text:
    Martin Mussing, Appellant, v. The Corn Exchange National Bank of Chicago, Appellee.
    Gen. No. 16,821.
    1. Notaries—protest fees. Where a notary employed as a clerk by a bank agrees as part of his contract of employment that fees in protesting the bank’s commercial paper shall be retained by the bank, accepts his salary for five years without claiming fees that he knew had been collected and signs the semi-monthly pay-roll sheet which contains a statement that all claims are released, this course of conduct and the signing of the release, without reference to and apart from the original contract, operate as an assignment of any fees then collected which is effectual, as a bar to a claim for fees.
    2. Notaries—fees. Where a notary public, an employe of a bank, is given the alternative of accepting another position at a reduced salary, or of taking charge of the notarial work at his former salary waiving the right to protest fees and agrees that the protest fees shall be retained by the bank, even if the contract to assign the fees is to be regarded as void as against public policy, the employe was a free agent dealing on equal terms with the bank, both parties are in pari delicto and the employe cannot recover the notarial fees collected and retained by the bank.
    Appeal from the Circuit Court of' Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Francis W. Walker, James I. Ennis, Albert G. Welch and Kenner S. Boreman, for appellant.
    Judah, Willard, Wolf & Reichmann, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This was an action of assumpsit brought by Martin Mussing, plaintiff, to recover from the Corn Exchange National Bank of Chicago, defendant, certain fees collected by the defendant for services rendered by the plaintiff as a notary public to various customers and correspondents of defendant, which fees were retained by it and appropriated to its own use.

The period covered by this claim is between May 15, 1901, and May 1,1906, and it is stipulated that the amount of the fees so collected is $13,132.24. The trial court permitted the plaintiff to recover the amount of fees collected from April 13, 1906, to May 1, 1906, amounting to $185.84, and judgment against defendant for this amount was entered. Plaintiff has appealed from this judgment, and is in this court claiming the whole amount of such fees for the entire period above mentioned.

The declaration consists of the common counts in assumpsit and a special count, in which latter count it is alleged that the defendant was a banker and engaged in the banking business in Chicago, and that it received from divers customers and correspondents sundry checks, notes, etc., for presentation and collection ; that it was its duty to make such presentation or demand, and in case of non-payment or non-acceptance to cause the same to be noted for protest; that the plaintiff was a duly commissioned and qualified notary public, and that during said period the defendant delivered to plaintiff, as notary public, 5,746 items of such commercial paper, and that plaintiff, as a notary, presented such paper and noted the same for protest and performed the duties incumbent upon him as such notary public, and delivered the paper to the defendant, together with the usual certificate of protest, and requested the defendant to collect from its correspondents the fees due to the plaintiff as such notary public; that said defendant, as agent of the plaintiff, collected the fees so due, and has refused to account for and to pay the same over to the plaintiff.

To this declaration the defendant filed. the plea of the general issue and a number of special pleas. The second additional plea alleges that the defendant was a national bank engaged in the banking business in the city of Chicago, and that it received from numerous persons and correspondents, as their agent, various and sundry checks, notes and other commercial paper for presentation and collection by the defendant to and from the parties obligated thereon; that it was its duty to present the same for payment at such times and places as required by law, and in case of non-payment or non-acceptance thereof to cause the same to be duly noted for protest and protested; that during the period aforesaid plaintiff was a duly commissioned notary public, and on the first day of October, 1900, the plaintiff and the defendant entered into a certain contract of employment, by virtue of which the plaintiff herein undertook and agreed to perform certain proper and legal services as a clerk for the defendant, and as a part of such services and in connection therewith to attend to the protest of, and to protest, such commercial paper as should during the course of his said employment come into the hands of the defendant in the conduct of its said banking business for collection and protest, and to do and perform the requisite notarial services incident to the protest thereof, and in consideration of all of such services so to be performed by the plaintiff, defendant then and there agreed to pay the plaintiff the total and entire sum of $1,500 per year. And it was further then and there agreed in and as a part of said contract of employment, and in consideration of the mutual covenants and agreements aforesaid, and the mutual performance of the same, that all notarial fees charged and collected in connection with such protests of such commercial paper should, as and when paid and collected, pass to, be retained by and become the property of the defendant; that from and after the entering into of said contract of employment said plaintiff began the performance of said services, and continued so to do during all the time in said declaration mentioned, and during all of said time all of the notarial fees aforesaid, collected in connection with the protest of said commercial paper, were paid to and received and retained by the defendant, and all without any demand or claim therefor, or any part thereof, at any time, made by the plaintiff; that from and after the date of plaintiff’s said employment, defendant paid to plaintiff the stipulated salary of $1,500 per year, all of which plaintiff has retained.

The fourth additional plea was of an accord and satisfaction by reason of the acceptance by plaintiff from the defendant from time to time of certain sums of money on the basis of $1,500 per year in full satisfaction, etc. The sixth additional plea is to the effect that the plaintiff' released and .discharged the defendant from the said claims, demands, etc.; and the seventh additional plea is to the effect that the plaintiff by an instrument in writing released and discharged the defendant, etc.

There is little, if any, disagreement as to the facts. The plaintiff seems to have proved the facts alleged in his special count, and the defendant, has proved the contract of employment and other facts alleged in its additional plea. This contract of employment is evidenced by the testimony of Mr. Orr, one of the vice-presidents of defendant’s bank, which is as follows:

“My best judgment is that it was in September, 1900. On sending for Mr. Mussing I informed him that the bank would not be able to continue him on the salary he had been receiving. That there was no position in the bank of sufficient importance that he could fill that would warrant us in paying’ that salary. I told him that it was either a case of being willing to accept a bookkeeper’s position at the ordinary bookkeeper’s salary, or another arrangement that I had in mind in regard to the notarial fees, or the notary work, rather, if he chose to do it under that arrangement. The arrangement that I suggested to him was that we would continue to pay him the $1,500 salary that he had been getting if he would waive his notarial fees, doing all the notarial work, which was' otherwise to be distributed with the different clerks in the office. I also told him that if he had any spare time it would be subject to the use of the bank within the regular hours, and that only in the event of his having any extra time would he be called upon to act in any other capacity in case he did the notarial work. I also informed him that the reason we could not employ him at any post of importance was not inability to do the character of work, but it was his unfortunate disposition that would not permit of our letting him deal with the public. He simply lost control of himself upon the slightest provocation, and it was embarrassing to the institution. I told him if he chose to do this notary work I had thought of he must be exceedingly careful on account of his disposition, and assure us that there would be no complaint on this score, and that it would be but a trial, or at least if he did not prove satisfactory it would be but a trial. I told him that the notary fees would go into the bank, he waiving all claims to such fees.

“He said he appreciated very much the consideration that was given him, and he would see to it that there was no further complaint, although he contended that his disposition was still good and always had been. He said he would accept the proposition gladly, and thanked the bank for giving it to him. In the conversation I said that we could not continue him any longer in the,service unless he chose to accept such position as we might assign him on the ordinary books at bookkeeper’s salary, or unless this proposition in regard to the notary work was agreeable to him.”

When plaintiff took charge of the notarial work a notary’s account was opened by him upon the books of the bank. In this account were entered the charges for all notarial fees charged against the correspondents of the defendant bank, resulting from the notarial work done by plaintiff, and when they were collected a corresponding credit' entry was made in the same account. On the books of the bank, as disclosed by this account, these fees were treated as and constituted a part of the assets of the bank, and when collected became a part of the funds of the bank, and were mingled therewith. From time to time they were distributed as part of the earnings of the bank in the way of dividends, all of which the plaintiff knew.

Plaintiff was paid his salary on the basis of $1,500 a year, in semi-monthly installments of $62.50. On each occasion when paid his salary he signed a certain payroll sheet. Across the top of each payroll sheet were printed the following words:

“The undersigned individually acknowledge having received from the Corn Exchange National Bank of Chicago the sums due them, respectively, on the date hereof, in full payment and satisfaction for all services rendered by them for the said bank to the date hereof, inclusive. In consideration whereof, each for himself, does hereby release and discharge the said bank from all claims and demands due him for any and all services by or for him done in any capacity up to this date.”

The last payroll sheet signed by him was dated April 13, 1906. He refused to sign the payroll sheet of April 30, 1906.

The first controverted point is as to the validity of the agreement by which the bank was to retain the notarial fees and to pay the plaintiff a salary for all services. A very large amount of labor and learning has been expended by counsel for plaintiff in support of their contention that an assignment of fees or salary to be earned in the future by a public officer is contrary to public policy and void. Opposing counsel contend that this rule has no application to a mere ministerial officer, such as a notary public. In view of the conclusion we have reached, we do not deem it necessary to express any opinion on either of these points.

