text:
    No. 1366.
    George Ball v. Lenora Schaffer.
    Opinion filed Dec. 4, 1885.
    This case was before the court at the December term, 1883, and substantially all the questions now raised by the assignments of error were then involved in the cause and decided. Ball v. ■Schaffer, 14 Brad well, 302. The decree of the circuit court was then affirmed, as to all matters in controversy between the parties, except as to the damages awarded for the detention of dower, and on that particular point the decree was reversed and the cause remanded for further proceedings in conformity with the opinion of the court. It is. admitted by appellant that the action of the court below, upon the remanding, is in substantial compliance with the expressed views of this court. The cause must be considered by the former adjudication, at least so far as this court is concerned. That adjudication covered the merits of the controversy in all its bearings, and the only matters we "could now properly review would be the proceedings subsequent to the remanding of the cause ; it is not contended such proceedings were not in conformity with the mandate of the court. Hollowbush v. McConnel, 12 Ill. 203; Cook v. Norton, 61 Id. 285 ; Newberry v. Blatchford, 106 Id. 584. The decree is affirmed.
    Attorneys for appellant, Messrs. Barns & Barns ;
    for appellee, Mr. F. S. Potter.
   Opinion by Baker, J. Judge below, John Burns.


source: Caselaw Access Project

license: Public Domain

text:
    THIRD DISTRICT.
    No 47.
    William Winnings v. W. G. Cochran, assignee, etc.
    This was a claim against the insolvent, who had been a banker, presented to his assignee in April, 1884, and contested under the statute. It was in the form of a slip or ticket signed by his cashier, dated June 17, 1878, and showed a deposit by appellant of $800; and the defense was payment. Upon the trial, on appeal from the county court, the issue was found for the defendant, a motion for a new trial overruled and judgment entered. The only reason here urged for a reversal was that the verdict was against the evidence; but it was not denied, nor could it be in the face of their record, that there was much to support it. The judgment is therefore affirmed.
    Attorney for appellant, Mr. W. II. Shinn;
   Opinion, Per Curiam. Judge below, C. B. Smith.

Opinion filed Dec. 4, 1885.

for appellee, Messrs. Eden & Clark.


text:
    No. 28.
    Wallace Young v. Norman Slane.
    Opinion filed Dec. 4, 1855.
    An action on the case against a physician for carelessly lacerating appellee’s mouth and fracturing his jaw, in extracting a tooth. The judgment against appellant, the physician, is reversed, as being contrary to the evidence.
    Attorneys for appellant, Mr. W. S. Everhart, Mr. P. A. Brady;
    for appellee, Mr. S. S. Whitehead.
   Opinion Per Curiam. Judge below, Wm. C. Jones.


text:
    No. 75.
    Lawrence Looby v. People, etc.
    Opinion filed December 4, 1885.
    A prosecution befoie a justice of the peace for carrying concealed weapons, and a fine imposed of §25. Appeal to the circuit court, and a fine of §150 imposed. Finding no error, the judgment is affirmed.
    Attorney for appellant, Mr. E. Lynch;
    for appellee, Mr. S. H. Blane.
   Opinion Per Curiam. Judge below, George W. Herdman.


text:
    No. 73.
    Richard N. Watts v. Village of West Springfield.
    This was a suit brought before a justice of the peace to recover the penalty for violating a village ordinance, for an alleged obstruction of a public road. The case was removed by appeal to the circuit court, and was tried there by the court without a jury, by consent. The issue was found for the plaintiff, and a fine assessed accordingly, with costs. The only question here was as to the propriety of that finding. The controverted question of fact was as to the true location of the road, and while there was conflict upon this point, the court is of" opinion that the conclusion reached by the court below has ample support in the evidence. It is urged that there was a var'ance between the offense indicated by the summons and the proof in this, that the evidence tended to prove a violation of section four of the ordinance, by failing to remove an obstruction after notice, while the summons was for violating section three by obstructing the road. Ho objection wras made to the evidence on this ground in the trial court, and it is too late to make it for the first time in this court. If there was anything in the point, the objection should have been made on the trial; and if deemed necessary, it could have been obviated by an amendment. I. & St. L. R. R. Co. v. Estes, 96 Ill. 473. Judgment affirmed.
    Opinion filed Dec. 4, 1885.
    Attorneys for appellant, Messrs. Orendorff & Creighton;
    for appellee, Messrs. Patton & Hamilton, and Mr. J. E. Dowling.
   Opinion by Wall, P. J. Judge below, J. J. Phelps.


text:
    FOURTH DISTRICT.
    No. 48.
    Rockford Ins. Co. v. Michael O’Connor.
    Opinion filed Nov. 27, 1885.
    A suit commenced by appellee against appellant to recover pay for services rendered as an agent of the company. The court being of opinion that the verdict is sustained both as to the finding of the facts and the amount found to be due the plaintiff, the judgment is affirmed.
    Attorneys for appellant, Messrs. Marshall & Taggart;
    for appellee Messrs. Hat & Knispel.
   Opinion by Pills .jury, P. J. Judge below, Amos Watts.


text:
    No. 34.
    Phillip V. N. Davis et al. v. Thomas Hileman.
    Opinion filed Nov. 27, 1885.
    Replevin to recover possession of county orders. Issues of fact as to ownership, only question involved. Affirmed.
    Attorney for appellant, Mr. W. S. Day;
    for appellee, Messrs. Lansden, Ware & Karrakee.
   Opinion by Pillsbury, P. J. Judge below, D. M. Browning.


text:
    No. 9.
    Truman S. Crissey v. John Alsop.
    Opinion filed Nov. 27, 1885.
    The only question involved is whether the judgment is contrary to the evidence or not. Courts reluctantly disturb the verdicts of juries, even when large interests are involved, and this reluctance is increased when the amount in litigation is small, and it is manifest that both parties in the end must suffer loss by repeated trials. The court reverses the case as contrary to the evidence.
    Attorney for appellant, Mr. J. H. Gwin;
    for appellee, Messrs. Wood Bros.
   Opinion by Wilkin, J. Judge below, W. C. Jones.


text:
    No. 50.
    J. M. Crowell v. Mace Deen et al.
    Opinion filed Sept. 24, 1885.
    Asno error is assigned by appellant, the judgment is affirmed.
    Attorney for appellant, Mr. J. F. McCartney ;
    for appellee, Messrs. Mulkey & Leek.
   Opinion Per Curiam. Judge below, O. A. Harker.


text:
    No. 40.
    A. C. McMurphy v. Ephraim Kimmel.
    Appellee sued appellant to recover the value of twenty barrels of apples. As the evidence clearly shows that appellee delivered to appellant 163 barrels and appellee only accounted for 144, the judgment below for appellee was proper.
    Opinion filed Nov. 27, 1885.
    Attorneys for appellant, Messrs. Barr & Lemma ;
    for appellee, Mr. Wh. A. Schwartz.
   Opinion by Greer, J. Judge below, O. II. IIarker.


author: Mr. Justice Clark

text:
    Max Robinson et al., Plaintiffs. Rudolph Henry, Defendant in Error, v. J. Seaton, Plaintiff in Error.
    Gen. No. 16,787.
    Municipal Court—section 46 of act pertaining to amendments construed. Held, that under this section of the Municipal Court Act it was not the intention of the Legislature that suits may be brought in the name of one person as plaintiff and prosecuted in the name of some one else where such second person is not shown to have succeeded to the rights of the original plaintiff.
    Error to the Municipal Court of Chicago; the Hon. Michael F. Gusten, Judge, presiding. Heard in the Branch Appellate Court at
    the October term, 1910.
    Reversed.
    Opinion filed April 19, 1912.
    John A. Stagg, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought in the Municipal Court of Chicago by one Max Robinson against J. Seaton, the plaintiff in error, for the possession of a building in the City of Chicago. At the trial it was discovered that the lease was not made by Max Robinson but by one Rudolph Henry. Thereupon the court suggested that there was a variance as to the parties, but that the plaintiff might correct it by amending his complaint. A motion to that effect was made by the attorney for the plaintiff and an objection interposed by the attorney for the defendant. The objection was overruled. The court then instructed the clerk to let the record show that ‘ ‘ on motion of plaintiff, leave is given to make Rudolph Henry co-plaintiff, and on motion, plaintiff amends by discontinuing as to Max Robinson.”

The action of the court was evidently intended to be based upon section 46 of the statute creating and governing the Municipal Court of Chicago, being paragraph 309 of chapter 37 of the Revised Statutes. As amended in 1907, this section reads: “That amendments to statements of claims, set-offs and counterclaims, praecipes, summons and other papers filed by either party may, in the discretion of the court, be allowed at any time.” In the Practice Act governing courts of record generally, it is provided that amendments may be permitted, and that any necessary party may be joined as plaintiff or defendant, and that the cause may be discontinued as to any joint plaintiff or joint defendant. It has been held in this court that the purpose of this statute is to cure the defects of misjoinder or of nonjoinder of proper parties without turning the case out of court, but that the purpose was not to substitute new parties for all the plaintiffs or for all the defendants. Zukowski v. Armour, 107 Ill. App. 663.

