state facts from which the law will raise the duty. This declaration does neither.”

The question before us must be determined solely by an examination of said count. In the consideration thereof it is to be borne in mind that if it states a cause of action, although defectively, it must be held sufficient on the question presented. Klawiter v. Jones, 219 Ill. 626. If, however, it states no cause of action, then the plea of the Statute of Limitations to the declaration filed May 19, 1909, must be sustained.

It appears well settled that a declaration of this nature does not state a cause of action unless it avers facts showing a legal liability. As said in 2 Thompson on Negligence, 1244: “Unless the duty results, in all cases, from the stated facts, the declaration so framed will be bad.” Ayers v. City of Chicago, 111 Ill. 406; Schueler v. Mueller, 193 Ill. 402; Mackey v. Northern Milling Co., 210 Ill. 115; McAndrews v. C. L. S. & E. Ry. Co., 222 Ill. 232; Bahr v. National Safe Deposit Co., 234 Ill. 101.

“A bare allegation of duty alone is insufficient without an allegation of facts sufficient to create the duty, the obligation being but an inference of law, arising from the facts.’’ 12 Ency. Pl. & Pr., 1040.

The argument made and the authorites cited in relation to agency are, in our opinion, irrelevant. It is averred that the plaintiff rented the premises and so occupied them as a tenant of the defendant as landlord. The right of possession and control of the premises "by a tenant is paramount to that of the landlord’s. Taylor’s Landlord and Tenant, Sec. 178.

In Sunasack v. Morey, 196 Ill. 569, the court state the general rule as follows: “The law is well settled that the rule of caveat emptor applies to a contract of letting, and the landlord is not bound to make repairs unless he has assumed' such duty by express agreement with the tenant. * * * The landlord is therefore not liable for damages resulting to the tenant by reason of the demised premises being out of repair, unless he has expressly bound himself to make repairs by the terms of the contract to let.”

In Borggard v. Gale, 205 Ill. 511, the court said:

“The general rule is, that a landlord is not bound to make repairs unless he has assumed such duty by express agreement with the tenant. An exception to the rule, however, exists where there are defects in the demised premises, attended with danger to an occupant, which a carful examination would not disclose, which are known to exist by the landlord and are not known to the tenant. In such case a duty rests upon the landlord to notify the tenant of such defects. (Sunasack v. Morey, 196 Ill. 569.) The duty resting upon the landlord to notify the tenant of a defect in the premises which a careful examination would not disclose, but of which the landlord has notice while the tenant has not, we think may well be placed upon, the ground, in many cases, that a failure to make such disclosure would be a fraud upon the tenant; for instance, if the premises were infected with a contagious disease, as was the case in Snyder v. Gordon, 46 Hun, 538, or impregnated with sewer gas, the presence of which was denied by the landlord, as in Sunasack v. Morey, supra.

In Blake v. Ranous, 25 Ill. App. 486, the court said:

“In an action against a landlord for injuries resulting from the unsafe condition of the building leased or any of its appendages, the declaration should state facts which affirmatively show the landlord’s duty or obligation to make repairs. The duty does not spring from the relation of landlord and tenant and will not be presumed, but must be both stated and proved. Kahn v. Love, 3 Oregon, 207.
“Both the amended declaration and the instruction given assert the duty as based upon the mere fact of letting the premises alone. Such a doctrine is decidedly opposed to all the cases.”

The declaration does not state a cause of action against the defendant on the ground of his failure to repair the premises rented to the plaintiff, because there is no averment that the defendant agreed to make repairs, and as a general rule without such agreement he cannot be held liable. There can be no pretense that the averments of the declaration bring it within any exception to that rule, as to fraud, deceit, misrepresentation or the concealment of any latent defects.

Should the declaration be construed to aver that the said vault or catch basin was upon premises not demised to the plaintiff, but upon premises retainéd and controlled by the defendant, bringing the case within the rule announced in Shoninger v. Mann, 219 Ill. 242? In that case the court said: “The law is well settled in this State that a landlord who rents different parts of a building to various tenants and retains control of the stairways, passageways, hallways or other methods of approach to the several portions of the building for the common use of the tenants, has resting upon him an implied duty to use reasonable care to keep such places in a reasonably safe condition, and that he is liable for injuries which result to persons lawfully in the building from a failure to perform such duty. (Payne v. Irvin, 144 Ill. 482; Burke v. Hulett, 216 id., 545.”

We are not inclined to agree that a fair and reasonable construction of the declaration is that it avers that the said vault or catch basin was upon premises in the possession of the defendant. However, assume that it does so aver; there is no averment that the said portion of the premises so possessed by the defendant was for the common use of the plaintiff and other tenants, if there were other tenants. Without such averment how can it be determined that the plaintiff had any right to use the portion of the premises in possession of the defendant and not demised to plaintiff? Without some statement of facts showing that she had a right thereon, there could be no duty owing to the plaintiff by the defendant to keep the said vault or catch basin safely covered. In the absence of such averments the declaration states no cause of action coming within the law quoted in Shoninger v. Mann, supra.