Whatever may be the rule as to the validity of the contract in question in the first instance, we are of the opinion that there is nothing invalid in an agreement to assign and transfer such fees after they have been earned and collected. For more than five years plaintiff accepted Ms salary in semi-montMy installments, without demanding more or asserting any claim for other compensation, knowing all the while that the bank had then in its possession moneys which represented fees earned through his official acts as notary public. This course of conduct, together with the signing of the receipt above described, must be held to operate as an assignment of any fees then collected, and this follows without reference to and apart from the original contract. The original contract may be material evidence tending to explain the subsequent conduct of the parties, but it imparts no obligation of its own, if any there may be, to the binding effect arising from the subsequent acts of the parties. There appears scarcely any reasonable ground for questioning the fact that plaintiff assigned and transferred all his interest in any fees already earned and collected by the bank. It follows therefore that he has created an effectual bar to any further claim against the defendant. If any precedent were needed, the cases of Hobbs v. City of Yonkers, 32 Hun (N. Y.) 454, affirmed in 102 N. Y. 13, and Second National Bank v. Ferguson, 114 Ky. 516, would be applicable. The opinions in these cases are long, and it must suffice to say that the facts appearing in them are practically the same as in the case before us, and the reasoning and decision in each case meet with our approval,'as being based upon sound principles.

Another consideration of weight with this court is, conceding the original contract to have been invalid, that where both parties are in equal fault, courts will not grant any relief; or, as the Latin maxim, translated, concludes: “The position of the defendant is better.” It is claimed, however, by the plaintiff that the parties herein were not upon equal terms when the contract was made, or during its performance, and that the rule should be observed that where the parties are not in pari delicto, or perhaps when both parties are in delicto, the court will grant relief to the party whose degrees of wrong is the less. As stated by Story, the rule is: “In cases where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be, and often are, very different degrees in their guilt. One party may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age; so that his guilt may be far less in degree than that of his associate in the offense.” Story’s Eq. Jur., Sec. 300.

We agree with the rule as stated, but do not think that it applies to the facts in this case. At the time of the contract of employment plaintiff was entirely at liberty to make the agreement or to refrain from making it. He was a free agent. Presumably he chose to enter into this agreement from motives of advantage and profit to himself. From Mr. Orr’s testimony it appears that plaintiff was given his option as between this arrangement and another line of work in the bank, and plaintiff preferred the agreement which he now repudiates. The same conditions prevailed during the years of the performance of the contract; if dissatisfied, he could at any time repudiate it, as he did in May, 1906. None of the elements mentioned by Story, or any such like circumstances, are present here.

In Ohio National Bank v. Hopkins, 8 Appeal D. C. 146, and other cases cited by plaintiff’s counsel, the facts involved are sufficiently dissimilar from those before us to justify us in declining to consider them as “on all fours.”

The trial court allowed plaintiff to recover the amount of fees earned and collected from April 13, 1906, the last date when plaintiff signed the receipt for his salary, to the termination of his employment, which was $185.84, and judgment therefor was entered. In our opinion the trial court was right in so doing, and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Robert Grant, Plaintiff in Error, v. Ralph Cudney, Defendant in Error.
    Gen. No. 16,838.
    1. Sales—evidence. Where a salesman testifies that an absolute sale of a rug was made, and the alleged purchaser testifies that it was delivered without his order and that on inquiry as to such delivery, he was informed he need not retain the rug, unless he could make it harmonize with his other rugs and that he returned it as unsatisfactory, the case turning largely upon the credibility of the witnesses, a verdict for the alleged purchaser will be sustained.
    2. Evidence—expert. Where the statement of claim is “for value of rug” alleged to have been sold, the alleged purchaser may introduce expert testimony, as to the value of the rug, though the plaintiff on the trial may have changed the theory of his claim.
    Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    William A. Anderson, for plaintiff in error.
    Hayes McKinney, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Robert Grant, hereinafter called plaintiff, brought suit against Ralph Cudney, hereinafter called defendant, to recover the value of a rug claimed to have been sold by plaintiff to defendant. A trial by jury was had, which returned a verdict for the defendant, and judgment was entered thereon. It is argued that this judgment should be reversed, as the verdict is contrary to the evidence. It was admitted that plaintiff delivered the rug in question to defendant’s home, and that it was subsequently returned to the plaintiff, but the circumstances of the transaction are in dispute. The salesman in plaintiff’s employ, who dealt with defendant, testified that it was delivered to defendant upon an express agreement by defendant to pay $300 for it. This is denied by defendant, whose version is, that he told the salesman that he did not want the rug; that it was “more flashy in color and would not harmonize with the rugs I had bought of him, and I did not want it and could not use it;” that the salesman represented that if the rug was used some it would be all right; that he offered to send it to defendant’s house and “you can have your houseman to lay it in the sun and sprinkle it with water for three or four days and that will subdue the colors and make you a very fine rug of it;” that defendant replied: “I don’t want to experiment with the rug; if it suited me I would buy it, but it don’t suit me now;” that nothing was said about price. Subsequently, the rug was delivered to defendant’s house during his absence, and the next day he called on the salesman and asked him why he had sent the rug up, and was told that he, the defendant, should experiment with the rug by laying it in the sun and wetting it; that he replied: “I am not experimenting with it at my expense. I will not accept any responsibility; ’ ’ that the salesman said to lay it in the sun and sprinkle it and that the sun and water would mellow the tones of the rug, and it would harmonize with the other rugs, and that if it was satisfactory after this experiment, they would try and trade with the defendant on the rug; that upon these conditions the rug remained at defendant’s house for several weeks, but the colors not proving true and it being defective in other ways, it was returned to plaintiff. There was much more testimony touching the same matter.

This was a case turning largely upon the credibility of the witnesses, and, therefore, was one peculiarly for the jury. From a consideration of the entire testimony, we are not able to conclude that the verdict of the jury was incorrect.

It is urged that it was error for the court to permit expert testimony as to the value of the rug. Plaintiff’s statement of claim was “for value of one rug,” etc. This made it proper to admit testimony as to value, although plaintiff, on the trial, may have changed the theory of his claim. The expert testifying for defendant seems to have been qualified. Other errors are urged which, in any event, would not justify a reversal.

Holding, as we do, that the verdict is not contrary to the weight of the evidence, and finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    Frank L. Mammoser, Herman J. Trumbull and Albert H. Burr, Plaintiffs in Error, v. City of Chicago, John J. Hanberg, Commissioner of Public Works, Chicago Reduction Works, O. M. Bake, Walker P. Hall and J. F. Christian, Defendants in Error.
    Gen. No. 16,859.
    1. Appeals and errors—moot question. On a tax-payer’s bill praying that a contract between a city and a reduction company be declared void and surrendered and cancelled, and that the company be required to pay over all the moneys, that have been paid to them, where it appears that by mutual consent, the contract was surrendered and cancelled and another contract was entered into, the question before the court is a moot question, in so far as it involves the prayer of the bill, asking that the contract be surrendered and cancelled.
    2. Cities and villages—when taxpayer has complete remedy at law. Where a taxpayer files a bill to declare void a contract between a city and a reduction company and to require the company to pay over all moneys that have been paid to them, if the decreeing of a money judgment is the only question before the court, R. S. Ch. 24, Sec. 172, provides a complete remedy at law which is exclusive and excludes the jurisdiction of a court of equity.

      Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Frank P. Leffingwell, for plaintiffs in error.
    Horton, Wickett, Miller & Meier, Edward J. Brundage and William D. Barge, for defendants in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The complainant, Frank L., Mammoser, filed his bill, afterwards amended, attacking the legality of a certain contract entered into August 30,. 1906, between the defendants, the City of Chicago and the Chicago Beduction Works. The prayer of the hill was that the city he perpetually enjoined from entering into said contract, and that such contract, if made, be declared void and surrendered and canceled. By amendment the names of Albert H. Burr and Herman J. Trumbull were added as complainants, and it was also prayed “that the said defendant, the Chicago Beduction Company, be required to pay over to the City of Chicago all moneys which have heretofore been paid by said City of Chicago to the said defendant, the Chicago Beduction Company.”

Upon hearing, the chancellor found that “the said complainants are not prosecuting their said suit in good faith,” and ordered the bill dismissed. Complainants bring the cause to this court seeking a reversal of this order.

The contract referred to by its terms began, on November 1, 1906, and ran for a period of five years from that date. It appears from the record herein that by mutual consent of the parties thereto, said contract was surrendered and cancelled and another contract entered into, beginning September 1, 1908. This new contract is not before ns. The question before this court, therefore, is a moot question in so far as it involves the prayer of the bill, asking that said contract be surrendered and canceled. Defendants have by their own act effected thus far the relief sought by complainants.

It appears that under the first contract the Chicago Eeduction Company has been paid by the city down to September 1, 1908, and the only question which might occupy the attention of this court is the prayer of the complainants in the amended bill, asking that such moneys be returned by the Chicago Reduction Company to the city. The decreeing of a money judgment being the only matter remaining to be passed upon in this chancery proceeding, complainants will be required to seek their remedy at law.

Section 172, Chapter 24, of Hurd’s Revised Statutes is as follows:

‘A suit may be brought by any taxpayer, in the name and for the benefit of the city or village, against any person or corporation, to recover any money or property belonging to the city or village, or for any money which may be paid, expended, or released without authority of law: provided, that such taxpayer shall file a bond for all costs in case the city or village be cast in the suit, and judgment shall be rendered accordingly.”

