text:
    Gage Hotel Company and Albert S. Gage, Defendants in Error, v. Mary Kantoos and Richard M. Kantoos, trading as R. M. Kantoos & Company, Plaintiffs in Error.
    Gen. No. 19,110.
    Municipal Court op Chicago, § 19

      —when court without jurisdiction to vacate judgment. Where on August 15th a motion was made in the Municipal Court to vacate a judgment by confession entered on August 7th and overruled, and October 17th following a motion to vacate the overruling order was made and granted and defendant thereupon moved the vacation of the judgment of August 7th, which motion, after a number of continuances, was overruled on November 16th, it was held that the last order was proper, since the motion not having been made within thirty days as provided in the Municipal Court Act, sec. 21, J. & A. j[ 3333, and no petition setting forth the grounds for such vacation having been filed, as provided in said section, the court lacked jurisdiction to enter an order of vacation.
    Error to the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Pines & Newmann, for plaintiffs in error.
    Sabath, Levinson & Stafford, for defendants in error.

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

   Mr. Justice Clark

delivered the opinion of the court.

Judgment was entered on a lease in favor of the defendants in error and ag’ainst plaintiffs in error, on August 7, 1912, upon the power of attorney to confess judgment contained therein. On August 15, 1912, a motion was made by the defendants (plaintiffs in error) that the judgment be vacated. This motion was overruled. On October 17th, following, a motion was made to vacate the order last mentioned, and allowed. On the same day a motion was made by the defendant to vacate and set aside the judgment by confession entered August 7, 1912. After numerous continuances the motion was on November 16,1912, overruled.

We think the court properly overruled the motion, but found our decision upon different grounds than those upon which the trial court seems to have based its judgment. Section 21 of the Municipal Court Act (J. & A. H 3333) provides: “Every judgment, order or decree of said court final in its nature shall be subject to be vacated * * * provided a motion to vacate, set aside or modify the same be entered in said 'Municipal Court within thirty days after the entry of such judgment, order or decree.” It is to be noted that a motion was made August 15, 1912, which was within the time provided by the statute, but was overruled. Section 21 also provides that “If no motion to vacate, set aside or modify any such judgment, order or decree shall be entered within thirty days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified excepting upon appeal or writ of error, or by a bill in equity, or by a petition to said Municipal Court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside, or modified by bill in equity: Provided, however, that all errors in fact in the proceedings in such case, which might have been corrected at common law by the writ of error coram nobis may be corrected by motion, or the judgment may be set aside, in the manner provided by law for similar cases in the Circuit Courts.”

In the present case no “petition to said Municipal Court setting forth grounds for vacating, setting aside or modifying” the judgment was filed. The order entered November 16, 1912, overruling the motion of the defendants to vacate the judgment entered on August 7, 1912, was properly made, as the court lacked jurisdiction to enter the order prayed for.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    J. Richards, Defendant in Error v. George E. Olsen, trading as Reliance Fuel & Transfer Company, Plaintiff in Error.
    Gen. No. 19,141.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed March 10, 1914.

      Abstract of the Decision.
    Assignments, § 3*—when future wages assignable. Wages to he earned under an employment existing at the time of the assignment are assignable, hut not money to be earned thereafter under a new employment.
    Statement of the Case.
    Action by J. Bicharás against George E. Olsen, trading as Beliance Fuel & Transfer Company to recover on an assignment of future wages given to plaintiff by one Nicholas Nelson at a time before entering the employ of defendant. From a judgment for plaintiff, defendant brings error.
    Harry Bierma, for plaintiff m error.
    No appearance for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.


author: Mr. Justice Clark Mr. Justice Barnes

text:
    William Gilman, Defendant in Error, v. Chicago Railways Company, Plaintiff in Error.
    Gen. No. 19,144.
    1. Municipal Court oe Chicago, § 13

      —when statement of claim does not state a cause of action. In an action for personal injuries in the Municipal Court a statement of claim which did not allege negligence on the part of defendant or due care on plaintiff’s part does not state a cause of action under the rules of common-law pleading.
    2. Appeal and error, § 445

      —when Insufficiency of declaration to state a cause of action may be raised. At common law the fact that a declaration does not state a cause of action is not waived by filing a plea of the general issue, and the point may be raised for the first time on review.
    3. Municipal Court of Chicago, § 13*—when fact that statement of claim does not state a cause of action immaterial. In fourth class cases in the Municipal Court the practice is the same as in justice courts, and the fact that the statement of claim would be insufficient to set up a cause of action at common law does not render it insufficient.
    Barnes, J., concurring specially.
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    John W. Walsh and Frank L. Kriete, for plaintiff in error; John R. Guilliams, of counsel.
    E. W. Adkinson, for defendant in error.

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

      Sco Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.

By the writ of error in this case a judgment in favor of the defendant in error for five hundred dollars is sought to be reversed. Only the common-law record is before us, and the assignments of error are all based on the one proposition that the plaintiff’s statement of claim does not set forth a cause of action, and that, therefore, the judgment predicated upon it should not be allowed to stand. The plaintiff’s statement is as follows;

“Plaintiff’s claim is for damages caused by a door in one of defendant’s street cars violently striking against the car dumper (bumper) and breaking the glass in the door and showering broken glass on plaintiff cutting the blood vessel and nerve in the back of plaintiff’s right hand causing pain and suffering and loss of two weeks’ time and permanently injuring plaintiff’s hand to plaintiff’s damage of one thousand dollars.”

An affidavit of merits was filed by the Railways Company, defendant, setting forth the nature of its defense to be as follows: “That the injuries complained of in plaintiff’s statement of claim occurred through no fault of the defendant.” The affidavit of defense also contains this language: “Reserving the right to object to any insufficiency of plaintiff’s statement of claim and any insufficiency of plaintiff’s evidence to establish defendant’s liability.” -

We agree with counsel for defendant that the statement of claim does not set up a cause of action, as required by the rules of common-law pleading; it does not charge negligence on the part of the defendant, nor does it allege that the plaintiff was in the exercise of ordinary care. Klawiter v. Jones, 219 Ill. 626; Walters v. City of Ottawa, 240 Ill. 259. The authorities also fully sustain the proposition of the defendant, to the effect that at common law the question that a cause of action is not stated in the declaration is not waived by the filing of the plea of the general issue, and the point may be raised for the first time in a court of review. Smalley v. Edey, 19 Ill. 207; Board Sup’rs Madison County v. Smith, 95 Ill. 328; Chicago & A. R. Co. v. Clausen, 173 Ill. 100; Schueler v. Mueller, 193 Ill. 402; Chicago R. I. & P. Ry. Co. v. People, 217 Ill. 164.

In the case of Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311, it is said in respect to cases like the one now under consideration (being cases of the fourth class):

“As to this class of cases under the Municipal Court act, where no written pleadings are required, the same rule will govern as controls the form of actions before justices of the peace. We have held that ‘it is the well settled practice that in such courts [i e., where written pleadings are not required,]" the party suing need not even name his action, or if misnamed, that will not affect his rights, if upon hearing the evidence he appears to he entitled to recover and the court has jurisdiction of the defendant and of the subject matter of the litigation.’ (Pollock v. McClurken, 42 Ill. 370; Rehm v. Halverson, 197 id. 378; Swingley v. Haynes, 22 id. 214; Ballard v. McCarty, 11 id. 501.) ”

It is argued by-the plaintiff in error that this announcement of the law is incorrect and that the decision is practically overruled by the case of Walter Cabinet Co. v. Russell, 250 Ill. 416, wherein the following language is used:

“The object of the rules requiring statements of claim and of set-off is to inform the parties of the nature of the respective claims, and while the formalities of pleading have been abolished by statute, it is still the law in the Municipal Court, as in other courts, that a party is limited, in his evidence, to the claim he has made; that he cannot make one claim in his statement and recover upon proof of another without amendment. The issue is made by the statement of claim, and the evidence must be limited by that statement. The issue cannot be enlarged by oral claims or affidavits filed in the case.”

The Edgerton case, supra, is not referred to in the case cited, and we should not assume that in the language used it was intended, expressly or by indirection, to reverse the holding in the former case. Until otherwise advised, we must assume that the practice in the Municipal Court in fourth class cases is the same as that in eases before justices of the peace. “In such a case the question is whether the justice of the peace has jurisdiction of the parties and the subject matter of the suit, and a right of recovery is shown,—if so, then he must have judgment.” Pollock v. McClurken, 42 Ill. 370.

The court clearly had jurisdiction, and we must assume that the evidence, if it had been preserved in the record, would have shown a right of recovery in the plaintiff.

The judgment is affirmed.

Affirmed.

Mr. Justice Barnes

concurring specially:

I agree that the judgment should be affirmed, but not upon the ground stated. The Russell case, supra, recognizes that, unlike the justice court practice, section 40 of the Municipal Court Act (J. & A. 3352) requires a pleading, called a statement of claim, to be filed when the suit is commenced, and that, like any other pleading, its purpose is to present an issue for trial, but not “with the particularity required in a declaration at common law.” The manner of forming an issue thereon is left to the rules of said court. This appears to be done by filing an affidavit of defense, which defendant did in this case, taking issue and thus showing that it understood “the nature of the case,” which is all said section requires the pleading to set forth. It was manifestly too late after thus taking issue to raise any question as to its sufficiency in that respect, and that is the only question before this court.

