source: Caselaw Access Project

license: Public Domain

text:
    Kedah J. Stanley, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 16,753.
    1. Municipal corporations—liability for dangerous obstniction of walks. A city is liable for injuries caused by dangerous obstructions on its walks and for failure to construct and maintain its walks in accordance with its plan of construction.
    2. Municipal corporations—instruction as to construction of sidewalk that is obstructed. Where a pedestrian stumbles over planks and crosspieces placed on a sidewalk by a contractor wrecking a building as a crossing for teams and wagons and to protect the walk, and sues the city for maintaining or permitting the obstruction, an instruction for the city as to its duty in constructing or maintaining the sidewalk is inapplicable and misleading.
    3. Municipal corporations—notice of obstruction from fact building is being wreaked. Where a pedestrian stumbles over planks and crosspieces placed on a sidewalk by a contractor wrecking a building, sues the city for permitting or maintaining the obstruction and testifies that she knew nothing of the obstruction or that a building was being wrecked, an instruction that pedestrians are bound to take notice that sidewalks in front of buildings being wrecked are more or less obstructed, and that plaintiff cannot recover if in failing to take notice of the obstruction she did not exercise proper care is improper.
    Error to the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed January 29, 1913.

      Emery S. Walker and John L. Davidson, for plaintiff in error.
    Edward J. Brundage and Clyde L. Day, for defendant in error; Edward C. Pitch, of counsel.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

This writ of error is prosecuted by Kedah J. Stanley to reverse a judgment against her by the City of Chicago in an action on the case by her against said city for personal injuries received by her in falling on a certain street and sidewalk in front of the premises known as No. 94 to 98 Washington street, Chicago.

The first count of the declaration averred that defendant in error was possessed and in control of said street and sidewalk, December 30, 1903, and on said date kept and maintained the walk at said place in a dangerous and obstructed condition for persons traveling thereon, by placing plank thereon longitudinally with said walk and fastening the same together with cross-pieces on the surface of said plank, thereby making uneven surfaces on said walk by reason of said cross-pieces projecting above said plank. The second count is the same, in substance, as the first count with the additional averment that defendant after reasonable notice failed to put said walk in a reasonably safe condition, and that plaintiff in error was thereafter injured while traveling thereon with reasonable care for her safety. ,

The evidence for the plaintiff in error tended to prove the causes of action set out in her declaration; that the plank and the said cross-pieces had been on said walk for six weeks prior to her injury and were placed there for a driveway over the walk and to protect the walk there which was being used as a crossing for teams and wagons.hauling wreckage from the buildings being wrecked at said place by contractors; that said planks were three inches thick and that said crosspieces were two inches thick and four inches wide, and extended about the entire width of the walk, and were placed about one inch inside the ends of the plank on the walk to mark the limits of the driveway to the wreckage; that on the day of her injury appellee walked along and over the driveway and stumbled and fell over one of the two cross-pieces and injured herself by reason, of said cross-piece and the plank making the uneven surface as aforesaid; that it was a cold, snowy day with a strong wind blowing at the time she fell, and that she was not in the habit of passing there, and had not passed there for many months prior to her injury; that she did not live in that neighborhood and knew nothing of the plank or cross-pieces there prior to her injury and knew nothing about the building there being wrecked prior to her fall, and that defendant in error licensed the contractors to build said driveway in writing. The evidence for the defendant in error tended to show that the cross-pieces were five or six inches wide and from seven-eighths to one and one-fourth of an inch in thickness and were made from flooring taken from the building being wrecked at that point.

Plaintiff in error complains of the court’s giving the following instructions asked by defendant in error, to-wit:

“No. 8. You are instructed that the city is not bound to construct its sidewalks at any particular height or width, nor of any particular material; nor according to any particular method of construction, nor to have adjoining sections of its walks meet on the same level. Its duty under the law in this regard is only to use ordinary care to keep its sidewalk in a reasonably safe condition for ordinary travel thereon by persons in the exercise of reasonable care and caution for their safety; and unless you believe from a preponderance of evidence that there was a violation on the part of the city of such duty, and that the alleged accident was approximately caused by reason thereof, then you should find the defendant, City of Chicago, not guilty.”
“No. 13. That while the municipality is required by law to use ordinary care to keep its streets and sidewalks reasonably safe for public travel thereon, still persons traveling on the public streets are bound to take notice of the fact, if it is a fact, that the streets and sidewalks in front of buildings in the process of erection, or tearing down, a,re more or less obstructed, and if the jury find from the evidence in this case that the sidewalk in question was so obstructed, and if they further find that the plaintiff failed to take notice of said obstruction, and in failing to do so, she did not exercise ordinary care for her own safety and welfare, they should find the defendant, City of Chicago, not guilty.”

Said instruction No. 8 is not applicable to the case in hand. Neither the mode, nor the plan of construction, nor the height, nor the width, nor the material with which the walk was constructed by the city, is complained of by plaintiff in error as being dangerous or unskilfully constructed. The thing complained of is the temporary obstruction placed on the walk by permission of the city as a crossing for hauling wreckage, and not at a public crossing of two streets. The obstruction, as it lay, presented two different heights in close proximity, one three inches, and the other five inches, above the level of the actual walk. It was not built for the special convenience of pedestrians, but for a crossing for teams and wagons and as a. protection to the walk built by the city. It was an obstruction to foot passengers which they had to climb over. The cross-pieces in particular were obstructions as to pedestrians, and not intended as any portions of the walk, and within themselves were mere notices to foot travelers, when they saw them, reading, “Obstruction! Step over.” The contention of defendant in error on the argument really is that plaintiff in error was duty bound to see these obstructions and avoid them.

We think.it was clearly a case for the jury to determine from the evidence the question of negligence of the city in maintaining these obstructions, as well as the question of contributory negligence of plaintiff in error, and without any suggestions with reference thereto by the court.

Instruction No. 13 was erroneous because it invaded the province of the jury, and for the further reason that it required plaintiff in error to anticipate the negligence of the city, and of which she had no notice whatever. Vocke v. City of Chicago, 208 Ill. 192.

The court, in substance, told the jury in said instruction that plaintiff in error was bound to take notice of the fact that the street there was obstructed, and the jury were thus instructed, regardless of the fact that she testified that she knew nothing of the obstructions or of the fact the building there was being wrecked. The jury were bound to render a verdict for defendant, if they gave heed to the instruction, and to instruction No. 9, which was subject to the same objection.

Instruction No. 8 was misleading, because not applicable to the facts in hand. A city is liable for injuries caused by dangerous obstructions on its walks and for failure to construct and maintain its walks in accordanee with its plan of construction. City of Chicago v. Carlson, 138 Ill. App. 582; City of Chicago v. Reid, 141 Ill. App. 514. The cases of City of Chicago v. Bixby, 84 Ill. 82, and Healy v. City of Chicago, 131 Ill. App. 183, have no application to this case.

The court properly modified plaintiff in error’s instruction No. 4. For the errors indicated the judgment of the court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Duncan

text:
    Kay Gee Amusement Company, for use of George W. McGee, Appellant, v. Charles R. Cave, Appellee.
    Gen. No. 16,880.
    1. Parties—where one of the colessees is dead. Where one -of co-lessees is dead, an action to recover a deposit is properly brought in the name of the surviving lessee.
    2. Appeals and errors—motion to exclude plaintiff’s evidence raises a question of law. A motion by defendant to exclude plaintiff’s evidence and to find the issues for defendant presents a question of law to the court which is subject to review.
    3. Damages—where parties intend sum as liquidated damages. Where parties to a lease agree to a certain sum as liquidated damages, and they intend it to be liquidated damages and not a penalty, such sum is irrevocably fixed by the parties as the amount to be recovered whether the damages be overpaid or underpaid.
    4. Damages—construed to he unliquidated where optional with one party. A provision in a lease that a certain sum may be retained “at the option of” lessor “as and for his liquidated damages and not as penalty,” is construed as tending to show damages were not liquidated, since acceptance by lessor is optional.
    5. Damages—whether liquidated damages or penalty depends .. on intention of parties. Whether a deposit is liquidated damages or a penalty depends on the intention of the parties as disclosed by the situation and terms of the instrument, and it is not necessarily regarded as liquidated damages though expressly so stated.
    6. Damages—construction as to liquidated damages in doubtful cases. Where there is doubt as to whether a deposit is intended as a penalty or liquidated damages and the damages are easy of calculation, the court is inclined to treat it as a penalty and inquire into the actual damages.
    Appeal from the Municipal Court of Chicago; the Hon.' John D. Turnbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed January 29, 1913.
    Rehearing denied February 14, 1913.
    Charles R. Napier and Charles S. McIlvaine, for appellant.
    Adler. & Lederer, for appellee; Francis Adams, Jr., of counsel.
   Mr. Presiding Justice Duncan

delivered the opinion

of the court.

Kay Gee Amusement Company, appellant, for the use of George W. McGee, sued Charles B>. Cave, appellee, for the sum of $1,200, deposited by appellant with appellee March 27, 1908, as security for the payment of rent to become due under a lease bearing said date, and which lease was terminated by appellee because of a default in appellant to pay a month’s rent due.

The cause was tried before the court without a jury, and at the close of appellant’s testimony in chief on motion of appellee the court found the issues for the appellee, overruled appellant’s motion for a new trial, and entered judgment against appellant in favor of appellee for costs.