Under this statute a complete remedy at law is provided, which complainants may seek if they so desire. Such remedy is exclusive and excludes the jurisdiction in this case of a court of equity. Perkins v. Reservoir Pk. Fish and Boat Club, 130 Ill. App. 128. The wisdom of requiring complainants herein to seek their remedy at law, where a bond for costs must be filed, is emphasized by their testimony upon the hearing before the chancellor, where they disclaimed any intention of being responsible for any costs or expenses of the litigation.

We express no opinion upon the finding of the chancellor, or upon the order entered by him based upon that finding, but for the reasons indicated the judgment will be affirmed.

Affirmed.


author: Mr. Justice McSurely Mr. Justice McSurely

text:
    Jay Clifford McCally, Defendant in Error, v. Blue Ribbon Gum Company, Plaintiff in Error.
    Gen. No. 16,882.

      Corporations—assumption of indebtedness incurred prior to incorporation. Where it appears from the evidence that the two promoters of a corporation, who became president and secretary subsequent to incorporation, promised to pay a prior indebtedness due an attorney for organizing such corporation as soon as the company became able, that they frequently stated that they would pay or see to it that payment was made, that part of the debt had been paid by the secretary individually, and that just prior to complete organization a vote was made authorizing the drawing of an order to pay all indebtedness which was signed and approved by the board of directors subsequent to complete organization, such facts are sufficient to warrant a finding, that the indebtedness was adopted by the corporation.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Mancha Bruggemeyer and T. M Poynton, for plaintiff in error.
    William J. Candlish, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The Blue Ribbon Gum Company, a corporation, hereinafter called defendant, is seeking the reversal of a judgment against it, obtained by Jay Clifford McCaily, hereinafter called plaintiff, upon a trial by the court in a suit brought, as stated by plaintiff, “for money paid out and services rendered to the defendant at its special instance and request.” The trial court found $300 due for services and $120 due as a balance for advances made by plaintiff, and entered judgment for $420.

Plaintiff is an attorney at law, and the money advanced by him was to pay the fees which the State requires before it will issue a charter. A large part’’ of the evidence was rendered in taking the necessary steps towards the incorporation of the defendant. The payment by the plaintiff of the fee for the charter and the performance of his services were done at the request of D. W. Norris and F. B. MacLean, who were j promoting the company. MacLean subsequently became president and Norris the secretary and treasurer of the company. There is evidence tending to show that after the corporation was duly organized MacLean, the president, and Norris, the secretary and treasurer, agreed with plaintiff that he should be paid for his services theretofore rendered the sum of $300, a'nd also the amount of his advances, but whether or not such promises were made on behalf of the corporation so as to bind it, or as promises of the promoters as individuals, is a question upon which the members of this court have not been able to reach a unanimous agreement. However, a majority of the court is of the opinion that there is sufficient evidence tending to show an assumption by the company of the indebtedness originally owing from MacLean and Norris as f individuals to the plaintiff.

The testimony of plaintiff touching the promises after incorporation to pay plaintiff is in brief: “Mr. Norris said, ‘Mr. McCally, you will never lose a cent; the company will see that you are paid.’ And McLean has said that it was too bad they had not been able to sell any stock. * * * they would pay me all that I paid out for and on behalf of the company.” “I talked with him (Norris) at various other times, at which time it was agreed I should receive the sum of $300 for services theretofore rendered.” “Almost every day I would see Norris, and we would discuss the finances of the company, and he would state that I was to be paid that amount.” “The company never was financially able to pay me, but it would pay nevertheless; the moment it got any money I was to be paid. He promised it at various times.” “Both of them (Mac Lean and Norris) promised to pay this * * * as agreed originally.” “And again MacLean said it was too bad, he would see that it was paid. He was sorry he could not take care of it at that time. And on another occasion Norris said he knew he owed it and would pay it just as soon as he could, but he did not have any money and could not pay it now.”

The evidence further shows that plaintiff had borrowed the money with which to pay for the charter and had given his personal note therefor; and the plaintiff and the holder of the note testified that one Bruggemeyer, who had subsequently acquired stock in the company, said to the holder of the note that “the company would be in shape to pay the loan within the next two weeks from that time.” This is denied by Bruggemeyer. It further appears that of the amount advanced by plaintiff originally $350, all but $120 was repaid to plaintiff by Norris individually. It appears also from the minutes of the corporation, that at the first meeting of the board of directors, which was held four days before the company was completely incorporated and authorized to do business, the secretary was instructed by vote to “draw an order on the treasurer for the payment of all bills for expense of incorporating, for the sale of certificates of stock and records incidental thereto.” And following this is a statement, signed by the full board of directors, that “the above and foregoing minutes are hereby ratified, affirmed and approved.” This statement, however, is not dated, and the only evidence is that this approval was signed “later.”

In the opinion of the majority of the court, the foregoing facts are sufficient to evidence the adoption and assumption by the company of the indebtedness due plaintiff, and the judgment is therefore affirmed.

Affirmed.

Mr. Justice McSurely

dissenting: The dissenting member of the court is of the opinion that an officer of the corporation who is interested in shifting an indebtedness from himself onto the corporation cannot do so by loose and ambiguous statements, such as were made in this case. At most these statements amounted merely to a guaranty that the corporation would pay the indebtedness, and did not constitute the undertaking of the corporation itself.


text:
    James E. Tate, Plaintiff in Error, v. Minnie C. Roberts, Edward P. Roberts and James Corlett, Defendants in Error.
    Gen. No. 16,901.
    Appeals and errors—when ruling of chancellor presumed to be correct. On a writ of error to the Appellate Court for the review of a chancellor’s order sustaining a demurrer to a bill of review, such ruling will be presumed to be correct where the abstract of the record does not show anything as to the nature or character of such bill, or as to the grounds for the demurrer.
    Error to the Superior Court of Cook county; the Hon. Farlin I. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Moses D. Brown, for plaintiff in error.
    Hutchins & Rippel, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

■ This is before us by writ of error for review of an order of the chancellor in the Superior Court sustaining a demurrer to what is called a bill of review, filed by the plaintiff in error.

Upon an examination of the abstract of record, we do not find anything from which we can determine the character, nature or contents of the document, a demurrer to which apparently was sustained. Not a line or word of the recitals of the document is given. The only reference to it are the words “bill of review,” and nothing appears as to the grounds of the demurrer. The alleged abstract of record is merely an index. (Hughes v. Humphreys, 102 Ill. App. 194.)

We must therefore presume that the ruling of the chancellor in sustaining the demurrer and dismissing the bill was correct, and the decree is afirmed.

Affirmed.


text:
    Ephraim A. Otis, Appellant, v. The Provident Savings Life Assurance Society of New York, Appellee.
    Gen. No. 16,922.
    1. Insurance—specific performance of premium contract. Where an insurance company is indebted to an attorney for an unliquidated amount, an agreement that in satisfaction of such claim the company will deduct each year the increased premium rate due on a policy held by such attorney, on condition that a receipted bill for legal services be given for such deductions, may be specifically enforced.
    2. Insurance—discrimination as to , premiums. An agreement by an insurance company to accept an unliquidated claim in payment of increased premium rate due on a policy, on condition that a receipted bill be given each time for such deduction, is not discriminating within the meaning of the Illinois or New York law.
    3. Insurance—discrimination as to premiums. Hurd’s R. S. of 1908, Ch. 73, Sec. 27, providing that contracts reducing premiums due on insurance policies must be embodied in such policies, has no application to policies issued prior to its enactment.
    Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed October 3, 1912.
    David Fales, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Ephraim A. Otis filed his bill in the Superior Court to enjoin the defendant from forfeiting a policy of insurance for $4,000 on his life, and to enforce the performance of a contract with respect to payment of the annual renewal premiums. The court upon hearing ordered the bill dismissed for want of equity, from which decree complainant has appealed to this court.

The defendant is a life insurance company, organized under the laws of the State of New York in 1875, and the complainant is a lawyer of standing who has practiced his profession in Chicago for more, than forty consecutive years. In the spring of-1875 the defendant company, desiring to transact business in the State of Illinois, applied to the complainant to act as its agent to accept service of process under the statute regulating foreign life insurance companies in this state. This resulted in his appointment by resolution by the board of directors in April, 1875, but no agreement was made with respect to compensation for his services in that capacity. He was also retained as general counsel for the company in Illinois in all litigated suits it might have in that state, and was not at liberty to take any case or be employed against it in any capacity. This arrangement continued for a period of several years, during which the complainant acted as the attorney of the defendant in the trial of suits brought against it, for which bills were rendered from time to time and paid by the company, but there was no compensation paid for services as special agent of the company for service of process, or for general retainer as counsel for the company, which was allowed to accumulate for final adjustment. In December, 1889, the defendant company issued its policy of insurance on the life of the complainant in the sum of $4,000, which is the subject of this controversy. For nine years thereafter the complainant paid by professional services the annual premium on said policy of $110.40. There was no change in the professional relations between the complainant and the defendant during this time, except that the company had begun to employ other counsel to represent it in suits in Illinois, .without disclosing the fact to the complainant, who supposed he was still its general attorney. The complainant learning of this fact, in February, 1897, addressed a letter of inquiry to the company as to whether he was still its attorney in Illinois, and received in reply a letter dated March 1, 1897, as follows :

“Dear Sir:
We acknowledge receipt of your favor of Feb. 25th, with reference to your appointment, when the society was first organized as its attorney, to accept service of process in your state.
The law in this connection, as we understand it, reads: That an appointment of this character shall continue until another is made; and, therefore, we are glad to advise you that, no other having been made, you are still authorized to accept service of process in case of suit against the society.
Tours truly,
Jas. N. Braunline, Asst. Sec.”

