author: Mr. Justice Baker

text:
    Chicago Title & Trust Company et al., Appellees, v. Sagola Lumber Company, Appellant.
    Gen. No. 14,468.
    1. Contracts—effect of notice of intention to abandon. If a party to a contract gives notice to the other party thereto that he does not intend further to perform the same the party receiving such notice has a right to treat the same as a breach and to bring an action for the damages resulting from such breach.
    2. Evidence—when objection to competency of witness comes too late. An objection to the competency of a witness comes too late if made after such evidence has been offered and received.
    3. Evidence—when admission of erroneous, harmless error. The failure of the court to exclude certain testimony constitutes harmless error if no fact was stated in answer to the question to which objection was made which had not already been stated by such witness in answer to questions to which no objections were made.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed May 11, 1909.

      Lawrence P. Conover, for appellant.
    Atwood, Pease & Loucks, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

This case was before this court at the March term 1905, when a judgment for the plaintiffs was reversed and the cause remanded. Sagola Lumber Co. v. Chicago Title & Trust Co. et al., 121 Ill. App. 292. The retrial of the case resulted in a verdict for the plaintiffs for $4350. The damages claimed by the plaintiffs amounted to $4350, of which $3343.16" was for damages for breach of the lumber contract and $1007.20 for breach of the shingle contract. The plaintiffs remitted $1007.20 the damages awarded for breach of the shingle contract, and the court denied defendant’s motion for a new trial, gave judgment on the verdict for $3342.80, the damages awarded for breach of the lumber contract, and from that judgment the defendant prosecutes this appeal.

The contention of appellant that there is a fatal variance between the averments of the declaration and the evidence cannot be sustained. The plaintiffs in their declaration alleged a breach of the lumber contract, and the cause of action alleged was for the damages they alleged they had suffered in consequence of such breach. The evidence for the plaintiffs tended to prove notice by the defendant to the plaintiffs about November 30, 1890, that the defendant did not intend to further perform the lumber contract, and this gave the plaintiffs the right to treat such notice as a breach and bring their action for the damages resulting from such breach. Collins Co. v. Stephenson, 189 Ill. 200, 205; Roebling Sons Co. v. Lock Stitch Fence Co., 130 id. 660, 667.

The original plaintiffs were Edward Browne, Robert L. Chapin, William P. Cary and Arthur C. Lombard, doing business as the Browne-Chapin Lumber Company. The contracts sued on were between the plaintiffs and the defendant, then known as the Laing Lumber Company. They were negotiated by Browne for the plaintiffs, and by John O’Callaghan, president of the defendant, for the defendant. Pending the suit Browne was adjudged a bankrupt, and the Chicago Title and Trust Company was appointed trustee of his estate. His bankruptcy was suggested in this suit and an order entered that the cause: “proceed in the name of Chicago Title and Trust Co., trustee in bankruptcy of Edward Browne, bankrupt, and Robert L. Chapin, William P. Cary and Arthur L. Lombard.” Browne testified for the plaintiffs, without objection by the defendant, that he had a conversation with 0 ’Callaghan November 30, 1890, and that in such conversation O’Callaghan said the defendant would not fill any more orders of the plaintiffs for lumber; that “there was no use of sending more orders for lumber, for he would not fill any more orders for lumber under the contract.” After Browne had so testified without objection, defendant moved to exclude his testimony as to conversations with O’Callaghan, on the ground that such conversations were with an agent of the defendant who had since died, and that under section 4 of the Act in relation to evidence and depositions, Browne was not a competent witness as to conversations with O’Callaghan. Said section is as follows:

“In every action, suit or proceeding, a party to the same who has contracted with an agent of the adverse party, the agent having since died, shall not be a competent witness as to any admission or conversation between himself and such agent, unless such admission or conversation with the said deceased agent was had or made in the presence of a surviving agent or agents of such adverse party,” etc.

Browne testified that said conversation with 0 ’Callaghan was in the presence of Laing, the secretary and treasurer, and Sloan, the bookkeeper of the defendant. Browne was cross examined by counsel for the defendant. At the close of the evidence in chief for the plaintiff, after proving that O’Callaghan, Laing and Sloan were dead, the defendant renewed its motion to strike out the testimony of Browne as to conversations with 0 ’Callaghan. The. motion was denied and the defendant excepted. The defendant then, in pursuance to an agreement made at the beginning of the trial, read the testimony of 0 ’Callaghan, taken on the former trial of the case.

The subject-matter of the testimony of Browne was competent evidence; the only ground of the motion to strike out was that the witness was incompetent. This was an objection that the defendant might waive and will be held to have waived by failing to make it when the testimony was offered. 1 Greenleaf’s Evidence, sec. 421; Hanford v. Obrecht, 49 Ill. 146; C. U. T. Co. v. May, 221 id. 530; Standley v. Moss, 114 Ill. App. 612. It is not contended that defendant was not, when the testimony was admitted, aware that 0’Callaghan, Laing and Sloan were dead. The rule as to the time when a party aware, of the objection to the competency of a witness must take that objection, is stated in the section of Greenleaf above cited, as follows:

“In regard to the time of taking the objection to the competency of a witness, on the ground of interest, it is obvious that, from the preliminary nature of the objection, it ought in general to be taken before the witness is examined in chief. If the party is aware of the existence of the interest, he will not be permitted to examine the witness, and afterwards to object to his competency, if he should dislike his testimony. He has his election, to admit an interested person to testify against him, or not; but in this, as in all other cases, the election must be made as soon as the opportunity to make it is presented; and failing to make it at that time, he is presumed to have waived it forever.”

We think that the motion to strike ont was properly overruled on the ground that the testimony was, with knowledge on the part of the defendant, of the facts on which the motion to strike out was based, admitted without objection.