But I cannot, in the face of the statute, assent to the view that a suit upon a contract or for tort in the Municipal Court can he tried without pleadings as in courts of justices of the peace, or that the Supreme Court intends to be understood as so holding. Whatever it may be called, the statement of claim required by said section performs the office of a pleading, but one to which the technicalities of common-law pleadings and practice are not applicable.


text:
    Abraham Silverman and Samuel Silverman, Defendants in Error, v. Lena Kromer, Plaintiff in Error.
    Gen. No. 19,171.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 10, 1914.
    Rehearing denied March 24, 1914.
    Statement of the Case.
    Action in the Municipal Court by Abraham Silver-man and Samuel Silverman against Lena Kromer to recover commissions as real estate brokers. From a judgment for plaintiffs, defendant brings error.
    Abstract of the Decision.
    1. Bbokebs, § 88

      —when evidence insufficient to sustain recovery of commissions. In an action in the Municipal Court for commissions, where an allegation in the statement of claim that plaintiff had produced a purchaser for defendant’s property who was ready, willing and able to buy the property on the terms fixed by defendant was unsupported by the evidence, a finding for plaintiff is erroneous.
    2. Appeal and ebbor, § 1034

      —when court rules not judicially noticed on review. The court on review will not take judicial notice of rules of the Municipal Court, same not being shown by the record.
    Plaintiffs attempted to excuse their failure to prove that they had procured a purchaser ready, willing and able to purchase defendant’s property on defendant’s terms, as alleged in their statement of claim, on the ground that such allegation was not denied in the affidavit of defense and that under the rules of the Municipal Court allegations in the statement of claim not denied specifically or by necessary implication in the affidavit of merits are admitted; but the rules referred to were not contained in the record.
    Shaeffer & Kompel, for plaintiffs in error.
    Moses, Rosenthal & Kennedy, for defendants in error; Joseph W. Moses, of counsel.

      See Illinois Notes Digest, Yols. XI to XV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


author: Me. Justice Clark

text:
    Caroline Karle, Defendant in Error, v. R. G. Badeaux et al., Plaintiffs in Error.
    Gen. No. 19,506.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and errob, § 1213

      —when appellant cannot complain of error not affecting him. On a hill in equity to vacate an execution issued on a transcript of judgment in justice court and to cancel the certificates of sale issued thereon, defendant cannot complain that the decree for complainant did not set off her homestead to her.
    Error to the Superior Court of Cook county; the Hon. Fabluí Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Rehearing denied March 24, 1914.
    Statement of the Case.
    Bill in equity by Caroline Karle against R. Gf. Badeaux, James N. Tilton and Christopher Strassheim to vacate an execution issued on a transcript of judgment from justice court and to cancel certificates of sale issued thereon. From a decree for complainant, defendants Badeaux and Tilton bring error.
    James N. Tilton, for plaintiffs in error.
    No appearance for defendant in error.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Me. Justice Clark

delivered the opinion of the court.


author: Mr. Presiding Justice Graves

text:
    Limousine and Carriage Manufacturing Company, Defendant in Error, v. L. A. Shadburne and A. Sbarbaro, Defendants. A. Sbarbaro, Plaintiff in Error.
    Gen. No. 18,082.
    1. Principal and agent, § 180

      —when evidence shows liability of undisclosed principal. In an action to recover for automobile repairs, evidence held sufficient to show that the person ordering the work done was the agent of an undisclosed principal who was the real party for whom the work was done.
    2. Principal and agent, § 182

      —liability of agent and undisclosed principal. Where an agent without disclosing his principal enters into a contract, he and also his principal are personally liable thereon, but there is no joint liability on the agent and the principal.
    3. Principal and agent, § 182

      —when joint judgment against agent and undisclosed principal erroneous. In an action against an agent and his undisclosed principal for automobile repairs furnished to the agent, the defendants both denying joint liability, held that on failure of proof of joint liability a joint judgment against the defendants could not be sustained.
    4. Principal and agent, § 218

      —necessity of election to proceed against agent or undisclosed principal. Where an agent makes a contract without disclosing his principal, if the principal is discovered the person with whom the contract was made must elect whether he will proceed against the agent or the principal.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed March 11, 1914.
    Richard I. Gavih, for plaintiff in error, A. Sbarbaro ; Gaviu & Mayer, of counsel.
    Goldzier, Rodgers & Froehlich, for defendant in error.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

One L. A. Shadburne took an automobile to the place of business of defendant in error to have certain changes and repairs made thereon. The work was done as ordered and the bill therefor amounted to $139.15. It is conceded that the bill is a proper one and should be paid. The charge for the work was made against Shadburne. The bill not being paid, suit was begun-in the Municipal Court against Shadburne as the agent of an 'undisclosed principal and against one A. Sbarbaro as the undisclosed principal. Sbarbaro, in his affidavit of merits, denied joint or several liability while Shadburne denied joint liability only. The case was tried by the court without a jury and resulted ih a finding and judgment against both defendants. Sbarbaro alone prosecutes this writ of error.

We are asked to reverse this judgment: First, because the evidence fails to show that Shadburne was the agent of plaintiff in error in procuring the work in question to be done; second, because even if plaintiff in error is the undisclosed principal, defendant in error is not entitled to a judgment against both the principal and the agent, but should be required to elect which one he will hold responsible.

In answer to the interrogatory, “State fully the relations between yourself and the defendant, Shadburne, with reference to agency of Simplex automobile, at No. 1328-1330 Michigan Ave., Chicago, 111.,” plaintiff in error said: “Shadburne was employed by me as a salesman and manager.” Shadburne testified that he and plaintiff in error became associated in business about July 1, 1910. In his verified answer to a bill in chancery in a case between himself and Shadburne, wherein Shadburne had charged that a partnership existed between them, plaintiff in error said: “This defendant further answering says and charges the fact to be that he, Leonard A. Shadburne, on or about the first day of Aug*ust, A. D. 1910, became the employe of this defendant; and that on or about the first day of August, 1910, agreed to work and did subsequently thereafter work, for A. Sbarbaro, this defendant at No. 1330 Michigan avenue, Chicago, in the capacity of manager and salesman. ’ ’

The evidence further shows that the work charged for was done in August, 1910, on a Simplex car sold by Shadburne to one Stillwell, and that the work done was to make the car conform to the desires of the purchaser.

It is further disclosed by the' evidence that Shadburne had been the agent in Chicago for the Simplex Automobile Company; that by some deal between Shadburne and plaintiff in error the business of the Chicago agency of that company was conducted by plaintiff in error from and after sometime in July, 1910, although the writing evidencing the transfer was not signed until September 22, 1910, when Shadburne ceased to be on the pay roll of the Simplex Company. Shadburne also testified that the pay checks sent by the Simplex Company to him for July, August and September were turned over by him to Sbarbaro. This was in a measure corroborated by the witness Marie Buersing. Shadburne further testified that when the bill for the work on the Stillwell car was presented to him, he showed it to Sbarbaro who then said: “Wait until the Dupey car is finished and pay for it all together.” The bill for the work on the Dupey car was paid for by plaintiff in error.

Some of this testimony was contradicted by plaintiff in error, but it was for the trial court hearing' the evidence without a jury to weigh it and pass upon the credibility of the witnesses, and we are unable to say that the finding by the court that plaintiff in error was the real party for whom the work was done, and, therefore, liable for the bill, is contrary to the weight of the evidence. On the contrary, we think such a finding is amply supported by the evidence. The evidence leaves no doubt as to the liability of Shadburne. In fact, he does not deny his several liability.

The basis of the right to recover, as disclosed by the statement of claim filed in the Municipal Court, is work performed and materials furnished by defendant in error at the instance of Shadburne as the agent of Sbarbaro, an undisclosed principal. The sufficiency of-this statement of claim was not challenged on the trial. It cannot be doubted that where an agent without disclosing his principal enters into a contract he is personally liable thereon. So also is his principal. But there is no joint liability on the agent and the principal. Kadish v. Bullen, 10 Ill. App. 566.

\ If the principal is discovered, he with whom such a contract is made must elect whether he will proceed against -the agent or the principal. The affidavit of merits of both Shadburne and plaintiff in error denied joint liability. That put on defendant in error the burden of proving such liability. In this he failed. The finding of the court that Shadburne and plaintiff in error were jointly liable was not warranted.

The judgment is, therefore, reversed and the cause is remanded to the Municipal Court with directions to that court to require defendant in error to elect whether it will take judgment against plaintiff in error or L. A. Shadburne, and when it has so elected then to enter judgment accordingly.

Reversed and remanded with directions.


text:
    Mary Raphael, Defendant in Error, v. J. W. McGraw, Plaintiff in Error.
    Gen. No. 18,268.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinipn filed March 11, 1914.