The complainant later learning definitely that the law business of the company had been taken away and given to other counsel, refused to continue further as attorney for the service of process or assume this responsibility, and resigned his position as such, of which action the company was duly notified. When the annual renewal premium for the year 1898 became due the complainant received a notice from the company that the amount had been raised above the rate of $110.40 to $138. There is some controversy and considerable argument in the briefs of counsel touching the right of the company to make this increase in rate, but in our view of the case it is not necessary for us to decide this point. Upon receiving notice of said increased premium rate, the following correspondence ensued:

“Nor. 22, 1898.
To the Provident Savings Life Assurance Society, New York City.
Dear Sir:
I am this day in receipt of a notice that my annual premium on Policy No. 32932 has been raised from $110.40 annually to $138.
I wish to remind your company that this policy was taken out on the level premium basis while I was attorney for your Company, with the implied understanding that the premium would always be adjusted by business of your Company. For upwards of twenty years I have appeared on the records as your attorney for Illinois under a retainer to take no case against you, although I learned afterwards that during a portion of that time your business had gone elsewhere. Under the circumstances I feel that any increase of this policy is neither fair nor equitable, and if it is insisted on I shall feel free to press a claim against the Company for the use of my name and general retainer as your attorney as far back as the law will allow it.
Your early reply will greatly oblige,
Yours truly,
E. A. Otis.”
“Provident Savings Life Assurance Society, “246 Broadway, New York City.
Nov. 29th, 1898.
P. O. Box 787.
Dictated.
Hon. E. A. Otis,
100 Washington St., Chicago, Ill.
Dear Sir:
We duly received your favor of the 22nd inst., referring to the premium on your Policy No. 32,932 for $4,000. I can find no record on our books of the fact that there was any understanding that the premiums on your policy would always be adjusted by business from the Society.
We are aware of the fact that your name has appeared as attorney to accept service of process for the Society in the State of Illinois for many years. During that time you were always employed as our attorney whenever occasion for your services arose. - A change of attorney was made by a previous management, and we do not think that proper courtesy was accorded you in not notifying you of the change at the time it was made.
We would like to retain'your friendship and goodwill and as an evidence of our wish in that respect, you may send us your check for $110.40 and a receipted bill for legal services for $27.60, and we will send your receipt for the premium due December 10th on your policy.
We hope you will permit us to feel that when circumstances necessitate, we may call upon you for legal services.
Yours truly,
Wm. E. Stevens, Secretary.”
“December 6, 1898.
William E. Stevens, Esq.,
Prov. Savs. Life Assurance Society,
New York City.
Dear Sir:
“Yours of the 29th inst. is received, and in reply I am frank to say that, as I have been advised, the change of attorney and failure to advise me of it to which you refer, was the act of the previous management, and that the present counsel of the Company had no knowledge of our previous existing relations.
In regard to my policy, No. 32,932,1 am disposed to adjust the matter as you suggest, by payment of $110.40 each year, and a receipted bill for legal services for the balance. Would it not, however, be advisable in such event to have the policy either issued on a different form, or have a distinct understanding of the matter so that your agent here each year will know exactly what he is to receive in cash to keep the policy alive. Under these circumstances I should feel free to act for you as counsel, if desired.
You are entirely familiar with my past relations with the Company and with the fact that for many years I have been under a general retainer to accept no business against the Company, for which I have received no compensation in the way of services or otherwise.
If this arrangement of the matter is satisfactory, kindly advise me at your earliest convenience, and oblige,
Very truly yours,
E. A. Otis.”
“Provident Savings Life Assurance Society,
246 Broadway, New York City.
Dec. 9th, 1898.
P. O. Box 787.
Dictated.
Hon. E. A. Otis,
100 Washington St., Chicago, Ill.
Dear Sir :
Your favor of the 6th inst. is received and contents noted. We are much pleased with the tenor of your letter, and we hope, as a result of same, that some business will grow out of it in the future.
We would much prefer, if it is all the same to you to have all future premiums on your policy remitted to this office. Our agreement with you is that you may pay $110.40 each year, and give us a receipted bill for legal services for the balance of the premium, which will be set forth in the regular notice sent you. You' understand that this premium will increase each year, and therefore the amount of your bill for legal services will also increase, while the cash payments remain the same. We have made a record of this on our hooks, and as it is a personal arrangement between you and this office, we prefer that the business should he transacted direct with this office. No change in the policy is necessary.
Please confirm our understanding of the matter and state that the same is satisfactory to you and in accordance with your understanding.
With kind regards, I am,
Yours truly,
William E. Stevens, Sec.”
December 12, 1898.
William E. Stevens, Esq.,
Sec., Provident Savings Life Assurance Society, New York City.
My Dear Sir :
I am in receipt of yours of the 9th inst. and beg to say that the arrangement you propose is entirely satisfactory and in accordance with my understanding of the transaction. I will be happy hereafter to remit premium direct to the home office as you suggest.
“Very sincerely yours,
“E. A. Otis.”

The defendant company entered upon its records an entry of the agreement referred to in the letter written by William E. Stevens, secretary of the company, on December 9, 1898, as follows:

“Make official notice and the receipt, for increased Prem. each year, and a Voucher for difference between increased Prem. and original Prem. $110.40 and pin to Notice every time. For authority, see letters filed with application Dec. 13, 1898.”

This compromise of the claim of the complainant for past services was accepted by both parties as a final adjustment of the whole matter, and was faithfully observed by both parties for eleven years without objection or protest. The renewal premium for each year was paid by $110.40 cash and a receipt for services in the form prepared by the company for the increased premium by reason of advancing age.

It is shown in the record by the testimony of Mr. Wm. E. Furness, an experienced lawyer at the Chicago bar, and it is not disputed, that the services for acting as attorney for an insurance company for .service of process and for general retainer, exclusive of litigated business, would be worth $100 a year, and that this would not be affected in any way by the fact that the party rendering such service was also employed in conducting the litigated business of the company. The complainant acted as attorney for service of process and under a general retainer for twenty-two years, for which, under the undisputed testimony, he was entitled to receive $2,200.

In November, 1909, the usual remittance was made to the company of $110.40 cash, together with a receipted bill for legal services in the form prepared by the company for an amount equal to the difference between $110.40 and the increased premium, in accordance with the agreement which had been previously made. This remittance and receipt for fees was returned to the complainant with a letter from the general counsel of the company, under date of November 16, 1909, declining to accept the same in payment of the insurance premium, stating as the company’s reason for so doing that “we do not see how the present officers of the company can, without violating the provision of the New York statute and of the penal code of this State, relating to discrimination, permit this method of paying the premium to continue.” At this time complainant had reached the age of seventy-five years, • an age when other insurance was probably impossible. Upon receipt of this letter complainant went to New York and made a proper tender of cash and the receipt for legal services to the company, which was refused. No offer has ever been made to return any of the premiums paid to the defendant.

We can discern no reasonable grounds for finding that the agreement of 1898 was invalid for want of a sufficient consideration, or an agreement which the company had no power to make. Complainant at that time had a claim against the company of about $2,200. If he had sued the defendant there probably would have been a recovery. No one would deny the right of the company to pay this claim in full or to settle the same upon such a reasonable basis as might seem to its advantage. In this situation the defendant chose to compromise, and did so upon a basis which apparently was substantially to its benefit. It agreed to pay the claim in annual installments during the life of the complainant, each of such installments to be equal to the difference between $110.40, the annual premium theretofore paid, and the increased premium rate. It is apparent at once that the defendant could not claim a forfeiture if, when a premium of $130.40 fell due, it had remitted $20 to the complainant as an instalment of the payment due on this compromise, and the complainant had then returned the $20 with $110.40 in payment of the insurance premium. In essence and substance this is just what was done. This view of the case makes the statutes of Illinois and New York relative to discrimination inapplicable; there was no discrimination. As we have stated, the complainant was paying the full amount of premiums required from his class of insured. The provision of the Illinois statute requiring that “such contract of insurance shall be fully and wholly expressed and contained in the policy issued and the application therefor” (Sec. 27, Chap. 73, Hurd’s Revised Statutes of 1908) has no application, for the reason that this provision became the law subsequent to the issuance of the policy of insurance in controversy.