It is further contended by appellant that the court erred in permitting Brown to testify to certain statements of O’Callaghan in relation to the Iron Mountain yard of the defendant made before the contract was signed, on the ground that such evidence tended to vary the terms of the written agreement made by the parties. We think that the objection of the defendant to such testimony should have been sustained, but that the action of the court in overruling defendant’s objection and admitting the testimony was not harmful to the defendant. Browne testified for the plaintiffs, without objection, that the evening that the contracts were signed, and before they were signed, 0’Callaghan said to bim that defendant: “was going to want some lumber for their little retail yard at Iron Mountain, and he would like to reserve what they would need for that yard. Q. The retail trade? A. Betail trade, but mostly of the lower grades. He said that it was their home town and they had been getting a little stuff from the mill, shipping down in parts of cars at a time, but they thought it would be best to have a little retail yard there.” After this testimony had been given without objection, the following questions were asked and answered over the objection of the defendant, to which rulings the defendant excepted-: “Q. Did you have any talk with Mr. O’Callaghan about the character of that trade, what kind of a yard it was to be? A. Yes, it was to supply retail trade. * * * Q. Mr. Browne, what did Mr. 0’Callaghan say to you in regard to the character of this yard at Iron Mountain? A. He said they were going to put a little retail yard at Iron Mountain; that there was some building to be done; they thought there was going to be considerable building there that summer, and that they had figured with this contract of onrs with other things; that they didn’t want to bother with any little retail business up at the mill, and he had a special man at the mill and was going to supply the wants of the place right there. Q. Retail yard? A. Retail yard.” No fact was stated in answer to the questions to which objection was made which had not already been stated by the witness in answer to questions to which no objection was made and therefore, as has been said, in our opinion, the answers to the questions to which objections were made were not harmful to the defendant.

The remaining contention of the defendant is, that: “the verdict was excessive and contrary to the evidence. ’ ’ By the lumber contract the defendant agreed to sell to the plaintiffs and the plaintiffs to buy of the defendant, at the prices therein specified, all the lumber the defendant then had on hand and all it should manufacture up to November 30, 1890: “except such portion of said stock as may be required by the Laing Lumber Company’s yard at Iron Mountain, Mich.”

In assessing the damages the jury excluded the lumber shipped by defendant prior to November 30, 1890, to the Iron Mountain yard, but included lumber which was shipped direct to purchasers on orders which the evidence tends to show were sent to the defendant at its mill from its yard at Iron Mountain. The defendant kept in its books at the mill an account with the Iron Mountain yard, in which was entered the lumber shipped direct to that -yard and also accounts with each buyer, in which was entered the lumber shipped on orders said to have been received from the Iron Mountain yard. These last mentioned accounts were not transferred on the books to the account of the Iron Mountain yard, nor were they entered in the books of the Iron Mountain yard. We think that from the evidence the jury might properly find that the lumber shipped by the defendant from its mill direct to buyers and charged in its books to such buyers, and not to the Iron Mountain yard, was not lumber “required by the Laing Lumber Company’s yard at Iron Mountain,” and might properly include the same in their assessment of damages.

In assessing damages on account of the lumber on hand at the mill, November 30, 1890, no allowance or deduction was made by the jury from the stock on hand on account of the lumber which the Iron Mountain yard might require after November 30, 1890, and appellant insists that the allowance of damages on account of lumber which said yard should require between November 30, 1890, and May 1, 1891, was improper. With this contention we cannot agree. We think all the lumber on hand at the mill at the time of the breach of the contract was properly included by the jury in assessing plaintiff’s damages.

No complaint is made of the rulings of the court on instructions to the jury. The record is, we think, free from reversible error and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    James J. Foley, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,503.
    Contributory negligence—effect of failure to loolc. Held, under the evidence that it was a question for the jury to determine as to whether or not the plaintiff in seeking to cross street car tracks was guilty of contributory negligence and that the verdict of the jury finding that there was no contributory negligence was conclusive.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSubely, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied May 21, 1909.
    Affirmed.
    Opinion filed May 11, 1909.

      Statement by the Court. Appellee brought an action on the case in the Superior Court against appellant to recover damages for personal injuries alleged to have been sustained by him through the negligence of the defendant. He had judgment for $6000, and the defendant appealed.
    Defendant operated in Halsted street in the city of Chicago a double track electric street railway. Plaintiff was a passenger on a north bound Halsted street car running on the east track, which stopped on the north side of Sixty-fifth street, and plaintiff alighted from the rear step on the east side of the car about three feet north of the curb on the north side of Sixty-fifth street. He intended to go to his office which was on the west side of Halsted street about eighty feet south of Sixty-fifth street, and testified that he started to go over_ the street intersection diagonally to the southwest corner of Halsted and Sixty-fifth streets. In crossing the west track he was struck by a south bound car of defendant on that track and was injured. The contention of plaintiff was that he was so struck at a point about fifteen feet north of the sidewalk on the south side of Sixty-fifth street, and that of defendant that he was struck at a point about .fifty feet south of the south line of Sixty-fifth street. The negligence alleged in the first count of the declaration was that defendant negligently ran said car over said crossing at a great and dangerous rate of speed; in the second count, that defendant negligently ran said car over said crossing without sounding a gong or giving other warning; in the third count that defendant so negligently ran and managed said car that it ran against the plaintiff, who was then crossing Halsted street at Sixty-fifth street.
    Franklin B. Hussey and C. LeRoy Brown, for appellant; John R. Harrington, of counsel.
    Horton & Miller, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

Appellant contends that the defendant was not guilty of negligence and that the plaintiff was guilty of contributory negligence.

The accident occurred about eleven o’clock at night. The motorman testified that he met the north bound car about midway between Sixty-fourth and Sixtvfifth streets, and then sounded his gong twice, that he did not sound the gong again until he saw plaintiff on the track about twenty feet ahead of Ms car; that his car was then about forty feet south of Sixty-fifth street; that the speed of his car was ten or eleven miles per hour, and that he made no effort to check its speed in approaching or crossing Sixty-fifth street, nor until he saw plaintiff on the track in front of Mm; that so soon as he saw a man on the track in front of his car, he made every possible effort to stop his car, but was unable to do so before it struck the plaintiff.