The declaration contains no averments that the defendant retained control of the part of the premises, or any other part thereof, over which plaintiff was walking at the time of the accident, or that it was for the use of the plaintiff, or any facts showing she had a right thereon. If the averments of the declaration, and what is fairly and reasonably inferable therefrom, be proven, there would be no legal liability on the part of the defendant, for there are no. averments of what defendant’s duties were or, in fact, that he had any right whatsoever on the premises or the control thereof. The authorities cited, with many others we have not deemed it necessary to note, seem to lay down the rule very clearly that in actions of this nature, unless facts are averred showing the duty of the defendant, no cause of action is stated. Tested by the rules mentioned, the declaration filed February 17, 1898, failed to. state a cause of action, and it was therefore error not to sustain the plea of the Statute of Limitations to the declaration filed in May, 1909.

The other errors assigned, in the view we take of the case need not be discussed.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Smith

text:
    William Thomas O’Rourke, Plaintiff in Error, v. The Chicago, Rock Island & Pacific Railway Company, Defendant in Error.
    Gen. No. 16,019.
    Master, and servant—when doctrine of assumed rish. applies. If the evidence clearly establishes that the servant was injured as the result of an obvious and apparent risk, the danger of which was appreciated by him, the doctrine of assumed risk applies and the court is justified in determining as a matter of law that he is not entitled to recover.
    ■ Action in ease for personal injuries. Error to the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 26, 1912.
    "Weinberg & Noxon, for plaintiff in error.

      M. L. Bell, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff in error, hereinafter called plaintiff, brought suit against the defendant in error, hereinafter called defendant, for damages for personal injuries. At the close of the plaintiff’s case the court directed a verdict for the defendant and the plaintiff comes here on a writ of error.

The plaintiff was sixteen years old when he went to work for the defendant. He worked about six hours a day on a ticket destroying machine and the balance of the time did errands.. The machine consisted of two large horizontal rollers, one above the other; each roller was encircled by about forty knives, which, as the rollers revolved like the ordinary clothes wringer, cut up the tickets passing between them. The tickets to be cut up and destroyed were placed upon a belt about three feet wide, carrying the tickets and feeding them into the knives on the rapidly revolving rollers, from which the pieces of tickets fell upon an inclined apron and slid away from the machine on the opposite side of the rollers from the feed belt. On the feed side of the rollers a bar extended across and about one and one-half inches above the belt. On this bar was hinged a wire net screen, and forming the anc of a circle extended from the bar over and beyond the rollers. The machine was operated by electricity, which was turned on and off by a switch in the wall of the room. The tickets were fed into the machine by placing them upon the flat surface of . the feed belt, which carried them beneath the said bar to the knives in the rollers, protected by the said wire screen.

The-plaintiff worked alone on the machine in a small closed room,- and had been so working about three weeks when injured. On the day in question he had cut up all the tickets and attempted to cut up some' wrapping paper that would not pass under the bar. To get the paper to the knives he lifted up the screen and placed the paper between the bar and the rollers, and in thus feeding it to the knives four fingers of his left hand were cut off; as he described it, “I fed in too far and got my fingers cut off.”

All of the evidence in the case was the testimony of the plaintiff and three photographs of the machine. There was no evidence of any defect in the machine or that it was not properly protected by the wire screen. It is claimed that the plaintiff was ordered to cut up all the tickets and paper and clean up the room; that he could not feed the large pieces of paper into the knives by placing them upon the belt, as he was instructed, for they would not pass under the bar, and it was therefore necessary to raise the screen in order to get the large pieces of paper to the knives; that he had no prior experience with machines, and owing to his youth and inexperience he should have been instructed in the use of the machine in cutting up the large pieces of paper and warned of the dangers thereof, as averred in his declaration. The plaintiff was instructed in the use of the machine in cutting up the tickets and the smaller pieces of paper. It was apparent the screen was a protection from the knives, and had the plaintiff operated the machine according to his instructions, he could not have been so injured. The defendant gave the plaintiff orders to cut up all the paper in the room and instructed him how to use the machine, but some of the paper he was ordered to cut up he could not cut in the manner of operating the machine as instructed. Under such circumstances and in consideration of the age, intelligence, capacity and experience of the plaintiff, we think it was the duty of the court to submit thé question of fact to the jury, whether the defendant in the exercise of ordinary care should have warned the plaintiff of the danger of operating the machine as he did, unless all reasonable minds would agree from the evidence that the danger was open and apparent, and that the plaintiff, taking into (consideration his age, intelligence, capacity and experience, knew and appreciated such dangers. It is practically conceded by the counsel for the plaintiff that the danger was open, apparent and known to the plaintiff, but it is insisted that the danger of operating the machine as he did was not appreciated by him and for that reason the trial court erred in not submitting the cause to the jury.

It clearly appears from the testimony of the plaintiff that he was of at least ordinary intelligence and capacity and knew the dangers of operating the machine in the manner he did when injured. , He had operated it in the same manner before, but unknown to the defendant, and we think the evidence is plain that from the nature of the work, the character of the machine, the obvious danger of attempting to cut the paper in the manner he did, the danger of coming into contact with the rapidly revolving knives, which he knew, and from his testimony, that the danger was appreciated by him. In his testimony (quoting from the record literally) he said: “I cut the big paper up by lifting up the screen and putting it in and feeding in the paper, and I fed it in and for fear it would catch hold of my fingers—nobody cautioned me about feeding it in.”