In said lease appellee was described as party of the first part, while appellant was described as party of the second part, and the clauses therein material to this suit read as follows:

“It is agreed that certain repairs and improvements shall be made upon the above premises in accordance with plans, copies of which are hereto attached; that said premises shall be equipped with chairs to proper seating capacity; that all such appliances shall be placed upon said premises for fire protection as may be required by the city ordinance, and that said improvements, chairs and appliances shall be paid for by party of the first part; provided that in case the same shall cost to exceed the sum of three thousand dollars ($3,000) such excess shall be paid by the party of the second part. All the said improvements, chairs, scenery, curtain, and the said appliances above referred to, shall be and remain the property of the party of the first part, and at the expiration of this lease, by lapse of time or otherwise, shall be surrendered to him in as good condition as received, loss by fire, ordinary wear and tear excepted.
“In case the amount expended by party of the first part for the making of such improvements and for the purchase of such chairs and appliances, including said partition wall figured at two hundred twenty-five ($225) dollars, shall not amount to the sum of three thousand ($3,000) dollars, then the difference between said sum and the sum of three thousand ($3,000) dollars shall be credited to party of the second part on account of rent in sixty (60) equal instalments, ónesixtieth (1/60) of said sum to be applied upon each month’s rent during the term of this lease. Party of the first part agrees, at his own expense, to put in at a convenient place to be designated by party of the second part, a toilet and wash basin, and to make the necessary connections, the same to be of sanitary open ' plumbing type. After the completion of the improvements hereinbefore provided for, party of the first part shall not be required to make any further repairs during the term of this lease.
* * * * # *
“The party of the second part agrees to protect and indemnify, and to hold party of the first part harmless from all costs, expense, damages or judgments growing out of any alleged violation of any city ordinances on said demised premises, or out of any injuries sustained by any person or persons on said premises.
“Party of the second part has, simultaneously with the execution of this lease, deposited with party of the first part, the sum of twelve hundred ($1,200) dollars as security for the payment of the rent hereunder and the performance on its part of all the covenants of this, lease. In case party of the second part shall fail to pay the various' instalments of rent as they become due or shall make default in the performance of any of the covenants of this lease so that the said lease •shall, by reason of such default and lawful notice of party of the first part to party of the second part be terminated, as provided by statute, then and in that event the said sum of twelve hundred ($1,200) dollars so deposited may be retained at the option of party of the first part as and for his liquidated damages and not as penalty. In case the party of the second part shall pay the various instalments of rent hereunder and not make default in the performance of any of the covenants of said lease, then and in that event the said sum so deposited shall be credited to the extent and for the period of time for said premises for and on account of the last months during the last year of the term of this lease.”

Appellant deposited the sum of $1,200 with appellee the day the lease was executed, and two days thereafter Frank Kommer’s name was written in the lease as a co-lessee and he signed the same. Afterwards $3,500 was expended in alterations and improvements of the premises, according to said contract, of which sum appellant paid $500, and appellee $3,000. Appellant went into possession of said premises, and on July 1, 1909, defaulted in the payment of rent due for that month on that day, and appellant declared the terms of the lease ended and retained the $1,200 deposited as his liquidated damages. Frank Kommer died before the beginning of this suit.

The suit was properly brought in the name of the surviving lessee. Jones v. Supreme Lodge Knights of Honor, 236 Ill. 113; Supreme Lodge Knights and Ladies of Honor v. Portingall, 167 Ill. 291.

The contention of appellee that there was no proposition of law submitted to the court under the “Practice Act,” and that therefore there is no question of law presented to us on this appeal, as the cause was tried without a jury, is untenable. The motion of ap-. pellee to exclude appellant’s evidence, and to find the issues for appellee, presents a proposition of law to the court in the nature of a demurrer to the evidence. Smith v. Billings, 169 Ill. 294; Hogan v. Stophlet, 179 Ill. 150; First Nat. Bank of Chicago v. North Western Nat. Bank of Chicago, 152 Ill. 296.

The principal question in this case is whether or not the deposit of $1,200 by appellant with appellee should be regarded and held to be as liquidated damages to be retained by appellee in full of all his damages, or as a penalty for the fulfillment of the lease contract to pay rent and hold appellee harmless from all damages, etc.

We think it is very clear that the said sum was named by the parties and put up by appellant with appellee as a named penalty or security for the faithful performance of the covenants of the lease to pay rent, etc. The contract or lease itself denominates the deposit as 1 ‘security for the payment of the rent” and the performance of the covenants by the appellant or lessee. In the preceding paragraph of the lease appellant agrees to protect and indemnify and to hold harmless from costs, expenses and damages, etc. The word, “indemnify,” simply means, as used in the lease, to make whole. So the words, “to secure and to hold harmless,” as used in the lease, have the same meaning. Those words do not signify that appellee may be overpaid, or underpaid, but exactly paid, his damages. If the parties intended said sum as liquidated damages, then appellee is entitled thereto whether his damages be overpaid or underpaid, because if liquidated damages was intended, that sum was irrevocably fixed by the parties as the sum to be recovered for appellee’s damages. ■ Sedgwick on Damages, vol. 1, sec. 389.

Again, said lease provides that in case of default by appellant in the terms of the lease, so that the same shall be terminated by reason thereof, that then said sum may be retained “at the option of” appellee “as and for his liquidated damages and not as penalty.” The thing that usually settles the question as to whether liquidated damages or a penalty is meant in such contracts, is a disclosure in the contract that the parties agreed upon the actual damages to be paid and intended that said sum and no other sum should be paid and accepted as the actual damages for the breach. The fixing of liquidated damages by two parties is supposed to be done to prevent any litigation or further inquiry into the question of damages. Leaving it optional to appellee to accept the sum as liquidated damages is a point against the contention that the damages to be paid were irrevocably fixed and settled by the parties. So, also, if by the contract we determine that only the actual, or the exact damages of appellee, are to be recovered in case of default, that argues that the damages fixed are to be considered as a penalty, as in case the sum fixed be declared a penalty only actual damages sustained can be recovered. Sedgwick on Damages, vol. 1, sec. 395.

“The character of the deposit, whether liquidated damages or a penalty, depends upon the intention of the parties, as disclosed by the situation and by the terms of the instrument. The deposit is not necessarily to be regarded as liquidated damages, although it is expressly so stated in the instrument. Whether it is that or a penalty depends upon the nature of the transaction and the intention of the parties.” Caesar v. Rubinson, 174 N. Y. 492; Westfall v. Albert, 212 Ill. 68; Hennessy v. Metzger, 152 Ill. 505; Radloff v. Haase 196 Ill. 365; Scofield v. Tompkins, 95 Ill. 190.

‘‘ The real intention of the parties to be sought for is as to whether or not the parties, after having mutually and in good faith considered and calculated the actual damages, intended the sum fixed by their contract to be accepted as compensation for the breach of contract, or merely as security or penalty for the breach thereof.” Van Kannel v. Higley, 172 Ill. App. 88.

In determining the intent of the parties, courts must look to the entire instrument and give effect to every clause. It is also laid down as a rule of construction that in doubtful cases courts should be inclined to treat the stipulations as penalties and to hold that the real damages should be inquired into. The damages in this case were easy of calculation, and in such a case where the damages are unreasonably large, courts will not be inclined to regard the stipulated sum as liquidated damages. The only damages claimed in this case were for loss of rent and for the tearing down of a wall the construction of which cost $225.

We think from the evidence it clearly appears that the damages named were exorbitant, and that the court should have heard the evidence as to the actual damages, treating the sum mentioned as a penalty.

The judgment of the court is reversed and the cause remanded.

Reversed q,nd remanded.


author: Mr. Justice Craves

text:
    Minnie Orenstein, Appellee, v. Boston Store of Chicago, Appellant.
    Gen. No. 16,879.
    1. Master and servant—law infers master Knew of structural defect. "Where a defect in an appliance is structural and the appliance is thereby rendered unsafe, the law infers that the master knew of the defect, and an employee who is injured in consequence of the defect need not show that the master had actual knowledge or notice of it.
    2. Negligence—relation of master and servant does not preclude application of res ipsa loquitur. In a personal injury action, where neither the question of fellow-servant nor assumed risk is involved, the existence of the relation of master and servant between the parties does not preclude the application of the rule res ipsa loquitur.

    3. Negligence—where the rule res ipsa lo.quitur applies. In a personal injury action, where plaintiff, a saleslady in defendant’s department store, was struck by part of an electric fan fixture that became detached and fell, the doctrine of res ipsa loquitur applies.
    4. Verdict—passion or prejudice. The fact that a verdict is rendered for $3,000 and, after a remittitur of $1,500 is filed, a judgment is entered for $1,500 does not justify the conclusion that the jury were influenced by passion and prejudice where the verdict is not manifestly contrary to the evidence.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavakagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.
    Rehearing denied February 14, 1913.
    Winston, Payne, Strawn & Shaw, for appellant; Ralph M. Shaw, Edward W. Everett and J. Sidney Condit, of counsel.
    McEwen, Weissenbach, Shrimski & Meloan, for appellee.
   Mr. Justice Craves

delivered the opinion of the court.