The mere statement of the facts herein moves us to the conclusion that the chancellor was in error in decreeing the dismissal of the bill. The decree will be reversed and the cause remanded with directions to grant the injunction prayed for in the bill, and for such other and further proceedings as the court may deem necessary, not inconsistent with this opinion.

Reversed and remanded with directions.


text:
    Robert Good, Appellant, v. Wilton Lackaye, Appellee.
    Gen. No. 16,938.
    Appeals and errors—abstract. Where the only question raised on appeal is as to the value of the professional services, and the abstract of the record does not show what the amount of the verdict or judgment was, the judgment will be affirmed.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Hugh A. Caperton, for appellant.
    No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

The only question involved in this case is as to the value of professional services rendered by the appellant, a dentist, for Mrs. Lackaye, the wife of appellee. The dentist claimed that his work was worth $362. A jury, after hearing the evidence, brought in a verdict, but for what amount does not appear in the abstract of record. Neither is the amount of the judgment shown. Therefore, if for no other reason, the judgment must be affirmed. In counsel’s brief and argument it is stated that the verdict of the jury was for $50. Assuming this to be correct, we cannot say from a consideration of the evidence that the verdict was wrong.

The judgment is affirmed.

Affirmed.


author: Me. Justice McSurely

text:
    Cooke Brewing Company, Appellee, v. John Wolf, Appellant.
    Gen. No. 16,950.
    1. Bills and notes—extension. An affidavit extending a chattel mortgage, given as security for a judgment note, extends the maturity of the indebtedness due on such note.
    2. ' Accord and satisfaction—evidence. A verdict that property mortgaged as security for a $2,500 note was not taken as an accord and satisfaction of the amount due thereon, is justified where the testimony as to such an agreement is conflicting, and at a fair foreclosure sale the property netted but $100.
    3. Alteration of instruments—evidence. In an action on a note, the date of maturity of which has been altered, the contention that the note is inadmissible in evidence on the ground of lack of execution is not sound, where such alteration was made because of an affidavit of extension of a mortgage given as security for such note.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Horton, Wickett, Miller & Meier, for appellant; John H. Miller, of counsel.
    E. F. Masterson, for appellee.
   Me. Justice McSurely

delivered the opinion of the court.

This is an appeal by John Wolf from a judgment against him obtained by the Cooke Brewing Company. The brewery first obtained a judgment by confession on a note for $2,500, for the amount of principal and interest, which was $4,480.50. On motion leave was given to plead, the judgment to stand as security. A trial was had by a jury, which brought in a verdict for $3,400, and judgment was entered thereon which we are asked to reverse.

It is urged by the appellant that the execution of the note in evidence was not proven. The basis for this claim is that the note has been changed since it was signed by Wolf. It is conceded that he signed the note for $2,500, dated January 11, 1895, and also that the date of maturity, that is, December 11, 1898, which appeared on the face of the note when it was introduced in evidence, is not the date of maturity which was on the note when signed by Wolf. The note was secured by chattel mortgage, from which it appears that the indebtedness matured December 11, 1896. It seems, therefore, that the date of the maturity of the note was changed from December 11, 1896, to December 11, 1898. There was an affidavit of extension of this chattel mortgage, sworn to on November 30, 1896, by one Martin W. Honan, to the effect that he was the agent of the brewery, the mortgagee, that there was due and unpaid on said note the sum of $2,500, and that ' ‘ said mortgage is hereby extended by agreement of said mortgagee and mortgagor until the 20th day of October, 1898.” Wolf at the same time signed an affidavit attached thereto, certifying to the truth of the Honan affidavit, and stating that it was “made for the purposes therein set forth.” This affidavit of extension was duly recorded December 1, 1896. It thus appears that not only did Wolf sign the note, but he agreed to a change in the time when the lien of the mortgage would expire.

However, we do not consider the fact of the alteration in the date of maturity of the instrument itself to be controlling. The important question is, did the affidavit of extension have the effect of extending the maturity of the note to October 20, 1898?

It is claimed by counsel for appellant that while the lien of the mortgage was extended by this affidavit, the date of the maturity of the indebtedness was not extended and, therefore, the note maturing December 11, 1896, the statutory limit of ten years had run before suit was begun.

Section 4 of the chapter entitled “Mortgages,” Be-, vised Statutes of Illinois, in force July 1, 1891, with reference to the point in question provides that “such mortgage * * * shall * * * be good and valid from the time it is filed for record until the maturity of the entire debt or obligation, or extension thereof made as hereinafter specified: Provided, such time shall not exceed two years, from the filing of the mortgage, unless within thirty days next preceding the expiration of such two years, or if the said debt or obligation matures within such two years, then within thirty days next preceding the maturity of such debt or obligation the mortgagor and mortgagee * * * shall file for record * * * an affidavit setting forth particularly the interest which the mortgagee has by virtue of such mortgage in the property therein mentioned, and if such mortgage is for the payment of money, the amount remaining unpaid thereon, and the time when the same will become due by extension or otherwise; * * * and thereupon the mortgage lien originally acquired shall be continued and extended for and during the term of two years from the filing of such affidavit, or until the maturity of the indebtedness or extension thereof secured by said mortgage.”

The statute does not require that the affidavit contain an agreement to extend the lien of the mortgage. It does require that there shall appear an agreement to extend the maturity of the indebtedness, and this being done the lien of the mortgage follows by virtue of the statute. Construing the affidavit of the parties herein in the light of the statute, it is evident that by the words “said mortgage is hereby extended by agreement * * * until the 20th day. of October, 1898,” the parties intended and did agree to extend the indebtedness secured by the mortgage. It follows, therefore, that the statute of limitations did not begin to run until October 20, 1898, and suit was begun within the period of limitation.

Evidence was introduced under the plea of no consideration. Wolf admitted receiving $1,166.75 in loans from the brewery, while a witness for the brewery testified to other advances amounting to $800, and both parties testified that other sums were loaned to Wolf, although the amounts had been forgotten. The jury brought in a verdict for an amount considerably less than the face of the note and interest, and there are no facts presented to us from which we can determine that the jury was mistaken as to the amount.

Accord and satisfaction was claimed. It is claimed that Wolf having abandoned the mortgaged premises, and the mortgage having been foreclosed, the parties agreed that the taking of the mortgaged property should be considered as payment in full. The property was sold at foreclosure sale for $100, and it is a fair inference from the evidence that it was worth no more.

There is a conflict in the testimony as to statements indicating a settlement between Wolf and the brewery, claimed to have been made by an officer of the brewery. The verdict of the jury indicates that accord and satisfaction were not proven, and we cannot say that this conclusion was wrong.

What we have said heretofore covers the point that the court should not have admitted the note in evidence, and in the instructions complained of we find no reversible error.

Therefore the judgment is affirmed.

Affirmed.


text:
    Winslow Bros. Company, Appellee, v. John C. Robinson and Roy H. Robinson, Trading as J. C. Robinson & Son, Appellants.
    Gen. No. 16,975.
    1. Building contracts—delay. Where a sub-contractor delays in the performance of a contract, in which time is stated to be of the essence, it is reversible error to exclude evidence offered by the contractor by way of recoupment showing the loss occasioned thereby.
    2. Building contracts—recoupment. Where a sub-contractor brings suit to recover the amount due under his contract in which time of performance was stated to he of the essence and it appears that the contractor sustained damages because of delays, for which he wishes to recoup, it is reversible error to exclude evidence showing that such delays were due to the delays of the subcontractor in the performance of his contract.
    3. Building contracts—reference of disputes to architect. Where an architect is to. settle any disputes concerning delays arising in the execution of a contract, such agreement has reference only to questions concerning the time when any particular work should be done and not to questions of damages caused by delays.
    4. Building contracts—refusal of arbitrator to act. In an action to recover for extra work, under a contract the compensation for which was to be determined by an architect, a jury is justified in finding that the architect declined to act where the evidence does not show that the architect himself had acted hut does disclose a letter written by him whereby he declined to act.
    5. Building contracts—questions for jury. Where a contract is uncertain as to whether certain work or materials are extras, it is a question for the jury.
    Appeal from the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Holdon, Manierre & Pratt, for appellants; George W. Manierre and Thornton M. Pratt, of counsel.
    Defrees, Buckingham, Ritter, Campbell & Eaton, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

On November 16, 1905, the Winslow Brothers Company, hereinafter called plaintiff, entered into a contract with John C. Robinson for the ornamental and miscellaneous iron and bronze work in the new United States Custom House, New York City, Roy H. Robinson afterwards became associated with his father as a partner, the firm doing business under the name of J. C. Robinson & Son hereinafter called defendant. The contract between the parties is as follows:

“This is a memorandum of agreement entered into the 16th day of November, A. D. 1905, by and between John C. Robinson, of Chicago, Illinois, and the Winslow Bros. Company, of Chicago, Illinois:
Witnesseth : That said Company herein and hereby agrees to furnish said Robinson all the labor and material required to do all ornamental and miscellaneous iron, bronze, etc., erected complete (including any necessary cutting, etc., of material in place) for the U. S. Custom House, New York, N. Y., including as part thereof all work called for from page 3-b to 34-b (inclusive) of the specifications, with the following exceptions : '
Structural Steel, pages 3-b to 5-b, inclusive;
Fireproof Vaults, 23-b to 25-b, inclusive;
Steel Bucks and other items on page 26-b and 27-b;
Cover to Ash Lift, page 29-b;
Dumb Waiter, pages 31-b to 34-b;
Mail Chutes, page 34-b,
all work to be in strict accordance with the complete revised plans and specifications of the architect, Cass Gilbert, and performed to the full satisfaction of the architect and supervising architect.
“It is understood that time is an essential feature of this contract, and said company agrees to do all work in such time and manner as not to delay said Robinson in the execution of his contract with the Government, and to accommodate their work to the conditions of the building and the work of the other contractors on the building.
“In consideration of said Company performing the work herein agreed to be done by said Company to the full and complete satisfaction of the architect and supervising architect, said Robinson hereby agrees to pay said Company the sum of ninety-five thousand dollars ($95,000) in manner following, to-wit:
“As often as said Robinson shall receive payment from the Government upon the work done by said Company, he shall pay to said Company on receipt of their statement eighty-five per cent (85%) of the value of the work done by said Company on which said Robinson received payment; the remaining fifteen per cent (15%) to be paid to said Robinson to said Company within thirty days after the final approval and complete payment of the work by the Government.
“Said Company furthermore agrees to furnish said Robinson a satisfactory surety bond in the penal sum of forty-eight thousand dollars ($48,000) as a guarantee of said Company performing the work herein specified to be done by said Company.
“It is furthermore understood and agreed that in case any changes, alterations, additions or omissions are made in said Robinson’s contract, of and concerning this work herein specified to be done by said Company, that said Company will submit to the same and the supervising architect shall determine what should be equitably added to, or deducted therefrom on account of same.
“In case any dispute or disputes shall arise between said Robinson and said Company, of or concerning the material and workmanship done hereunder, or delays arising in the execution of this contract by said Company, that then said supervising architect is herein granted full power and authority to determine and settle such dispute and acting in good faith_his determination shall be conclusive upon both parties.
“In witness thereto, the parties hereto have hereunto affixed their signatures this 16th day of November, A. D. 1905.
“(Signed) John C. Robinson,
“The Winslow Brothers Company, “E. S. Fechheimer, Treas.”

Plaintiff brought suit, claiming a balance due for work done under the contract. The claim is divided into three parts: $95,000 on the original contract; $22,392.50 on four extras; $5,674.13 for certain additions. Various items, amounting to $2,179.95, were abandoned on the trial. Deducting this and all credits leaves a net claim of $17,989.88. The jury found for the plaintiff to the amount of $14,016.52 and judgment was entered thereon, from which the defendant appeals.

On February 13, 1909, a statement of the account, as claimed by the Government, -was made by James Knox Taylor, the supervising architect representing the Government, and sent to Cass Gilbert, the architect of the building, as follows:

“February 13, 1909.
“New York; New Cu.
“Mr. Cass Gilbert, Architect,
11 East 24th Street, New York, N. Y.
Sir :
“Referring to the contract with J. C. Robinson, dated August 30,1905, for interior finish of the New Custom House Building, New York, N. Y., for which building you are the Architect, I have to advise you that final settlement of said contract was approved by the Secretary of the Treasury under date of the 10th instant, on the following basis:
“That there is deducted from the contract the following items, recommended by you in letter dated February 11, 1908:”

Then follows various items of deductions and allowances, and the letter proceeds:

“That, as recommended in your letter dated February 7, 1908, and Superintendent Greenfield’s letter of March 10,1908, the sum of $12,000 be retained from the contract price with which to complete satisfactorily certain unfinished items existing in the work, with the understanding that the amount remaining, if any, after the completion of said items, be paid the contractor.

“And that the provision in the contract stipulating the per diem amount of liquidated damag’es for delay in completing the work be enforced in so far as to charge the contractor for 109 days of said delay, at $420 per day, the amount specified in the contract, making a deduction on this account of $45,780.

“After making the above noted deductions and allowances there remains due the contractor a balance of $5,040, for .which amount you will please prepare, certify and issue a voucher, in favor of the contractor, payable from the appropriation ‘ Custom House, New York, N. Y. Building; ’ have the same certified by the Superintendent of Construction and signed by the contractor, and presented to the Collector of Customs at New York, N. Y., for payment.”

Then follows a statement of account showing a balance due of $5,040. In pursuance of this statement, a voucher was drawn for $5,040 and was tendered to defendant, who declined to accept the same, claiming that there was due it the sum of $109,000.

It is claimed by the defendant that the suit is brought prematurely, as there is no sufficient evidence that the work of plaintiff under its contract has been “performed to the full satisfaction of the architect, Cass Gilbert,” or performed “to the full satisfaction of the supervising architect,” James Knox Taylor, and that it is entitled under the contract to retain fifteen per cent, of the amount due plaintiff until “after the final approval and complete payment of the work by the Government,” which event has not yet taken place. Plaintiff conceding that it was incumbent upon it to prove these things, claims that they have been proven by the evidence. As we have concluded that the case must be remanded on account of error hereinafter described, it would serve no useful purpose to discuss the evidence or the cases cited upon this point. However, as indicating the attitude of the court, we may say that, upon the record before us, both as to the evidence and the rulings of the court, were no other points involved we would not disturb the judgment of the trial court.

The contract between plaintiff and defendant contains the provision that “it is understood that time is an essential feature of this contract, and said Company agrees to do all work in such time and manner as not to delay said Robinson in the execution of his contract with the Government, and to accommodate their work to the condition of the building and the work of the other contractors on the building.” It is claimed by the defendant that the substantial part of the item of “109 days of the delay” for which the Government made a deduction as above described, was caused by the delay of the plaintiff in the execution of its work. Hence, plaintiff having failed in its undertaking, as set out in the provision above, defendant was entitled to introduce evidence showing' the damages it suffered by reason of this breach, and to recoup the same against anything due to the plaintiff. The trial court sustained an objection of plaintiff to the introduction of testimony upon this matter, and this ruling is said to be reversible error. The ground of the objection is based upon the clause of the contract which is as follows:

“In case any disputes shall arise between said Robinson and said Company, of or concerning the material and workmanship done hereunder, or delays arising in the execution of this contract by said Company, that then said supervising architect is herein granted full power and authority to determine and settle such dispute and acting in good faith his determination shall be conclusive upon both parties.”

It is urged that .this agreement to submit all disputes to the supervising architect is a condition precedent to any claim for damages, and that the evidence fails to show any request upon him to act, or any settlement by him of any dispute concerning delays. The trial court apparently agreed with this view of the matter in sustaining plaintiff’s objection.

Defendant makes three replies to this contention: 1, that the agreement to submit any dispute to the supervising architect is not a condition precedent unless it is expressly made so in terms in the agreement; 2, that the evidence shows that a request was made upon Taylor, the supervising architect, to settle a dispute under this agreement, and that he declined to act; 3, that in any event no authority is granted by the agreement to determine and settle any question of damages arising from delays. We have reached the conclusion that this last point is well taken, and, therefore, any comment on the other points is unnecessary. The particular thing which Taylor was authorized to determine and settle was “any disputes * * * concerning * * * delays arising in the execution of the contract.” This clearly means that if during the execution of the work any question should arise as to when any particular work should be done, or concerning its progress and completion, the supervising architect should determine it. Plaintiff was installing ornamental iron and bronze work, which, as to the factor of time in the work of installation, was necessarily dependent upon the progress and condition of other work in the structure. To authorize the supervising architect to control this element of time is quite a different thing from authorizing him to fix the amount of damages as between plaintiff and defendant.

In Stubbings v. World’s Col. Expo. Co., 110 Ill. App. 210, the contract involved provided that “in ease the parties cannot agree * * * as to the amount of extra time” the decision of “the chief” should be binding; and the court said: “The provisions of the contract referred to do not purport to authorize the chief to determine what, if any, damages the contract- or might suffer from such delays.”

In Harley v. Sanitary District of Chicago, 107 Ill. App. 546, the provision for arbitration was: “The chief engineer shall decide every question which may arise between the parties hereto relative to the execution thereof, and his decisions shall be final and binding upon both parties.” And the court said: “Whether appellant is liable for the delays sued for, has nothing to do with the execution of the contract. Such ‘ execution ’" relates only to the character and amount of work and materials with reference to whether the same were done and furnished in accordance with the contract, looking to its final completion and to payment therefor.” To the same effect is Sanitary District of Chicago v. McMahon, 110 Ill. App. 510.

In the cases cited by plaintiff the agreement to arbitrate authorized the arbiter in express terms to fix the amount of damages. Such terms do not appear in the agreement before us, and we cannot broaden it beyond what is clearly expressed.