In the case of The Michaels Co. v. Young et al., 150 Ill. App. 442, it is said that a plaintiff after obtaining leave to amend a declaration is in no way obligated to exercise the privilege given and make the amendment, and that if the amendment is not actually made the declaration stands as originally filed notwithstanding the order granting leave to amend.

In the case before us the complaint and other files seem never to have been amended, unless what appears from the bill of exceptions, as above set forth, can be treated as such amendment. In the complaint, summons, alias summons and pluries summons the name of Max Robinson still appears as sole plaintiff. Even in the judgment Max Robinson appears as plaintiff, and the defendant is found guilty of unlawfully withholding from such plaintiff the premises in question. The judgment therefore is not based upon the facts as disclosed by the proof, nor is it supported by the record.

While we are disposed to construe liberally the statute permitting amendments, we do not think it was the intention of the Legislature that suits may be brought in the name of one person as plaintiff and prosecuted in the name of someone else, where such second person is not shown to have succeeded to the rights of the original plaintiff. In the case now under consideration no such succession is claimed. The suit was instituted by one having no right to maintain it, and a judgment apparently in his favor was entered.

For the reasons stated the judgment will be reversed.

Reversed.


text:
    Charles F. Engel, Appellant, v. Thomas Walsh et al., Appellees.
    Gen. No. 16,778.
    1. Injunctions—when hill praying defective. A MU by a member of a labor union seeking an injunction against such union to prevent the enforcement of a fine is fatally defective if it does not set up the contract relations of the parties.
    2. Injunctions—when remedy at law exists. A bill to restrain the enforcement of a fine imposed by a labor union upon one of its members does not lie inasmuch as a remedy at law exists.

      3. Injunctions—when do not lie against labor unions. Equity will not restrain a labor union from expelling a member from its organization.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Thomas Gr. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Rehearing denied May 7, 1912.

      Certiorari denied by Supreme Court (Making opinion final).
    Pope, Hoig, Fuller & Nichols for appellant.
    Cruice & Langille for appellees; Daniel L. Cruice, A. S. Langille and O. J. C. Wray, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

A bill in equity was filed by the appellant, Engel, against the appellee Labor Union and certain of its officers and members, who are also before us as appellees. The relief asked was an injunction restraining the defendants from enforcing or attempting to enforce a fine theretofore imposed upon the complainant, who was a member of the union, for a certain alleged violation of the rules of the union, and from preventing the complainant “from doing any further work until said fine is paid”; also from causing, calling, etc., a strike against the complainant to prevent him or his employes from doing or completing any work or building upon which complainant might be engaged, and from in any way directly or indirectly, carrying- out the order, act and proceedings commenced, threatened or enacted against complainant at the meeting of the Union held April 30,1910. The further relief is asked that- the defendants be enjoined from expelling complainant from the union or from refusing to recognize him as a member.

A temporary injunction was granted by the Circuit Court upon the recommendation of a master in chancery. Answers were filed by certain of the defendants, and demurrers by others. Thereafter the injunction was on motion dissolved. The court disposed of the case upon the demurrers, refusing to consider the answers and affidavits filed. The demurrers were sustained and a decree entered dismissing the bill for want of equity.

We think the action taken was proper. First, the bill does not set forth the contract between the parties. This contract is made up of the constitution and bylaws of the union, which are binding alike on the union and its members. People v. W. C. O. F., 162 Ill. 78, and cases cited. The bill was therefore demurrable, in our opinion, because it does not state even in substance the provisions of the constitution and by-laws so governing the union and its members. • The court in order to determine the rights of the parties upon the merits must necessarily have had before it the contract between them, in order that the same might be construed.

In the second place, even if the constitution and bylaws had been fully set forth in the bill of complaint the relief asked for could not properly have been granted because under repeated decisions in this state, as well as of courts of last resort in other jurisdictions, the complainant, if he had a cause of action, had a complete remedy at law.

In Sturges v. Board of Trade, 86 Ill. 441, it was held that a court of equity will not entertain a bill by a member pf a private corporation against the corporation and its officers to restrain them from expelling the complainant for a violation of its rules and by-laws, and the remedy of such member, if any, is in a court of law.

It has been held, moreover, in numerous cases that courts of law will not restore to membership persons who have been expelled from membership in such organizations as churches, masonic bodies, odd fellow and temperance lodges, etc.—among others People v. Board of Trade, 80 Ill. 134. In the opinion last referred to it is said that in such cases the members must be left to enforce their rules and regulations by such means as they may adopt for their government.

For the reasons stated the decree of the Circuit Court will be affirmed.

Affirmed.


text:
    Title Guaranty and Surety Company, Defendant in Error, v. George Hofmann, Plaintiff in Error.
    Gen. No. 16,796.

      Suretyship—when recovery by surety company for costs paid proper. If a surety company is given a cost bond upon an agreement of indemnity, upon the payment by it of a judgment for costs it may recover notwithstanding the judgment for costs was given upon a dismissal for want of jurisdiction, where it appears that the court entering the order of dismissal initially, by virtue of the allegations made in the pleadings, had jurisdiction of the case.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed April 19, 1912.
    Rehearing denied May 7, 1912.
    Samuel Friedlander, for plaintiff in error.
    Sheriff, Dent, Dobyns and Freeman, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.-

Recovery of a judgment for $599.35 was had in the Municipal Court by the defendant in error against the plaintiff in error. It appears from the record that the plaintiff in error with others brought suit in the Circuit Court of the United States for the District of Indiana, against Frederick Buenger and others in chancery, the bill alleging that the complainants were citizens of the State of Illinois and that the defendants were citizens of the State of Indiana. It became necessary for the complainants in that suit to give a cost bond. The bond was furnished by the Title Guaranty & Surety Co., the defendant in error herein. In the application for the bond made by the plaintiff in error, the latter entered into the following agreement:

“And in consideration of the Title Guaranty & Surety Co. executing the bond herein applied for, I do hereby covenant, promise and agree to pay the premiums or fees agreed upon, to-wit, five dollars per year until evidence is furnished that there is no further liability on said bond; and to indemnify and keep the said Guaranty Company indemnified from and against any and all loss, costs, charges, suits, damages, counsel fees and expenses of whatever kind and nature which said Guaranty Company shall or may have any cause at any time to sustain or incur or be put to for or by reason of or in consequence of said Company having executed said bond signed by defendant. ’ ’

Defendants in the suit in the Circuit Court referred to filed pleas in abatement denying the diversity of citizenship. Thus an issue of fact was raised, and the case was referred to a master in chancery on that issue. The master reported adversely to the complainants, the pleas in abatement were sustained, and judgment was entered against the complainants for costs in the sum of $484.35. The defendant in error refused to pay the amount, insisting that the United States Circuit Court for the State of Indiana, being without jurisdiction in the case on account of a lack of diversity in citizenship of the parties, was also without jurisdiction to enter judgment for costs. Thereupon, after endeavoring to get the plaintiff in error to appeal from the decision of the district judge, the defendant in error paid the amount of the judgment, and brought suit against the plaintiff in error upon the indemnity agreement heretofore set forth.

In Citizens Bank v. Cannon, 164 U. S. 319, it was held to be the rule, apparently without exception, that where a court is without jurisdiction for any reason costs may not be allowed against the complainant or plaintiff who improperly invokes its jurisdiction,—following Mayor v. Cooper, 6 Wall. 247; Inglee v. Coolidge, 2 Wheat. 363; Hornthall v. The Collector, 9 Wall. 560.

The learned district judge who entered the judgment we now have under consideration evidently took the view that as the complainants by their bill gave the court prima facie jurisdiction, by the allegation that the complainants were all residents of the State of Illinois, and the defendants all residents of the State ,of Indiana, and as on a plea properly filed a question of fact was raised as to the truth of the allegations in the bill, the costs of the case, made up largely of the fees of the master to whom the case was referred, should properly be borne by the complainants; that an exception to the rule laid down by the Supreme Court in the cases referred to was thus established.

In Rice v. Travis, 216 Ill. 249, it was held that whether or not a justice of the peace has jurisdiction in a replevin suit is not solely one of law; that it is a question of law and fact, and if, as a matter of fact, the property does not exceed in value $200 the justice has jurisdiction.

In Kirkpatrick v. Cooper, 89 Ill. 210, it was held that in such a case the question of fact is to be determined by the court or jury, and if it is found that the value of the property exceeds $200 the justice may enter a judgment awarding a return of the property to the defendant.

In Hill Co. v. Contractors’ Supply Co., 249 Ill. 304, it was held that the question whether a corporation is or is not principally engaged in manufacturing, so as to render it amenable to the bankruptcy law, is not one of law solely, but a mixed question of law and fact, and that the right of the district court to proceed with the administration of the assets of the estate depends upon the facts presented upon that issue; that the jurisdiction of the court does not depend upon the correctness of its determination of these facts.

In Westfeldt et al. v. North Carolina Mining Co., 177 Fed, Rep. 132, it was held that where a bill in equity filed in a federal court alleges facts which give such court jurisdiction, but is afterwards dismissed on a plea in abatement setting up the pendency of a suit in a state court between the same parties in which the state court had acquired prior jurisdiction over the subject matter of the suit, the case is not one of jurisdiction in such sense that the court cannot adjudge costs against the losing party.