This is an appeal from a judgment for $1,500, recovered against appellant for personal injuries sustained by appellee while working- as a saleslady in appellant’s department store, by being- struck by a part of an electric fan fixture that became detached and fell. This fan fixture was suspended from the ceiling of the room and was attached thereto by a hook. The upper part of the fixture had nothing to do with the actual operation of the fans proper. The only office of this upper part was to sustain the lower part. The fan proper was constructed of two electrically driven circular fans, the faces of which were substantially perpendicular, which fans were attached to opposite ends of a cross-arm and faced in opposite directions. The cross-arm attached to the upright by a sort of turn table, so that when the fans were in operation they rotated around the upright by force of the resistance of the air against the blades of the fans. The exact means by which the lower or rotating part of this fan fixture was attached to the upper or stationary part is not made very clear by the evidence, but there is sufficient to show that the upper portion or connecting- rod between the ceiling and the lower part of the fixture was threaded and screwed into a sort of yoke for a distance of about 7% inches, and at the top of this yoke, when it was screwed onto the connecting rod, there was a lock-nut which was intended to serve the double purpose of preventing the yoke from .unscrewing- from the pendant rod, and of supporting a brass tube with a canopy at the top that together covered the connecting rod from the ceiling down to the lock-nut. The lower part of the fixture from the lock-nut down was enclosed in an iron casing that prevenid the turntable, the yoke and the connection .between the yoke and the connecting rod, from being seen until the casing was removed. The testimony further shows that the lowest part of this fixture did not reach the floor by seven or eight feet; that when the fans were in motion the entire fixture was liable to sway slightly, if one of the fans revolved faster than the other, but that this motion did not affect the use or safety of the fan, or tend to loosen the parts of the fixture from each other, as it was so attached to the ceiling so as to permit such motion; that at the time of the injury complained of the fixture parted at the connection between the connecting rod and the yoke, and the lower part, including the yoke, the turntable, the cross-arm and the fans, fell upon appellee and injured her.

The declaration consisted of three counts. The negligence of appellant charged in the first count was, permitting the fans, motors and their fastenings to become defective and out of repair, and that the same became detached and fell and injured appellee. In the second count, that appellant so carelessly and negligently managed and operated its fan that it fell, and in the third count that appellant permitted the fan to be and remain insecurely fastened and attached after notice of its condition by reason of which it fell. Appellant insists that there is no proof of what, if any, defect in the fixture caused it to fall; that the doctrine' of res ipsa loquitur does not apply; that the fact that the fixture fell is no evidence of negligence on the part of appellant; that there is no proof of any neglect of duty by appellant and consequently no proof to support the verdict and judgment and that the judgment is excessive.

The duty imposed by law on appellant was to use reasonable care to see to it that the place where appellee, its servant; was put to work was reasonably safe. If the facts disclosed by the record show appellant failed in that duty and that in consequence appellee was injured then appellant is liable. The particular defect in the fixture that caused it to fall is not shown by the evidence, but that it was a defect in its structure or installation is shown by the testimony of H. E. Bender, a witness for appellant, who said, “Tinder ordinary conditions a fan of that character should hold indefinitely, if it is installed properly; no reason why it should not hold.” It did not hold, therefore, if the testimony of Bender is true, and we must so treat it, it was not properly installed.

Making the parts of a fan fixture and putting the fixture together, and putting it into the building in position to be operated, are manifestly all part of the original construction of a completed and installed fan. It takes all those things to make it a complete fan and any defect in the way it was made, put together or installed, is a structural defect. Where a defect in an appliance is structural and the appliance is thereby rendered unsafe, the law infers that the master knew of the defect, and an employee, who is injured in consequence of the defect, need not show that the master had actual knowledge or notice of it. Alexander v. Town of Mt. Sterling, 71 Ill. 366; Linquist v. Hodges, 248 Ill. 491; Crown Coal Co. v. Hiles, 43 Ill. App. 310. But it is said we may not consider the fact that the fixture fell as any evidence of a defect or of the master’s negligence; that the rule of res ipsa loquitur does not apply. It may be true that in suits by the servant against the master for personal injuries growing out of a failure of the master to perform his duty in regard to furnishing a reasonably safe place in which the servant is employed and reasonably safe tools and appliances with which to work that doctrine does not apply where the question of fellow-servant or assumed risk is involved, but it has never, so far as we are aware, been held in any case, where neither the question of fellow-servant nor the question of assumed risk were involved, that the mere fact that the plaintiff is the servant and the defendant is the master precludes the application of the rule res ipsa loquitur. The case relied upon by appellant, with apparently the greatest confidence, and which counsel says is the last expression of our Supreme Court on the question, is the case of Diamond Glue Co. v. Wietzychowski, 227 Ill. 338. That case was begun by a servant of the defendant for injury resulting from the falling of an elevator which the injured servant was himself operating and which he had operated for four years. It was claimed by the plaintiff in that case that the elevator fell by reason of the breaking of a certain rope which it was claimed the master had suffered to become worn, weakened and out of repair, of which condition it was claimed the master had notice. To the facts in that case the Supreme Court held the doctrine of res ipsa loquitur did not apply, and said-:

“It is perhaps true that the doctrine of res ipsa loquitur is not applicable to an action of this kind by a servant against his master. (4 Thompson on Negligence, sec. 3909.) In such a case (as the case then under consideration) the mere happening of the aceident raises no presumption that it was caused by negligence of the master. (Spring Valley Coal Co. v. Buzis, 213 Ill. 341.) It may have no tendency to show that the injury was the result of negligence on the part of the master, or it may have resulted from one of the risks which the servant assumed, or have occurred through the negligence of fellow-servants.”
That decision falls far short of supporting the contention of appellant in this case. In this case appellant does not claim the injury resulted either from the act of a fellow-servant or from any condition the risk of which was assumed by appellee, or that appellee had anything to do with the operation or supervision of the fan or that she knew or could have known by ordinary care or by any means within her reach of the defective condition. It is also well worthy of note that, while the court held that the rule res ipsa loquitur did not apply in the Diamond Glue Co. case, supra, weight was given to the fact that the elevator did fall as evidence tending to show that the appliance was defective and insufficient. On this point the court says:
“The fact, however, that the cable broke and the elevator fell,' together with the other evidence, tended to show that the cable was insufficient or defective, and to raise questions for the jury whether the defendant was chargeable with negligence and whether the condition of the cable was so plain and obvious that in the exercise of ordinary care the plaintiff would have discovered it.”

Many other cases are cited by appellant in support of this contention, all of which are clearly distinguishable from the case at bar. In many of these cases, as well as others to be referred to, expressions are used clearly indicating that it is the state of facts in each particular case that prevents the application of the rule .in question, rather than its inapplicability to a given class of cases. In the ease of Spring Valley Coal Co. v. Buzis, 213 Ill. 341, cited by appellant, and also cited in the Diamond Glue Co. case, supra, the court said:

‘ ‘ The manner of and the circumstances under which an injury was received may furnish proof of such negligence. ’ ’

In the case of Illinois Cent. R. Co. v. Swift, 213 Ill. 307, a master and servant case, the court said, concerning the application of the doctrine in question:

“The doctrine only applies, however, where the machine, appliance or other thing from which the injury results is shown to be under the management of the defendant and the accident is such as in the ordinary course of things does not happen if those in control use proper care. (1 Addison on Torts, sec. 33; North Chicago St. R. Co. v. Cotton, 140 Ill. 486; Chicago City R. Co. v. Barker, 209 Ill. 321.) The doctrine does not apply here for the reason that the accident did not result from the condition in which the defendant placed and left the pile-driver. The ropes that held it, as it had been left prior to the time the appellee approached it, were sufficient to maintain it in an upright position. Had the ropes broken and the pile-driver fallen while appellee was ascending the first time and before either of the sheave-blocks had been removed, there would have been some ground for invoking the doctrine; but here the person injured had removed one-half the lines which the defendant had attached to the pile-driver for the purpose of sustaining it in an upright position, and after doing that he climbed again up the leaning pile-driver, which, deprived of one-half the support which the defendant had provided, with its tendency to fall to the east, in which direction it was leaning, increased by the weight of appellee, fell and the injury resulted. As between plaintiff and defendant the pile-driver was not under the sole control or management of the defendant. On the contrary, the plaintiff was himself engaged in altering the condition in which it had been placed by the defendant. Under this state of the proof, it is not to be presumed that the rope was old and rotten or otherwise defective and that the defendant had actual or constructive notice of that fact.”

The case of Joliet Steel Co. v. Shields, 146 Ill. 603, is cited by appellants in support of this contention, and counsel quotes therefrom the following language of the court:

“As between master and servant it may be .conceded that no presumption of negligence arises, on the part of the master, from the mere fact that the servant has been injured while in his employ.”

And then the court proceeds to show that the reason why the stated proposition might be conceded was that under the facts in that case it was not necessary to determine it, because there was express proof of negligence sufficient to sustain the judgment, and the judgment was affirmed.