      Abstract of the Decision.
    1. Building and construction contracts, § 98

      —admissibility of evidence. In an action against a contractor to recover damages for breach of a building contract which was in writing and apparently full and complete, the specifications as to the work being made a part of the contract, letters written by defendant to plaintiff weeks before the contract was entered into relating to entirely different plans, and plaintiff’s testimony as to conversations had with defendant prior to the making of the contract concerning the contemplated work, held improperly admitted in evidence.

      Statement of the Case.
    Action by Mary Raphael against J. W. McGraw to recover damages for breach of a building contract wherein defendant agreed to build for plaintiff; a flat building for $4,500, of which $2,000 was to be paid when the building was under roof, $1,000 when plastered and $1,500 when finished. The defendant commenced performance of the contract and continued work on the building until, as he claims, the same was plastered, when he demanded the $1,000 according to the terms of the contract. The $2,000 to be paid when the building was under roof was duly paid, but a controversy arose between the parties when the sum of $1,000 was not paid as demanded and resulted in the defendant abandoning the job. The building was completed by the plaintiff, and this suit was brought to recover $488.50, which plaintiff claims it cost her to complete the building according to the specifications, in excess of the contract price. The jury found the issues for plaintiff and assessed her damages at $394.52. To reverse a judgment entered on the verdict, defendant prosecutes a writ of error.
    Fred H. Atwood, Frank B. Pease and Charles O. Loucks, for plaintiff in error; Vernon R. Loucks, of counsel.
    John J. Poulton, for defendant in error.

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

      See Illinois Notes Digest, Vois. XI to XV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

2. Evidence, § 319 —what not admissible to vary terms of written contract. Upon the signing of a contract all previous negotiations and conversations are merged into it, and they are inadmissible to alter or contradict it.

3. Evidence, § 361 —when parol evidence admissible to construe words in building contract. Where a building contract provides that a certain sum shall be paid “when the building is plastered,” expert evidence offered to prove what condition the plastering must be in to fulfill the contract according to the recognized custom in the building trade, held erroneously excluded.

4. Contracts, § 393 —when instruction as to performance of contract erroneous. In an action for breach of a building contract, part of an instruction given for plaintiff stated that if the jury “further believe from the evidence that the plaintiff has complied with her part of the contract, in so far as she could, then your verdict should be for the plaintiff.” Held that the instruction was erroneous in so far as it limited the duty of plaintiff to perform her part of the contract “in so far as she could.”

5. Contracts, § 295 —excuse for nonperformance. One party to a contract cannot enforce it against the other unless he performs it on his part, and it is immaterial whether his failure to perform is due to wilfulness or misfortune.


text:
    Best Tailoring Company, Appellant, v. Harry R. Clancey, Appellee.
    Gen. No. 18,367.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term 1912.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action by Best Tailoring Company, a corporation, against Harry R. Clancey to recover a sum claimed to be due under a contract of employment. The contract was in writing, and it was stipulated therein that the defendant was to receive a certain salary per year and to receive a commission of seven per cent, on the amount of goods sold during any one year in excess of $100,000, and the defendant guaranteed to sell not less than $50,000 worth of merchandise during any one year, and agreed that if his sales were less than that amount he would pay plaintiff fourteen per cent, on the difference between the amount of his sales and $50,000. The defendant’s sales lacked $28,008.29 of amounting to $50,000, and plaintiff brought suit to recover from defendant fourteen per cent, on that deficiency. Defendant’s affidavit of merits based his entire defense on the claim that before the contract was drafted the plaintiff agreed to furnish him to sell a certain line of suits, the cheapest of which should be sold by him at $15 per suit and that plaintiff had failed to furnish the same, thereby preventing him from doing the volume of business he had contracted to do. Defendant also filed a claim of set-off for a portion of his salary. The jury found the issues against the plaintiff, and from a judgment entered on the verdict, plaintiff appeals.
    Abstract of the Decision.
    1. Evidence, § 319

      —when parol evidence inadmissible to vary terms of a written employment contract. In an action against an employe on a written employment contract, permitting defendant to prove conversations which occurred before the contract was signed to show that plaintiff undertook to furnish defendant a certain line of goods to sell and permitting defendant to prove that plaintiff failed to perform its contract in that respect, held error, it appearing that the contract was complete and unambiguous, and clearly meaning that the plaintiff was to be the arbiter as to the line of goods which defendant was to sell.

      Menz I. Rosenbaum: and Louis M. Cahn, for appellant ; Maurice Alschuler, of counsel.
    James Turnock, for appellee.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

2. Set-off and recoupment, § 43*—when claim of set-off should he excluded from consideration of fury. Where a claim of set-off is not supported by any competent evidence, it is error for the court not to exclude it from the consideration of the jury.


text:
    William F. Yost, Jr., Defendant in Error, v. William F. Yost, Plaintiff in Error.
    Gen. No. 18,389.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 29

      —when errors assigned are not disclosed hy the record. On writ of error to review a judgment of the Municipal Court, where the stenographic report is stricken from the files of the Appellate Court and no assignment of error questions anything shown by the common law record but relates solely to matters that can appear only in a stenographic report. Held the judgment will be affirmed.

      Error to the Municipal Court of Chicago; the Hon. John R Caverly, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action by William F. Yost, Jr., against William F. Yost for money loaned. The jury found the issues against the defendant and assessed plaintiff’s damages at eight hundred and ninety-six dollars. To reverse a judgment entered on the verdict, defendant prosecutes a writ of error.
    Julius C. Greenbaum, for plaintiff in error.
    George J. Meier, for defendant in error.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.


author: Mr. Presiding Justice Craves

text:
    C. Helmer Johnson, Administrator, Appellee, v. Chicago City Railway Company and Schwarzschild & Sulzberger Company, Appellants.
    Gen. Nos. 18,422, 18,423.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Statement of. the Case.
    Action by O. Helmer Johnson, as administrator of the estate of William Peat, deceased, against Chicago City Railway Company and Schwarzschild & Sulzberger Company to recover for the wrongful death of plaintiff’s intestate caused by a collision between the car upon which deceased was a passenger and a vehicle owned by defendant Schwarzschild & Sulzberger Company. It was undisputed that: The deceased was riding on the front right-hand step of the car in question, as it was being run westward on 47th street in the city of Chicago, and that at a point from thirty to seventy-five feet west of State street it collided with the wagon of the Schwarzschild & Sulzberger Company, and that in the collision the deceased received injuries from which he died.
    A decided preponderance of the evidence showed that: At a point about fifty feet west of the west curb line of State street the team of the Schwarzschild & Sulzberger Company stood hitched to a large wagon; that the rig consisting of this team and wagon was approximately thirty feet in length; that the wagon stood near the north curb line of 47th street with its rear end to the east; that the front end of the wagon was slightly farther from the north curb of the street than its rear end was, but far enough from the street car track to permit the car to pass with safety to the passengers thereon, including those standing on the steps of the car; that the horses were turned with their heads in a northwesterly direction and with their front feet on the sidewalk; that the deceased came south on a State street car, and when that car stopped on the north side of 47th street he alighted therefrom and ran south and west to the front step of the car on which he received the injuries complained of, which car was then passing westwardly; that he got upon the step of the car when the car was in motion and when it was from five to fifteen feet east of a point south of the wagon of Schwarzschild & Sulzberger Company; that at approximately the moment he gained the step the driver of the team in question, who had driven the same to a point on the north side of 47th street, immediately north of where the deceased met his injuries, and had left it standing there unhitched and unattended while he went into an adjacent saloon to get a drink, had his attention called to the fact that the team had gotten upon the sidewalk and that he then went out and in attempting to back them off from the sidewalk forced the wagon against the deceased and the. car on which he was riding, inflicting the injuries from which he died; that the motorman did not have time after the wagon began to back into the street and before it struck the car and the deceased to prevent the collision by the use of any means within his power; and that he had no warning or reason to expect that the wagon was about to be backed into the street or moved.

      Abstract of the Decision.
    1. Cabbiebs, § 381

      —when carrier not liable for death of passenger due to collision with vehicle. Where the driver ot a venicle in backing his horses off the sidewalk caused the rear end of the wagon to collide with a street car causing injury to a passenger standing on the front step, which resulted in his death, and the evidence showed that the motorman did not have time to, prevent the collision by checking the car after the wagon began to back, it was held that a verdict against the street railway company could not be sustained.
    2. Roads and bridges, § 232

      —when owner of vehicle liable for injury to passenger on street car. Where a driver in the employ of one of defendants, in backing his horses off the sidewalk caused the rear end of his vehicle to collide with a street car causing injuries to a passenger standing on the front steps, which resulted in his death, it was held that the evidence was sufficient to sustain a verdict against such defendant.
    3. Appeal and error, § 1736

      —when decision on prior appeal not conclusive. The fact that a judgment against two defendants was reversed and remanded on a prior appeal is not conclusive as to the sufficiency of the evidence against one of the defendants on a subsequent appeal where additional evidence was introduced on the second trial.
    4. Appeal and erbob, § 1793

      —when joint judgment must be reversed as to all defendants. Where in an action for wrongful death against two defendants the evidence is insufficient to sustain a judgment against one, the judgment being joint must be reversed as to both, although the evidence sustained the judgment against the other defendant.