So it may be said in the present case that the United States district judge did not decide that there was a want of jurisdiction in the Circuit Court in the inception of the case, but that it would be error to retain jurisdiction when the fact that there was not diversity of citizenship was made known and established. The conclusion of the court in this respect appears to us as being equitable.

Complaint is made by the plaintiff in error of the allowance of $115 in addition to the amount paid to the defendant in error in liquidation of the cost judgment. It is stated that a portion, viz. $15, of this is for traveling expenses of the attorney for defendant in error. In the statement of claim the sum of $200 was included as for attorney’s fees and $15 for expenses. The court allowed $115, but we have no" way of ascertaining from the record whether any portion of this was for traveling expenses. The indemnity agreement entered into by the plaintiff in error is very broad, and we think the judgment should not be reversed for the error last alleged. The suit was one of the fourth class in the Municipal Court. We think justice*has been done between the parties by the judgment rendered, and the same is affirmed.

Affirmed.


text:
    Peter O. Holmquist et al., Appellants, v. M. Dencer Company, Appellee.
    Gen. No. 16,852.

      Contracts—how to he construed. In construing a contract the sense in which the person making the promise believed the other to have accepted it, if he in fact did so understand and accept it, must control.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Allen G. Mills, for appellants.
    Coleman S. Everett, for appellee; John C. Everett, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the appellants, as plaintiffs, in the Municipal Court of Chicago against the appellee, as defendant, to recover the sum of $1,200 alleged to have been expended by, the plaintiffs in replacing a boiler in certain premises that had been leased from the defendant. The suit was in assumpsit and belongs to what is known as the “first class”. The case was tried before the court without a jury. There was a finding for defendant, upon which judgment was entered in favor of the defendant and against the plaintiffs for costs.

The pleadings consisted of the declaration and a plea offfhe general issue. The lease on which the suit is based was made on April 7, 1909, by the defendant, a corporation, to the plaintiffs, doing business as Holmquist & Co. The property leased was a manufacturing plant, and included a boiler. The covenant respecting the boiler reads as follows:

“The party of the first part hereby agrees to place the boiler in„said demised premises in good working order, if the same is not so, and the said second party agrees to keep said boiler in repair thereafter, but in the event of the condemnation of said boiler, due to ordinary wear and tear, by the city authorities, the said party of the first part hereby agrees to replace said boiler.”

Possession of the premises was taken by plaintiffs shortly after the execution of the lease. The plant was operated during the summer months, but apparently the boiler was not capable of producing enough steam with the pressure to which it could safely be subjected to operate all of the machinery of the plaintiffs in a satisfactory manner.

There is testimony to the effect that the boiler was inspected in the month of October by the city authorities and possibly prior to that time. On November 13th the plaintiffs received through the mail the following letter, signed by J. J. Houlihan, Chief Inspector of Steam Boilers and Steam Plants. This letter was apparently written on an official letter-head, indicating that the writer was employed by the city in the capacity mentioned.

“On a reinspection of boiler No. 1 in your plant, inspector reports the following condition.
Shell plates on bottom, internal, are pitted from 10 to 15%. This pitting extends from front to rear head. Also first sheet over fire is pitted internally in several places about 10%. Both heads of this boiler are very poorly braced, and on account of age and present condition of shell, a greater pressure than 60 lbs. will not be allowed by this department.
Boiler is condemned by this department for any pressure greater than 60 lbs.”

A great deal of testimony was introduced, without objection, detailing conversations between the parties prior to the execution of the lease. Some of these were with a Mr. Kent of the firm of Alex Friend & Co., real estate agents who negotiated the lease, and had to do more or less with the suggestion or proposition that plaintiffs buy the property. In one or more of these conversations Mr. Dencer, acting for- the defendant, was present. As to what was said in these conversations, there is conflict in the testimony. Dencer insists that he did not at any time say anything about the power of the plant. He admitted, however, that he said, “If the city condemns the boiler, I will put in a new one.” He also stated that when he gave up running the plant he believed it was of 70 horse-power. He further testified that he did not authorize Friend & Co. or anyone else to represent that it was a 100 horsepower plant.

The testimony of Mr. Kent was offered by the plaintiffs, and he stated that Mr. Holmquist said that he required a 100 horse-power capacity, and that he was told that the plant was of about that capacity.

If it be assumed that the notice above set forth was admissible as showing the attitude of the city authorities respecting the boiler, the question to be determined first is whether it shows such a condemnation by the city authorities as would require the defendant, under its contract, to install a new boiler. The lease contains the usual provision that the premises were in good order when received. The covenant added to the printed form required the defendant to “place the boiler * * * in good working order, if the same is not so. ’ ’ There is no proof in the record that the boiler was not in good condition when the plaintiffs went into possession. No .demand was made by plaintiffs upon the defendant that repairs be made during the several months that elapsed between the time possession was taken and the date of the notice from the city inspector, above set forth.

The contention of the plaintiffs, as we understand it, is that while the covenant to put the boiler in good repair, or replace the same in the event of condemnation, does not imply a warranty that the boiler should produce 100 horse-power, yet as it was shown the boiler in question was of a size sufficient to give 100 horsepower and that the plaintiffs were prevented from working it to that capacity because of the inhibition placed by the city authorities, the defendant, by the covenant, was required to replace the same.

We have no way of determining from the record whether the shell plates on the bottom of the boiler, which in the notice are said to have become pitted from 10 to 15 per cent., became so pitted after possession was taken by the plaintiffs, or whether the sheet over the fire in the boiler also became pitted after the plaintiffs took possession. In other words, the testimony does not show whether the defects were due to ordinary wear and tear, or to the failure of the plaintiffs to keep the boiler in repair, as by the covenant they were required to do. If the parties intended that the defendant should place a new boiler in the premises whenever the pressure to which the old boiler might safely be subjected became less than 100 pounds, such provision should have been inserted in the lease. If, also, it had been the intention of the parties that a new boiler should be placed in the building whenever it became apparent that the old boiler would not produce 100 horse-power, a provision to that effect should have been inserted.

We agree with counsel for plaintiffs that in construing a contract, the sense in which the person making the premise believed the other to have accepted it, if he in fact did so understand and accept it, must control. In this case, however, we are unable to say that the defendant believed that the plaintiffs in entering into the contract understood the provision to convey the meaning now placed upon it by counsel for plaintiffs. This construction cannot'be placed upon the provision unless there be read into it a warranty as to the amount of pressure.

It must have been perfectly apparent to the plaintiffs that the boiler was an old one. We think it would be fair to assume that they knew it could not in all probability be safely subjected to as great a pressure as a new one. By their contract they undertook to keep it in repair. Whether or not they did so is not shown by the record. We agree with the trial court that they are not entitled to a judgment against the defendant for the amount expended in the purchase and installation of a new boiler.

The judgment will therefore be affirmed.

Affirmed.


text:
    Thomas S. Howell Plaintiff in Error, v. John Emil Anderson et al., Defendants in Error.
    Gen. No. 16.864.
    1. Mechanic’s liens—section 28 of Act construed. The statute eon-templates that only owners and principal contractors shall be made defendants in suits at law by subcontractors.
    2. Assumpsit—vfhat essential to recover in actions upon contracts. In actions on contracts expressed or implied wherein several parties are made defendants recovery must be against all or none.
    Mechanics’ lien. Error to the Municipal Court of Chicago; the Hon. Henry C. Ward, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 18, 1912.
    Eastman, Eastman & White, for plaintiff in error.
    Matz, Fisher & Boyden, for defendants in error; Laird Bell, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by Thomas S. Howell, as plaintiff (plaintiff in error here), against John Emil Anderson, A. Biggs Sash and Door Company, Frank M. McKey, Trustee in Bankruptcy of the A. Biggs Sash and Door Company, John Lewis Cochran and Bryan Lathrop, as defendants (defendants in error here). The suit was of the fourth class. Summons was served on all of the defendants except Bryan Lathrop. The default of the two defendants, A. Biggs Sash and Door Company and Frank M. McKey, as trustee in bankruptcy, etc., was entered. The appearance of John Emil Anderson and John Lewis Cochran-was entered by their attorneys, and an affidavit of merits of each of them respectively was filed.

The suit was brought upon a claim for mechanic’s lien, under section 28 of the Mechanics’ Lien Law, paragraph 42 of chapter 82, Revised Statutes of 1909. The case was heard before the court without a jury. The court entered a finding against the plaintiff, upon which judgment for costs in favor of the defendants and against the plaintiff was entered. The plaintiff asks that the judgment be reversed.