In Drake Standard Mach. Works v. Brossman, 135 Ill. App. 209, Mr. Justice Adams, in distinguishing the case of Sack v. Dolese, 137 Ill. 129, says: “In that case the plaintiff was a servant of the defendant, and res ipsa loquitur is not, as a general rule, applicable where the plaintiff is such servant.” The court there recognizes the fact that there are cases where the plaintiff is a servant of the defendant where the rule does apply. A general rule always permits exceptions. In Chicago Tel. Co. v. Schulz, 121 Ill. App. 573, the court expressly says the doctrine of res ipsa loquitur has no application as between master and servant, but in that case the plaintiff was operating a switchboard from which she received a current of electricity that injured her, and the proof showed she had complained to the master that the same was out of order and had been promised that the same should be repaired. The doctrine of assumed risk was, therefore, a controlling question in that case. Besides that, the court, in support of its conclusions that the doctrine in question did not apply, cites the case of Omaha Packing Co. v. Murray, 112 Ill. App. 233, which does not support the holding in the Schulz case. It was a per curiam opinion and holds merely that the doctrine “has never been extended to cases where the servant who was operating the machine or his felloiv-servant was the injured party.” In that case, Mr. Justice Windes filed a dissenting opinion, citing many authorities, in which he concludes that the doctrine should apply to that case. In Krans v. White, 8 Ill. App. 583, the court said, “The rule has never been extended to cases where the servant who operated the machinery or his fellow-servant was the injured party.” In the following cases the various courts have held that in proper cases between master and servant the doctrine does apply. Armour v. Golkowska, 95 Ill. App. 492; Goddard v. Enzler, 123 Ill. App. 108; Diamond Glue Co. v. Wietzychowski, 125 Ill. App. 277; Heinberger v. Elliott Frog & Switch Co., 165 Ill. App. 316.

From a careful consideration of all the authorities cited or found we conclude that the existence of the relationship of master and servant between the parties is not conclusive of the question of the application of the rule res ipsa loquitur, and that in a suit begun by the servant against the master for injuries claimed to have resulted from a failure of the master to furnish a safe place for the servant to work in or safe appliances with or around which to work, if the injuries result from some defect in- some machinery, appliances, place or thing with which the servant has nothing to do, and about which he knows nothing, and could not in the ordinary course of things know anything, and when the injury is not caused by the act or neglect of a fellow-servant, the rule res ipsa loquitur applies. As the facts in the case at bar square with the foregoing conditions, the rule must be held to apply to this case. It follows that the proof of the happening of the accident, particularly when supported by the testimony of appellant’s witness Bender, to the effect that the fixture would not have fallen, but would have remained indefinitely if it had been properly installed, and the testimony of Delsing, also a witness called by appellant, that “if the lock-nut did not yet loose it (the fixture) would not fall” is sufficient to establish the negligence of appellant, both in failing to have the fixture properly installed, and in permitting it to become out of repair, unless the same is rebutted by some other proof in the case tending to show due care. At least, it was sufficient to warrant the submission of the question of the master’s negligence in these respects to the jury, and to support a verdict based on it. Diamond Glue Co. v. Wietzychowski, 227 Ill. 338, 343.

Evidently for the purpose of overcoming the presumption created by the proof of the happening of the accident, and the evidence above referred to, appellant undertook to prove inspection by it of this appliance. In this effort, it absolutely and signally failed. The only inspection shown was that made by electricians, and was for the sole purpose of keeping the fans and the electric motors, by which they were propelled, in running order, and the proof further established that the way the two parts of the fixture were joined together had absolutely nothing to do with the operation of the fan. No inspection was shown as to the manner of .the installation of the fixture, or of the part of the fixture where the connecting rod was joined to the yoke, which was the point at which the'part that fell was separated from the balance of the fixture. The only inspection that would have been effective to discover the defect that caused the injury was not made by any one so far as the evidence discloses. On the contrary, the only persons shown to have had anything to do with the inspection of the fixtures were the witnesses, Delsing and Bender. Delsing testified: “I never took any notice of how it was installed * * * did not disturb the pendant or the part connected directly with it. This was not touched at all. * * * All I did was when there was something wrong I would he called to attend to it.” And after testifying that some two weeks before the accident he had the fixture down to adjust the running part, he said: “When I put the fan back two weeks before the accident, I did not make test to see whether or not pendant and other part was up there substantially. I only tried to see if it worked all right. I do not think it was part of my duties to see whether fan was securely fastened to pendant.” The witness, Bender, was the head electrician of appellant. He testified: “Tests are made when a fan is put up; it is a good precaution to take a weight and to suspend it to see if screw is properly driven and that it would suspend properly. Another way is to hang on to pendant with body (a man weighing 150 pounds) and jerking on it; that would give approximate idea of what fan would do. If there is any weakness, that would be the way to find out if a thing is strong or not. After this particular fan was installed, I made no test to ascertain whether it was in proper order.” * * * “Took them (the fans) down for the purpose of cleaning and overhauling them. * * * Am speaking more particularly of the motors and not as to whether it was properly fastened onto pendant. Never paid any attention to how it was fastened onto pendant.” This was all the evidence introduced tending to show due care on the part of appellant, and the jury were fully warranted in finding it guilty of negligence.

The verdict was for $3,000. A remittitur of $1,500 was filed and judgment was rendered for $1,500. It is claimed by appellant that the verdict is so excessive as to be evidence of passion and prejudice on the part of the jury. While damages to be allowed in personal injury cases arising from mere negligence must be limited to compensation only, what amounts to compensation and what exceeds that limit are questions upon which the minds of reasonable and fair men are apt to greatly differ, and cases are rare in which the size of the verdict alone is sufficient to warrant an appellate court in holding that the jury was influenced in bringing it by passion and prejudice. Each verdict must stand or fall on the facts in the particular case, and an appellate tribunal should not hold that a verdict is the result of passion or prejudice unless it is manifestly so. The evidence in this case tends to show that appellee sustained several painful bruises and cuts, one of which was on her face just above the eye, the scar from which was still visible at the time of the trial; that her nervous system was shattered and her general health impaired and that she was left subject to severe headaches, which were attributable to the blow on the head; and that she was under the doctor’s care for six weeks, and that her health has not been as good since the injury as before. Appellant also admits that her direct financial loss in wages and doctor’s bills amounted to approximately $250. We are not prepared to say that the verdict, as returned by the jury was so excessive as to indicate passion or prejudice, and certainly larger judgments for apparently less injuries have been frequently sustained by the courts. The case of Eidem v. Chicago, B. I. & P. Ry., 144 Ill. App. 320, is cited by appellant in support of the suggestion that the fact that the trial court required a remittitur rather tended to impeach than to sanctify a verdict. In that connection, it is interesting to note that when that case was retried, in the Circuit Court, a verdict for the plaintiff for $23,000 was returned by the jury, and a judgment was rendered for the full amount by the trial court, and the same Appellate Court that reversed the first judgment affirmed the last one for $17,000, after requiring a remittitur down to that amount. Eidem v. Chicago, R. I. &. P. Ry., 158 Ill. App. 82.

We think the verdict of the jury in this case was warranted by the evidence. Finding no error in the record, the judgment of the Superior Court is affirmed.

Judgment affirmed.


author: Mr. Justice Graves

text:
    Frank Staar, Appellee, v. Moy Tong Hoy et al., on appeal of Moy Tong Hoy, Appellant.
    Gen. No. 16,885.

      Practice—when diligence not shown on motion to set aside an order. Defendant’s motion to set aside an order to satisfy a judgment for costs on payment of a certain sum is properly denied where such motion is made two days after the entry of the order and it appears that all the facts relied on in the motion were known to defendant when complainant’s motion for the order to satisfy was made, which was allowed five days later, but no effort was made to bring the facts to the court’s attention.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tüthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.
    Bulkley, Gray & More, for appellant; C. Paul Tallmadge, of counsel.
    No appearance for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

Appellee began in the Circuit Court of Cook county a suit" in chancery against appellant. It was referred to a master in chancery. Before the master filed his report it was agreed that his fees should be $125, half of which, or $62.50, was then paid by each side. The master’s report was thereafter filed and later the suit was dismissed for want of prosecution, at the complainant’s cost. The clerk of the Circuit Court thereupon gave to appellant what purported to be a certified copy of a fee bill against appellee for $125 master’s fees and $3.00 appearance fee. It appears by the affidavit of one of the attorneys for appellant that attorneys for appellant later received a notice from the attorney for appellee that on July 29, 1910, at 10 o’clock a. m., before Judge Pinckney he would “ask” to have the costs retaxed; that the affiant appeared before Jurge Pinckney at the time and place mentioned in the notice and that no motion to retax costs was presented during the call of the motion calendar; “that affiiant’s firm to his knowledge has had no notice of any motion for the retaxing of the costs,” other than the one above mentioned; that on August 18, 1910, in pursuance to a notice received by him from the attorney of appellee, he appeared before Judge Tuthill, and that a motion was then made by appellee for an order to satisfy the judgment against appellee upon the payment of $3.00, and that “affiant then for the first time learned that the clerk had erased the item of Master’s fees” from the fee book without notice “to affiant’s firm.” Five days later and on August 23, 1910, the motion made August 18, 1910, was allowed and an order entered to satisfy the judgment against appellee for costs on the payment into court of the sum of $3.00. Two days later and on August 25,. 1910, appellant presented his motion to set aside and vacate the order of August 23, 1910, and to enter an order directing the clerk to “restore” the'item of $125 master’s fees in the “record,” which last motion of appellant was overruled by the court. It is the order of the court in overruling this last motion that is appealed from.