From the evidence the jury might, we think, properly find that plaintiff when struck by the car was twelve or fifteen «feet north of the south sidewalk in Sixty-fifth street as he testified, and not forty or fifty feet south of that street as the motorman testified. We think that taking as true the testimony of the motorman as to the operation of the car, the question whether the defendant was guilty of negligence in running its car across Sixty-fifth street at ten or eleven miles per hour, without sounding a gong or making any effort to put the car under control as it approached the crossing, was a question of fact for the jury on which their verdict must be held conclusive.

The next contention of appellant is that plaintiff was guilty of contributory negligence. No witness saw the plaintiff until the motorman saw him in the south bound track in front of the south bound car. The evidence is conflicting as to the place where the plaintiff was when struck by the south bound car, but, as has been said, we think that from the evidence the jury might properly find that he was'then about fifteen feet north of the south sidewalk in Sixty-fifth street. As to the acts and conduct of the plaintiff prior to his injury, the circumstances and conditions attending’ such injury, there is in the record only the testimony of the plaintiff. He testified that he alighted on the east side of the north bound car, from the rear step, about three feet north of the north curb in Sixty-fifth street; that his intention was to cross diagonally to the southwest corner, and go to his office, which was on the west side of Halsted eighty or one hundred feet south of Sixty-fifth street; that he “started right off after glancing up to see if there was any other car coming.”

He further testified as follows: “I turned to the left because I let the car start from me and then proceeded to go across so that I could see if anything was coming. Q. How _soon after you stepped off from the car did the car start up? A. It started immediately. Q. How far did you go before you glanced up and looked north? A. I glanced immediately, just as quick as the car started. I glanced in a northerly direction to see if there was anything coming and I did not see anything. Q. Did you hear anything? A. I did not.”

On cross examination he testified as follows: “Q. When you stepped off the car facing north, did you look north? A. Glanced north. Q. During that trip when you started here and walked in a diagonal direction southwest until you got over here at a point on this rail, twenty-five feet south of where you started, did you look north? A. I glanced north when I got off the car. Q. During that trip over there did you look north? A. No sir.”

The night was dark, a drizzling rain was falling, and from the evidence the jury might properly have found that there was no lighted street light at either corner of the crossing, and that the plaintiff looked to the north, after' his view in that direction was no longer obstructed by the' car from which he had alighted, and did not see the south bound car. The light at the front end of the car was an incandescent light over the head of the motorman, so arranged as to throw the light down on the rail fifteen or twenty feet ahead of the car. It is not physically impossible that on such a night with such a head light, plaintiff looked to the north, after his view of the south bound track was no longer obstructed by the north bound car, and failed to see the approaching south bound car. The weather was such as naturally to cause the plaintiff to hurry to shelter. He was compelled to watch his steps; to pick his way over an unlighted street crossing.

We think that the question whether the plaintiff, in view of all the surroundings, was guilty of negligence in going on the south bound track without again looking to the north, was a question for the jury on which their verdict must be held conclusive. C. C. Ry. Co. v. Fennimore, 99 Ill. App. 174; S. C. 199 Ill. 9; C. & E. I. Ry. v. Schmitz, 211 id. 446; Donelson v. E. St. Louis Ry. Co., 235 id. 625.

We find no reversible error in the rulings of the court on questions of evidence or instructions.

The injuries of the plaintiff consisted of a dislocated shoulder; a fracture of the internal malleolus of the right leg; a fracture of the left shoulder and bones of the left foot; a fracture of the right collar bone and of two ribs. For such injuries and their consequences, as shown by the evidence, the damages cannot be held excessive.

The record, in our opinion, is free from reversible error, and the judgment of the Superior Court will be affirmed.

Affirmed.


text:
    Malleable Iron Range Company, Appellee, v. Charles M. Pusey, Appellant.
    Gen. No. 14,535.
    1. Subetyship—what does not preclude recovery upon guaranty. A corporation intended to be protected by a written contract of guaranty may recover thereon notwithstanding it is not actually named in such contract.
    2. Subetyship—contract of guaranty construed. Meld, that a provision as follows, “It is understood that the undersigned shall not be liable under this guaranty for an amount to exceed $3,200” is a limitation not on the amount of credit to be extended to the principal but on the liability of the guarantor.
    3. Amendments and jeofails—what authorized. A correction in the name of a sole plaintiff is authorized by section 23 of the Practice Act.
    4. Dismissal—what equivalent to. The filing of an amended declaration as to but one of the several defendants originally named, is equivalent to the dismissal as to the other defendants.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. William H. McSubely, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed May 11, 1909.
    Statement by the Court. This is an appeal by the defendant from a judgment on a directed verdict for the plaintiff for $4,000 damages.
    The recovery was on the following instrument:
    “For and in consideration of the sum of one dollar to each of us in hand paid, and in consideration of the granting of credit and shipment of goods by the Beaver Dam Malleable Iron Range Company, of Beaver Dam, Wisconsin, a corporation, to Francis H. Buzzacott, northeast corner Seventy-fourth street and Storms avenue, Chicago, Illinois, we, Charles M. Pusey of Chicago, Illinois, and Francis H. Buzzacott of Chicago, Illinois, for ourselves, and for our heirs, executors, administrators and assigns, do hereby jointly and severally guarantee to the said Beaver Dam Malleable Iron Range Company, their heirs, executors, administrators and assigns, the payment of