The record shows that a stipulation was entered into between the defendant, John Emil Anderson, and the plaintiff, Thomas S. Howell, as to certain facts in the case, the substance being that Anderson was the owner in fee simple of certain described real estate, and was at that time engaged in improving the premises with a flat building; that by John A. Anderson, his father, as duly authorized agent, he entered into a contract with A. Biggs Sash & Door Company to deliver to the premises certain materials, such as doors, windows, sashes, etc., and all of the interior finishing work for the building being constructed by Anderson; that Anderson submitted to the Biggs Company specifications and plans of the building, and that an estimate was prepared by the Biggs Company upon such plans and specifications; that the offer was a verbal offer to furnish the materials in a complete state ready for installation, for the sum of $2,200; that the full amount of the contract price was paid to the Biggs Company on or before the 13th of November, 1909; that all of the goods were delivered prior to the first of February, 1910; that Anderson paid the said sum to the Biggs Company without receiving from it a statement in writing under oath, of the names of the parties furnishing material and labor and of the amounts due or to become due to each; that on February 18, 1910, the plaintiff, Howell, served upon John A. Anderson a notice to the effect that he had been employed by the Biggs Company to furnish veneered doors under “their contract with-you on your property described as follows,” etc., and that there was due to Howell on the first day of January, 1910, therefor the sum of $397.69, and that he would hold “the buildings and your interest in the grounds liable for the amount that is due me account thereof.” It is to be noted that the notice was served on John A. Anderson and not John Emil Anderson, the defendant. The stipulation further recited that the defendants, John Lewis Cochran and Bryan Lkthrop, are trustees under trust deeds upon the premises mentioned, which trust deeds had been recorded; that a certain number of doors were delivered to the premises by the plaintiff.

It has been held that as to suits in the Municipal Court of Chicago, under section 28 of the Mechanics’ Lien Law, providing that a subcontractor may sue the owner and contractor jointly for the amount due him, the only action at law authorized is assumpsit, and that a contract between the subcontractor and the owner will be implied for all such amounts as the contractor may recover from the owner under such section, although the express contract was between the contractor and the subcontractor. Harty Bros. v. Polakow, 237 Ill. 559.

The theory upon which the case before us is evidently brought is that Howell was a subcontractor of the A. Biggs Sash & Door Company, and that the defendant Biggs Company was the principal contractor and the defendant John Emil Anderson the owner.

Section 28 of the Mechanics’ Lien Law above referred to provides that “all suits and actions by subcontractors shall be against both contractor and owner jointly, and no judgment or decree shall be rendered therein until both are duly brought before the court by process or publication, and in all courts including actions before a justice of the peace and police magistrates, such process may be served and publication made as to all persons, except the owners as in suits in chancery. All such judgments, where the lien is established shall be against both jointly, but shall be enforced against the owner only to the extent that he is hable under his contract as by this act provided, and shall recite the date from which the hen thereof attached according to the provisions of sections one (1) to twenty (20) of this act; but this shall not preclude a judgment against the contractor, personally, where the hen is defeated. ’ ’

It seems quite clear to us that the statute contemplates that only owners and principal contractors shall be made defendants in suits at law by subcontractors, under the section of the statute referred to. It appears that the Biggs Company at the time of the suit was insolvent and that Frank M. McKey was acting as its trustee in bankruptcy. Whether or not a judgment could have been entered against the Biggs Company,—the record so showing it as an insolvent corporation whose assets were in the hands of a trustee in bankruptcy,—need not be determined in the view we take of the case. Certainly no judgment could have-been entered against McKey, individually or as trustee. The appellee, John Lewis Cochran, was made defendant in his individual capacity and entered his appearance, at the same time filing an affidavit of merits in which it was recited that his only interest in the property was that of trustee under a deed of trust, . His contention in that regard was sustained by the stipulation of facts heretofore referred to. It is clear that no judgment could properly have been entered against him in this proceeding. The defendant, Bryan Lathrop, was not served with process, but the suit was not dismissed as to him. Nor was it dismissed as to any other of the defendants. In Harty Bros. v. Polakow, supra, it was held, as heretofore stated, that an action such as this could be maintained against the owner, on the ground that there is on the part of an owner an implied promise to pay. It has been many times held that in actions on contract, express or implied, wherein several parties are made defendants, recovery must be against all or none. Davidson v. Bond, 12 Ill. 84; Thayer v. Finley, 36 Ill. 262; Claflin v. Dunne, 129 Ill. 241; Kingsland v. Koeppe, 137 Ill. 344; Felsenthal v. Durand, 86 Ill. 230; Goit v. Joyce, 61 Ill. 489. It is also to be noted that section 28 of the lien law above referred to requires that the .judgment be a joint one.

Under any view of the evidence in this case, recovery, if any, could be had only against Anderson as owner and the Biggs Company as principal contractor. Plaintiff did not see fit to dismiss the case as against the other defendants who, as we believe, were improperly joined. O’Brien v. Gooding, 194 Ill. 466, 474. There was, therefore, in our opinion, nothing for the court to do at the close of the case but to enter judgment against the plaintiff for costs, as was done.

A large part of the argument has been addressed to what is regarded by the plaintiff in error to be an erroneous conception of the lien law as expressed by the trial court in an opinion filed. We find it unnecessary to discuss the questions presented by the argument, for the reason that in our opinion, as heretofore expressed, the judgment entered was the only one that could properly have been entered in view of the state of the record. The judgment will therefore be affirmed. Affirmed.


text:
    Robert J. Schlau, Appellee, v. City of Chicago, Appellant.
    Gen. No. 16,430.
    1. Appeals and errors—when exceptions property preserved. Held, upon this record, that due objections and exceptions were taken to the proceedings sought to be reviewed.
    2. Civil service commission—what does not vitiate order of dis. missal. The fact that but two commissioners have investigated and determined charges, does not vitiate an order of dismissal entered by the commission.
    3. Civil service commissions—what does not vitiate order of dismissal. The fact that the commission permitted the assistant general superintendent of police to sit with them in hearing charges, does not vitiate an order of dismissal.

      4. Civil service commission—when sufficiency of charges cannot he questioned. If at the trial before the commission the sufficiency of the charges made was not questioned, they cannot subsequently be questioned in a mandamus proceeding.
    5. Civil service commission'—what proceedings not subject to review. Whether or not the charges against an officer were sufficiently proved is not a question which is subject to review by the courts, where the officer was accorded a trial in the manner provided by law, and a finding .by the commission or trial board upon evidence tending to show guilt, has been approved by the civil servicé commission.
    Mandamus. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court a.t the March term, 1910.
    Reversed.
    Opinion filed May 7, 1912.
    Rehearing denied and opinion modified May 7, 1912.
    Howard O. Sprogle and Oscar H. Olsen, for appellant; Edward J. Brundage, of counsel.
    Frank R. Reid and Q. J. Chott, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Robert J. Schlau, appellee, filed a petition for a writ of mandamus, to require the City of Chicago, through its proper officers, to assign him to duty as lieutenant of police in the service of the City and to certify his name on the roster and payroll as entitled to the salary of the position, the petitioner having previously been discharged at the direction of the Civil Service Commission.

The petition alleges that the petitioner had been a member of the Police Department of the City of Chicago from 1884 until about the 29th of April, 1909; that he was appointed a lieutenant “under civil service and by virtue of the provisions of the Civil Service Act of the said City of Chicago ’ ’ on the 9th day of April, 1901; that on April 29, 1909, the Civil Service Commission ordered and directed the superintendent of police to discharge him as lieutenant from the service of the city-; that the general superintendent of police issued an order pretending tp discharge him from the service; that the petitioner requested the general superintendent to assign him to duty, but that the request was refused; that on or about April 1, 1909, certain alleged charges were filed against petitioner with the Civil Service Commission. The charges are then set úp in the petition, being for violation of paragraph 4 of Section 2 of Buie 36, viz, conduct unbecoming a police-officer or employe of the Police Department; for violation of paragraph 6 of Section 2 of Buie 36, relating to neglect of duty; also paragraph 7 of Section 2 of Buie 36, viz, violation of a criminal law.

The petition then recites that two of the civil service commissioners of the City of Chicago made an investigation of the charges, and made the following finding and endorsement on each of the said alleged charges:

“Upon investigation of these charges we find that a notice stating the time when and the place where this investigation was to be held, together with a copy of the charges herein, was duly served upon the said Bobert J. Schlau more than five days prior to this investigation; that the sáid Bobert J. Schlau appeared in person and was represented by attorney. Whereupon the witnesses were sworn and their evidence was heard by the Commission; and we further find from the evidence, that said Robert J. Schlau is guilty as charged in the foregoing charges and order that he be discharged from the Police Department and from the services of the City of Chicago.”

The petition further alleges that at the time the charges were filed with the Commission there were three commissioners, but that only two of them took part in the investigation ; that the charges do not constitute a cause of removal within the meaning of Section 12 of the Civil Service Act; that therefore the Civil Service Commission acquired no jurisdiction to order the discharge of the petitioner; that the order of the general superintendent of police was also without authority and void; that no investigation was had of any charges by the Civil Service Commission within the meaning of Section 12 of the Civil Service Act. The petition further alleges that the officers and agents of the City of Chicago refuse to certify the petitioner’s name upon the roster of the Department of Police and upon the payroll thereof, and that petitioner is thus deprived of his wages and salary.

To this petition a demurrer was filed and overruled. An answer was filed. Thereupon testimony was heard and a finding made that the allegations of the petition were true, and the writ of mandamus was issued.