There are several sufficient reasons apparent why the action of the court in overruling the motion of appellant to set aside and vacate the order of August 23, 1910, was proper. We need mention but one, and that is that in all motions and proceedings to set aside and vacate the orders or judgments of a court the moving party must show that he has shown diligence to prevent the entry of the judgment or order complained of, and that the same was not entered because of any fault of his. A litigant may not sit idly by and speculate on what the ruling of the court may be in a pending matter and afterwards be heard to insist that such order be set aside for reasons known to him at the time the order complained of was entered, but which he negligently failed then to bring to the attention of the court. We know of no exception to this rule. The showing made by appellant on his motion to set aside this order discloses that he knew, on the 18th day of August, 1910, all the facts relied on in his motion to set it aside, and that although the motion was not disposed of until the 23rd of August, 1910, he made no effort whatever to bring such facts to the attention of. the court until two days after the order was entered.

We think the record fails to disclose such diligence on the part of appellant as would warrant the court in allowing motion.

The order of the Circuit Court is, therefore, affirmed.

Order affirmed.


text:
    In re Estate of Michael G. Geary, deceased. Appeal of John C. McDonnell, Administrator, Appellant, v. Albertine Sanders, Appellee.
    Gen. No. 16,917.
    1. Appeals and errors—abstract. Where reversal is sought on the ground that the judgment is not supported by the evidence, the abstract does not conform to appellate court rule 19 where it fails to show what judgment was entered, what points were presented on motion for new trial or what the verdict was.
    2. Appeals and errors—abstract. The Appellate Court may affirm a judgment unless the abstract shows data requiring reversal.
    Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.
    Rehearing denied February 14, 1913.
    John R. Geary, for appellant.
    Buell & Abbey, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court, which counsel for appellant says is not supported by the evidence. The so-called abstract, filed in this court, fails to show what judgment was entered in the Circuit Court; what points were presented by his motion for a new trial, or what the verdict of the jury was. In fact, so far as the common-law record is concerned, it is not an abstract at all, but a mere index, and it wholly fails to conform to rule 19 of this court, which provides, in part, that the abstract must be sufficient to fully present every error and exception relied upon.” It goes without saying that an Appellate Court cannot say whether a judgment is supported by the evidence without knowing what the judgment is, and it has been held times almost without number by the Appellate and Supreme Courts of this state that those courts will never go to the record for the purpose of finding something to warrant a reversal of the case, but will affirm, unless data is shown by the abstract requiring a reversal. Notwithstanding the fact that this case might well be affirmed on the so-called abstract filed, we have gone through the record with care and find that the case arose by the filing in the Probate Court by appellee of a claim against the estate of Michael G. Geary, deceased, for $2,676; that the claim was allowed by that court for $2,664; that an appeal was perfected by the representatives of the estate to the Circuit Court; that it was there tried by a jury; that the jury found the issues for the claimant, and assessed her damages at $2,690.29; and that a judgment was entered in accordance with the verdict.

We are satisfied that the evidence in the record fairly sustains the verdict and judgment, and that there is no reversible error in the record.

The judgment is, therefore, affirmed.

Judgment affirmed.


text:
    Abraham Kuh et al., Appellees, v. Eugene O’Reilly et al., Appellants.
    Gen. No. 16,932.
    1. Pabty walls—windows and projections. Where owners of adjoining property agree that a wall to be built by one of them “shall bo and remain a party wall,” and the builder, nine years after constructing a solid wall, cuts holes in the wall and places windows therein, and causes window shutters, exhaust pipes and other projections to extend over the adjoining premises, a court of chancery will order the solid wall to be restored and the projections removed.

      2. Pabty wall—defined. The term “party wall” means a solid wall throughout its entire length and height, and implies permanency.
    3. Pabty wall—estoppel. Where more, than one-half of the foundation. of a party wall has heen placed on complainant’s premises contrary to the agreement, where it was so located with his actual knowledge and acquiescence, he is estopped by such acquiescence.
    4. Equity—entire contract enforced. On the principle that he who asks equity must do equity, complainant cannot have a contract enforced in equity which he himself has first violated, nor will a court in chancery order defendant to perform his agreement without requiring complainant thereupon to fulfil his own obligations.
    5. Equity—when court of equity acquires entire jurisdiction it will dispose of matter. Where a court of equity has acquired jurisdiction of the subject-matter in litigation and of all the parties interested therein, it will determine and dispose of the entire matter, regardless of the prayer of the original bill.
    Appeal from the Superior Court of Cook county; the Hon. Wn> labd M. McEwen, Judge, presiding. Heard. in the Branch Appellate Court at the October term, 1910.
    Affirmed in part and reversed in part and remanded with directions.
    Opinion filed January 29, 1913.
    Rehearing denied.

      Certiorari denied by Supreme Court (making opinion final).
    M. J. Dunne, for appellants.
    Rosenthal and Hamill, for appellees; Lessing Rosenthal and Leo F. Wormser, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

Appellants are the owners of a business lot at the northwest corner of the intersection of VanBuren and Franklin streets in the City of Chicago. It faces 100 feet on VanBuren street and 50 feet on Franklin street. Appellees own the lots on the north and west of the lot of appellants. On March 3, 1892, the then owners of the lots above described entered into a written party wall agreement which contained, among other stipulations, the following:

First, That the walls of said building facing the premises of said second party on the north and west * * * shall he and remain a party wall and shall be built upon the dividing lines between the said premises of the parties * * * and said wall shall stand equally upon their respective parcels of land, * * * and said walls shall extend throughout the whole distance of said dividing lines.”
“Second, Said second party may join to and use said wall or any part thereof at any time after the same shall have been built, by first causing the said wall to be of proper strength and thickness to sustain the weight which he intends that the same shall bear and further by complying with the other provisions and covenants herein contained.”
******
“Sixth. Whenever said second party intends to join to and use said wall, * * * built by the other party, the one so using shall first pay to the other party or those claiming under him or them, * * * one-half of the value at that time of so much of said wall * * * including the foundations under the same, as he or they may use, and in computing the value of said wall * * * the services of architects and labor expended and performed in respect thereof shall be taken account of and considered.”
******
“Tenth. The agreements herein contained shall apply to and inure to the benefit of and be binding upon the heirs and assigns of each party * * '* and shall be covenants running with the land. * * * ”

The contract also contained a stipulation for the submission to arbitration of the question of the value of any part of the wall used by appellants, if any disagreement should arise concerning that matter. The then owners of the premises now owned by appellees, shortly after the making of this contract, constructed, and within a year completed, a wall on the north and west line of the lot now owned by appellants, in conformity with the terms of the contract, which wall was a part of a seven-story building then erected and was a substantial, solid party wall throughout its length, height and thickness. In about 1901, some nine years after this wall was constructed, appellees, against the protest of appellants, cut six large holes through this wall and placed large windows therein and attached to the side of the wall over the premises of appellants, hinges for window shutters and placed window shutters thereon, which extend and swing over the premises of appellants, and made an •• opening in the wall and placed there a large steam exhaust pipe that projected some eighteen to twenty-four inches over the premises of appellants, and from which appellees caused steam and vapor to be expelled. Appellees also placed certain anchor rods through said wall with heads estimated to be 16 inches across and to extend 4 inches over the premises of appellants. Appellants notified appellees to remove the rods, steam pipes, windows, window shutters and hinges referred to, and to reconstruct the wall, as it was originally constructed and intended to be constructed, and that if the notice was not complied with appellants would build a permanent structure on their lot and would use a part of the wall as a part of their structure, so to be erected without paying appellees any part of the value of the part so used, under the claim that, as appellees had not maintained the' wall as a party wall, as they had agreed to do, therefore appellants were not bound by their agreement "to pay one-half of the value of the part so used. This notice was not complied with and appellants proceeded to erect a four-story permanent building and in so doing-used so much of the wall in question as was necessary, and paid appellees nothing for the part so used. On August 5,1901, appellees began this suit by filing- their bill in chancery against appellants, alleging the ownership of the premises; the party wall agreement; the construction of the wall; that appellants and others were using and about to use part of said wall without-paying any part of the valúe thereof, and praying that appellants be decreed to pay for one-half of the value of the part of the wall so used, and to be used by them, and that the amount found to be due be decreed to be a lien on the premises of appellants, and that they be enjoined from using it without paying for one-half of the value of the part of the same so to be used. Appellants answered this bill, denied that the wall was built on the dividing line and averred, in substance, the facts above stated, and admitted that they were using part of the wall without paying any part of its value, and averred that by reason of the premises they had a right to so use it and claimed damages of appellees for the breaches of the contract by them already mentioned.

Later appellants filed a cross-bill in which the facts set up in their answer to the bill are reiterated in substance, and in which appellants not only claim the right to use the wall without paying for any part thereof, but also claim to be the absolute owners of that part of the wall resting on their land, and also claim compensation for the strip of their ground occupied by the wall in excess of the amount that should have been so used according to the terms of the contract, and for damages for the violation by appellees of the party wall contract, and pray for an injunction restraining appellees from maintaining and using the wall so encroaching on appellants’ premises and from maintaining and keeping the openings in and the various objects projecting from said walls, and for a mandatory order directing appellees to remove the projecting objects and windows, close the window openings and make the wall a solid party wall and to remove so much of said wall as improperly encroaches and rests on appellants ’ premises. The answer of appellees to the cross-bill admits the existence of the windows and projecting objects, but denies all other material allegations of the cross-bill, and the right of appellants to relief thereunder. The original and cross-bills were heard and disposed of together and the decree appealed from ordered appellees to remove the objects that projected from the walls out over the premises of appellants, but denied all the other.relief prayed for in the cross-bill and refused to order appellees to close the window openings and make the wall a solid party wall, enjoined appellants from using any portion of the wall not already being used, until they should pay therefor according to the terms of the contract, ordered appellants to pay to appellees the sum of $5,034.48, as the one-half of the value of the part of the wall then in use by appellants, and the sum of $2,208.21, as interest, and to pay the costs.