      any and all indebtedness now due, or hereafter to become due, to the said Beaver Dam Malleable Iron Range Company, their heirs, executors, administrators and assigns, from the said Francis H. Buzzacott, for goods heretofore purchased, shipped or ordered from the said Beaver Dam Malleable Iron Range Company by the said Francis H. Buzzaeott or for any goods which may thus be purchased, shipped or ordered any time in the future.
    It is hereby understood and agreed that the undersigned shall not be liable under this guaranty for an amount to exceed three thousand two hundred dollars ($3,200).
    The undersigned hereby waive notice of the acceptance of this guaranty and of the amount of indebtedness now existing or which may hereafter exist from time to time, from the said Francis H. Buzzacott to said Beaver Dam Malleable Iron Range Company.
    In witness whereof, we have affixed our hands and seals at the City of Chicago, State of Illinois, this 17th day of June, A. D. 1902.
    In presence of:
    Jam:es Davis. Francis H. Buzzacott. (Seal)
    Tillie Buzzacott. Chas. M. Pusey. (Seal) ”
    There is no such corporation as The Beaver Dam Malleable Iron Range Company, but the name of the corporation with which Buzzacott had had dealings was Malleable Iron Range Company. The action was originally debt, brought by “The Beaver Dam Malleable Iron Range Company,” plaintiff, against both Buzzacott and Pusey. April 28, 1905, after both defendants had pleaded, the following order was made in the cause:
    “On motion of plaintiff’s attorney it is ordered that all papers and proceedings in said cause be and are hereby amended by changing the title of the plaintiff to read Malleable Iron Range Company, and by changing the form of action herein to assumpsit and by increasing the ad damnum herein to four thousand dollars, and leave be and is hereby given the plaintiff to file an amended declaration herein instanter and it is ordered that defendant Charles M. Pusey be and is hereby required to plead to said amended declaration within ten days from this date.”
    On the same day, Malleable Iron Range Company, plaintiff, filed its declaration in assumpsit on said instrument against. Charles M. Pusey, defendant. The declaration averred that the defendant Pusey, jointly and severally, with Buzzacott, did guarantee the plaintiff, “under the name and style of The Beaver Dam Malleable Iron Range Company,” etc.
    The defendant pleaded to the declaration, and after issue joined the case was submitted to a jury and a verdict for the plaintiff was directed by the court. The court overruled the motion of defendant for a new trial, and from a judgment on the verdict defendant prosecutes this appeal.
    Charles A. Phelps, for appellant.
    Peckham, Packard, Ap Madoo & sWalsh, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

November 19, 1901, Buzzacott made a contract with the Dauntless Manufacturing Company, a Wisconsin corporation carrying on business at Beaver Dam, Wisconsin, by which said company agreed to manufac‘ture for Buzzacott five hundred army ranges at, and he agreed to pay therefor, $20 each. The name of the Dauntless Manufacturing Company was changed February 2, 1902, to Malleable Iron Range Company. Said corporation manufactured and delivered to Buzzacott ranges under said contract from time to time after the making thereof down to August 22, 1902. The guaranty sued on was executed June 17, 1902.

Appellant contends that the plaintiff has no right to recover on the guaranty because it is not the corporation named therein. If the makers of the instrument sued on intended thereby to guarantee the plaintiff in the judgment, the Malleable Iron Range Company, the instrument was not invalid because the name of the corporation mentioned in the instrument was the Beaver Dam Malleable Iron Range Company, instead of the Malleable Iron Range Company. The corporation intended to be guaranteed conld recover on proper averment and proof that it was the corporation intended to be guaranteed.

In Peake v. Wabash R. R., 18 Ill. 88, 90, it was said: “Instruments in writing are not void because made to a party by the wrong name and any misnomer, or apparent variance, may be reconciled in pleading by averment and avoided in effect by proof.”

“There is a general concurrence of modern authority to the effect that ‘a misnomer or variance from the precise name of the corporation in a grant or obligation by or to it is not material if the identity of the corporation is unmistakable either from the face of the instrument or from the averments and proof.’ ” 1 Thompson on Corporations, Sec. 294.

To same effect are: N. W. Distilling Co. v. Brandt, 69 Ill. 658; Board of Education v. Greenebaum, 39 id. 609; Trustees v. Rodgers, 7 Ill. App. 33; African Soc’y v. Varick, 13 Johnson, 38; Hoboken Bdg. Assn. v. Martin, 13 N. J. Eq. 427.

The declaration avers that the instrument sued on was made with the plaintiff: “under the name and style of the Beaver Dam Malleable Iron Range Company.” The evidence for the plaintiff supports the averment, and there is no evidence to the contrary. We think that under the averment and proof, the plaintiff could recover on the guaranty.

The case is not one where a new plaintiff was substituted for an original sole plaintiff, but one in which an error in the name of the plaintiff was corrected, and such a correction by amendment is authorized by section 23 of the Practice Act.

The filing of an amended declaration against Pusey alone operated as a dismissal of the action as to Buzzacott, the other defendant. Black v. Womer, 100 Ill. 328; McLachlan v. Pease, 171 id. 527. The amended declaration was filed April 28, 1905, and from that date Bnzzacott ceased to be a defendant. The trial was upon issues joined between the plaintiff and Pusey, the sole defendant, and the court properly refused to entertain a motion by Bnzzacott, made long after he ceased to be a defendant, for a default on what is called his “plea of set off,” and properly struck from the files his motion for a new trial.

The suit might originally have been brought against Pusey alone, and the dismissal of the suit as to Buzzacott did not work a discontinuance of the suit as to Pusey, but the plaintiff might, after such dismissal, proceed to final judgment against him. Kasper v. The People, 230 Ill. 342.

In August, 1902, Bnzzacott had taken a part only of the five hundred ranges he had agreed by the contract of November 19, 1901, to take from the plaintiff. He claimed that certain of the ranges which had been delivered to bim were defective and that by reason of such defects he had sustained damages. August 12, Buzzacott wrote plaintiff as follows:

“Louisville, Ky., Aug. 12th, 1902.
Malleable Iron Range Co.,-
Beaver, Dam, Wis.
Gentlemen:
I enclose herewith a letter which speaks for itself. I am at Jeffersonville, making repairs on these ranges and will do my best to off-set the broken grates and to place these ranges in condition—in view, however, of these facts, it will be well to request you to kindly make and put into shape, the one hundred ranges you are now working on and in view of the circumstances will ask you to kindly cancel my contract with you for balance of ranges. I will pay you for all ranges made to date in full and suffer the expense of loss from breakage myself asking only that you turn over to me at cost, all castings that you have on hand or in the sand, together with the patterns for cash, to date. Otherwise I must hold you responsible for the loss on deliveries that is inflicted on me by the quartermaster’s department, and the entire cost of -this breakage, freight and general repairs.
Any castings that you have on hand will be taken at cost so as to clean up matters—so as I can have these ranges built—elsewhere from the castings in a way they won’t break.
I will thank you for honest consideration and will ask you to write me in full to the above address.
I want to settle with you in full and will assume the loss if you will release the terms of my contract on my accepting at cost castings on hand, which, in my estimation, is getting rid of a bad job, without loss on your part.
Regretting the matter, I am
Very respectfully,
Buzzacott.”
To which plaintiff, by A. C. Terrell, its superintendent, replied as follows:
“Beaver Bam, Wis., Aug. 14th, 1902.
Buzzacott,
Louisyille, Ky.
Your letter of the 12th at hand, and in reply will say that the terms you speak of for settlement is perfectly satisfactory to us if agreeable to you, but in view of the fact that there was a kick coming on the fifty-one ranges shipped last lot, we will hold this lot of one hundred until next week, and we want you to come to Beaver Dam and inspect every range before we load it, and, if there is anything that is not satisfactory, we are only too willing to make it so. It is much better to fix it up here than to cause you the annoyance of going to Louisville and going over it there.
We are at loss to understand what can be the matter with any of these ranges as every one of them left our place in perfect condition.
Kindly let us know just what day you will be here so that we can get everything in shape so that it will not take more than one day of your time in Beaver Dam.
Respectfully,
A. C. Terrell.
P. S. We have about $800.00 worth of sheet iron, or one car load, on hand, that is just the right size for your ranges which we would gladly dispose of at the market price. We would like to have you take this as it cuts to disadvantage in our work.
A. O. T.”

These letters constitute a contract between Buzzacott and the plaintiff, by which Buzzacott, in consideration that the plaintiff would cancel the contract for the balance of ranges not yet delivered, other than the one hundred on which plaintiff was then working, agreed to suffer the loss from defective ranges theretofore delivered himself. The existence of the guaranty did not affect the right of Buzzacott and the plaintiff to make such contract. Buzzacott thereby waived or released for a sufficient consideration his claim for damages on account of defects in the ranges theretofore delivered to him by the plaintiff. The court did not err in refusing to admit evidence tending to prove the damages which Buzzacott had released.

The guaranty sued on is a continuing guaranty. The provision that: “It is understood that the undersigned shall not be liable.under this guaranty for an amount to exceed $3200,” is a limitation, not on the amount of credit to be extended to Buzzacott, but on. the liability of the guarantor. Taussig v. Reid, 145 Ill. 488, 496, and cases there cited.

The evidence shows an indebtedness in excess of $3200 to the plaintiff from Buzzacott for goods purchased, shipped or ordered by Buzzacott before the making of the guaranty and for goods thus purchased, shipped or ordered after the making of the guaranty. The payment of this indebtedness by Buzzacott to the plaintiff the defendant guaranteed.

The sum of $3200 with interest from the beginning of the suit to the trial exceeded $4000. We think the court did not err in directing a verdict for plaintiff for $4000, nor in denying the motion of the defendant for a new trial, and the judgment will be affirmed.

iAffirmed.


text:
    Edward D. Sweeney, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,550.
    1. Evidence—when written report not competent. A written report of a conductor as to the manner of an accident’s occurrence does not become competent if upon cross-examination such conductor is asked whether such report contains a particular statement and he replies in the negative.
    2. Trial—when remarks of counsel will not reverse. If remarks of counsel are complained of a reversal will not follow unless an objection was made thereto, such objection overruled and an exception preserved to such ruling.
    3. Verdict—when not excessive. Held, that a verdict of $1,000 in an action against a traction company for assault committed by its employe was not excessive where it appeared that at the close of the affray the plaintiff’s nose was bruised and swollen, his eyes blackened and one shoulder dislocated.
    Action on the case. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied May 27, 1909.
    Affirmed.
    Opinion filed May 11, 1909.
    Statement Tby the Court. This is an appeal by the defendant from a judgment for $1,000 recovered by the plaintiff in an action on the case. The declaration alleged that plaintiff was a passenger on a street car of defendant; that the defendant by its servant, a conductor in charge of the car on which plaintiff was a passenger, wrongfully, etc., assaulted and beat plaintiff and threw him from the car to the ground, dislocating his shoulder and inflicting on him other injuries. The pleas were, first: not guilty; second: son assault demesne, and third: molliter ma-nus imposuit, framed, it is stated in the brief of appellant, “on the assumption that plaintiff was ejected from the car for non-payment of his fare.” To the special plea the plaintiff replied de injuria.

      Edward C. Higgins and Ferdinand Goss, for appellant; John E. Harrington, of counsel.
    Simeon Armstrong, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff was a passenger on a north bound open car of defendant and sat at the east end of a seat with one leg thrown over the other. The conductor, in collecting fares, was compelled to pass along the foot-board on the east side of the car. The evidence for the defendant tends to show that plaintiff’s foot extended over the foot board so that the conductor’s clothing brushed against it as he passed along the foot board. Plaintiff testified that his foot did not extend beyond the floor of the car. The conductor testified that he showed plaintiff dirt on his clothing and asked him to move his foot; that the conductor moved plaintiff’s foot with his hand and plaintiff said “leave that foot alone, keep your hands off of me,” and further testified as follows: “I saw that he acted a little angry and his saying, ‘Dont you touch that foot,’ dared me not to touch it. I took hold of his foot, shoved it clear of the car, knocked it off from his knee.” The plaintiff testified that the conductor threw his foot down twice. It is therefore undisputed that the first assault, the first trespass, was committed by the conductor. As to what occurred after the conductor threw plaintiff’s foot down, the testimony is conflicting; that for the plaintiff tending to show that when the conductor threw plaintiff’s foot down the second time he called plaintiff a vile name and struck him; that the conductor of another car in the train came to the assistance of the first conductor, struck plaintiff with a bell punch, and that the two repeatedly struck the plaintiff and finally pulled him from the car, and that for the defendant tending to show, that when the conductor threw plaintiff’s foot down, the plaintiff struck him, and that whatever was done by either conductor afterwards was done in self defense.