We are asked to reverse the action of the Circuit Court on the ground, principally, that if all the allegations of the petition are taken to be true the court was without jurisdiction to order the issuance of the writ. The appellee insists that the point made is not preserved by the record. We cannot agree with him in that regard. When the first witness was on the stand a motion was made to exclude certain testimony sought to be introduced. The objection was overruled, and the court stated that he would hear the evidence subject to the objection. Later on, when an exception was sought to be taken, the court stated: “Sure; everything may be excepted to.” Afterwards the following colloquy appears:

“Me. Spbogle. Let me call your honor’s attention to the allegation in this petition and see whether there is any issue joined in the pleadings that the court can try.
The Coubt. Let it all go in, subject to the objection.
Mb. Spbogle. Then this all goes in under my objection and exception?
The Coubt. Tes.”

Other objections were made and exceptions taken specifically to certain portions of the testimony. An exception was also taken to the entry of the judgment.

Among the assignments of error are the following: 2. The court below admitted improper evidence on the part of petitioners; 4. The court erred in its finding of the issues for the petitioners; 5. The court erred in entering judgment against defendants.

We think, therefore, that the technical objections raised by the appellee to a review of the case upon its. essential features are not well taken.

It will be noted that the petition nowhere alleges any fraud or improper conduct on the part of the members of the Commission. By Section 1 of Chapter 24-A of the Revised Statutes, which relates to civil service, it is provided that two of the three commissioners shall constitute a quorum. There is nothing in the act to indicate it was the intention that all three of the commissioners should act in every case. On the other hand, the plain construction is that the act of two of them, constituting a majority, is sufficient.

A further point is raised by the appellee in this court (it being claimed by the appellee for the first time), that the finding of the Commission was illegal because the assistant general superintendent of police sat with the commissioners as one of the trial board. There is nothing in the petition or in the record to show that he in any way participated in the finding of the commission. The hearing was open, and we can see no reason why the Civil Service Commission might not avail itself of the assistance of snch an officer as the one mentioned in investigating charges made against one of his subordinates. We think it was within its power to permit the officer to interrogate witnesses and otherwise to assist the commission in arriving at a just conclusion in the matter before it.

It does not appear in the petition, nor elsewhere in the record, that the appellee questioned the sufficiency of the charges made against him when the same were on hearing before the Civil Service Commission. Under such circumstances he cannot raise such an objection in the courts. Joyce v. City of Chicago, 216 Ill. 466; Sullivan v. Lower, 234 Ill. 21.

Further it seems conclusively to appear that if the charges and specifications were true, the discharge of the appellee was not only justifiable but necessary to the public advantage.

It further appears from the record that the appellee was notified of the time and place of the hearing, .and was given copies of the charges and specifications proffered against him; that he appeared before the commission and made no objection as to the regularity of the proceeding, and was permitted in his defense to introduce all of the evidence offered by him. The petition recites the finding of the commission, and nowhere denies the correctness of the finding in the matters referred to. 0

By Section 12 of the Civil Service Act now in-force in the City of Chicago, it is provided that no officer or employe in the classified civil service shall be removed or discharged except for cause, upon written charges and after an opportunity to be heard in his own defense; that such charges shall be investigated by or before the Civil Service Commission, or by or before some officer or board appointed by said commission to conduct such investigation; that the finding and decision of such commission or investigating officer or board, when approved by the commission, shall be certified to the appointing officer, and shall be forthwith enforced by such officer, etc. This provision of the act has been held to be constitutional. People v. Kipley, 171 Ill. 44; City of Chicago v. People, 210 Ill. 84. It has many times been held that whether or not the charges against an officer were sufficiently proved is not a question which is subject to review by the courts, where the officer was accorded a trial in the manner provided by law, and a finding by the commission or trial board upon evidence tending to show guilt has been approved by the Civil Service Commission. Some of the cases in which this question has- been decided arose on appeal or writ of error from a judgment of a court, where a writ of certiorari was granted or denied ; others, in cases wherein a writ of mandamus was applied for and either granted or denied. City of Chicago v. People, 210 Ill. 84; Joyce v. City of Chicago, 216 id. 466; Kenneally v. City of Chicago, 220 id. 485; Kammann v. City of Chicago, 222 id. 63; City of Aurora v. Schoeberlein, 230 id. 496; People v. City of Chicago, 234 id. 416.

In the case last referred to the court said: “The contention of appellee in this regard, if upheld, would practically amount to a review of the evidence by the courts in all investigations conducted by the civil service commission or under its direction. This is not the law. As was said in City of Aurora v. Schoeberlein, supra, such a review by the courts would be the exercise of executive powers, which the separation of departments of the government precludes the court from exercising.”

For the reasons stated, we think the issuance of the writ of mandamus in the case now under consideration was improper, and the judgment will be reversed.

Judgment reversed.


author: Mr. Presiding Justice Baume

text:
    City of Chicago, Defendant in Error, v. Adolph C. Brendecke, Plaintiff in Error.
    Gen. No. 15,753.
    1. Penalties—when complaint sufficient after verdict. In a civil action to recover a penalty for the violation of an ordinance a complaint will be deemed sufficient after verdict if no objection to its form or sufficiency was interposed in the lower court.
    2. Criminal law—when doctrine of unlawful entrapment does not apply. It is not unlawful entrapment for police officers to afford to a person an opportunity to voluntarily and deliberately do what they had reason to believe he would do if opportunity offered.
    3. Criminal law—when burden upon defendant to establish good: faith. In an action for selling morphine in violation of the provisions of an ordinance where the defense is that the sale was upon a prescription—the defendant having acted in the dual capacity of druggist and physician—the burden is upon the defendant to show that he issued the prescription and sold the morphine upon the basis thereof in good faith.
    4. Municipal Court—when plea need not be shown by record. In an action to recover a penalty for violation of an ordinance, the action being of the 4th class, no plea need appear if the defendant has interposed every defense available under a plea of not guilty.

      5. Constitutional law—when questions waived by appealing to the Appellate Court. All questions involving the constitutionality of an ordinance are waived by appealing to the Appellate Court.
    Action of debt. Error to the Municipal Court of Chicago; the Hon-William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed April 24, 1912,
    Rehearing denied May 9, 1912.
    John F. Geeting, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In an action of debt in the Municipal Court by defondant in error against plaintiff in error to recover a penalty for the violation of section 1470 of the Municipal Code of the City of Chicago, a trial by jury resulted in a verdict against plaintiff in error, wherein the penalty was assessed at $200, and judgment was entered on such verdict for the amount of such penalty and costs, and that plaintiff in error stand committed to the house of correction until said amount be either worked out by him at the rate of 50 cents per day for each day’s work or until said amount be paid or until he be discharged, etc.

The amended verified complaint charges that plaintiff in error on April 12, 1909, at the City of Chicago “being a druggist, did unlawfully sell or give away to her, the said May Guyer, morphine, or a preparation containing morphine, without the written prescription of a licensed physician, or licensed dentist, licensed under the laws of the State of Illinois, in violation of Section 1470 of the Revised Municipal Code of the City of Chicago of 1905, as amended November 27, 1905.”

The section of the ordinance in question, of which the Municipal Court took judicial notice, and which appears in the record as embodied in an instruction given to the jury, is as follows:

“No druggist or other person shall sell or give away any morphine, cocaine, hydrochlorate, or any salts, or any compound of the same, or any preparation containing cocaine, morphine, hydrochlorate, or any of the. salts, or any compound thereof, except upon the written prescription of a licensed physician, or a licensed dentist, licensed under the laws of the State of Illinois, which prescription shall be filled only once and shall have upon it the name and address of the patient; provided, that the provisions of this section shall not apply to the sale at wholesale, by any manufacturer or wholesale druggist, to retail druggists, physicians; dentists or chemists of such cocaine, morphine, hydro-chlorate, or any salts or compound of the same in original packages only; that such packages have affixed thereto a label specifically setting forth the preparation of cocaine, morphine or hydrochlorate contained therein. Any person who shall violate any of the provisions of this section shall be fined not less than fifty dollars, -nor more than two hundred dollars for each offense. ’ ’

This is a civil and not a criminal action.^ The complaint is framed in the language of the ordinance and no objections to its form or sufficiency having been interposed by the plaintiff in error in the Municipal Court, it must be held to be sufficient after verdict.

It is claimed that the section of the ordinance involved was not offered in evidence. Without here determining whether formal introduction of the ordinance was necessary, in view of the fact that the Municipal Court is authorized to take judicial notice of the ordinance of the city of Chicago, and that said section of the ordinance is recited at length in an instruction to the jury, it is sufficient to say that the claim evidently rests upon a misapprehension of the record. The record discloses that a “book,” which, from the references made to it by counsel, presumably contained a copy of the ordinance, was recognized and treated as properly being an exhibit in the case, and that the court particularly directed the attention of the jury to the number of the section involved.