The evidence tends to show that more than one-half of the foundation of the wall was placed on the premises of appellants, but it likewise tends to show, and the court found, that it was so located, if not at the express direction of the then owners of the land, it was with their actual knowledge and acquiescence. Such acquiescence estops appellants from now complaining that the wall encroaches on their premises. Keating v. Korpage, 88 Mo. 524; Evans v. Howell, 211 Ill. 85.

The contract is not very explicit in describing the wall to be constructed, except as to its thickness, height and the material of which it was to be constructed. It is not expressly provided in the contract that the wall shall be a solid wall from its base to its apex throughout its entire length, but it does recite that the “parties are desirous that a party wall shall be erected;” that it is to be built seven stories high by the then owners of the premises now owned by appellees, and that the same “shall be and remain a party wall.” While it may be assumed the parties might have contracted for the building of a wall with openings and windows in it over the premises of appellants, no such contract was made and courts are bound to construe and enforce a contract according to the recognized meaning of the terms employed. The term “party wall” has been construed by the Supreme Court of this state in a well considered case to mean ‘1 a solid wall throughout its entire length and height. ’ Springer v. Darlington, 207 Ill. 238. See cases there cited. The parties to this contract evidently so construed and understood that term for the wall, as originally constructed, was a solid wall throughout its entire length and height, and was without projections of any kind over the premises of appellants, and so remained for a period of approximately nine years, when the windows and projections complained of were installed by appellees. This was a clear violation of the agreement. A “party wall” contract with no limitations as to time, implies permanency, and will not be construed as having been performed by the mere erection of a wall built in conformity therewith. It must continue to be a party wall. At least the parties to it and their privies have no right by their voluntary act to destroy it as a party wall. The contract before us has left no doubt as to the intention of the parties in regard to the permanency of the wall. It is expressly stipulated in it that the wall “shall be and remain a party wall.” Also, it is further provided that the agreements therein contained shall be covenants running with the land. This wall was then, both by the terms of the contract and by the requirements of law, to be and remain a party wall, that is, a solid wall throughout its entire height and length. The proof shows that some nine years after the wall was built appellees cut the openings in the wall complained of, and installed windows therein, before appellants ever attempted to use any part of such wall for their own purposes. The proof further shows that this was done in spite of the protests of appellants, and that although appellees were notified that if they did not so reconstruct the wall as to make it conform to the contract, appellants would use such parts of it as they desired without compensating appellees therefor, and under claim of right. Appellees did not reconstruct it.

After appellants had used part of it appellees filed their bill in this case. The. moment appellees destroyed this wall as a party wall, and all the time they allowed the conditions created by them to remain by which the character of the wall as a party wall was destroyed, appellees were violating the terms of the contract. Probably the best known rule in equity jurisprudence is that he who asks equity must do equity. No one can hope to enforce in equity a contract which he has himself first violated. Appellees were clearly not entitled to any relief under their bill, because the proof shows they were the first to violate the contract, and by their violation-of it they have estopped themselves from insisting upon its performance by appellants, and this is true regardless of whether the wall belonged to the ones who built it or to the ones who owned the land on which it stood. The rights here sought to be enforced are contractual rights. It is the contract that is made the basis of the action. Appellants might well and successfully have rested their defense upon the facts shown under the issues made by the original bill, and the answer thereto, but they saw fit rather to seek affirmative relief by way of a cross-bill, in which they pray for an order compelling appellees to perform their contract to maintain the wall as a party wall. This relief they have shown themselves to be entitled to, and a court of equity is the proper forüm in which to obtain it. Springer v. Darlington, supra. However, like appellees, appellants cannot have equity without doing equity, and while they have shown themselves to be entitled to have the wall made to conform to the party wall agreement, the evidence also shows they have used part of the wall, and equity requires that, when appellees shall make the wall conform to the terms of the party wall agreement, appellants must pay for the part used by them the stipulated amount. The evidence tends to show, and the court found, thát $5,034.48 was the value of one-half of the portion of the wall used by appellants at the time they first made use of it. The order for the payment of the $5,034.48, was, we think, supported as to the amount by the evidence, but was premature, and the order for the payment of the $2,208.21 interest was wholly unauthorized, for the reason that at the time when the part of the wall was used by appellants, and when this suit was commenced, appellees were themselves in default, and nothing was due to or recoverable by appellees from appellants on the contract, nor will anything be so due or recoverable on it until the wall is made to comply with the party wall agreement. Even on a written contract interest is only recoverable on what is found due on the contract, unless it is so expressly agreed, which is not true in this case. There is no showing made that appellants were threatening or contemplating the use of any portion of the wall in question, except what they were then using and no reason has been suggested or appears why a party should be enjoined from violating a contract which he neither threatens or intends to violate. The part of the decree by which appellants were restrained from using any more of the wall than they were then using was therefore erroneous. <A court of equity having acquired jurisdiction of the subject-matter in litigation and.of all the parties interested therein should retain jurisdiction and dispose of the entire matter. All the parties interested in this litigation are before the court and their respective rights are all proper subjects for determination in a court of equity. It is, therefore, proper that the court should retain jurisdiction and adjudicate the whole matter, regardless of whether the original bill, standing by itself, would warrant granting appellees any relief or not. The decree of the Superior Court is, therefore, affirmed in part and reversed in part, and remanded with directions to that court to enter a decree granting to appellants, in addition to the relief already granted, an order requiring appellees to remove the windows from the wall in question, and to fill the openings in said wall where the windows now are and to restore said wall to its original condition, and make the same a solid wall throughout its entire length and height, and that the court retain jurisdiction of the case, and upon its being made satisfactorily to appear to the court that appellees have complied with the order of the court, granting the above relief to the appellants, that the court enter a decree requiring appellants to pay to appellees by a short time to be fixed by the court the sum of $5,034.48, the amount found to be the value of one-half of so much of the wall as has been used by appellants, and that the said decree be made a lien on the premises of appellants in question.

The matter of costs in a case of this character being a matter left to the sound discretion of the trial court, we , make no suggestion as to whether the same should be paid by one party or the other or apportioned between them.

Decree affirmed in part and reversed in part and remanded with directions.


text:
    Garden City Sand Company et al., Appellants, v. Southern Fire Brick & Clay Company, Appellee.
    Gen. No. 16,963.
    1. Contracts—nonliability of third party for violation of contract. Where the owner of land agreed with several other parties to open and maintain a mine for producing fire clay and bricks and to supply such parties exclusively therewith, and another corporation, with full knowledge of the terms of the contract, after its having been duly recorded, buys part of the land and replaces the partially erected plant with a more extensive one, and manufactures and markets such clay and brick at reduced prices, where the grantor is financially irresponsible, and when no fraud is shown on the part of the corporation to prevent him from performing his contract, such a corporation is not bound by the contract to which it is not a party, nor can an action be maintained against it either at law or in equity for damages for loss of trade and profits by such parties, but they are entitled to a decree enjoining the violation of the contract.
    2. Damages—where amount cannot he computed. In an action for damages for loss of profits by reason of competition in violation of contract, when it cannot be determined from the evidence that such competition was the proximate or efficient cause of loss, or to what extent it was the cause and the amount cannot be computed, recovery cannot be had.
    Appeal from the Superior Court of Cook county; the Hon. George A. Dtjpuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Edwin C. Crawford and William R. Burleigh, for appellants.
    Beach & Beach, for appellees.
   Mr. Justice Graves

delivered the opinion of the court.