It was an unfortunate accident. The plaintiff was overzealous in his attempt to accomplish the work for the benefit of the defendant, and suffered a serious injury, for which, under the law, he cannot recover dapnagés. The trial (court properly instructed the jury for the defendant and the judgment is affirmed.

Affirmed.


text:
    Rubin Bros. Mfg. Co., Appellant, v. A. J. Johnson & Sons Furniture Co., Appellee.
    Gen. No. 16,026.
    1. Vendos and vendee—when delivery excused. If the vendee fails to make a payment when due the vendor is excused -thereafter from making delivery under the terms of the contract.
    2. Vendor and vendee——w/mi does not excuse failure to pay. A vendee is not excused from his failure to make a payment accruing under an order for continuing deliveries by the fact that some of the merchandise delivered was defective.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Merbitt W. Pinckney, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and judgment here.
    Opinion filed February 26, 1912.
    Edmund S. Case, for appellant.
    Chaeles A. Butleb, for appellee.
   Me. Justice Smith

delivered the opinion of the court.

The plaintiff, the appellant here, brought suit against the defendant, the appellee here, before a justice of the peace to recover a balance claimed to be due for mirrors sold to the defendant, and there obtained a judgment. The defendant appealed to the Circuit Court and on a trial there before the Court without a jury was given a judgment on a set-off for the sum of $200 against the plaintiff, who comes here on appeal.

On November 21, 1904, the defendant ordered from the plaintiff in writing, and the plaintiff accepted the same in writing, five thousand mirrors of various sizes, describing them, to be delivered to the defendant “as wanted before June 15th, 1905” * * * “silvering guaranteed,” with a discount from the price list on payment as follows: “Discount 85 & 20 & 5%, terms 3% discount 10th of month following delivery of goods.”

The defendant’s set-off consisted of two claims; one for the cost of resilvering defective mirrors and the other for damages of $89.58 for failure to deliver the mirrors as ordered. The evidence is undisputed and the controversy here is only as to the finding of the Court and entering judgment thereon against the plaintiff for damages for non-delivery.

On June 15, 1905, about twenty-nine hundred mirrors had been delivered under the agreement in eleven different consignments, on which the defendant owed a balance of $569.10. July 11th the defendant paid thereon $350, with the statement that the balance, $219.10, would be paid on receiving another delivery of mirrors, which amount was paid after receiving the next and only other delivery. The mirrors were billed “3% 10 days”—“3% 10th of month” and “3% 10th of month or 30 days net.”

On July 26, 1905, the plaintiff delivered 149 mirrors billed at, less the 80 & 20 & 5% discount, $125.61, and which were accepted by the defendant; for the payment of which the plaintiff brought the suit and the Court found the defendant owed the same and gave ‘the plaintiff credit therefor on the set-off.

The defendant made repeated requests for other mirrors, and on September 16, 1905, made a demand for the balance of the mirrors, describing same, and stating that unless the same were delivered on or before September 25, 1905, they would purchase the same in the open market and hold the plaintiff liable for the difference, if any,' in case they were obliged to pay therefor more than the prices agreed upon in said contract. The mirrors were not delivered by the plaintiff and the defendant purchased the same in the open market at an additional cost of $89.58, of which sum the defendant remitted $2.02 to bring the judgment to two hundred dollars.

The time of the payment for the mirrors seems uncertain ; but giving the defendant the advantage of the most favorable construction of the contract by both parties under all the evidence, it was not later than thirty days after delivery. The last delivery was July 26th and the defendant not paying therefor was in default August 26th. The testimony was on behalf of plaintiff that it offered to make further deliveries on payment for those delivered. The defendant, refusing to make said payment, could not require a delivery of the remainder of the order. Bradley v. King, 44 Ill. 339; Burt v. Garden City Sand Co., 141 Ill. App. 603, affirmed 237 Ill. 473.

It is insisted by the defendant that the plaintiff was nevertheless first in default, because of its delivery of defective mirrors.

The evidence is that when the mirrors were packed for delivery there were no apparent defects, and the plaintiff had no notice of the claim for damages because of resilvering until the trial before the justice of the peace in January, 1906; and the defendant knew of said defective mirrors, but not knowing how many, or the extent of the same, made no complaint to the plaintiff thereof. Whether these facts would avail defendant is doubted, even under the rule suggested in Bradley v. King, supra. Under the law announced in Harber Bros. Co. v. Moffat Cycle Co., 151 Ill. 84, and Burt v. Garden City Sand Co., 237 Ill. 473, the claim for damages for defective mirrors did not excuse the defendant from making payment when due for the mirrors delivered, if it desired to hold the plaintiff liable for damages for failure to deliver mirrors subsequently ordered under the said contract.

In this view of the law it was error to give judgment against the plaintiff for $87.56 for damages for non-delivery, and the judgment is reversed, and as the facts are undisputed, and the judgment for the balance is admitted to be correct, judgment is here entered against the plaintiff, the appellant here, for the sum of $112.44 with interest thereon from the date it was rendered, July 10, 1909, at the rate of five per centum per annum, and the costs of this appeal taxed against the appellee.

Reversed and judgment here.


text:
    Estate of Frank A. Moore, deceased. Claim of Nettie E. Hinman, Appellee, v. John F. Devine, Administrator, Appellant.
    Gen. No. 16,067.