It is admitted by plaintiff in error that on April 12, 1909, he sold to May Guyer twenty one-quarter grain morphine tablets in the drug store conducted by him at 265 West Randolph street, and the proof shows that he was then a licensed physician having a certificate dated April 22, 1885. As to what occurred at the time the sale was made, the evidence is sharply conflicting. The complaining witness, May Guyer, testified that when she went to the drug store, it was pouring rain, and upon her arrival there she was “sopping wet,” and was feeling “pretty bad,” “kind of nervous;” that she saw plaintiff in error behind the prescription counter and asked him for some morphine and gum opium, saying she was feeling kind of bad, had chills and was nervous; that she was nervous because she had been in the habit of using the “stuff;” that without saying anything plaintiff in error gave her 25 cents worth of morphine and 15 cents worth of gum opium; that she did not give plaintiff in error any prescription for the drug, and he did not tell her how to take it; that plaintiff in error put the morphine tablets in a small envelope, which she had in her hand as she went out of the store, and that, as she came out, police officer Clark stepped up and took the envelope from her.

Plaintiff in error testified that Mrs. Buyer came into the store and asked for cocaine, and he said, “We haven’t got a grain of cocaine in the house;” that she said she had to have something to brace her up and asked if he could not give her some morphine; that he said he would sell her a couple of %-grain tablets if she was in need of it, and she said she was; that she looked like a morphine fiend, and was shivering and “pretty near'in a state of break down;” that he felt her pulse and that she needed some, and so gave her twenty %-grain morphine tablets, and she swallowed three right then and there; that he made out a prescription upon a piece of yellow paper before he gave her the tablets; that he used that paper because his printed prescription blanks had not been received at the store, into which he had moved three or four days previously; that he put the number “104” on the envelope and on the prescription, and also wrote thereon his name and the name and address which Mrs. Buyer gave him, and the words “as directed.” Plaintiff in error, however, did not testify that he gave Mrs. Buyer any directions as to when and in what doses she should take the morphine. Plaintiff in error further -testified that he made no charge for the prescription or for his services as a physician; that he was consulted as a physician by about two patients a day; that Bauer, his clerk, came into the store while he was looking for a prescription blank. Bauer testified that he was in the store when Mrs. Guyer came in; that plaintiff in error talked with her before he wrote the prescription; that she did not look like a morphine fiend to him; that he did not hear anything said about morphine and did not hear her say anything about her condition.

In rebuttal, Mrs. Guyer denied that plaintiff in error felt her pulse or asked for her name and address or wrote a prescription upon the occasion in question.

The envelope which contained the tablets and the paper purporting to be a prescription were offered in evidence and are in the record. Upon the face of the envelope appear the words “as directed” and the figures “12-4-09,” written with lead pencil. Words and marks of identification written in ink by Officer Clark obscure other words and figures apparently written with leadpencil. The paper purporting to be the prescription written by plaintiff in error appears to be a carbon copy and bears the address “Miss Eldredge No. 341 West Madison Street,” and the signature “Dr. Brendecke.”

The credibility of the witnesses and the weight to be given their testimony were questions for the jury, and an examination and consideration of the evidence, as it appears in the record, warrants the conclusion that the jury properly determined the issues involved against the plaintiff in error.

Both in oral argument and printed brief it is most seriously insisted that plaintiff in error was unlawfully entrapped by the police officers to sell morphine to Mrs. Guyer, and that the verdict should,-therefore, be set aside. This insistence is predicated upon the testimony of Police Inspector Edward McCann to the effect that when he was informed by Mrs. Guyer that she could get morphine from plaintiff in error, he said to Officer Clark, “Clark, this woman says she can get morphine at Brendecke’s. See if she can do it,” and that he presumed Clark would know what to do; that he believed somebody gave her money to buy it with.

Assuming the truth of McCann’s testimony, which was contradicted, it wholly fails to establish a single element essential to make the doctrine of entrapment applicable to the case. The police officers had no communication whatever with plaintiff in error prior to the sale of the morphine by him. They merely afforded him an opportunity to voluntarily and deliberately do what they had reason to believe he would so do, if opportunity offered. This did not constitute unlawful entrapment, and Love v. People, 160 Ill. 501, cited by plaintiff in error, does not so hold. The cases of City of Evanston v. Myers, 172 Ill. 266, and The People v. Smith, 251 Ill. 185, are more nearly in point and conclusive against plaintiff in error.

It is urged that it does not appear in the record that any plea was entered by plaintiff in error in the Municipal Court, and hence there was no issue- to try and the verdict should be set aside. This is a case of . the fifth class and no written pleadings are required. Plaintiff in error appears to have interposed every defense that was available under any plea.

It is said that the court improperly permitted the witness McCann to state upon cross examination that Mrs. Gfuyer had told him that plaintiff in error had sent her money to go away. The question which elicited such answer of the witpess was objected to as not proper cross examination, but the record (not abstracted) discloses that the witness had made the same statement, on his direct examination, and that such statement was not disclaimed by plaintiff in error. The question was not subject to the objection made.

The court instructed the jury that as plaintiff in error had admitted he sold the morphine tablets in question, but interposed as a defense that he sold such tablets upon the written prescription of a licensed physician, the burden was upon him to establish such defense by a preponderance of the evidence, and further that a druggist was permitted by the ordinance to sell morphine on the written prescription of a licensed physician made in good faith, and if from the evidence they found that plaintiff in error at the time charged in the complaint was a duly licensed physician and did make out a prescription for the tablets introduced in evidence, and that such prescription was made by him in good faith as a physician, the verdict should be not guilty, but if they found from the evidence that he wrote a prescription for the complaining witness not in good faith as a physician, but as a mere device to avoid the prohibition in the ordinance against the sale of morphine, they should find him guilty.

It is conceded that the burden was on plaintiff in error to show that he was a licensed physician (Williams v. People, 121 Ill. 84; Kettles v. People, 221 Ill. 221), but it is insisted that the burden was improperly placed upon plaintiff in error to show that he sold the morphine upon a written prescription and that the question of good faith of plaintiff in error was improperly submitted to the jury. In support of his contention as to the burden of proof plaintiff in error relies upon the rule stated in Sokel v. People, 212 Ill. 238, as follows:

“It is the rule that where an act is made criminal, with exceptions embraced in the enacting clause creating the offense so as to be descriptive of it, the People must allege and prove that the defendant is not within the exceptions, so as to show that the precise crime has been committed. Where the exception, is descriptive of "the offense it must be negatived in order to charge the defendant with the offense, but if the exception or proviso is in a subsequent clause, or in the same one but not incorporated within the enacting clause by any words of reference, it need not be negatived but is a mere matter of defense. ’ ’

Undoubtedly, the general rule is as there stated, but the facts in this case justify the application of the recognized exception to such rule, that where the subject-matter of a negative averment lies peculiarly within the knowledge of a defendant the burden is cast upon upon him to disprove the same. Williams v. People, supra; Kettles v. People, supra.

There is no pretense that Mrs. Gruyer applied to plaintiff in error for a prescription, or that she knew he had written a prescription. Plaintiff in error assumed to be acting in the dual role of physician and druggist, and if he, as a physician, wrote a prescription which was filled by him as a druggist, that fact was not merely peculiarly but was exclusively within his knowledge, and the burden of proof was properly cast upon him.

In its application to the facts in this case, the ordinance necessarily implies that the required prescription shall have been made by plaintiff in error in good faith. Being both physician and druggist, it would be trifling to say that he, as a licensed physician, might write a prescription as a mere device for the purpose of enabling himself, as a druggist, to evade the ordinance.

Objections to certain questions propounded to plaintiff in error on cross examination were sustained by the court, but it is insisted that plaintiff in error was nevertheless prejudiced by the asking of such questions. We think the rulings of the court fully neutralized any inference unfavorable to plaintiff in error which might have been raised by the questions propounded to him

It is finally urged that the judgment of the court committing plaintiff in error upon his failure to pay the debt and costs to the house of correction to labor until he worked out the debt and costs at the rate of 50 cents per day for each day’s work, etc., was in contravention of the 13th amendment to the Federal Constitution, which provides:

“Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or in any place subject to their jurisdiction.”

The ordinance of the City of Chicago which authorized such judgment was enacted by the City Council in pursuance to express power conferred by the Legislature. Par. 299, Chapter 34, Statutes 1909. The constitutionality of such ordinance, therefore, directly involves the constitutionality of the statute, and this court is without jurisdiction to determine the question. Furthermore, the question was waived by prosecuting the writ of error from this court. P. C. C. & St. L. Ry. Co. v. Chicago, 242 Ill. 178.

We perceive no substantial error in the record and the judgment of the Municipal Court is affirmed.

Judgment affirmed.


text:
    Sarah Friedman, Defendant in Error, v. Knights of the Modern Maccabees. Plaintiff in Error.
    Gen. No. 16,281.
    1. Fraternal benefit societies—failure to exhaust remedy provided by constitution and by-laws. In order that a failure by the beneficiary to exhaust remedies provided to be pursued under the constitution and by-laws of the society may be availed of, the society must show that it did all that was required of it in order to require the beneficiary to resort to such remedies.
    2. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 24, 1912.

      Eldon N. Clark, for plaintiff in error.
    Benjamin E. Cohen, for defendant in error; H. J. Rosenberg, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In a suit brought in the Municipal Court by Sarah Friedman against the Knights of the Modern Maccabees, a fraternal benefit society, to recover the amount of a benefit certificate issued by it to Moses Finkelstein, a son of the plaintiff, a trial by jury resulted in a verdict and judgment against the defendant for $1,000, to reverse which judgment it prosecutes this writ of error.