In September, A. D. 1901, Dick N. Lanyon, as party of the first part, James A. Heber and Willis S. Bone-brake, partners under the name of Heber and Bone-brake, as parties of the second part, The Garden City Sand Company, an Illinois corporation, as party of the third part, Hillsdale Fire Brick and Clay Company, an Hlinois corporation, as party of the fourth part, an J. B. and Mrs. Maria Warner, as parties of the fifth part, entered into a quintilateral contract to continue in force for the period of eight years, in which it was, among other things, agreed, in substance, that Lanyon, the party of the first part, should open and maintain on certain lands owned by him at Hills-dale, Indiana, and therein described, a mine and plant for producing fire clay, the same to have a sufficient capacity to supply all the fire clay required by the business done under the contract, and should not work, lease or operate any other plant on any land owned by him in Indiana, during the life of the contract; that the second party should operate the plant; that the first and second parties should mine, grind, screen and load on cars and deliver to the third, fourth and fifth parties clay for 77% cents per ton in such quantities and at such times as the third, fourth and fifth parties should from time to time order, not less than 1,040 tons of clay per month, and not to sell fire clay to any other persons or corporations than the third, fourth and fifth parties to the contract; that the third, fourth and fifth parties should buy no fire clay produced in Indiana except such as is produced by the first and second parties; “that they will make the greatest possible endeavor to sell all clay produced” by the first and second parties, and should “jointly but not severally” order and pay for not less than an average of 1,040 tons of clay per month and pay therefor 77% cents per ton, and that they will enter into no combination or trust to limit the output of the plants of the first and second parties; that the contract should be binding on all the parties and on the heirs, executors, administrators and assigns of the first, second and fifth parties,' and on the successors of the third and fourth parties. This contract was recorded in the recorder’s office in the county where the lands described in it lies. Lanyon began the erection of a plant in accordance with the terms of the contract, but never finished it. In the spring of 1902 the appellee corporation, The Southern Fire Brick and Clay Company, was formed, and with full knowledge, not only of the existence of the contract, but also of its terms, bought the land from Lanyon, on which the partially erected plant stood, the same being part of the premises described in the contract above mentioned. It pulled down so much of the plant as Lanyon had erected and built in its place a much more extensive plant, which was completed by the spring of 1903, wb,e.n appellee began to put on the market clay, both raw and manufactured, from the part of the land purchased by it from Lanyon, at a price low enough “to move its products,” as low in some instances as 90 cents per ton, which it continued to do until enjoined from so doing at the instance of appellant. After appellee had purchased the land and before the Lanyon plant was pulled down and while appellee was building its new plant, appellants notified appellee in writing of their contract and their intention to insist upon all their rights under it. To these notices and to the rights of appellants, appellee paid no heed. On April 4, 1903, after the parties of the third, fourth and fifth part to this contract, the appellants here, learned that appellee was mining and disposing of fire clay from the .lands covered by the contract, filed their bill in chancery in the Superior Court, praying for an injunction restraining the appellee from continuing to mine and sell.the clay, and that appellee be required to account to appellants for all the clay mined from the Lanyon lands in violation of the contract. To this bill appellee and the parties of the first and second part to the contract were all eventually made defendants. Both the Appellate and-Supreme Courts in due course determined the rights of the parties to the bill, so far as the question of injunction was concerned, and held that the complainants in the bill were entitled to the relief sought and remanded the cause to the Superior Court for further proceedings not inconsistent with the opinion of the Appellate Court. See Garden City Sand Co. v. Southern Fire Brick & Clay Co., 124 Ill. App. 599, aff’d 223 Ill. 616. In pursuance to the mandate of the Appellate Court, the injunction prayed for in the bill was, on March 5, 1907, ordered and the writ was thereafter issued, and the cause was referred to a master in chancery to hear evidence and take testimony to ascertain what amount of damage, if any, the complainants or either of them had sustained by reason of the removal of the clay, and whether or not and to what amount, if any, either of appellants had been damaged by the failure of Lanyon to complete his contract, and to report his conclusions of law and fact. After taking the evidence the master reported his conclusion to be that appellee had mined and sold fire clay from the premises in question and had made and sold brick from the same between April 3, 1903, and September, 1906, to complainants’ customers in competition with complainants and at reduced prices; that complainants had been damaged thereby and that appellee should respond in damages to appellants “for their loss of business occasioned by said competition and reduced prices;” that prior to April 3,1903, appellants were in the business of selling and sold at a profit fire clay and brick which they obtained from the Hillsdale Fire Brick & Clay Company at a uniform price of $1.00 per ton for fire clay and $9.00 per thousand for brick, and that there was a market for substantially all the fire brick and clay the Hillsdale Company could produce; that after appellee began to market the clay from the Lanyon lands the business of appellants began to fall off and by the time appellee was enjoined from mining the clay on the Lanyon lands, appellants were doing business at a loss and did not renew the lease of the lands from which they were mining the clay marketed by them, but went out of business and that appellants had lost in profits for the years 1903, 1904, 1905 and 1906, the total of $44,070.26, from what they would have made if the profits for each of those years had equaled the amount made by them for the year 1902. The master further found that appellee during the four years above mentioned, mined 55,501 tons of clay; that the average market price of that period was $1.00 per ton; that if the 55,501 tons of clay mined and marketed by appellee had been delivered to appellants and marketed by them they would have made a profit of 22% cents per ton thereon, that being the difference between the contract price of 77% cents per ton and $1.00 per ton, the market price, or a total of $12,487.72, and that appellants were entitled to a decree against appellee for the total of $44,070.26, and $12,487-72, or $56,557.98. Objections and exceptions were duly filed by appellee to the master’s report and on a hearing those exceptions relating to appellants’ right to recover damages from appellee, and the amount thereof, were sustained by the court and a decree was entered denying appellants’ right to such damages.

This appeal presents for determination, first, the question whether appellee, The Southern Fire Brick & Clay Company, who was not a party to the contract in question, is, under the averments in the bill and the facts shown by the evidence, liable in damages to any amount to appellants.

It is neither averred in the bill nor shown by the evidence that any fraud was practiced by appellee to prevent Lanyon or Heber and Bonebrake from performing the contract in question, and it is expressly conceded by appellant that no action at law-by them in tort or on a contract would lie against appellee 'for damages on account of any averment in the bill or fact proven by the evidence, but it is strenuously insisted that appellee is liable to appellants for all loss of profits on the business done by appellants and all loss of profits which appellants would have made if Lanyon and Heber and Bonebrake had performed their contract and appellee had not mined and put on the market at reduced prices the clay from the Lanyon lands in competition with the business of appellants, and that as a court of equity had assumed jurisdiction of the case, to enjoin appellee from mining and selling clay in violation of the Lanyon contract, that court has the right to and should retain jurisdiction of the „case to do complete justice between the parties, by requiring appellee to respond in damages to appellants for all loss sustained by them in consequence of the competition created by the sale of the output of appellee from the lands in question. These questions are not now open for our determination. The Supreme Court, when this case was before it (223 Ill. 616), said:

“The evidence shows that The Southern Fire Brick and Clay Company was not a party to the original contract and was not bound by it. Appellees could not maintain an action at law against it for damages sustained. It was one of the offenders, if not the chief offender, and was threatening to put the product of its mine on the open market in competition with appellees. If no relief could be obtained at law by way of damages the injury could not be prevented without recourse to equity by injunction, upon the theory that the appellant corporation had full knowledge of the terms of the contract before it purchased the land. As to Lanyon, the bill alleges that by the violation of the terms of the contract appellees have sustained and will sustain irreparable injury. The record is full of evidence as to the financial irresponsibility of Lanyon. He claims himself that he failed to carry out his part of the contract because of his financial inability to do so. If this was true, he certainly was in no condition to respond in damages to appellees in an action at law, and hence they were entitled to equitable relief against him to prevent his doing that which he had solemnly covenanted not to do.”

No other meaning can be gathered from that opinion than that appellee, The Southern Fire Brick and Clay Company, was not liable in damages to appellants and because they were not so liable, and because Lanyon, by. reason, of financial irresponsibility, could not be made to so respond, therefore the violation of the contract should be restrained by injunction.

Aside from the fact that the Supreme Court has settled these questions in this very case, the evidence taken by the master after the case was remanded is wholly insufficient to show that appellee is chargeable with causing any loss or damage to appellants. It does disclose that appellee did not purchase all the lands covered by the Lanyon contract, but that Lanyon retained 60 acres of the land on which there was many times the amount of clay appellants had contracted to take, and that Lanyon built thereon a plant and delivered to appellants all the clay they could use, and demanded of appellants that they take the 1,040 tons of clay per month contracted for by them, but that they refused to take the same, because they were unable to dispose of it. The evidence further tends to show that appellants’ inability to dispose of the clay was due, in part at least, to the falling off of the demand. While the competition of appellee in the trade may have had some effect in preventing appellants from selling the amount contracted for by them, there is no evidence by which it can be determined how much, if any, of the falling off of trade was due to the new competition and how much was due to the falling off of the demand. In other words, there is no evidence by which it can be determined that the competition of appellee was the proximate or even an efficient or appreciable cause of the falling off of appellants’ trade. Even if a right to damages clearly existed against appellee under the law, there is nothing in this record from which the amount could be computed. Besides this, the parties had no right to make a contract in restraint of trade or competition and the Supreme and Appellate Courts both held that this contract was not one in restraint of trade or competition, so that even if appellants did mine and sell the clay in violation of the contract, the competition created by selling it, and the loss of trade or profit resulting from such competition was not among the things contemplated by the parties or controlled or sought to be controlled by the contract.

The decree of the Superior Court is, therefore, affirmed.

Decree affirmed.


author: Mr. Justice Barnes

text:
    August Torpe, Executor, et al., Defendants in Error, v. Helena Letts and John Earl Letts et al., Plaintiffs in Error.
    Gen. No. 16,169.
    1. Mortgages—foreclosure of lien. It would seem that no suit can be brought by an heir of the grantor of a trust deed given to secure a note, whereby the owner thereof can be required to file a cross-bill to foreclose his lien.
    2. Abatement—when plea of pendency of prior suit properly overruled. In a suit to foreclose a trust deed given to secure a note, a plea of the pendency of a prior suit by the heir of the grantor of such deed is properly overruled where it fails to set forth with certainty the nature, character and objects of such prior suit and the precise relief prayed, or that the proceedings were taken for the same purpose, or that any process was issued requiring complainant’s appearance.
    Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed February 11, 1918.
    Edward J. Kelly, for plaintiffs in error.
    J. M. Camelon, for defendants in error.
   Mr. Justice Barnes

delivered the opinion of the court.

This was a suit brought by one Pretzsch (since deceased), as the owner of a certain note to foreclose a trust deed given to secure the same, both of which were executed by Caroline Krauspe (since deceased), of whom plaintiff in error, Helena Letts, wife of the other plaintiff in error, was one of the surviving heirs. As parties defendant they filed a plea to the bill alleging the pendency of a prior suit brought by Helena Letts in the Circuit Court, and that Pretzsch was made defendant thereto as the unknown owner of said note.