      Evidence—effect of admissions. Held, that the instrument in part set forth in this opinion though not a will was an admission of liability sufficiently definite and certain as to justify the allowance of the claim filed against the estate of the deceased debtor.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 26, 1912.
    Borman & McGrath, for appellant; Fred Lehman, of counsel.
    Lowes & Bicharos, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The claim of Nettie E. Hinman for the sum of two thousand dollars against the Estate of Frank A. Moore, deceased, was allowed by the Probate Court of Cook county and appellant appealed to the Circuit Court. In that court the cause was submitted to a jury and a verdict returned in favor of the claimant for said amount, judgment entered thereon and appeal taken therefrom to this Court.

The testimony showed that Frank A. Moore in the afternoon of June 4, 1907, attempted to make a last will and testament, consisting of nine pages, introduced in evidence, and in part as follows:

“I now owe Mrs. Geo. W. Magee under the name and style of Nettie E. Hinman about the sum of sixteen hundred dollars for money loaned during my dear wife’s illness and for the maintenance of the tube factory in which I was then interested, and in addition thereto I am personally obligated to her for food, clothing, lodging and moneys advanced during the past three years and for which an accounting has never been had but which said sum has now been estimated at approximately two thousand dollars ($2,-000.00) and which has been unsecured although the original amount approximating sixteen hundred dollars was at the time of the making thereof secured by First Mortgage on my homestead No. 620 West Monroe St., city of Chicago. It now being my intention to make this additional sum of two thousand dollars which is justly due her on account of these favors in the light of a legacy, provided the amount thereof does not exceed a sum equivalent in excess of one-half of the entire estate.”

Mr. W. II. McCarthy testified that he and Mr. Moore were office associates; that he called at the hospital to see Mr. Moore, who began to tell how he wanted his property disposed of and said, “You better put down what I tell you; ’ ’ that the witness wrote on ordinary note paper as Mr. Moore dictated; that Mr. Moore took and read over what he had written and marked each sheet “O. K.' F. A. M.” or “O. K. F. A. Moore,” and signed the last one “O. K. Frank A. Moore.” Mr. J. D. Murphy was present at the time and corroborated the testimony of Mr. McCarthy. Mrs. Hinman was at the hospital and “in and out” of the room at the time the statement was made, hut said nothing in relation thereto. There were no subscribing witnesses. Mr. Moore died June 6, 1907. It was also shown that the decedent had resided at Mrs. Hinman’s for about three years prior to his death. The appellant offered no testimony.

It is contended that the said written admission of the decedent was not sufficient evidence to sustain the verdict because it was vague, uncertain and a conclusion. The items of indebtedness are given and the ■ statement made that the amount due therefor had been estimated at approximately two thousand dollars, which language as used we think fairly implies that there had been an understanding between decedent and Mrs. Hinman, that as nearly as they could arrive at the amount due it was two thousand dollars, and which the decedent further stated was the sum “which is justly due her.” That the instrument was not a will and there was no legacy is not material in this case. In C. & N. W. Ry. Co. v. Boone County, 44 Ill. 240, the Court said: “The voluntary admissions of a party, no matter when or how made, if made with a knowledge of the circumstances, have always been admitted in evidence, as this Court said in Robbins v. Butler, 24 Ill. 387.”

We think the statement was properly admitted in evidence, and presented sufficient facts upon which to base the verdict and judgment. The judgment is affirmed.

Affirmed.


text:
    Bertha Sehrt, Appellee, v. Marshall E. Sampsell, Receiver, et al. On Appeal of Val Blatz Brewing Co., Appellant.
    Gen. No. 16,072.
    1. Instructions—when refusal as to non-liability for violation of ordinance not error. If the plaintiff does not claim a right to recover because of the violation of an ordinance in evidence it is not error to refuse an instruction to the effect that no recovery could be predicated upon a violation of such ordinance.
    2. Instructions—use of word “coolness,” as applied to exercise of care. Held, that the use of the word “coolness" in the following phrase was improper but under the circumstances in this case did not require reversal: “By the exercise of such ordinary care as is to be expected of a man of ordinary coolness and prudence and under such circumstances," etc.
    3. Verdicts—when not excessive. Held, in a personal injury action, that a verdict for $5,000 was not excessive where the jury were justified in finding that the plaintiff was severely injured in her head, arms, legs, abdomen and spine, and suffered severe pain.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard 'M. McEwen, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 26, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    F. J. Canty and E. J. Folonie, for appellant.
    Edward J. Green and Charles C. Spencer, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee, hereinafter called plaintiff, brought suit for damages for personal injuries against Marshall E. Sampsell as Eeceiver of the Chicago Union Traction Co. and the Val Blatz Brewing Co., hereinafter designated for convenience Traction Co. and Brewing Co., respectively. The jury returned a verdict finding both defendants guilty and assessing the plaintiff’s damages at the sum of five thousand dollars; the Court entered judgment thereon and the Brewing Co. comes here on appeal.

In the afternoon of July 5, 1907, the plaintiff was standing on the northeast corner of Halsted and Willow streets, Chicago, waiting to board a north-bound car on Halsted street. While the plaintiff was standing there a driver of the Brewing Co. driving south on Halsted street, with a large, heavy wagon loaded with beer barrels, turned east into Willow street, attempting to cross the street car tracks in front of a north-bound car of the Traction Co. A collision occurred and many of the barrels were knocked off the wagon, one or two of which struck the plaintiff and injured her.