      From a joint judgment against them for ten thousand dollars, defendants appeal.
    Jambs Gr. Condon and C. Lb Roy Brown, for appellant Chicago City Railway Company; Leonard A. Busby, of counsel.
    C. Helmer Johnson and Daniel Belasco, for appellee.
    Winston, Payne, Strawn & Shaw, for appellant Schwarzschild & Sulzberger Company; John D. Black, of counsel.

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

   Mr. Presiding Justice Craves

delivered the opinion of the court,

5. Appeal and error, § 1802 —when judgment to be remanded, on reversal. Where in an action for wrongful death against two defendants the evidence was insufficient to sustain liability on the part of one, the right of the Appellate Court to reverse with a finding of facts as to one appellant and to reverse and remand as to the other, on a joint judgment against both, being doubtful the cause will be remanded as to both.


text:
    Edward H. Thomas, Defendant in Error, v. Albert Vannucci, Plaintiff in Error.
    Gen. No. 18,514.
    1. Landlord and tenant, § 250

      —who liable for injuries to third persons. As a general rule the occupant and not the owner is responsible for injuries to third persons occasioned by failure to keep the premises in repair.
    2. Landlord and tenant, § 250

      —when landlord liable for injuries to third persons. Where the owner has covenanted to repair, or where the dangerous or defective condition of the premises causing injury to a third person existed at the time of the leasing, the landlord is liable.
    3. Landlord and tenant, § 251

      -^—when tenant from month to month liable for injuries to third person. Where a pedestrian was injured by the breaking of an iron door in the sidewalk, permitted to become out of repair with the knowledge and during tenancy of the occupant of the abutting premises, the latter is not exempted from liability because holding only as a tenant from month to month, nor because of a promise of the owner to repair, there having been no covenant to repair.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitleb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 11, 1914.

      Simon P. Gary and Michael Lyons, for plaintiff in error.
    Albert B. George, for defendant in error.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

At the time of the occurrences here involved plaintiff in error was a saloon keeper at the corner of 29th street and Armour avenue in the city of Chicago.' He had continuously occupied the "building there located for approximately five years theretofore. He paid rent to the Conrad Seipp Brewing Company, but never had a written lease. His tenancy was from month to month. The building faced Armour avenue. On 29th street there was an entrance to the basement of the building which was covered by a pair of iron doors. These doors formed part of the sidewalk there located. They had become rusted and out of repair and were then and for some months prior thereto had been unsafe to the knowledge of plaintiff in error who had several times notified the Conrad Seipp Brewing Company of that fact, and had asked that company to repair them. Plaintiff in error testified that the Brewing Company promised to repair them. There is nothing in this record to indicate that these doors were out of repair or unsafe when plaintiff first began to occupy these premises. It is fairly inferable from the evidence that they had become out of repair from natural wear and tear during the five years plaintiff in error occupied the premises as a tenant.

On March 23, 1910, defendant in error stepped upon these doors and they gave way. One of his feet went through one of the doors and his leg was cut and scraped from the ankle to the knee. He obtained a judgment in the Municipal Court against plaintiff in error for one hundred and seventy-five dollars.

Plaintiff in error denies his liability on the ground that as his tenancy was from month to month it must, in determining his liability, be treated as having begun on the first day of the month in which the injury sued for was sustained, and that as the doors were out of repair and unsafe when his tenancy for that month began, the duty to repair was the landlord’s and not his, and that the liability for damages caused by the unsafe condition is on the one whose duty it was to repair.

The general rule undoubtedly is that the occupant and not the owner is responsible for injuries occasioned by a failure to keep the premises in repair. Where, however, the landlord has covenanted to repair or where he has let the premises with the nuisance that caused the injury upon them, that is, where the dangerous or defective condition by which the injury was caused existed when the premises were leased, then the landlord is liable. Gridley v. City of Bloomington, 68 Ill. 47; City of Peoria v. Simpson, 110 Ill. 294; West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210. And some authorities go to the extent of holding that where the exceptions to the general rule exist the occupant is not liable.

The case at bar does not come within any of these exceptions to the general rule. It is not pretended that there was at any time a covenant on the part of the landlord to keep these premises in repair. All that is claimed by plaintiff in error is that at one time after the premises had become out of repair and unsafe the landlord promised to malee some specific repairs.

It must be conceded that it was the duty of plaintiff in error to keep these premises in repair during each of the monthly tenancies covering the five years he had occupied the same, while they were becoming out of repair. It was during this time before he asked, or was promised by the landlord to make the specific repairs mentioned, that they became unsafe.

He manifestly did not perform that duty. By failing to perform it he rendered himself liable to respond in damages to any one who was injured in consequence of his neglect of duty in that regard. His liability did not depend on whether he remained in possession of the premises until the injury was sustained or not, or whether the landlord or any one else by reason of any subsequent contract, leasing or neglect had also become liable. It arose from his neglect to perform a plain legal duty.

If plaintiff in error had kept these doors in repair from month to month during the years of Ms occupancy, as it was his duty to do, defendant in error would not have suffered the injuries complained of. Failing in this he must pay the damages caused by his neglect.

Plaintiff in error complains of some instructions given by the court. While they are each faulty, they are more favorable to him than he was entitled to have given and could have done him no harm.

Finding no reversible error in the record and being satisfied that justice has been done between the parties, the judgment is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Howard Ellis, Plaintiff in Error.
    Gen. No. 19,648.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Stn> livan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Prosecution by The People of the State of Illinois against Howard Ellis on an information charging that defendant: “On or about the first day of January, A. D. 1913, at the City of Chicago, aforesaid, did then and there not being the parent or legal guardian or person having legal custody of him, the said Ward Swalwell, a dependent, neglected or delinquent child, did knowingly and willfully do such acts that did directly produce, promote and contribute to rendering the said Ward Swalwell, a minor child under the age of seventeen years, tp-wit, fourteen years, dependent and delinquent.”
    Abstract of the Decision.
    1. Criminal law, § 409

      —when sufficiency of information must be questioned below. Defects in an information which do not go to the merits of the case on the guilt or innocence of the accused cannot be raised for the first time on review.
    2. Criminal law, § 409

      —when unnecessary to question sufficiency of information below. Where the information charges no crime, or is in other respects fatally defective, such defects may be taken advantage of by writ of error after a plea of guilty, regardless of whether or not the sufficiency of the information was questioned in the trial court.
    3. Infants, § 5a

      —who are dependent, neglected and delinquent children. Under Hurd’s R. S. ch. 23, sec. 169, J. & A. If 3386, the words “dependent child” and “neglected child” are synonymous, but the term “delinquent child” is given a different meaning.
    4. Infants, 5a

      —when information for contributing to dependency or delinquency insufficient. In a prosecution for contributing to the dependency or delinquency of a child an information referring to the child by way of recital merely, as being “dependent, neglected or delinquent,” hut containing no averment from which the court could determine whether he was charged with being a dependent or a neglected or a delinquent child, is sufficient.

      The defendant pleaded guilty and was sentenced by the court to confinement in the House of Correction at labor and to pay the costs, from which conviction he brings error.
    Northup, Arnold & Fairbank, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      See Illinois Notes Digest, Vois. XI to XV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

5. Indictment and information, § 22 —how facts required to be stated. Every fact and circumstance stated in an indictment must be laid positively, and cannot be stated by way of recital.

6. Indictment and information, § 29 -—necessity for certainty in allegations. In an indictment or information the facts must be charged with such certainty as to enable defendant to know with what he is charged and to enable him to prepare his defense, and also to identify the offense sufficiently so that the judgment may be shown in support of a plea of former jeopardy.

7. Indictment and information, § 22 —when disjunctive “or” and conjunctive “and" may be used. In negative averments the disjunctive conjunction “or” may be used, but in affirmative averments where terms that are not synonymous are used, certainty in the indictment requires the use of the conjunction “and.”

8. Infants, § 5a —when information for contributing to dependency or delinquency insufficient as alleging conclusions. In a prosecution for contributing to the dependency or delinquency of a child, an averment in the information that defendant “did * * * do such acts that did directly produce, promote and contribute,” etc., without stating what acts defendant was charged with doing, or whether the effect of such acts was to render the child “dependent and neglected,” or to cause him to become a “delinquent child,” is a mere conclusion and insufficient.

9. Infants, § 5a —when information charging contributing to dependency or delinquency uncertain. In a prosecution for contributing to the dependency or delinquency of a child, the information was held not to state the offense charged in the language of the statute creating the offense, nor so plainly that the nature of the offense might be easily understood by the jury.