We think that on the evidence the question whether the conductor of the defendant wrongfully assaulted, beat and injured the plaintiff under such circumstances as to make the defendant liable for such acts, was a question of fact on which the verdict must be held conclusive.

We think the court did not err in refusing to admit the report of the occurrence to the defendant, signed by the conductor and motorman of the car on which plaintiff was a passenger, which was offered in evidence by the defendant.

Both the conductor and motorman were asked on cross examination whether said report did not state that the passenger refused to pay his fare and because of such refusal was ejected from the car, and both answered that the report contained no such statement. The report offered in evidence contains no such statement. If on the cross examination the defendant had succeeded in putting in evidence any part of the contents of the report, the defendant would have had the right to put in evidence the entire report. But no evidence of the contents of the report was elicited on the cross examination. The testimony as to its contents was only negative; that it did not contain a certain statement, and such testimony did not make the report admissible for the defendant.

The record shows objections by the defendant to remarks of counsel for the plaintiff in argument, and exceptions to such remarks, but no exceptions by defendant to any ruling of the court on objections to remarks of counsel for the plaintiff. The contention that the judgment should be reversed because of remarks and comments in the argument of plaintiff’s counsel cannot be sustained.

At the close of the affray plaintiff’s nose was bruised and swollen, his eyes blackened and one shoulder dislocated. We think that from the evidence the jury might properly find that such injuries were sustained at the hands of the conductor of the car on which he was a passenger, and that for such injuries, inflicted under such circumstances, the damages awarded by the jury cannot be held excessive.

The record is, we think, free from error, and the judgment will be affirmed.

Affirmed.


text:
    Isabel Gray, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 14,556.

      Verdict—when evidence in civil case sufficient. In civil cases it is sufficient if the evidence on the whole agrees with and supports the hypothesis which it is adduced to prove.
    Bakes, J., dissenting.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Gbobge A. Dufut, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed May 11, 1909.
    John A. Bose and Frank L. Kriete, for appellant; W. W. Gurley, of counsel.
    W. A. Flanegan and Coburn & Case, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $1,000 recovered by the plaintiff in an action on the case for personal injuries.

May 21, 1905, plaintiff, then four years old, and her mother were passengers on a street car of the defendant. Through the negligence of the defendant-the car ran against a freight car at a crossing. Appellant contends that the verdict is against the evidence because the evidence fails to show that the plaintiff was injured in or as a result of such collision, and appellee contends that from the evidence the jury might properly find that in said collision plaintiff sustained what is called a “green stick” fracture of her fifth rib.

The speed of the street car at the time of the collision was six to eight miles per hour. The mother testified that when she saw that a collision was imminent she caught hold of the plaintiff, and that plaintiff and herself were, “thrown to the back end of the car and all the people came back on us.” In the collision two of the mother’s ribs were broken and she was otherwise severely injured.

Three physicians and surgeons, called by the plaintiff, testified that in November after the collision they examined plaintiff and found a deformity on the right side of plaintiff, and. evidence that she had sustained a “green stick” fracture of the fifth rib on the right side. Two physicians and surgeons called by the defendant testified that the deformity was the result of rickets; that plaintiff had a chicken or pigeon breast; We think that from the evidence the jury might properly find that plaintiff’s fifth rib was fractured, and that such fracture caused the deformity which existed at the time of the trial. The deformity was first noticed about the first of September after the collision. That the force by which plaintiff and her mother were thrown to the back of the car was sufficient to fracture plaintiff’s rib is shown by the fact that her mother’s ribs were then fractured.

Dr. Murdock testified that he had seen a great many cases of fractures of the rib not known until a month or a year afterward, although the person whose rib had been broken was attended by a physician.

“In civil cases it is sufficient if the evidence, on the whole, agrees with and supports the hypothesis which it is adduced to prove.” 1 G-reenleaf’s Ev., Sec. 13a. There is in this record proof of force sufficient to cause the injury; of complaint of pain immediately afterwards at the point where evidences of injury were afterwards discovered; of a marked change in the health, conduct and appearance of the plaintiff after the time of the alleged injury; evidence that such an injury as it is alleged plaintiff suffered might be 'overlooked and not noticed, even by a physician; evidence negative in its character tending to show that the plaintiff had not been hurt at any other time, and, as has been said, evidence from which, we think, the jury might properly find that plaintiff’s rib was fractured before November, 1905.

In the opinion of the majority of the court, not including the writer of this opinion, the jury might from the evidence properly find that plaintiff’s rib was fractured in the collision between the street car and freight car and therefore, in the opinion of the majority of the court, the verdict cannot be said to be against the evidence.

We find no error in the rulings of the court on questions of evidence, and do not think that the damages can be held excessive. The judgment of the Superior Court will be affirmed.

Affirmed.

Mr. Justice Bakes dissenting.


author: Mb. Justice Chttraus

text:
    John E. Burns Lumber Company, Appellee, v. W. J. Reynolds Company et al. On appeal of South Side Lumber Company, Appellant.
    Gen. No. 14,481.
    1. Mechanic’s liens—right to rely upon statement. A statement under section 22 of the Mechanic’s Lien Act is made to bring home to the contractor and to the owner notice of who were furnishers of work and material under the subcontract, and the owner has a right to rely-upon such statement as being true.
    2. Mechanic’s liens—what practice prevails. While a mechanic’s lien proceeding is a statutory proceeding, in derogation of the common law wherein a lien claimant is wholly dependent upon strict compliance with the statute for a lien, and while the substantive principles of equity are totally inapplicable in furtherance or support of the statutory provisions in order to establish such statutory creation, yet, under the statute, the practice and procedure in these lien suits is according to the practice and procedure in chancery.
    3. Mechanic's liens—when exception not necessary. In a mechanic’s lien proceeding it is not necessary, in order to save a point arising from a total absence of evidence to sustain the theory and the allegations of the bill, to take any exceptions before the chancellor.
    4. Mechanic’s liens—who necessary party. In a proceeding to which those who have furnished materials to a subcontractor seek liens, it is necessary to the granting of the relief sought that the actual subcontractor be made a party defendant.
    5. Evidence—effect of leading questions. The probative value of a witness’s testimony is very much lessened where obtained by leading questions which are so put that the witness merely assents to or dissents from a statement or assertion of an examining counsel put with such vocal inflection as to be a question.
    6. Pleading—proof and evidence to correspond. A party cannot make one case by his pleadings and a different case by his evidence and yet recover. Parties cannot avail themselves of a ground of complaint or defense not set up in a pleading, even though it appears in the evidence.
    7. Chancery—power to relieve from stipulations. It is within the power of the court of chancery to relieve counsel from stipulations inadvertently made in the progress of a cause.
    Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied May 28, 1909.
    Reversed and remanded.
    Opinion filed May 11, 1909.
    Egbert F. Kolb and John E. Crawford, for appellant.
    William: S. Corbin and Holden & Buzzell, for appellees; William H. Holden, of counsel.
   Mb. Justice Chttraus