It is contended that the verdict against the Brewing Co. is clearly and manifestly against the weight of the evidence. A very careful and exhaustive analysis of the evidence is presented in the attempt to show that the motorman of the Traction Co. was guilty of negligence, but there was no evidence that the driver of the Brewing Co. was guilty of negligence sufficient to warrant submitting the case against the Brewing Co. to the jury. That there was much evidence tending to show that the motorman was negligent, is, of course, not controverted. There is more evidence tending to show the negligence of the motorman than there is tending to show the negligence of the driver. However, there is the usual conflict of evidence, and very much of it. We can see no good purpose in an extended discussion of the evidence on this proposition. Suffice it to say that we think it very clear that there was sufficient evidence tending to show the negligence of the driver as charged to submit the cause to the jury, and, further, that it was sufficient to sustain the verdict against the Brewing Co.

With the exception of some testimony that the driver of the wagon started to turn east before he reached Willow street, the testimony was practically uncon-■ tradicted that when he made the turn and attempted to cross the street car tracks, he drove in an easterly direction on the north side, north of the center, of Willow street. The Traction Co. contended that in turning the corner he should not have turned east, that is, to his left, on the north side of Willow street, but that he should have made the turn to his left on the south side of Willow street, as provided by the following ordinance of the City of Chicago:

“(Streets,—Rules of the Road.) Vehicles crossing intersecting streets. All vehicles when turning corners to the right must be kept inside the center of the street; when turning corners to the left, drivers of vehicles must pass to the right of the central point of the street intersection.”

The ordinance was offered by the Traction Co. and, over the objection of the Brewing Co., admitted in evidence. In this connection the Brewing Co. asked the Court to give the following instruction:

“The jury are instructed that the plaintiff has not complained in his declaration that the defendant Val Blatz Brewing Company violated the ordinance in question, admitted in evidence, and the violation of said ordinance, if violated, cannot support a verdict against the Val Blatz Brewing Company.”

The Court refused the instruction, and said rulings are urged as reversible error.

There was no claim that the plaintiff was guilty of any negligence. The contest was mainly between the two defendants on the question of liability; each attempting to prove its respective servant was exercising ordinary care and the servant of the other was guilty of the negligence charged against it—the negligent and careless operation of the car by the Traction Co. and the negligent and careless driving of the wagon by the Brewing Co. The Traction Co. in its attempt to maintain its defense offered in evidence the ordinance, and we think it was properly admitted as a circumstance tending to sustain its contention. The plaintiff made no claim by her averments in her declaration or her proof, that by reason of any claimed violation of the ordinance she was seeking to recover against either defendant, or by any instruction given the jury could it be so inferred, and it was therefore not error to refuse the instruction as offered.

Objection is made to the use of the word “coolness” in an instruction given on behalf of the Traction Co., in effect that the Traction Co. was not guilty if the motorman had no opportunity to avoid striking said wagon “by the exercise of such ordinary care as is to be expected of a man of ordinary coolness and prudence and under such circumstances,” etc. A person may be cool and at the same time very negligent or reckless in his conduct, and even though the word “coolness” be coupled with the word “prudence” in the instruction, we think it improper and that it should not have been so used. While the plaintiff might have complained of this instruction if the verdict had been in favor of the Traction Co., we can see no good reason for holding it prejudicial to the appellant.

It is urged that the damages are excessive and the result of passion and prejudice. When the plaintiff observed there was about to be a collision, she ran about twenty feet in her attempt to escape, when a beer barrel struck her in the back, knocking her unconscious. She fell upon a cement sidewalk and there was testimony tending to show that after she fell another barrel hit her on the head. She was in the hospital five weeks. A detailed statement of the bruises and injuries to her head, arms, legs, abdomen and her spine, and her sufferings therefrom, is unnecessary. If the jurors believed her testimony, and they apparently did, the damages, although large, in our opinion cannot be held clearly and manifestly excessive or the result of passion or prejudice.

The jury were fully and fairly instructed, and other objections urged to the instructions and the rulings of the trial court on the evidence have been duly considered, but we do not think any of them of sufficient merit to require discussion.

The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Baldwin

text:
    The Empire State Surety Company, Plaintiff in Error, v. Schillinger Bros., Defendant in Error.
    Gen. No. 16,319.
    1. Instructions—submitting questions of law. The court should not give instructions to the jury which permit the jury to construe a contract and pass upon questions of law.
    2. Parol evidence—negotiations antecedent to contraed. It is improper for the court to admit parol evidence as to what occurred at or before the time a bond was executed.
    3. Municipal court—when judgment of, not reversed. A judgment of the municipal court will not be reversed if substantial justice has been done.
    4. Bonds—when do not go into effect. If, for any reason, an obligee in a bond refuses to accept it, the bond does not become operative and no liability on the part of the maker thereunder arises.

      5. Bonds—when premiums cannot be recovered. If a bond has never gone into effect premiums accruing under the contract therefor cannot be recovered merely because the bond was never returned or because statements claiming such premiums were sent by the obligor and if received were not objected to.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 12, 1912.