10. Criminal law, § 599 —when cause remanded on reversal. Where a judgment of conviction for contributing to the dependency or delinquency of a child is reversed for amendable defects in the information, and the statute of limitations has not run against the offense charged, the cause will be remanded to the court below.


text:
    The People of the State of Illinois, Defendant in Error, v. Howard Ellis, Plaintiff in Error.
    Gen. No. 19,649.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Prosecution by The People of the State of Illinois against Howard Ellis on an information charging defendant with contributing to the dependency and delinquency- of a child under sixteen years of age. The information, record, abstract and contentions in this case are identical, except as to the use of the disjunctive “or” and the name of the child who is supposed to be dependent, neglected or delinquent, with those in the case of People v. Ellis, ante, p. 417, and the opinion in that case is controlling’ as to this.
    Northup, Arnold & Fairbank, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.
   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Karl Bernhardt, Plaintiff in Error.
    Gen. No. 19,733.
    (Not to he reported in full.)
    Abstract of the Decision.
    False pbetenses, § 37

      —when evidence insufficient to sustain conviction for obtaining goods by false pretense. On information charging defendant with obtaining goods by false pretense, the evidence showed that defendant had signed a blank check and left it with his wife to fill out for a certain party but that during his absence his wife permitted a messenger, who was delivering goods purchased of a different firm, to fill out the check with the amount and the firm’s name as payee, held that the evidence was insufficient to sustain a conviction, there being no proof that defendant delivered the check to the firm or authorized any one to do so for him or even contemplated the possibility that the check would be so delivered.
    Error to the Municipal Court of Chicago; the Hon. Habby M. Fisheb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Information "by The People of the State of Illinois against Karl Bernhardt charging defendant with obtaining goods of the value of $743.75 by false pretenses. To reverse a judgment of conviction, defendant prosecutes a writ of error.
    John T. Byrnes, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.


author: Mr. Justice Baume

text:
    Enrico Chiappe by E. J. Markie, Defendant in Error, v. John B. Devoney and Rafelo Arrigo, Plaintiffs in Error.
    Gen. No. 18,164.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Infants, § 30

      —necessary parties plaintiff in suit involving disaffirmance of contract. Where an infant together with two other persons agreed to purchase certain real estate and the infant paid one hundred dollars as part of the earnest money and thereafter elected to disaffirm the contract, held in an action by the infant to recover the sum so paid that the cocontractors of the infant were not necessary parties plaintiff and that failure to join them as parties plaintiff did not defeat recovery.

      Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action by Enrico Chiappe, a minor, by E. J. Maride, his next friend, against John B. Devoney and. Bafelo Arrigo to recover one hundred dollars alleged to have been paid by plaintiff to defendants under the terms of contract for the purchase and sale of real estate, which contract the plaintiff elected to disaffirm. A trial by the court without a jury resulted in a finding and judgment against the defendants. To reverse the judgment, defendants prosecute error.
    Biohabd I. Gavin, for plaintiffs in error; Gavin & Mater, of counsel.
    G. P. Sayers, for defendant in error; F. William: Kraft, of counsel.

      Son Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      See Illinois Noted Digest, Vols. XI lo XV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.

2. Infants, § 30 —parties in suit to disaffirm contract. An insistence that an infant in an action to disaffirm his contract must make his cocontractors parties plaintiff violates the rule that a plea of infancy is not available to the other parties to the contract but is personal to the infant alone.


author: Mr. Justice Baums

text:
    Harry A. Rhinevault, Defendant in Error, v. Charles R. Barrett, trading as Charles R. Barrett Company, Plaintiff in Error.
    Gen. No. 18,444.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.
    Heard in the Brangh Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action by Harry A. Bhinevault against Charles B. Barrett, doing business under the name.and style of Charles B. Barrett Company, to recover a balance claimed to be due for work and material furnished by plaintiff in constructing a spring coiling machine for the defendant. A trial by the court resulted in a finding and judgment in favor of plaintiff for two hundred and seventy-five dollars. To reverse the judgment, defendant prosecutes a writ of error.
    Burke, Jacksoh & Burke, for plaintiff in error.
    NmiAu H. Welch, for defendant in error.

      See Illinois Noto i Digest, Yols. XI to -XV, same topic and section number.

   Mr. Justice Baums

delivered the opinion of the court.

Abstract of the Decision.

Assumpsit, action of, § 71 —when recovery for partial performance of worlc not sustained by the evidence. In an action to recover for work and material furnished in constructing a machine for defendant, at his request, without any agreement as to the price or terms of payment, it appeared that defendant paid plaintiff a certain sum on account and later upon plaintiff’s application for a further payment the defendant refused to make the same, except on condition that plaintiff would complete and deliver the machine by a certain date at a total cost of not exceeding a certain amount, which terms the plaintiff refused to accept and he abandoned the work, held that the conditions imposed were impossible of performance, and that plaintiff was justified in abandoning the work and was entitled to recover upon a quantum meruit for the reasonable value of the material furnished and of the services performed, but that a judgment in favor of plaintiff could not be sustained for the reason that there was no evidence offered by plaintiff tending to show that the charge made by plaintiff for his labor and services was the reasonable and customary charge.


text:
    John H. McNally, Plaintiff in Error, v. Lulu Regan et al., Defendants in Error.
    Gen. No. 18,516.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Statement of the Casé.
    Bill by John H. McNally against Lulu Began, Christopher Strassheim, former sheriff of Cook county and Michael Zimmer, present sheriff of said county, praying for relief against a judgment at law against complainant, and that the two defendants last named be restrained from executing a writ of capias ad satis

      faciendum, issued on said judgment. From a decree dismissing his bill, complainant brings error.
    Abstract of the Decision.
    Judgment, § 328

      —when perjured testimony ground for new trial in equity. Where in an action for trespass against a police officer in making an arrest, plaintiff alleged and testified that she was seriously injured and that prior to such arrest she had never been injured and had been in perfect health, on the strength of which she recovered a judgment for one thousand five hundred, a bill in equity for a new trial will be sustained on proof that plaintiff’s testimony was perjured,- and that several years previously, in an action against another, she had testified to identical injuries as the result of a street car accident, due diligence on complainant’s part being shown.
    William H. Sextok and Michael F. Sullivae, for plaintiff in error; Charles J. Traihor, of counsel.
    Johh Stele, for defendants in error Christopher Strassheim and Michael Zimmer.

      See Illinois Notes Digest, Yds. XI to XV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.


text:
    John Rehm, Defendant in Error, v. Clarence S. Viall, Plaintiff in Error.
    Gen. No. 18,555.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action in replevin by John Rehm against Clarence S. Viall to recover possession of an automobile under a chattel mortgage given by one William O. Foster to secure the payment of part of the purchase price. Defendant claimed a lien on the machine for repairs thereon, for oil and supplies furnished the owner, and • for care and keeping the same in his garage. From a judgment for plaintiff, defendant brings error.
    Abstract of the Decision.
    1. Automobiles and garages, § 5

      —when proprietor of garage not entitled to a lien. The proprietor of a garage is not entitled to a lien on an automobile for keeping and caring for same in his garage, nor for supplies such as gasoline and oil furnished by him to the owner while the machine was being kept in the garage.
    2. Chattel mortgages, § 161

      —priority as against mechanics’ liens. While a mortgagor cannot by contract create a lien in behalf of a mechanic so as to give it priority over a previously recorded chattel mortgage, the mortgagee’s authority for the creation of such a lien may be implied where the property is to be retained and used by the mortgagor, and is of such a character as to involve the occasion for the making of ordinary repairs thereto as a reasonable incident to its reasonable and customary use.
    3. Mechanics’ liens, § 125

      —when may he asserted against third persons. The common-law lien of a mechanic or artisan on a chattel can be asserted against a third person only when the property is retained in the actual and continuous possession of the lien claimant, his agent or servant.
    4. Mechanics’ liens, § 135

      —when surrender of possession does not toaive lien on chattel. As between the immediate parties, a change of possession does not defeat the right of a mechanic claiming a lien on personalty to assert his lien, unless by surrendering possession he can fairly be understood as waiving his lien.
    5. Automobiles and garages, § 5

      —when proprietor of garage waives lien for repairs. The proprietor of a garage claiming a lien on an automobile for repairs loses his right to assert such lien against a previously recorded chattel mortgage by surrendering the machine to the mortgagor.
    John C. Trainor, for plaintiff in error.
    Isaiah Campbell, for defendant in error.

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

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Helen Miller, Defendant in Error, v. Maybelle Baylis, Plaintiff in Error.
    Gen. No. 18,579.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 50

      —lohen evidence insufficient to show discharge of employe. In an action for breach of contract of employment by discharge without cause before the expiration of the term of employment, where plaintiff’s testimony that she was discharged was contradicted by defendant who testified that she had merely criticised her work, telling her that she would have to do better if she expected to continue her work, the latter testimony being corroborated by two witnesses, it was held that a verdict for plaintiff was against the clear preponderance of evidence.
    2. Master and servant, § 50

      —when preponderance of evidence shows justifiable discharge. In an action for breach of contract of employment by discharge without cause within the term of employment, where defendant’s testimony as to the unsatisfactory character of plaintiff’s work was not contradicted, it was held that a clear preponderance of the evidence tended to show that the discharge was not wrongful.
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbatjgh, Judge, presiding.
    Heard in the Branch Appellate Court at the October, term.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Statement of tbe Case.
    Action by Helen Miller against Maybelle Baylis to recover damages for breach of contract of employment by the wrongful discharge of plaintiff. From a judgment for plaintiff for one hundred and fifty dollars, defendant brings error.
    Gr. Baymond Collins, for plaintiff in error.
    Bert D. Whig, for defendant in error.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      S¿e Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.