delivered the opinion of the court.

On December 29, 1906, the John E. Burns Lumber Company, a corporation, filed its bill of complaint-in the Superior Court of Cook county, to establish and have enforced a mechanic’s lien upon certain real property of John W. Bradshaw. On December 30, 1907, * a final decree was rendered whereby the chancellor decreed mechanic’s liens in favor of the complainant for $1,468.92; in favor of the Schaller-Hoerr Company, a corporation, an intervening petitioner, for $603.07; and in favor of William T. Waterstraat, another intervening petitioner, for $251.67. The decree, in addition, includes allowances for solicitor’s fees of $200 to complainant, $75 to the Schaller-Hoerr Company and $75 to Waterstraat, which amounts are taxed as costs. The decree denies relief to Thomas Nicholson, the contractor, and to South Side Lumber Company, a corporation, two intervening lien petitioners. Upon the entry of the decree the South Side Lumber Company prayed for and was allowed an appeal. The cause is now before this court upon that appeal. John H. Bradshaw, the owner, has assigned cross-errors. Besides those named the William J. Reynolds Company, a corporation, sub-contractor, Charles F. Batchelder, owner and holder of a principal note and coupons secured by a trust deed upon the property, William A. Jeffries, trustee, and William H. Holden, successor in trust, in that trust deed, were made parties defendant. The property involved is a six story and basement store and warehouse building on the southwest corner of Franklin street and Couch place, in Chicago, Illinois.

Bradshaw contracted with Nicholson to have the latter put up that six-story store and warehouse building on the premises. Nicholson sublet the carpenter work, as the bill of complaint alleges, to “W. J. Reynolds Company, a corporation duly organized and existing under and by virtue of the laws of the State of Illinois, for the furnishing of the materials and performance of the work and labor for the carpenter work on said building.” Similar allegations, in respect to the carpenter work, are contained in the two intervening petitions of the Sehaller-Hoerr Company and Waterstraat. The owner, who, so far as the subcontract for the carpenter work was concerned, was an outsider and not in privity of contract, contends that there is no evidence in the record of any contract with the W. J. Beynolds Company, but that the evidence relating to the contract for the carpenter work tends to show that such contract was made withW. J. Beynolds, personally and individually. The only witnesses who testified, and the only ones who, apparently, had any knowledge on the subject of the making of that contract were W. J. Beynolds and Thomas Nicholson. Beynolds’ testimony is, clearly, only open to the construction that this contract was one between him, personally, and Thomas Nicholson. While it is true that, in the taking of his evidence, the W. J. Beynolds Company is at times referred to and that in questions, following such references, the use of the pronoun “you” might, in the mind of examining counsel, have related to that corporation, if there be such an one, the imputation of such meaning to the witness would squarely conflict and be totally inconsistent with other testimony and acts of the witness. With the witnesses at hand and the evidence so readily obtainable, we fail to see why the proof was not made more clear as to whom Nicholson made this sub-contract with, and whether or not such corporation as the W. J. Beynolds Company existed. When Beynolds was on the witness-stand he was asked: “Q. Do you remember what---You had a contract with Thomas Nicholson, I believe? A. Yes.” Upon further questioning he testified that the contract was a verbal one; that he was to be paid $11,624 by Thomas Nicholson, under the contract, and that he completed the contract. Furthermore, on August 30, 1906, Beynolds made a sworn statement bearing that date, addressed to Thomas Nicholson, the contractor, purporting to be a statement of the names and addresses of all parties having contracts “for specific portions of the work or for material,” upon this building, under him. In that sworn statement he states that the furnishing of work and material by these parties, under contract with him, was in pursuance of “my contract with you” for the carpenter work on the building in question. The statement is signed by him in his own proper name and, as we have said, sworn to by him. No such corporation as the W. J. Reynolds Company is in any way alluded to therein. The statement is consistent only with the view of Reynolds’ testimony that the contract for the carpenter work was between Nicholson and W. J. Reynolds and, consequently, inconsistent with the view of his testimony that the contract was between Nicholson and the W. J. Reynolds Company. The statement was made under Section 22 of the Mechanic’s Lien Act to bring home to the contractor, and to the owner, notice of who were furnishers of work and material under the subcontractor and, in order to be valid and have effect, must necessarily be made by the subcontractor. In this particular instance, as appears from the evidence, it was made to obtain money from the contractor and owner and money was, in fact, obtained thereby. The making of this statement was a most deliberate act by Reynolds. It may not be directly material at this time, but it may be suggested that furnishers of labor and matérial to contractors and subcontractors, and not the owner, are liable to be the losers by untrue statements made by contractors and subcontractors, where such furnishers have failed to give notice. It appears to be the general policy of the lien law that the owner shall have the right to rely upon these statements being true, and that he shall not suffer by their falsity. A contrary policy would, of course, very much hamper contractors and subcontractors in obtaining payments from owners and in obtaining contracts. An owner constructing a large, extensive building would find it very difficult to verify the truth of such statements by ascertaining the amounts due to and the names of all employes and material furnishers of the contractors and subcontractors, should he be required to do so in order to protect himself, while it is, .comparatively, an easy matter for subcontractors and furnishers of labor and material to protect themselves by notice under the law. Thus, upon a balancing of the hardships and inconveniences between the owner and those to be protected it appears to be more equitable that in case of loss, through an untrue statement, the loss should fall, as appears to be the policy of the law, upon the material furnisher who has failed to give timely notice.