      Stein, Mayer & Stein, for plaintiff in error; Harry M. Bosenblhm> of counsel.
    McCaselll & Son, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This was an action of the fourth class, brought on June 8,1909, in the Municipal Court of Chicago, by the Empire State Surety Company, plaintiff in error, against Sehillinger Bros., a corporation, defendant in error, to recover the sum of $420 for premiums alleged to be due for three years beginning July 14th, 1906, upon a bond issued by the plaintiff in error. There was a jury trial which resulted in a verdict in favor of the defendant in error, upon which the court entered judgment.

It appears that in the spring of 1905, Sehillinger Bros, entered into a contract to construct a grain elevator at Cedar Bapids, Iowa, for the Bosch-Byan Grain Co. The contract was executed April 25, 1905, and Sehillinger Bros, at once entered upon the performance of the work. Subsequently, and on the 14th of July, 1905, Sehillinger Bros, applied to the Surety Co. to issue a bond for $25,000, which should guarantee to the Bosch-Byan Grain Co. the faithful performance of the work to be done by Sehillinger Bros, under the contract. The bond, which was duly executed by the Surety Company, was based upon a written application made by Sehillinger Bros., and both application and bond were dated July 14, 1905. The application requested a contract bond in the sum of $25,000, running to the Bosch-Byan Grain Co., of Cedar Bapids, Iowa, and in such form as should be satisfactory to Sehillinger Bros, and the obligee, the Bosch-Byan Grain Co. A copy of the contract between Sehillinger Bros, and the Bosch-Byan Grain Co. was attached to the bond when issued. By the application, Sehillinger Bros, agreed to “pay $140 premium for this bond for the first year, in advance, and the same amount annually thereafter, in advance, so long as the bond was continued in force.” There was a further provision in the application to the effect that, under certain conditions, Sehillinger Bros, were to pay premiums at a given rate upon the bond “for every year the Company’s liability thereunder shall remain in force, until the Company shall have been fully discharged ■ and released from any and all liability upon said bond,” and the Surety Company contended that since Sehillinger Bros, had never returned the bond to it, nor secured from the BoschByan Grain Company a written discharge or release from all liability upon the bond, Sehillinger Bros, owed .the several years’ premiums sued for.

It is conceded that on December 14, 1905, Sehillinger Bros, paid the first premium on the bond, which, according to the application, should have been paid on July 14, 1905, and also that the bond was never returned to the Surety Company for cancellation, nor was there ever furnished to it any releases or waivers by the Bosch-Byan Grain Co. It appears that on the 19th of March, 1909, the Surety Company made and mailed to Sehillinger Bros, a bill of premiums upon the bond for three several years, beginning July 14, 1906, amounting to $420, the bill on its face purporting to be for “premium on contract bond No. 988, Chi., in favor of Bosch-Byan Grain Co., Cedar Bap-ids, Iowa.” On the 22nd of the same month, Schillinger Bros, replied, refusing to pay the bill, stating that the bond had never been accepted by the BoschByan Grain Co., obligee.

The court below, over objection, admitted testimony to the effect that, at the time the application _ was signed, a representative of Sehillinger Bros, told the agent of the Surety Company that the bond would have to be satisfactory to the Bosch-Ryan Grain Co. before it would be paid for.

Plaintiff in error contends here that the court below erred in admitting the testimony above referred to; also in admitting parol evidence to show the nature of the proceedings and the issues involved in a suit brought in Iowa by Schillinger Bros. against the Bosch-Ryan Grain Co.; also in its instructions to the jury, which, it is claimed, permitted them to construe the contract sued upon, and required them to determine questions of law; also in giving an instruction which left the jury to determine whether or not the contract sued upon was in full force and effect, and whether or not notice, said to be required by the contract to discharge the defendant in error from liability for premiums, was as a matter of fact, given to the Surety Company.

In the view we take of the relations between the parties disclosed by this record, extended discussion of the propositions above stated becomes unnecessary. While the court below undoubtedly erred in giving instructions permitting the jury to 'Construe the contract and pass upon questions of law, and also erred in admitting certain parol testimony as to what occurred at or before the time the bond was executed, we do not think such errors justify a reversal. If it remains clear that, in the judgment complained of, substantial justice has been done, and the correct aggregate result has been reached, it is not the duty of this court to reverse, even though the court below icommitted error. Robertson v. Moir, 88 Ill. App. 355, 357; Heckel v. Crewe, 125 Ill. 58; Eagle Packet Co. v. Defries, 94 Ill. 598.

An inspection of the application and bond makes it clear that the Bosch-Ryan Grain Co. was the obligee in the bond, which was issued for its benefit. If, for any reason, an obligee in a bond refuses to accept it, the bond does not become operative and no liability on the part of the maker thereunder arises. In their application, Schillinger Bros, agreed to pay as premium for the bond “$140 for the first year, in advance, and the same amount annually thereafter, in advance, so long as the bond shall continue in force.” The uncontradicted evidence shows that shortly after the bond was issued and delivered to Schillinger Bros., they tendered it on several occasions to the Bosch-Ryan G-rain Co., and upon each occasion the Bosch-Ryan G-rain Co. refused to accept it, and never did accept it. It is too clear to require argument or citation of authorities that by the continued refusal of the Bosch-Ryan Grain Co., for whose benefit the bond was executed, the bond in question had no validity, and the Surety Company never became liable thereon.