3. Master and servant, § 47 —who has burden of proving that discharge of servant was justified. The burden of showing good and sufficient grounds for discharge rests upon the employer invoking such a defense, when the servant has proved the contract, its performance up to the time of his discharge and his readiness to perform at the time of the discharge.

4. Master and servant, § 48 —when prior contract of employment admissible in action for wrongful discharge. In an action for breach of contract of employment by wrongful discharge, a prior contract of employment between plaintiff and another is admissible where there is evidence that the terms of the present employment were to he determined by such contract.


author: Mr. Justice Baujme

text:
    Leon Kruszczynski, Appellee, v. Hamler Boiler and Tank Company, Appellant.
    Gen. No. 18,609.
    (Not to be reported in full.,)
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, Presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 11, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Leon Kruszczynski against Hamler Boiler and Tank Company to recover for personal injuries sustained by plaintiff while in defendant’s employ. From a judgment for plaintiff for four thousand dollars, defendant appeals.
    Bulkley, Gray & More, for appellant.
    S. P. Douthabt and Guerin, Gallagher & Barrett, for appellee.

      3c.> Ulinoi; Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Baujme

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 376 —when employe does not assume rislc. Where an employe was injured while pushing from a truck a heavy steel plate laid on loose railroad rails on the truck, by the falling of one of the rails, under evidence that plaintiff did not know that the rails were not securely fastened, and had never before assisted in the loading of the truck, it was held that the risk was not assumed as a matter of law.

2. Master and servant, § 238when employe vice principal though without power to hire or discharge. Where, in the absence of the regular foreman, the duty of directing the character of work to be performed by plaintiff and the manner of its performance was entrusted to a fellow-employe, whose directions plaintiff was bound to obey, it was held that the mere fact that such employe had no authority to hire and discharge men did not necessarily make him other than a vice principal, and the question was for the jury.

3. ■ Master and servant, § 410 —-when employe obeying orders does not assume rislc. Where under the evidence the jury would be justified in finding that the proximate cause of injury to an employe was the giving of a peremptory and negligent order by one performing the functions of a vice principal, the defense of assumed risk is not available, although it would have been in the absence of such order.

4. Master and servant, § 190 —when master liable for negligent orders of vice principal. Where an employe was injured by the falling of a rail laid loosely on a truck upon which had been placed a heavy plate for the purpose of being moved, it was held that while the mere fact that the rails had not been fastened securely to the truck might not justify a finding of negligence against the master, the latter could not escape liability on that ground, where the evidence tended to show that the accident was due to the fact that the plate instead of being lifted off the truck was pushed or shoved off, pursuant to the peremptory order of a vice principal, thereby causing the loose rail upon which the plate had been placed to fall.

5. Appeal and error, § 1518 —when disregard of erroneous instruction will not reverse. A verdict which is in accordance with the law and the evidence will not be disturbed although it is contrary to erroneous instructions given at the request of the party against whom the verdict is rendered.

6. Master and servant, § 220 —when master liable notwithstanding concurrent negligence of fellow-servant. Where there was evidence tending to show that defendant was negligent in failing to exercise reasonable care to provide a reasonably safe truck with reasonably safe appliances for the performance of the work in which plaintiff was engaged, as a result of which a loose rail on the truck fell on plaintiff, a verdict for him will not be disturbed because the negligence of a fellow-servant in assisting in unloading the truck may have contributed to the injury.


text:
    The Standard Brewery, Plaintiff in Error, v. John M. Sweeney, Defendant in Error.
    Gen. No. 18,620.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 144

      —when party incompetent as to conversations with deceased agent. A corporation is a "party” within Hurd’s R. S. ch. 51, sec. 4, J. & A. V 5521, rendering a party incompetent as to conversations with an agent of the adverse party, since deceased, unless held in the presence of surviving agents of such adverse party; and in an action by it defendant is incompetent as to conversations held with its agent, since deceased.

      Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action by The Standard Brewery, a corporation, against John M. Sweeney to recover for beer sold to defendant. The latter admitted a portion of the indebtedness and pleaded a set-off for commissions for securing new customers for plaintiff under an agreement with its agent. From a judgment for defendant for $536.50 on his set-off, plaintiff brings error.
    Baker & Holder, for plaintiff in error; G-. Raymond Collins, of counsel.
    Gallagher & Messner, for defendant in error.

      See Illinois Notes Digest, Yols. XI to XV, same topic and section number.

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

   Mr. Justice Baume

delivered the opinion of the court.

2. Set-ore and recoupment, § 10 -—when elaim for commissions proper subject for set-off. In an action by a brewing company to recover for beer sold defendant, the latter’s claim to commissions under an agreement with plaintiff by which he was to receive a fixed commission for securing new customers the amount of such commissions to depend upon the daily consumption of beer by such new customers, is a proper subject of set-off, and is none the less liquidated because requiring extrinsic evidence that such new customers had sold the requisite number of barrels of beer.


text:
    Daniel J. Coyne and Richard Coyne, trading as Coyne Brothers et al., Defendants in Error, v. Grand Rapids and Indiana Railway Company, Plaintiff in Error.
    Gen. No. 18,658.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torbison, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action by Daniel J. Coyne and Richard Coyne, trading as Coyne Brothers, and George C. Bower and P. H. McDermand, trading as Montcalm Potato Company, against Grand Rapids and Indiana Railway Company to recover damages occasioned by delay of defendant in transporting two cars of potatoes from Big Rapids, Michigan to Chicago. The plaintiffs recovered a verdict and judgment against the defendant for $252.88 damages, the amount of the verdict approximating the difference between the market value in Chicago of the potatoes in the condition they should have been delivered and the market value in the condition in which they were delivered. To reverse the judgment, defendant prosecutes error.
    Abstract of the Decision.
    1. Carriers, § 160

      —when limitation of liability in contract not available. Where a carrier unjustifiably deviates from the agreed route or mode or manner of transportation, it becomes liable as an insurer for any loss or injury to the shipment, and cannot avail itself of any exceptions made in its behalf in the contract of shipment.
    2. Carriers, § 168

      —when condition in shipping contract limiting claim for damages to value of goods at place of shipment cannot be availed of. A condition appearing on the back of a shipping order and bill of lading that a claim for loss or damage to property shall be computed on the basis of the value of the property at the place and time of shipment, cannot be availed of by the carrier where the claim for damages resulted from failure to deliver the shipment at the destination to which it was received for shipment.
    3. Carriers, § 108

      —when waiver of compliance with contract is question for jury. In an action for damages resulting from misdelivery of a shipment, where the shipment was delivered on the tracks of a different railroad than the one provided for in the contract of shipment, held that the question whether,acceptance of the shipment by the plaintiffs operated as a waiver of compliance with the contract was a question for the jury.
    Loesch, Scofield & Loesch, for plaintiff in error.
    Charles A. Butler, for defendants in error.

      S»e Hlinoii Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Wadeford Electric Company, Plaintiff in Error, v. Burt J. Fitzgerald, Defendant in Error.
    Gen. No. 18,672.
    1. Building and construction contracts, § 85

      —when defense by owner that plaintiff is subcontractor not sustained by the evidence. In an action to recover for work and materials furnished in installing certain apparatus in a building owned by defendant, a defense that plaintiff was a subcontractor and that defendant was not liable because he had failed to give defendant notice of his claim for lien, and that defendant had settled with a third party as the original contractor for the work and materials, held to be a veiled attempt on the part of the defendant to evade his direct contract liability, and not sustained by the evidence.
    2. Evidence, § 165

      —self-serving documents. Letters from defendant to plaintiff offered in evidence by the defendant, held properly excluded as self-serving documents.
    3. Witnesses, § 213

      —when cross-examination not unduly restricted. Cross-examination is not unduly restricted by sustaining objection to question which had already been substantially answered by the witness.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Vose & Page, for plaintiff in error; Samuel H. Gilbert, of counsel.
    Stedman & Soelke, for defendant in error.

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

   Mr. Justice Baume

delivered the opinion of the court.

This was a suit instituted in the Municipal Court by the Wadeford Electric Company, a corporation, against Burt J. Fitzgerald to recover a balancé of $500 alleged to he due for work and material in installing certain electrical apparatus and equipment in a building located on River Street belonging to the defendant. Upon a trial by the court there was a finding in favor of the defendant and judgment against the plaintiff for costs, to reverse which judgment this writ of error is prosecuted.

The defense interposed by defendant in error, which defense prevailed in the trial court, is that the work and material in question was performed and furnished by plaintiff in error as a subcontractor of A. M. Barry & Son, with whom defendant in error entered into a general independent and entire contract to make the necessary alterations and repairs in the building, and that as plaintiff in error had failed to assert its claim for a lien by giving the required notice to defendant in error, and defendant in error had fully and finally settled for all work and material involved in said contract, including the work and material in question, defendant in error was not liable to plaintiff in error therefor.