It also should be noted that Mr. Taylor, in his letter of February 13, 1909, did find that there had been a delay of 109 days, for which defendant was penalized, and if it can be shown that a portion of this delay was caused by the failure of the plaintiff in its agreement “not to delay said Robinson in the execution of this contract with the Covernment,” justice would be done by permitting the plaintiff to make this showing, if it can. We hold that the trial court in refusing to permit the admission of testimony on this point committed reversible error.

Plaintiff also claims to be entitled to compensation for four extra items of work, which the parties call “restored items.” It is provided in the contract with reference to such items that “the supervising architect shall determine what should be equitably added * * * on account of same.” Much evidence was introduced by the defendant in an attempt to show that the supervising architect had determined the value of such items, but nothing appears which establishes any such finding as the act of the supervising architect himself, who manifestly was the only person with authority so to act. Mr: Taylor’s attitude in this regard is shown by a letter from him, written July 26, 1909, in reply to a request that he act under this provision of the contract and determine the value of these four items. In this letter he disclaims any knowledge that he was designated to act, saying, “had I known of such clause at the time, I should have requested both of you to designate some one else for that purpose,” and “positively” and finally declined to act in the matter. The jury was therefore justified under the evidence in finding that there had been no determination of the value of these items in the manner contemplated by this clause of the contract, and that a request to the supervising architect to so act had been made and declined. Plaintiff was therefore entitled to recover the reasonable value of such items.

A controversy over the so-called “additional” items or “I-beams” was for the jury to determine from the evidence. The question of whether or not the “I-beams” were included in the original contract was a question of fact properly submitted to the jury. “It is for the jury to determine * * * whether certain work or materials were extras, where the contract is uncertain in this regard.” 6 Cyc. 104, and cases there cited.

In conclusion we feel compelled to say that the undue length of briefs filed on behalf of appellant has made it difficult for the court to discern the salient points involved.

As the cause must be remanded, we do not comment upon the many other suggestions appearing in the briefs.

For the reasons above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The Cary Maple Sugar Company, Appellee, v. The Pierre Viau Maple Company, Appellant.
    Gen. No. 16,991.
    1. Sales—provision as to time of shipment. Where a contract provides for shipment “June 1st, 1909, or before,” and the words “if” and “provided you keep us supplied,” and “at your option,” are crossed out, but at the bottom it is stated “ship when you wish provided you keep us supplied,” it is evident that the final agreement was contained in the last provision.
    2. Sales—final provision as to time of shipment. Where a contract provides for shipment, “June 1st, 1909, or before” and it is stated at the bottom, after several provisions as to shipment which are crossed out, “Ship when you wish provided you keep us supplied,” the last provision is shown by the conduct of the parties to be the final agreement where the buyer objected to the quality of goods shipped after June 1st, without objecting to the time, and where his conduct concerning the inspection of samples shows that the claim of delay was an afterthought.
    3. Evidence—hearsay. Where goods are sold on a commission above the price paid to the producers, evidence as to the price so paid is not hearsay, where it is based on personal knowledge.
    4. Appeals and errors—when cannot he said judgment is for items not in hill of particulars. On appeal from a judgment in assumpsit for breach of contract, it cannot be said that the judgment covers items not appearing in the bill of particulars where the items aggregate $2,981.97, the judgment is for $1,862.41, and the record does not show what items were allowed.
    Appeal from the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Lannen & Hickey, for appellants.
    Simmons, Mitchell & Irving, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

The Cary Maple Sugar Company, hereinafter called plaintiff, recovered a judgment for $1,862.41 against the Pierre Viau Maple Company, hereinafter called defendant, in an action in assumpsit for an alleged breach of a contract to receive and pay for a certain amount of maple sugar. The defendant prosecutes this appeal to reverse this judgment.

The plaintiff is a Vermont corporation engaged extensively in buying maple sugar from the farmers in Vermont and Canada and reselling the same to parties in the United States. The defendant is engaged in the manufacture of syrups, with its office in Chicago. On March 15, 1909, the parties entered into a written contract, which is as follows:

“Chicago, March 15, 1909.
M Cary Maple Sugar Co.
Ship to us June 1st or before provided you keep us supplied.
When at your option.
How Ship C. P. & W.
Terms Arrival draft, B-L attached.
125.000 lbs. Beauce Maple Sugar of 1909 crop at 6¾c per lb.
F. O. B. Beauce.
125.000 lbs. Beauce Maple Sugar, 1909 crop, on a commission of one cent per lb. above the price paid the farmers.
The balance of our orders to be placed with you on commission basis provided the dealings with you are satisfactory.
Ship when you wish, provided you keep us supplied.
Accepted.
Cary Maple Sugar Co.,
By. G. C. Cary.
Pierre Viau Maple Co.,
Per C. D. Cannon.”

Two cars of sugar were shipped under this contract, one in the latter part of May, the other about the middle of June. While it appears that some verbal complaint was made by the defendant to an officer of the plaintiff company about the character of some of the sugar in these cars, the defendant accepted the sugar and paid for the same. On June 25th a third car was shipped, which, defendant refusing to receive, was placed in Sibley’s warehouse in Chicago. On July 14th three other cars were shipped, containing the balance of the amount of sugar called for by the contract. On the same day, July 14th, defendant wrote to plaintiff as follows:

“Chicago, Illinois, July 14, 1909.
Cary Maple Sugar Co.,
St. Johnsbury, Vermont.
Gentlemen:—
Cancel any orders or order you may have from us for maple sugar, as we have received from you on our original contract no first-class number one Beauce County maple sugar such as our contract or agreement called for.
Yours truly,
C. D. Cannon Maple Company,
Per C. D. Cannon.”

When the cars arrived in Chicago they also were rejected and sent to the Sibley warehouse. Afterwards the plaintiff resold the four cars to other parties and brought this suit to recover for losses and damages claimed to have been sustained by it by reason of the failure of defendant to receive and pay for the last four cars under its contract agreement.

The reason adduced by the defendant for its refusal to accept these cars is that the character of the sugar in the first shipment was not according to the contract, but of an inferior kind, and therefore it had the right to cancel the contract and to refuse the balance to be shipped thereunder. The written contract called for “Beauce Maple Sugar of 1909 crop.” This contract was the outcome of a conference between the parties, and the trial court permitted testimony as to what was said and done at the time. The only material difference in this testimony concerns the color of the sugar, defendant’s witnesses claiming that it was agreed that the sugar to be shipped should be like a sample which was presented at the time of the conference, and which was of a light color. This was denied by the witnesses for plaintiff. The trial court found that “there was nothing said about color,” and we find nothing in the circumstances surrounding the execution of the written contract to cause us to look beyond its terms to ascertain the entire agreement of the parties. It is established by the evidence that the sugar shipped was dark in color, and upon this fact is predicated the claim that the sugar was not according to contract.

It appears from the evidence that “Beauce Maple Sugar” is known in the trade as a sugar from the Beauce district in the Province of Quebec; that it is usually very dark, although it sometimes runs light from various causes; is strong in flavor, and is used for blending purposes and in the manufacture of tobacco. There is conflicting testimony as to whether the samples of sugar submitted showed it to be of fair average quality. It would serve no useful purpose to narrate the opposing statements of witnesses on this point. Several disinterested witnesses testified that the sugar was of fair average quality. From a consideration of the testimony of all the witnesses, we are led to the conclusion that not only did the defendant fail to prove that the sugar was not according to contract, but the greater weight of the evidence was the other way.

It is next contended by defendant that the contract provides that the sugar should be shipped “June 1st, 1909, or before,” and that the four rejected cars were shipped after that date. An inspection of the original contract in the bill of exceptions shows that attempts were made by the parties to fix the time of shipments. Following the word “before” is the word “if.” Then follow the words “provided you keep us supplied,” and through these words a line is drawn, as if to cancel them. On the line below, following the printed word “when,” was written “at your option,” but a line was drawn through these three written words. At the bottom of the contract these words are written plainly and are not erased: “Ship when you wish, provided you keep up supplied.” It is evident that both parties intended to make some change in the time of shipments from “June 1st or before,” and that the final agreement was contained in the last provision on that point appearing in the contract. That this is the proper construction is shown by the conduct of the parties. In the letter of July 14th written by defendant, the reason given for canceling the order is, “as we have received from you on our original contract no first-class number one Beauce County maple sugar such as our contract or agreement called for.” Nothing is said about any failure to ship on time. The subsequent conduct of defendant with reference to the inspection of samples shows that the claim of delay in shipments was an afterthought, and cannot now be entertained by this court.

In Ohio & Mississippi Railway Co. v. McCarthy, 96 U. S. 258, 267, the court said:

“Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law.”

And in Olcese v. Mobile Fruit & Trading Co., 112 Ill. App. 281, 286, it was said:

“They bottomed their refusal upon the fact that the prices were not wired to them before the fruit was shipped. Having taken this position they must be held to have waived all other objections. It is clear, under the authorities, that if a particular objection is taken to the performance of a contract, and the party is silent as to all others, the objections not made are deemed to be waived. Littlejohn v. Shaw, 159 N. Y. 188.”