Plaintiff in error interposes two defenses in bar of a recovery. First, that defendant in error has failed to show a compliance with section 70 of the by-laws, whereby she was required to pursue a remedy within the order before resorting to a court of law, and second, that the .insured at the time of his death and prior thereto was engaged in the prohibited occupation of selling spirituous or malt liquors as a beverage.

Section 70 of the by-laws of plaintiff in error is as follows:

“The Executive Committee shall decide on all death claims referred to it, and if in its judgment any such claim is not on its face a valid one, it shall notify the beneficiary or beneficiaries of the deceased member' thereof, and give them, or their attorneys, an opportunity to appear before such committee within sixty days thereafter, and present such evidence as they may have to establish the justness of the said claim, and the said committee shall.try, hear and decide upon the justness or validity of such claim, and such decision shall be binding and final, unless an appeal is taken to the Great Camp. The notice of the appeal from the decision of the committee must be filed with the Great Record Keeper within sixty days thereafter. The decision of the Great Camp in all such cases shall be final, and no suit in law or equity shall be commenced or maintained by any member or beneficiary against the order until every remedy provided by its laws has been exhausted. ’ ’

Upon the evidence disclosed by the record it is unnecessary to discuss and determine the question of the validity of Section 70, in so far as it provides that the decision of the- Great Camp shall be final and that no suit shall be commenced or maintained against the order until every remedy provided by the by-laws has been exhausted.

The record discloses that the insured died June 26, 1908, and that the required proofs of death were prepared under the direction of the Record Keeper and Commander of the local Tent of plaintiff in error July 6th and July 9th following, as appears from the stamp thereon bearing the initials of A. M. Slay, the Great Record Keeper of plaintiff in error.

There is no evidence tending to show that the Executive Committee of plaintiff in error ever adjudged the claim to be invalid on its face, or that it ever notified defendant in error of such judgment, if entered, so that defendant in error might pursue the remedy provided for in Section 70. A judgment of the Executive Committee that the claim of defendant in error was invalid on its face, and notice to defendant in error of such judgment, are necessary prerequisites to the adoption by defendant in error of the procedure prescribed in Section 70, and it is incumbent on plaintiff in error to show such judgment and notice before it can invoke the provisions of such section as a defense, even if available.

As tending to prove that the insured, at the time of his death, was engaged in the occupation of selling spirituous or malt liquors as a beverage, plaintiff in error introduced in evidence an application signed by the insured for the issuance to him of a license to keep a dram shop at No. 259 West Lake street, and also two certificates showing that licenses to keep a dram shop at said location were issued to the insured on May 1, 1907, and Noy. 1, 1907. It also appears from the evidence that prior to his death the insured occasionally “made up” the cash register in the saloon at 259 West Lake street, and took out the money; that four or five years prior to his death and before he became a member of the order, the insured occasionally relieved a bartender by the name of Zobel at the lunch hour in a saloon kept by Peter or Abe Cohen at 259 West Randolph street, where the insured kept a rooming house up stairs.

There is also evidence tending to show that during the time in question the insured was regularly employed in the vegetable business;'that the saloon licenses issued in the name of the insured were taken by him for the use and benefit of Peter Cohen or Abe Cohen, by whom the saloon was in fact conducted, and that the saloon license, expiring October 31, 1908, was assigned by the insured to Abe Cohen; that upon the-occasions when the insured “made up” the cash register, he did so merely as a personal accommodation to the Cohens; that the insured was not engaged in the business of selling spirituous or malt liquors as a beverage.

It is apparent that in this state of the record, the • verdict of the jury cannot be held to be against the manifest weight of the evidence.

The judgment of the Municipal Court is affirmed.

Judgment affirmed.


text:
    Louisa Beesley, Appellee, v. City of Chicago, Appellant.
    Gen. No. 16,518.
    1. Negligence—what not essential to recovery. In order to recover for negligence it is not necessary that any witness should testify from actual observation the precise manner in which an injury resulted.
    2. Instructions—when as to obligations of city with respect to its streets properly refused. Held, that an instruction set forth in this opinion failed properly to define the obligations of the city with respect to its streets particularly as to such portion thereof as was us^d by the plaintiff in attempting to alight from a street car, and that such instruction was properly refused.
    Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; 'the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 24, 1912.
    Edward J. Brundage and John li. Caverly, for appellant ; Edward C. Fitch, of counsel.
    A. L. Gettys and Frank V. Campe, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit to recover, damages for personal injuries alleged to have been sustained by appellee through the negligence of appellant in failing to exercise reasonable care to maintain a portion of a wooden block pavement, on Indiana avenue near 31st street, in a reasonably safe condition for pedestrians alighting from street cars. A trial by jury in the Circuit Court resulted in a verdict and judgment against appellant for $875, from which judgment it prosecutes this appeal. It is urged, (1) that the verdict is contrary to the weight of the evidence, (2) that the court erroneously refused the 10th instruction offered by appellant, and (3) that the damages are excessive.

At about 9 o’clock on the night of June 3, 1903, appellee boarded an open Indiana avenue car at 36th street for the purpose of riding to 31st street. When the car stopped at the customary place for discharging passengers on the south side of 31st street, appellee, as she alighted from the front end of the car and stepped upon the street pavement, in the usual manner, fell upon the pavement or against the car and sustained injuries consisting of a simple oblique fracture of the fibula and tibia of her right leg, contusion of the hip and some injury to the back.

It is clearly established by the evidence, and admitted by the appellant, that at the place in question in Indiana avenue, there were depressions or holes in the cedar block pavement caused by the absence of numerous blocks, and that such condition of the pavement had existed for several months. It is urged, however, that the evidence fails to show that the unsafe condition of the pavement was the proximate cause of appellee’s injuries.

The only evidence bearing directly upon this issue is the testimony of appellee. She testified:

“In getting off I stepped in a hole in the street and my foot went in and turned right over and I fell back. I did not know what kind of a hole it was, because I didn’t see any hole there; if I had I would not have stepped into it. There must have been a hole there because my foot went into it; because my foot goes away and turned .over and I felt it go into the hole-; it turned over after it was in because I could feel my jfoot going. It was pitch dark and I couldn’t see anything. When I stepped off the car I stepped right flat on my right foot and as • I stepped it went right into this hole.”

It is not necessary that any witness should have testified from actual observation, as to the precise manner in which the injury resultad. The uncontroverted testimony of appellee was sufficient to warrant the jury in finding that the unsafe condition of the pavement was the proximate cause of her injuries.

The 10th instruction offered by appellant and refused by the court is as follows:

“The court instructs the jury that a city has power to designate a part of the public highway to be used by horses and vehicles and to designate another part of the public highway to be used by pedestrians and while the city is required by law to use ordinary care to keep that part of the public highway so designated for use by pedestrians reasonably safe for persons exercising ordinary care for their own safety and to use reasonable care to keep that part of the public highway so set aside or designated for use by horses and vehicles reasonably safe for travel by such horses and vehicles, the city is not required by law to keep that part of the public highway set apart for horses and vehicles, longitudinally between the sidewalks and not at public crossings reasonably safe for pedestrians.
“And you are further instructed that if you find from the evidence that the occurrence in question occurred in that part of the public highway set apart for the use of horses and vehicles, longitudinally between the sidewalks, and not at a public crosswalk, and if you further find that said part of the highway so set apart and designated for use by horses and vehicles, longitudinally between the sidewalks and not at a pub-lie crosswalk, was reasonably safe for travel and use by horses and vehicles, then you should find the defendant, City of Chicago, not guilty.”

It is insisted, upon the authority of Kohlhof v. City of Chicago, 192 Ill. 249, that this instruction was improperly refused. In the Kohlhof case it was held that the city council has ample power to designate portions of the streets of the city to be used by horsemen and vehicles, and to reserve other portions of the streets for the use of pedestrians, and where horsemen and vehicles may not go, and to prepare such portions of the streets for such uses respectively ; that all portions of a public street, from side to side and end to end, are for the public use in the appropriate and proper method, but no greater duty is cast upon the city than that it shall maintain the respective portions of streets in reasonably safe condition for the purposes for which such portions of the street are, respectively, devoted. The rights of footmen to cross and pass along and upon the roadway of a street, it was said, were not involved and need not be adverted to. In the same case the court quoted with approval from Dillon on Municipal Corporations, as follows: “It is sufficient, we think, if the streets (which include sidewalks and bridges thereon) 'are in a reasonably safe condition for travel in the ordinary modes, by night as well as by day; and whether they are so is a practical question, to be determined in each case, by its particular circumstances.”

The instruction involved announces an abstract rule of law incorrectly, in that it ignores any reference to the purpose for which the portion of the street where appellee was injured was devoted, and further arbitrarily assumes that such portion of the street was set apart exclusively for the use of horses and vehicles. The evidence discloses without controversy that the ear in which appellee was a passenger stopped at the usual stopping place to enable passengers to alight and that appellee alighted from said oar upon the street pavement at a place customarily devoted to that purpose. The instruction wholly ignores any reference to the duty imposed upon appellant under the particular circumstances of the case, and was properly refused. Maxey v. City of E. St. Louis, 158 Ill. App. 627.