It is contended by plaintiff in error that the work and material in question were performed and furnished in pursuance to certain proposals submitted by it therefor to Bichard T. Barry and A. H. Patek and accepted by them, acting as agents for defendant in error, and that defendant in error is liable therefor as principal. The gist of the controversy is purely one of fact.

It is indisputably established by the evidence that the first proposal submitted by defendant in error was so submitted on December 14,1911, at the instance and request of Patek, an agent of defendant in error to solicit tenants for the building and to do whatever else was required by him, and that plaintiff in error commenced to perform work and furnish material in pursuance to such proposal on the following day, December 15th; that on December 18th defendant in error, at the instance and request of Bichard T. Barry, submitted a proposal for some of the work and material covered by the first proposal and also for some additional work and material, and that the work and material covered by both proposals was substantially performed and furnished by defendant.

The evidence bearing upon the vital question at issue considered most favorably for plaintiff in error tends to show that some time in June or July, 1911, defendant in error applied to Eichard Barry for an approximate estimate of the cost of the necessary labor and material required to make certain alterations and repairs in the building, and that in response to such request Barry made an estimate of $23,000; that no written contract was entered into between defendant in error and said Barry or A. M. Barry & Son; that defendant in error reserved and exercised the right to pass upon all estimates and proposals submitted by contractors for any portion of the necessary work and material and to reject the same if in his judgment such estimates and proposals were too high or excessive, and to procure and substitute other estimates and proposals in lieu thereof; that the securing of a lower proposal inured to the benefit of defendant in error; that Eichard T. Barry acted in the capacity of general superintendent of construction, upon whose “O. K.” defendant in error made payments to the several contractors for the work and material performed and furnished by them; that following this method of payment defendant in error paid to plaintiff in error $150 on January 16, 1912.

Eichard T. Barry testified that he was personally to receive only a commission on the building,—a per cent, of all the work done,—but that such percentage was not agreed upon with defendant in error or was not stated by either of them.

In answer to the question, whether the compensation to Barry was upon a percentage basis, defendant in error replied, “Absolutely not”; yet counsel for defendant in error say: “It was agreed between defendant and A. M. Barry & Son that the latter should receive a percentage of profit in addition to the cost of all material and labor supplied by them in connection with these proposed alterations.”

Counsel for defendant in error further say: “Defendant has paid A. M. Barry & Son in full including the work sued for by plaintiff.” A careful search of the record fails to disclose any evidence tending to support this statement.

After a careful consideration of the evidence as it appears in the record, we are fully persuaded that it discloses merely a thinly veiled attempt on the part of defendant in error, as owner of the building, to evade his direct contract liability to plaintiff in error for work and material, by clothing A. M. Barry & Son in the guise of general independent contractors and plaintiff in error in the guise of a subcontractor. The finding of the trial court upon this issue is contrary to the manifest weight of the evidence, and requires a reversal of the judgment and a remandment of the cause.

Defendant in error testified that while his contract with A. M. Barry & Son was verbal, the estimates upon which said contract was based were in writing and formed a part of the contract. These written estimates were the best evidence of what they contained and should have been produced upon the trial when objection was interposed to the testimony of defendant in error as to their scope and contents.

Complaint is made of the action of the court in refusing to admit in evidence a letter from plaintiff in error to defendant in error, referred to in the record as ‘ ‘ Exhibit No. 10 for identification. ’ ’ The letter does not appear in the record, but we assume from its characterization by counsel that it was a self-serving document, and it was, therefore, properly excluded. The court did not unduly restrict the cross-examination of defendant in error, as the further questions to which objections were sustained had been already substantially answered by the witness.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Duncan

text:
    Fred N. Baylies, Plaintiff in Error, v. E. M. Bent, Defendant in Error.
    Gen. No. 18,263.
    (Sot to be reported in full.)
    Abstract of the Decision.
    1. Building and construction contracts, § 65

      —conclusiveness of architect’s certificate. An architect’s certificate is not conclusive as to the amount due nor a bar to . the owner showing a violation of the material parts of the contract by which he was damaged, unless there is a positive provision to that effect in plain language.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed March 11, 1914.
    Rehearing denied March 24, 1914.
    Statement of the Case.
    Action "by Fred N. Baylie.s against E. M. Bent to recover for breach of a written contract entered into by them for the erection of a dwelling’ house for plaintiff. The breaches alleged were the failure of defendant to install a boiler and piping and an expansion tank of sufficient size and capacity and sufficient of radiation to make good his guaranty in the contract to" install a hot water heating plant that would heat the house to seventy degrees in zero weather. The trial was by the court and judgment in bar was rendered against the plaintiff. To reverse the judgment, plaintiff brings error.
    Hopkins, Peppers & Hopkins, for plaintiff in error.
    Montgomery, Hart & Smith, for defendant in error.

      See IIIinoi. Notes Digest, Vols. XI to XV, same topic and section number.

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

   Mr. Justice Duncan

delivered the opinion of the court.

2. Building and construction contracts, § 65 —when contractor liadle for defects in performance after final certificate given. The contractor will be responsible for any substantial defect that has escaped the architect’s attention although a final certificate is given, where the contract provides that the certificate shall not exempt the contractor from making good any work certified if not done according to the contract.

3. Building and construction contracts, § 103 —when contractor liadle to owner for cost of remedying defects in heating plant. In an action again'st a contractor for breach of his agreement to install a heating plant sufficient to heat a dwelling to a certain temperature in cold weather, where plaintiff seeks to recover for additional expense of employing another party to remedy the plant, held that under the contract and the evidence the defendant was liable for at least nominal damages but that a judgment could not be sustained for the cost of completing the plant in the absence of evidence showing that the additional work and materials furnished were necessarily required to make the plant comply with the contract.

4. Building and construction contracts, § 14 —when guaranty as to capacity of heating plant not affected dy requested changes as to radiators. Where a contractor in his written contract to erect a dwelling house guaranties that a heating plant to be installed would be of a certain heating capacity, the contractor is liable on such guaranty though the owner had him place seats over some of the radiators, the contract expressly giving the owner the right to make such changes, to be paid for as extras, without invalidating the contract, and the contractor not asking for a modification of his guaranty.

5. Building and construction contracts, § 17 —when owner does not waive right to insist upon contract. Where a contractor in a building contract guaranties to install a heating plant of a certain heating capacity, the owner does not waive his right to insist upon the guaranty by his accepting a written guaranty of the subcontractor made to the contractor or because the contractor refused to guarantee the plant after the house was finished.


author: Mr. Justice Duhoah

text:
    Stella F. Rhodes, Appellant, v. Illinois Commercial Men’s Association, Appellee.
    Gen. No. 18,274.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Insurance, § 746

      —when hy-laws of mutual insurance, company part of the contract. Where by the express terms of the certificate or policy of insurance the contract of insurance consists of the certificate, the application for membership, and the by-laws of the association, the hy-laws are a binding part of the contract, unless they are contrary to the laws of the State or of the nation, or inconsistent with the terms of the certificate.

      Appeal from the Superior Court of Cook County; the Hon. William Fenimobe Coopeb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 11, 1914.
    Statement of the Case.
    Action by Stella F. Rhodes against Illinois Commercial Men’s Association, a corporation, to recover on an accident policy issued by the defendant to Edwin R. Cahoone, the plaintiff being named in the policy as beneficiary. The defendant is a mutual accident insurance company doing business on the assessment plan under the statute in force July 1, 1893, Hurd’s R. S. 1911, Ch. 73, p. 1366, J. & A. 6549 et seq. The policy provided that all the by-laws of the association and all amendments and alterations thereof as soon as made should become a part of the policy as fully as if recited at length over the signature of the insured. Judgment was entered in favor of defendant, and to reverse the same plaintiff appeals.
    Lewis, Folsom & Streeter, for appellant.
    James Maher, for appellee.

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

   Mr. Justice Duhoah

delivered the opinion of the court.

2. Insurance, § 746 —when by-law restricting liability enforceable as part of contract. A by-law of a mutual accident insurance company that there shall be no liability on the contract if death does not result in ninety days after the accident, held not unreasonable or inconsistent with the terms of the policy, and not in contravention of any law of this State.

3. Insurance, § 710 —when statute requiring policy to state agreement inapplicable. Section 209, ch. 73, Hurd’s R. S. 1909, J. & A. 1f 6528, providing that policies insuring against loss of life resulting from accident shall state on their face the agreement with the insured, has no application to accident insurance on the assessment plan.