It appears that sometime after the bond was executed, Schillinger Bros. brought suit in Iowa agáinst the Bosch-Ryan Grain Co., to recover payments alleged to be due to it for work already performed, and that the original bond in question became a part of the files in that suit as an exhibit or otherwise', and being thus a part of the files, Schillinger Bros, could not return it to the Surety Company. The mere fact that it was not returned to the Surety Company did not make Schillinger Bros, liable for the premium thereon, if, as a matter of fact, the bond was not “in force.” The provision in the application, which plaintiff in error seems to regard as important and creating a liability upon Schillinger Bros, to pay the premiums until the Surety Company shall be furnished at its principal offices in New York satisfactory-proof of the discharge or release of its liability thereon, is not operative, because the application expressly provided that these clauses should be in force only “if premiums are not so stated, or not otherwise agreed on,” whereas in the application they were specifically stated and agreed upon.

The Surety Company offered testimony tending to show that it had mailed statements of its claims to Sehillinger Bros., while they, in turn, deny having received any such statements; however, the liability of Sehillinger Bros, is not determined in favor of either party by settling the controversy as to whether these notices were in fact sent or received; nor would Sehillinger Bros, be liable for the mere failure to return to the Surety Company the bond in question. Sehillinger Bros, did pay one year’s premium, and, while that fact no doubt shows acceptance of the bond so far as Sehillinger Bros, was concerned, the proof leaves no reasonable doubt that the Bosch-Byan Grain Co. did not accept it.

We agree with the contention of plaintiff in error that the court below erred in admitting parol evidence to show details of the litigation between Sehillinger Bros, and the Bosch-Byan Grain Co., but such error was not prejudicial. Sehillinger Bros, was endeavoring, as it had a right to do, to account for the non-production of the bond in this litigation, and it was entitled to show, if such was the fact, that the BoschByan Grain Co. on several occasions definitely refused to accept the bond, and at no time took any different position in relation thereto.

Finding, as we do from the evidence, that the Surety Company never became liable to the Bosch-Byan Grain Co., obligee in the bond, we think the result reached in the court below was correct, and its judgment will, therefore, be affirmed.

Judgment affirmed.


author: Mb. Pbesiding Justice Baldwin

text:
    M. Marcus, Plaintiff in Error, v. Chicago, Milwaukee & St. Paul Railway Company et al., Chicago, Milwaukee & St. Paul Railway Company, Defendant in Error.
    Gen. No. 16,369.
    1. Municipal court—how form of action determined. The form of the action in cases of the 4th class is to be determined from what the evidence shows and it is the duty of the municipal court irrespective of the name given to the action to render judgment according to what the evidence established.
    2. Trover—ivhat essential to maintenance. To constitute conversion the refusal to return upon demand must be absolute and amount to a denial of the plaintiff’s title to the possession.
    3. Common carriers—what essential to contract to carry and deliver. Delivery to the carrier at the point of shipment is essential to create a contract by the carrier to carry and deliver.
    4. Interstate commerce act—when inhibition against limiting liability does not apply. The interstate commerce law applies only to shipments which are in the custody of carriers as carriers and before their duty as such has terminated.
    Error to the Municipal Court of Chicago, the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 12, 1912.
    Stein, Matee & Stein, for plaintiff in error; Haebt M. Bosenblum, of counsel.
    C. S. Jefpeeson, for defendant in error.
   Mb. Pbesiding Justice Baldwin

delivered the opinion of the court.

Plaintiff in error brought a suit of the fourth class in the Municipal Court of Chicago against the Chicago, Milwaukee & St. Paul Bailway Company and the Pere Marquette Bailroad Company to recover the sum of $372.25. The case was tried before the court without a jury and judgment was entered against plaintiff, to reverse which this cause is before us upon a writ of error.

Before the trial, the suit was dismissed as to the Pere Marquette Bailroad Company. Plaintiff’s amended statement of claim is upon an alleged contract of transportation between Marcus and the Bail-way Company for the carriage of a box of merchandise from New York City to Columbus, Wisconsin. Practically all the' material facts were stipulated into the record by the parties, from which stipulation it appears that the merchandise in question was delivered to the Bailway Company by Marcus at Columbus, Wisconsin, on March 21, 1907; that the company transported the box, containing it, to Milwaukee, Wisconsin, at which point it delivered the same in good condition to its connecting carrier the Pere Marquette Bailroad Company; that the latter company transported the box to its connecting point; that the Delaware, Lackawanna & Western Bailroad Company carried it to New York City, its destination, arriving there on April 4, 1907, in the same condition as when received by the Bailway Company at Columbus; that on April 4, 1907, Solomon Bros., the consignees, being the firm which had originally sold and shipped the merchandise to the plaintiff, were notified, but refused to accept the box; that thereupon the last mentioned Bailroad Company notified the defendant in error, and in turn it notified Marcus at Columbus that Solomon Bros, had refused to accept the shipment; that after the expiration of the free storage period, Solomon Bros., consignees of the goods, still refusing to accept the box, it was, by the Delaware, Lackawanna & Western Bailroad Company, placed in a public warehouse.