While the plea formally states that the bill in the cause dependent was for the same subject-matter and sought the same relief, nevertheless it fails to set forth with any degree of certainty what was absolutely essential—its nature, character and objects, and the precise relief prayed therein (Story, Equity Pl., 12th Ed., sec. 737), or that the proceedings in the former suit were taken for the same purpose (Id. sec. 737; Behrens v. Sieveking, 2 Myl. & Cr. 602), or even that any process was issued requiring Pretzsch’s appearance.

In the absence of a more precise description of the character of the former suit, it is difficult to comprehend how it could have sought the same relief, or what kind of a bill Helena Letts, standing in the shoes of her mother as a mortgagor or grantor in the trust deed, could exhibit that would have the same purpose as a bill to foreclose it. Whatever the nature of said prior suit, we do not understand that Pretzsch could have been required to file a cross-bill to foreclose his lien. Jones on Mortgage, vol. 3, sec. 1445; Mulcahey v. Strauss, 151 Ill. 70; Adams v. McPartlin, 11 Abb. New Cas. (N. Y.) 369.

The plea was defective in substance, and did not, as is requisite, clearly and distinctly aver all the facts necessary to render it a complete equitable defense to the bill. Gage v. Smith, 142 Ill. 191; Cheney v. Patton, 134 Ill. 422. It was properly overruled, and the decree will be affirmed.

Affirmed.


text:
    George A. Lamb, Appellee, v. Herbert O. Tomlinson et al., Appellants.
    Gen. No. 17,094.
    1. Personal property—when parties are co-owners. Parties to an agreement are co-owners where they agree that books taken as part payment for books sold are to be common property and that any one interested may sell them.
    2. Assumpsit—when does not lie by one co-owner of property against another. Where books are held by two parties as co-owners and each has the power to sell, no recovery in assumpsit can be had by one of such parties against the other for his share therein when the hooks have not been converted into cash or money’s worth.
    3. Assumpsit—when no recovery on theory of constructive conversion. Recovery in assumpsit cannot be had by one of two co-owners of books each of whom has power to sell, on the theory of constructive conversion after demand for his interest was refused by the other, where no demand is shown except for money.
    4. Action—splitting causes. On recovery in assumpsit for commissions for sales of books by plaintiff and for his interest in books held by the parties as co-owners, the amount recovered as his interest in the books may be severed and remittitur thereof required, since the case does not consist of one cause of action.
    5. Costs—when may be taxed equally. Where a remittitur of part of a judgment is required on appeal, one-half of the costs of the appeal may be taxed to each party.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed on remittitur.
    Opinion filed February 11, 1913.
    Remittitur filed February 20, 1913.
    McArdle & McArdle and Frank L. DeLay, for appellants.
    F. W. Balcomb, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This is a suit in assumpsit and involves numerous transactions under written and verbal agreements, whereby plaintiff Lamb effected or assisted in effecting sales of books for defendants, involving thousands of dollars. The trial was before the court without a jury and took several weeks. The testimony taken covers 2,000 pages of the record, and involves matters of accounting, items of cash advanced, expenses incurred, bonuses and commissions claimed, and questions as to division of profits which included cash, notes and unsold books.

Plaintiff claimed a balance of over $57,000, and defendants a set-off of nearly $10,000 and a balance due them of over $4,500. Plaintiff’s claims to the amount of $16,580.89, and defendants’ set-off to the amount of $9,416.68 were allowed, and judgment for the balance, $7,164.21, was entered for plaintiff. The court passed on 137 special findings of fact, some of them including numerous items of account. The testimony is conflicting, but after a thorough review thereof we cannot say that the court was not justified in its findings of fact, except as to the amount due, and therefore it would serve no useful purpose to discuss it or the merits of the criminatory and recriminatory charges it presents. Suffice it to say that the methods of dealing with customers apparently adopted in the transactions in question justify the belief that neither party would have resorted to a court of equity for a division of the profits therefrom. We shall, therefore, consider questions of law only, which relate principally to the court’s allowing plaintiff an estimated value of his share in certain unsold books.

It appears that there were several sales in which other books were taken in exchange as part payment and they remained with defendants until sold. Those still on hand were produced at the trial. The court found, and correctly we think, that plaintiff had an undivided interest in them, but over defendants’ objection received evidence of their market value, and allowed plaintiff his proportionate share, which it estimated at $4,187.90. The only question we find it necessary to consider is whether such allowance was proper.

Plaintiff in both his declaration and testimony claimed an undivided interest in the books. Describing the agreement in his declaration he says: “In case defendants * * * took books in exchange, plaintiff was to have an interest in said books, equal to what his share would have been in case of cash payments.” This allegation is inconsistent with his contention here that it was one of the terms of the agreement “that defendants had the option to pay plaintiff partly in books and partly in cash, or reduce the books by sale or otherwise to cash and pay entirely in money; ’ ’ and he now claims that having given defendants a reasonable time in which to exercise such option he could recover for their value. We find nothing in the record to support such an agreement or that plaintiff ever relied upon any such construction of it. The accepted import of the agreement was that the books taken in part payment of the sales were to be the common property of the parties interested in the sale, and that any one of the parties so interested might sell them. Plaintiff himself testified that the division was to be made at once when books were received in exchange, or the books should be sold and the proceeds divided, and that any one could sell the books who could make a sale. In some of the transactions other persons became interested in the sales and the books taken in exchange, and it was agreed, and the court so found, that any one of the parties in interest might buy the share of another at a certain percentage of either wholesale, or catalogue, or list, or subscription price of the books, and if none, of the price at which sold. There was no offer by plaintiff to buy or refusal by defendants to sell them.

The parties were interested in such books as co-owners, and they went into defendants’ possession subject to disposition as aforesaid. Not having been converted into cash or money’s worth, no recovery under the action of assumpsit could be had for plaintiff’s share in them. Morrison v. Rogers, 3 Ill. (2 Scam.) 318; Creel v. Kirkham, 47 Ill. 344; Johnston v. Salisbury, 61 Ill. 316.

Plaintiff also predicates his right to recover in assumpsit on the theory that there was a constructive conversion of his interest by a demand therefor and defendants’ refusal to comply with it, and that he could waive.the tort and bring such action. But the record shows no demand by him except for money. We need not, therefore, discuss the subject of conversion or the remedy open when there is only constructive conversion.

So far, therefore, as the judgment includes plaintiff’s share in such unsold books, estimated as aforesaid, at $4,187.90, it cannot stand without a remittitur of that sum.

Defendants contend that no part of the judgment can stand because plaintiff would thus be permitted to split his cause of action in a case where only one recovery can be had. But we do not think this a case of one cause of action. No division of the entire demand will result in severing from the matters properly recoverable under the declaration the claim for his interest in the unsold books. Plaintiff’s portion of cash from the sales was due him when realized, for which if not paid he could sue at any time. But his right to recover therefor was a demand separate and distinct from his interest as co-owner in the unsold books for which, as stated, no recovery would lie in assumpsit until they had been converted into money or money’s worth. Whether the facts are such as to justify any other form of action for such interest is not a question raised by this record.

If appellee will within ten days from the filing of this opinion file in this court a remittitur of $4,187.90, the judgment will be affirmed, each party to pay one-half the costs in this court; otherwise the judgment ■ will be reversed and the cause remanded for a new trial at appellee’s costs. ■

Affirmed on remittitur.


text:
    John Schwarz, Appellant, v. Bowler Manufacturing Company et al., Appellees.
    Gen. No. 18,010.

      Corporations—money paid for stock not trust fund. Money received by a corporation from stock subscriptions constitutes a trust fund for all its creditors, and where it is insolvent, no preference can be given by impressing a trust on a fund paid by a purchaser, whether his subscription was induced by fraud or not.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimobe Cooper, Judge presiding. Heard in the Branch Appellate Court at the December term, 1911.
    Affirmed.
    Opinion filed February 11, 1913.
    McEwen, Weissenbach, Shrimski & Meloan, for appellant.
    Caswell & Healy, for appellees,
   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a decree sustaining a demurrer to the bill of complaint and dismissing the same for want of equity. The bill seeks the rescission of a contract for the purchase of stock of said manufacturing company on the ground that complainant was fraudulently induced by defendants to enter into it, the return of the money paid therefor, an accounting, and to have certain deposits of said company with the defendant bank consisting, as is alleged, of part of the money paid for said stock, declared a trust fund.

The grounds relied upon for the aid of a court of equity are two,—an alleged claim for accounting, and right to declare a trust. As to the former, the hill fails to show a complicated account and to state a case for an accounting. As to the latter, we do not think that the mere fact that money from the sale of stock induced hy fraud has entered into the corporation’s banking account or a certificate of deposit issued to it, furnishes ground for' impressing a trust upon either of them for the benefit of the subscriber or purchaser of such stock. Money received from stock subscriptions constitutes a trust fund for all creditors of the corporation, and as the bill alleges that the corporation is insolvent, no preference can be given to complainant as a creditor over its other creditors whether the subscription was induced by fraud or not. Turner v. Grangers’ Life & Health Ins. Co., 65 Ga. 649. The obvious aim of the bil.1 is to tie up such account and certificate so complainant can realize upon them in the event of sustaining his case; but on facts as stated in the bill he may manifestly recover a judgment in law, and we do not think the bill sets forth equitable grounds for reaching the funds in question. The decree will be affirmed.

Affirmed.