The jury were warranted in finding that appellee sustained the specific injuries heretofore mentioned; that she suffered severe pain in consequence of such injuries, and continued to suffer pain up to the time of the trial in December, 1909; that she was confined to her bed and obliged to wear a cast for six or eight weeks after the accident; that for six months thereafter she necessarily used a crutch or cane when she walked; that since the accident she had been unable to perform her usual household duties as formerly. The damages are not excessive.

The record is free from error and the judgment is-affirmed.

Affirmed.


text:
    Samuel Donian, Appellee, v. Samuel Fox, Appellant.
    Gen. No. 18,247.
    T. Landlord and. tenant—effect of recital in lease of examination of premises, etc. If premises are unfit for occupation by reason of a_ condition not ascertainable by an ordinary examination, a recital in a lease that such premises have been examined and are in good condition will not estop the assertion in equity of the true condition of such premises.
    2. Landlord and tenant—when lease cannot be disaffirmed. A person claiming to be defrauded must disaffirm the contract at the earliest practicable moment after discovering the fraud. He will not be permitted to deal with the subject-matter of the contract and after-wards rescind it.
    3. Fraud—when available at law; when only in equity. Fraud in the execution of an instrument under seal, such as misreading it, or the substitution of one paper for another, or where by device or trickery the maker is induced to sign and seal it, believing he is signing and sealing a different paper, is available as a defense in an action at law, but fraud which goes to the nature and value of the consideration is" only available for purposes of relief in a court of equity.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed April 24, 1912.

      John C. Wilson, for appellant.
    Emil A. Meyer, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.'

This is an appeal from an interlocutory order of the Superior Court overruling appellant’s motion to dissolve an injunction theretofore granted, restraining appellant from levying executions on certain judgments or attempting to collect said judgments, and from attempting to collect any installments of rent thereafter to become due by the terms of a certain lease.

’ The bill alleges, in substance, that on September 15, 1909, the parties entered into a written lease under seal, whereby appellant let to appellee a barn for livery and stable purposes, for a term ending April 30, 1912, at a rental of $6 per month until April 30, 1910, and $10 per month thereafter; that said stable is built of brick and stone and contains a wooden floor, which floor is about four feet above the ground and is supported by wooden joists and wooden posts; that said stable from the upper surface of the floor to the ground was enclosed on all sides by walls, so that said joists and posts could not be seen; that appellee examined said barn as far as he was able to see, but could not make an examination of said posts without tearing up the floor or tearing, out a part of the walls, and necessarily relied upon the duty of appellant to inform appellee of such defects and conditions which were known to appellant and not known to appellee, and upon the representations of appellant; that said posts, ht the time of letting said barn, were rotten and decayed so as to be unsafe to stable horses therein, and such fact was then known to appellant and was unknown to appellee; that appellant knowingly concealed and willfully failed to inform appellee of said rotten condition of said posts, and then and there for the purpose of inducing appellee to execute said lease, represented to appellee that said barn was in good condition; that appellee did not commence the stabling of horses in said barn until about May 1,1910, and that during the months of August and September, 1910, said posts on the west end of the barn gave way and «precipitated one of his horses upon the ground seriously injuring said horse; that appellee thereupon put a fence around the fallen partition of said floor, and at the earliest opportunity within five days thereafter, notified appellant to put in new posts, or he would vacate the premises; that appellant then stated he would repair said fallen portion and do the necessary work to make the barn safe; that appellee relied on appellant’s promise to repair and make the barn safe and continued to occupy the east half of said barn which had not fallen, but was then becoming unsafe, and paid appellant the rent in full; that every month about the time appellee paid the rent, appellant renewed said promise to repair, but failed to keep said promise; that on February 8, 1911, appellee sent to appellant the rent for February and notified him in writing that unless he fixed said barn so appellee could use it, he would vacate it; that at the time of giving said notice, the portion of the floor that had not fallen had become dangerous by reason of the rotten condition of said posts; that before May 1, 1911, appellee vacated said barn, as he could no longer use it; that appellee proposed that he would put in the necessary posts and deduct the cost, about $200, from the rent, but appellant refused. The bill further alleges that said lease contains a power of attorney to confess judgment for any rent due, and that on April 11, 1911, appellant procured the confession of a judgment against appellee for $30 and costs, and on July 5,1911, another like judgment for $50 and costs, and appellant threatens to procure other like judgments under said lease and will do so unless restrained by injunction; that appellant has placed executions in the hands of the bailiff of the Municipal Court, and threatens to levy the same, and will levy the same, unless restrained by injunction; that the failure of appellant to inform appellee of the rotten condition of the premises constitutes fraud; that the fraud set forth does not go to execution of the lease, but to the nature and value of the consideration, and such fraud does not constitute a defense at law and can only be relieved against in equity; that the execution of" said lease was procured by fraud and is void, and was void at the time said judgments by confession were entered. The bill prays that said judgments may be set aside and said lease declared void; that appellant be enjoined from levying executions on said judgments or attempting to collect the same, and that appellant be enjoined from attempting to collect any of the installments of rent to become due.

The lease, a copy of which is attached to the bill, contains provisions to the effect, in substance, that appellee has examined and knows the condition of the premises, and has received the same in good order; that no representations as to the "condition and repair thereof have been made by appellant prior to or at the time of the execution of said lease, not expressed or endorsed thereon; that appellee will keep said premises in good repair, and that appellant shall not be liable for any damage occasioned by a failure to keep said premises in repair.

The ground assigned in support of the motion to dissolve the temporary injunction issued was want of equity apearing upon the face of the bill.

We shall consider the several contentions of appellant in the order in which the same are advanced.

First. ■ The averments of the bill must be taken as true. If the appellant knew of the rotten condition of the posts that supported the floor of the barn and such condition was not discoverable by appellee by the exercise on his part of the diligence required in the proper inspection of the premises, the parties to the lease do not stand upon an equal footing. Even appellant does not contend that the duty devolved upon appellee to take up the floor of the barn for the purpose of examining the condition of the posts, and it is clear that no such duty was imposed upon him.

Second. The recitals in the lease to the effect that appellee had examined and knew the condition of the premises, and had received the same in good order, etc., are not operative to estop him from asserting the relief prayed in the bill. Like recitals were contained in the lease involved in Borggard v. Gale, 205 Ill. 511, and it was nevertheless there held that the duty resting upon a landlord to notify his tenant of a defect in the premises which a careful examination would not disclose, but of which the landlord has notice while the tenant has not, may well be placed upon the ground that a failure to make such disclosure would be a fraud upon the tenant.

Third. If the allegations of the bill be true, the fraud involved goes not to the execution of the lease, which is under seal, but to the nature and value of the consideration.

Fraud in the execution of an instrument under seal, such as misreading it, or the substitution of one paper for another, or where by device or trickery the maker is induced to sign and seal it, believing he is signing and sealing a different paper, is available as a defense in an action at law, but the fraud alleged to be involved in the case at bar, which goes to the nature and value of the consideration is only available for purposes of relief in a court of equity. Fowles Cycle Works v. Fraser, 110 Ill. App. 136; Johnson v. Wilson, 33 Ill. App. 639; Windett v. Hurlbut, 113 Ill. 403; Papke v. Hammond Co., 192 Ill. 631.

Fourth. Notwithstanding appellee had actual notice of the rotten condition of the posts in August or September, 1910, he thereafter continued to occupy the barn and to pay the stipulated rent therefor until March 1, 1911, upon the faith of appellant’s promises, repeated monthly, that he would repair the barn, which promises were induced by appellee’s oft repeated threat that he would vacate the premises unless the repairs were made. Upon the facts as thus alleged in the bill, the right of appellee to invoke the relief sought presents the most serious question in the case, in the solution of which question favorably to his contention, appellee has apparently been unable to give the court any substantial aid.

The doctrine is too well established to admit of ques-™ tion, that a person claiming to be defrauded must dis-affirm the contract at the earliest practicable moment after discovering the fraud; that he cannot be permitted to deal with the subject matter of the contract and afterwards rescind it. Rogers v. Higgins, 57 Ill. 244; Brown v. Brown, 142 Ill. 409; Morey v. Pierce, 14 Ill. App. 91; Sutter v. Bose, 169 Ill., 66; Pawnee Coal Co. v. Royce, 184 Ill. 402; Jorgeson v. Hock, 234 Ill. 631.

In the case at bar appellee occupied the leased premises, either under the lease or in pursuance of an alleged agreement with appellant that the latter should make the repairs, for six months after discovery of the fraud complained of. Instead of exercising his right to promptly rescind the lease, upon discovering the fraud, he bartered with appellant in respect to it and accepted the latter’s promise to repair. Neither reason nor authority can be found for permitting him to thereafter rescind and disaffirm the lease.

Appellant’s motion to dissolve the injunction should . have been allowed, and the order overruling such motion will be reversed and the cause remanded.

Order reversed and cause remanded.