At the time of the receipt of the shipment at Columbus by defendant in error, one Coapman was its station agent there. Early in June, 1907, Coapman called at the store of Marcus and inquired what he would have done with the goods which he had sent to Solomon Bros, but which they refused to take. Marcus told Coapman to get them back. He replied, “You will have to pay the freight both ways,” to which Marcus replied, “All right.” Three or four weeks later, there was a conversation between the two at the depot at Columbus, when Coapman claimed that he had forgotten to get them, and requested patience “just a little while, I am going to attend to it. You will get the goods in just a little while.” A similar interview is said to have been had between the parties in September. Marcus claimed that he did not know how far the Chicago, Milwaukee & St. Paul Railway extended; that he had always thought it ran clear through to the East. It was admitted that he paid Solomon Bros. $372.25 for the goods, but that when they were received by him, he thought they were not up to grade, and returned them.

Two letters from Marcus, dated August 8th and October 21, 1907, respectively, were introduced by the defense; the first to the effect that about seven or eight weeks previously he had been notified by the Railway Company that the box was refused by Solomon Bros., and had ever since tried to have Mr. Coapman locate it, but without success, and asking the claim agent to “try and locate same for me as soon as possible.” To this letter he added a postscript, “Goods were ship-lied on the Erie R. R. from Milwaukee, Wis.” The second letter enclosed to the claim agent a shipping bill, or bill of lading, issued by the defendant in error for the goods, and containing, among other provisions, one that if the goods were consigned beyond its line of road, they should be delivered to a connecting carrier or company for further transportation to the place of destination; the responsibility of the initial carrier- to cease when the property was thus delivered. It was conceded that plaintiff never received the goods back from New York.

The question presented by the record in this case is whether, under the circumstances, defendant in error is liable to Marcus, either upon a contract for a return to Columbus from New York of the shipment in question, or in trover for a failure to deliver the merchandise to him upon demand.

Under the law, the Municipal Court should have entered a judgment in favor of the plaintiff if it found the Railway Company liable upon either contention, regardless of the form in which he stated his claim. Edgerton v. Chicago, Rock Island & Pacific Ry. Co., 240 Ill. 311.

We do not find the record to contain any evidence upon which to support the theory of a conversion by the Railway Company of the property in question. The element of demand being conceded, the record fails to show an absolute refusal on the part of defendant to comply with the demand. To constitute conversion, the refusal must be absolute and amount to a denial of plaintiff’s -title to the possession. 2 Greenleaf on Evidence, 642. It is clear from the record in this case that, at the time Marcus sought to have the box of merchandise transported from New York to Columbus, Wisconsin, it was in a public warehouse in New York, and, therefore, not in the possession of the defendant. The letters from Marcus, in which he asked the claim agent of the Railway Company to help him locate the box as soon as possible, indicate clearly that even he knew the goods were not in the possession of the Company.

The evidence in the case at bar failed to show the delivery of the goods in question to the defendant company at New York for shipment to Columbus, and, accordingly, there could be no valid contract to carry or deliver them. In Pollard v. Vinton, 105 U. S. 7, the court said:

“The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or deliver.”

The acts of Coapman (agent for defendant in error at Columbus) in the matter were merely his personal and gratuitous accommodation of Marcus, and were beyond the scope of Ms authority as agent for the Company to bind it. It is not contended that any express authority was shown which would authorize him to bind the Bailway Company in the premises, and it is clear that, without such proof, the Company could not be held liable.

Plaintiff in error contends that, as he directed the Bailway Company to return the shipment, and as it failed or refused to do so, it is liable for the value of the shipment, even though the failure to return was due to neglect or default of its connecting carrier, and he bases this contention upon the proposition that the initial carrier is liable for the defaults of its connecting carriers. He cites Mahaffey v. Wisconsin Central Ry. Co., 147 Ill. App. 43, on page 48, and cases there cited, as sustaining this proposition. The law, as stated in the case cited is that “the initial carrier is liable for the acts of succeeding carriers for the entire route,” but this does not aid plaintiff in error, for clearly the initial carrier in the proposed shipment of these goods from New York to Columbus would be the Delaware, Lackawanna & Western Railroad Company or some other line from New York.

At the trial the plaintiff introduced the “Interstate Commerce Act,” presumably to show that,' on an interstate shipment, the Federal law prohibits the initial carrier from limiting its liability for loss and damage to its own line; but, that law has no application to the case at bar, because the liability of the last connecting carrier of the east-bound shipment, the Delaware, Lackawanna & Western Bailroad Company, as a carrier, had terminated when the goods were placed in a public warehouse, and the Interstate Commerce law applies only to shipments that are in the custody of carriers as carriers, and before their duty as such has terminated. Norfolk & Western Railway v. Draft Milling Co., 63 S. E. 415.

Under the stipulated facts in the record, it appears that the goods in question were shipped over the line of the defendant in error only as far as Milwaukee, Wisconsin, and that they were delivered in New York by the Delaware, Lackawanna & Western Railroad Company. If the goods were to be reshipped to Columbus over the same lines, the Delaware, Lackawanna & Western Railroad Company would be- the initial carrier with which the contract of carriage would be made, and under the “Interstate Commerce Act,” if it had received this box of merchandise for carriage to Columbus, it could not limit its liability for loss or damage to its own line. But that question is not presented here.

We think the court below properly found that the defendant in error was not liable to Marcus either upon a contract of shipment from New York to Columbus, Wisconsin, nor for the conversion of the merchandise. The judgment will, therefore, be affirmed.

Judgment affirmed.