The contract provides that 125,000 lbs. of sugar were sold “on a commission of one cent per pound above the price paid the farmers, ’ ’ and it is urged that the testimony of plaintiff’s witnesses as to the price paid the farmers is hearsay. We do not agree with this contention. Witnesses testified as to the price paid the farmers based upon their own personal knowledge. The witness McDonald, in addition to testifying as to his own personal knowledge of what was paid the farmers, and that he himself had paid them in a good many cases, testified that “the price is established before the church door. It is called out; everybody knows the price. ’ ’ And further, that it is a very primitive country away in the back woods of Canada, and that the price paid to the farmers is announced from the church door and travels very quickly.

In Hoxsie v. Empire Lumber Co., 41 Minn. 548, 551, the court said:

“Value in a business sense consists largely of the opinions of persons familiar with the market, and these opinions are largely made up of what is said and reported by others. Hence, if a person shows his business is such that, by commercial reports or other means of like nature, he is familiar with the current market prices of an article, he is competent to testify on the subject, although he may not have actual personal knowledge of any particular sales. Brackett v. Edgarton, 14 Minn. 134; Whart. Ev., Secs. 255, 449.”

Anri in Betts v. Southern California Fruit Exchange, 144 Cal. 402, it was held that:

“The testimony of the plaintiff with reference to the market price of the lemons was not incompetent merely because his knowledge was derived from the information of others. And in the absence of other evidence, was sufficient to sustain the finding of the court as to their value. The market price of an article is often shown by published statements of that fact.”

In McCrary v. C. & A. R. R. Co., 109 Mo. App. 567, it was said:

“It is a well understood general proposition that a witness should not state values, * * * but there are exceptions. Thus he may state the market value of grain or of a horse or of land. In these and like instances he is not stating a conclusion, but rather a fact. * * * Plaintiff was there and became acquainted with the market. He did not have to be present at each sale in order to know what it was. In the sense of legal evidence his knowledge was not hearsay as defendant contends. * * * The market was a matter of public notoriety.”

It is further said that the trial court in allowing items of losses on resales allowed items not covered by the bill of particulars. The items in the bill of particulars aggregate $2,981.97. The trial court entered judgment against the defendant for $1,862.41, or over $1,000 less than the total of the items in the bill of particulars. Nothing appears from the record to inform this court as to what particular items the trial court allowed, and what was not allowed. Therefore we cannot say that the judgment contains any items not appearing in the bill of particulars.

Objections were made to the rulings of the trial court as to the admission of testimony, but we find no reversible error therein.

Holding the judgment to be right, it will be affirmed.

Affirmed.


text:
    Mary L. Reagan, Appellee, v. Charles A. Borgeson, Appellant.
    Gen. No. 17,006.
    1. Negligence—when question for jury. In an action for personal injuries defendant’s negligence and plaintiff’s contributory negligence are questions for the jury where plaintiff was struck while crossing a street by defendant’s horses and wagon driven by its teamster, the sidewalks were crowded, plaintiff testified that she looked before starting to cross, and that others were crossing at the same time, and there is testimony that the team was going at a fast trot, and that the street was crowded with people, but not with vehicles.,
    2. Instructions—directing verdict. A verdict should be directed for defendant on the ground of contributory negligence only where reasonable minds would agree that the injury wa's caused by contributory negligence and there is no evidence on which the jury might reasonably find otherwise.
    3. Trial—special interrogatories. In an action for personal injuries a special interrogatory, “Could"the plaintiff have avoided the accident by the exercise of ordinary care for her own safety immediately before and at the time of the accident,” is improper since it only instructs the jury to suggest some theory by which the accident might have happened.
    4. Verdicts—special. A special interrogatory is not properly answered where ten jurors answered “yes” and two answered “no”.
    5. Verdicts—special. Where a special interrogatory asking for “yes” or “no” is answered “yes”' by ten jurors and “no” by two, it is the duty of the party submitting it to move the court to send the jury back with instructions to answer the question.
    6. Evidence—impeachment of witnesses. In an action for personal injuries, it is correct to exclude the testimony of one witness as to statements made by another witness, and to rule that the time and place of the averments must be stated.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Harris F. Williams, for appellant; Eldon M. Votaw, of counsel.
    John S. Stevens, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit to recover damages for personal injuries, brought by Mary L. Reagan, plaintiff, against Charles A. Borgeson, defendant, who is engaged in the teaming business. She recovered a judgment of $1,000, which we are asked to reverse.

The accident occurred at or near the intersection of State and Monroe streets, in Chicago. The plaintiff was crossing State street from east to west, on the south side of Monroe, on Saturday afternoon, November 16, 1907. She was carrying a child upon her right arm, and was between the westerly street car track and the west sidewalk when the horses and wagon belonging to the defendant, driven by one Henke, employed by the defendant, came from the north and struck the plaintiff. She was thrown down and the front left wheel of the loaded truck ran over her body. She was cut and bruised from her knee to her waist, and afterwards underwent two surgical operations. Her right kidney was removed and found to be crushed. No question is raised as to the extent of the injuries.

It is first contended that the plaintiff was guilty of contributory negligence, and that the court should have instructed the jury to find the defendant not guilty. The testimony shows that State street is ordinarily crowded, both on the sidewalk and in the street, although on the occasion in question the street was crowded with people but not with vehicles. The plaintiff testified that as she started to cross the street she looked both ways but did not see anything; that she was right up on the crossing, although in going across she went a little obliquely; that other people were going across at the same time and that she was right behind quite a number of people; that she had picked up the little girl before crossing and was carrying her on her right arm; that the first she knew of the presence of the wagon was when she was knocked down.

An officer stationed at the westerly crossing of Monroe and State streets, testified that he saw the team before it struck the plaintiff; that it was going south between the west street car track and the sidewalk; that the team was going about nine or ten miles an hour—going at a fast trot—as it crossed Monroe. He further testified that the cross-walk runs from the southeast corner of Monroe and State streets a little towards the southwest to the southwest comer. Other witnesses testified that the sidewalks were crowded; that it was during the Christmas rush and the streets were crowded and vehicles of all kinds were passing.

Under these circumstances the questions of the negligence of the defendant and the contributory negligence of the plaintiff, if any, are peculiarly questions for the jury to determine. In Winn v. C. C. C. & St. L. Ry. Co., 239 Ill. 132, 139, the court said: “It is usually a question of fact for the jury to determine, in view of all the surrounding circumstances, whether failure to look and listen constitutes negligence or lack of due care.”

A trial court should only instruct the "jury to bring in a verdict for the defendant upon the ground that plaintiff’s conduct contributed to the injury, where the facts are clear and of such a character that reasonable minds would agree without dissent that the injury was caused by the plaintiff’s contributory negligence, and where there is no evidence upon which the jury could, in the eye of the law, reasonably find otherwise. Such is the law as reported in a long line of decisions in this state. In the case before us it was for the jury to determine the question of negligence, and we cannot say that its conclusion was incorrect.

Upon the trial, upon motion of the defendant, the court required the jury to answer a special interrogatory as follows:

“The jury are instructed to answer the following special interrogatory by writing ‘yes’ or ‘no’ beneath the same:

“Could the plaintiff have avoided the accident by the exercise of ordinary care for her own safety immediately before and at the time of the accident?”

When the special verdict was returned it was found that ten jurors had answered it “no” and two had answered it “yes;” and it is urged that this special verdict should control. It is obvious that this special verdict was an improper one, and that the special interrogatory should not have been given. It did nothing more than instruct the jury to suggest some theory by which the accident could have been avoided, whether based on the evidence or outside the evidence. If it had been answered unanimously it would merely have raised an argument on an academic matter. Speculation as to how the accident might have been avoided does not de.cide the ultimate fact as to whether the plaintiff exercised ordinary care at the time.

A similar special interrogatory was submitted in Nelson v. Richardson, 108 Ill. App. 121, and the court held that such special interrogatory should not have been given, saying: “In Illinois Steel Co. v. Mann, 197 Ill. 186, the court say: ‘A question for a special finding should be single and direct and relate to an ultimate and controlling fact in the case, and not to evidentiary facts, or facts from which the ultimate fact may be deducted by reason.or argument.’ ”

It further appears that the jury answered the special interrogatory both ways; that is, it was not answered at all, in which event it was the duty of the party submitting the interrogatory to move the court to send the jury back with instructions to return ah answer to the question; this was not done.

In E. J. & E. Ry. Co. v. Raymond, 148 Ill. 241, the court said (p. 251): “If the defendant was not satisfied with an evasive answer, it should have asked to have the jury sent back to their room, under proper instructions, for the purpose of agreeing upon a special finding which should be responsive to the question put to them. Having failed so to do, the defendant must rest content with the finding as made.”

Complaint is made of the ruling of the trial court in refusing to allow the witness Borgeson to testify as to what the witness Walsh had told him concerning the accident; but the ruling of the trial court that the time and place of such alleged averments must be stated was correct.

Finding no error in the record, and the verdict appearing to be supported by the weight of the evidence, the judgment is affirmed.

Affirmed.