4. Insurance, If 746 —when contingencies upon which insurance is to be paid need not be stated in the policy. Section 244, ch. 73, Hurd’s R. S. 1911, J. & A. If 6563, relating to life or accident insurance companies on the assessment plan, does not require that all the contingencies upon which insurance is to be paid should be stated in the policy or that the by-laws should not provide for certain other contingencies, upon the happening of which no part of the sum should be paid; it simply requires the corporation to specify the amount of its liability, and the time the same shall be due, in case the contract is not avoided by fraud or breach of its conditions.


text:
    Carl Swanson and Eli Swanson, trading as Swanson Bros., Plaintiffs in Error, v. Arthur Smith and George Scarlett, Defendants in Error.
    Gen. No. 18,331.
    1. Municipal Court of Chicago, § 24

      —when a second judgment is final. A second judgment of the Municipal Court held to be a final judgment where it was entered within thirty days after the date of the first judgment and could be considered as a modification thereof.
    2. Municipal Court of Chicago, § 19

      —time for modifying or vacating judgment. By section 21 of the Municipal Court Act, Hurd’s R. S. 1911, ch. 37, p. 716, J. & A. If 3333, there are no stated terms in the Municipal Court and any final judgment may be modified or vacated to the same extent as a judgment of the Circuit Court, if done in pursuance of a motion entered within thirty days after the judgment.
    3. Municipal Court op Chicago, § 25

      —time for suing out writ of error. The time for suing out a writ of error from the Appellate or the Supreme Court to the Municipal Court is governed by section 117 of the Practice Act, J. & A. If 8654, which provides that it may be done in three years from the date of the judgment. Section 23 of the Municipal Court Act, J. & A. 3335 providing that the writ must be sued out within thirty days, has been declared unconstitutional.
    4. Livery stable keepers, § 1

      —when Hen of stable keeper is prior to that of a chattel mortgage. The lien of a livery stable keeper on horses, wagons and harness for board and keep is prior to that of a recorded chattel mortgage on the property, where the chattel mortgagee had notice or knew that the mortgagor was not keeping the same at the time they were mortgaged hut was having them boarded and kept at some livery stable, and made no objections thereto.
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion on rehearing filed March 11, 1914.
    Fred A. Rathje, Edwin C. Craweord and Charles E. Lot, for plaintiffs in error.
    Howard W. Hates, for defendants in error; Olsen & Booed and Clarence 1ST. Booed, of connsel.

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

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

   Mr. Justice Duncan

delivered the opinion of the court.

This suit was tried on an agreed state of facts without a jury and judgment was rendered in favor of defendants in error, Arthur Smith and George Scarlett.

The material facts are that one Hoops owned the horses, wagons and harness replevied, and prior to January, 1910, placed them in the livery stable of defendants in error and requested them to hoard and keep them, and for that purpose they remained in said stable until the beginning of this suit; that on April 9, 1910, Hoops duly executed and delivered to plaintiffs in error a chattel mortgage on said property to secure his debt of $2,565.40 to them, and the mortgage was duly recorded; that plaintiffs in error knew when they took the mortgage and at all times since that Hoops had no barn of his own and that said horses, wagons and harness were fed and kept in some livery bam or feed stable; that on April 9, 1910, Hoops owed defendants in error certain moneys for the board and keep of said property, and in August, 1910, paid his entire bill to that date for such board and keep, but that since that date there became due for such board and keep more than $500, which is yet unpaid; that Hoops then told plaintiffs in error he could go no further in business, and they, under their election, declared his entire debt to them due, demanded the horses, wagons and harness of defendants in error, and being refused brought this suit of replevin.

The court overruled a motion for a new trial January 20, 1912, and rendered judgment that the defendants in error rightfully held the property replevied for the moneys due them from Hoops, which sum and the damages of defendants in error aforesaid assessed amount to the sum of $550; that plaintiffs in error within thirty days pay to defendants in error said sum and five per cent, interest thereon; that in case said sum shall be paid as aforesaid that plaintiffs in error have and retain said property replevied, and in default of said payment that defendants in error have and recover from plaintiffs in error the possession of said property and that a writ of retorno habendo issue herein for the return thereof; that defendants in error have and recover from plaintiffs in error their costs and that execution issue therefor; that the stay bond be fixed at $1,100 and filed within thirty days and that sixty days be allowed within which to file a bill of exceptions.

On February 19, 1912, the court, over the objections of defendants in error, entered the following, in substance: This day come the parties in said cause, and plaintiffs in error present to the court their motion, stating that they decline to pay said $550 to defendants in error and move the court to enter final judgment in said cause and present to the court four propositions of law which the court acts upon, and enters judgment that unless payment is made as hereinafter provided, defendants in error do have and recover from plaintiffs in error the property in question and their damages of one cent by the court assessed, together with their costs, and that they have execution therefor, and that a writ of retorno habendo issue for the return of the property replevied. Plaintiffs in error prayed an appeal to the Appellate Court and the court fixed the stay bond at $1,100 and gave sixty days in which to file their bill of exceptions.

Defendants in error filed a motion in this court to dismiss the writ of error on the grounds that the judgment entered January 20th was a final judgment, and that no motion or order was made to vacate or set it aside within thirty days after the entry thereof; that, therefore, the judgment of February 19th was null and void and that as the writ of error herein was not sued out until February 27th, more than thirty days after the final judgment, the cause cannot be reviewed on writ of error, because of the provisos in sections 21 and 23 of the Municipal Court Act, Hurd’s St. 1911, ch. 37, p. 716. (J. & A. fífí 3333, 3335.) The motion was taken,with the case and is overruled. By said section 21 of the statute there are no stated terms of the Municipal Court, and any final judgment may be modified or vacated to the same extent as a judgment of the Circuit Court, if done in pursuance of a motion to modify or vacate the same entered within thirty days after the judgment. The motion of plaintiffs in error may be treated as a motion to modify the form of the judgment of January 20th. At any rate, the entry of the second judgment can be treated as a modification of the form of the former judgment. The court had the power to modify or set aside the former judgment on February 19th, because it was within the thirty days of its entry. While both judgments may be considered in form as final judgments, the latter judgment is the final judgment in the case, because it finally disposed of all the questions involved in the case, including the propositions of law, and the motion for a new trial. That the court might have legally refused to consider the propositions of law, because not presented in time, and that it might have determined to let the former judgment stand without modification and the entry of another judgment, does not determine the question of which judgment is the final judgment. It is the termination of the particular action and of all the means of further prosecuting or defending it that marks the finality of the judgment. Black on Judgments, see. 21; Mutual Reserve Fund Life Ass’n v. Smith, 169 Ill. 264.

The writ of error was sued out in proper time notwithstanding section 23 of said statute. The time for the suing out of a writ of error from this or thé Supreme Court to'the Municipal Court is governed by section 117 of the Practice Act (J. & A. If 8654), which provides that it may be done within three years from the date of the judgment. Section 23 of the Municipal Court Act, providing that the writ must be sued out within thirty days, has been declared unconstitutional by the Supreme Court. Hoffman v. Paradis, 259 Ill. 111.

Section 2, ch. 82, Hurd’s St. 1911, p. 1475 (J. & A. if 7180), provides as follows:

“Stable keepers and any persons shall have a lien upon the horses, carriages and harness kept by them for the proper charges due for the keeping thereof and expenses bestowed thereon at the request of the owner, or the person having the possession thereof.”

The foregoing statute evidently attaches a lien in favor of stable keepers to the horses, carriages and harness fed and cared for by them as the feed and care are bestowed. The authorities are in conflict upon the question as to whether or not a chattel mortgage antedating the time of the care and keep of a stable keeper or of an agister given a statutory lien is a prior lien when the mortgagee has no knowledge of, and has given no consent to, the feeding and caring for the animals,. There is certainly good reasoning for the proposition that keepers of livery stables ought not to be required to search the records for mortgages or have their liens upon horses, carriages and harness for feed and care subject to prior recorded chattel mortgages. The weight of authority, however, seems to be in favor of the doctrine that the lien of the chattel mortgage is superior to that of the liveryman when the mortgage is recorded prior to the services of the liveryman. See National Bank of Commerce v. Jones, 18 Okla. 555, 12 L. R. A. (N. S.) 310, where the authorities are collected; also Charles v. Neigelsen, 15 Ill. App. 17.

The weight of authority and the better reasoning, we think, also holds that if a mortgagee has notice of or knows, as plaintiffs in error knew in this case, that the mortgagor and owner was not keeping the horses, carriages and harness at the time they were mortgaged, but was having them boarded and kept at some livery stable, and made no objections thereto, that he should be held to have consented to such keeping, although he did not know at what stable they were boarded and kept. The mortgagee in such case within the meaning of the statute is an owner, and when he knows the mortgagor whom he has expressly agreed shall retain and care for the horses, harness and carriages, and has already placed them in the care and keep of a liveryman and intends to continue them in such care and keep, and the mortgagee makes no objection, all the requirements of a statutory lien under said section are fulfilled, i. e., they are kept by the implied consent or request of the owner and mortgagee, and the statutory lien is, therefore, prior to that of the mortgage. Jones on Liens, sec. 691a; Howes v. Newcomb, 146 Mass. 76; Lynde v. Parker, 155 Mass. 481; Miller v. Crabbe, 66 Mo. App. 660; McGlasson v. Hennessy, 161 Ill. App. 387; National Bank of Commerce v. Jones, 18 Okla. 555, 12 L. R. A. (N. S.) 310, and eases there cited in note.

The lien of defendants in error was superior to that of plaintiffs in error, and the court properly so held. The judgment is, therefore, affirmed.

Judgment affirmed.