In respect to the testimony of the witness Nicholson we must first remark that the probative value of a witness’ statement is very much lessened when obtained by means of leading questions which are so put that the witness merely assents to or dissents from a statement or assertion of an examining counsel put with such vocal inflection as to be a question. It is the experience of all of us that frequently a witness, not trained as lawyers are to watch closely and to carefully analyze the precise drift of language used, misses the precise point and purport of questions and assents or dissents as to something not, in reality, asked. This,- of course, should not, but it does happen; hence we often find inconsistencies in evidence where proper questions would have developed nothing but consistency. In this record we find many serious violations of the rules of evidence in the respect referred to and an unsatisfactory condition in Nicholson’s testimony on the subject of who the carpenter contractor was. He stated the contract was a verbal one, made by telephone. He was asked: “Q. Did you have the contract for the furnishing of any materials in the performance of any work, on this building, with the W. J. Reynolds Company? A. Tes.” “Q. About what time with reference to the date of this contract, ‘complainant’s Exhibit 34’ was your contract with the W. J. Reynolds Company made and entered into? A. There was no written contract with Mr. Reynolds, I got a bid from Mr. Reynolds before putting in my proposal on this work.” “Q. About what time did you receive this verbal proposal from the Reynolds Company, Mr. Nicholson? A. Probably two or three weeks before I put in my bid [to the owner]. No, about a week.” “Q. What was this proposal, this verbal proposal you received from the Reynolds Company-over the telephone? A. He was to complete the carpenter work.” “Q. What did you later say? A. I accepted his proposal to do that work.” Persistently, counsel sought to lead the witness into acquiescing in counsel’s statement that the carpenter contract was with the W. J. Reynolds Company, and almost as persistently the witness replied, in substance, that the contract was with him, W. J. Reynolds. There was, in the answers, a continuous, sort of subconscious, avoidance of counsel’s subtle assertions. Nicholson, it also appears, made written statements to the owner. As he was the contractor, these statements were made in actual or attempted compliance with section 5 of the lien law. Upon Ms direct examination in Ms own behalf, he testified that before any certificate, showing him to be entitled to any payment, was made out to him by the architects he made a statement as to who his subcontractors were and the amounts of their contracts. This statement was, therefore, made before any money was paid him, and it was delivered to the architects, who were acting for the owner. It was. shown to be lost and therefore not introduced in evidence. It was also shown to have been subscribed and sworn to before a notary public. Nicholson testified to its contents and as to the subcontractors named therein and the amounts of their contracts and amounts due and to become due each for labor and material furnished. He testified its contents were the same as the contents of another statement he subsequently made to the architects, under date of August 31,1906, in the form of a letter and not sworn to. This latter statement was Mtroduced in evidence and shows as subcontractor for the carpenter work W. J. Reynolds—not the W. J. Reynolds Company—and that the amount of the contract was $11,624 less $800. As the first payments made by the owner to Nicholson and subcontractors, were made on July 2, 1906, which amounted to $8000, the lost statement must have been made at or before that time.

On September 1, 1906, a letter was written by Nicholson to the architects and in that letter he says: “In my letter to you, yesterday, I gave you the amount of my contract with W. J. Reynolds in full. I note there is to be a deduction of $800 from this amount for stairs left out,” etc. We have carefully discussed and considered the question whether, upon the evidence in this record, it must be regarded that Nicholson made the subcontract for the carpenter work with W. J. Reynolds or with the W. J. Reynolds Company, and we have come to the conclusion that the evidence shows the contract to have, been made with W. J. Reynolds.

We have not failed to observe that after the trouble arose Nicholson, under date of December 31, 1906, for the purpose of obtaining the final payment upon the contract from the owner, made a statement under oath that all the bills incurred by him, in connection with the building, were paid, except “W. J. Reynolds Co.” $1,027.84 and another for $95. We have also observed that during a period beginning with July 24, 1906, and ending with November 23, 1906, five vouchers for carpenter work upon the building were issued by the architects, Hill & Woltensdorf, to W. J. Reynolds Company, for an aggregate sum of $10,200. These vouchers were all paid by the owner in due course of business. In the course of Nicholson’s testimony, when the point as to who was the carpenter contractor was not directly in question, various statements appear which may be regarded as being, inconsistently, to the effect both that the contractor was Reynolds and that the contractor was the W. J. Reynolds Company. We have further observed that in the course of the hearing before the master all parties, having certain purposes in view, as for instance that certain contracts were completed and that certain amounts were due, joined in a verbal stipulation to that effect and in such stipulation it appears in the verbiage thereof to be assumed that the W. J. Reynolds Company was the carpenter contractor. From the evidence, altogether, it seems that during the earlier period of the transactions the carpenter contractor was more consistently regarded to be W. J. Reynolds. Perhaps the fact is that he did business under the name and style of W. J. Reynolds Company as a de facto corporation and regarded himself as its president. At all events, the burden of proof was upon the complainant and intervening lien claimants to show, by a preponderance of the evidence, that the carpenter contractor was the W. J. Reynolds Company and in that regard they have totally failed.

The rule is fundamental that a party cannot make one case by his pleadings and a different case by his evidence and yet recover. Parties cannot avail themselves of a ground of complaint or defense not set up in a pleading, even though it appears in the evidence. Purdy v. Hall, 134 Ill. 298; Stokes v. Riley, 121 Ill. 166, 172; Condit v. Stevenson, 13 Ill. App. 417; Johnson v. Foreman, 16 Ill. App. 632; Neuberger v. Rountree, 18 Ill. App. 610; Klemme v. Klemme, 37 Ill. App. 54; Brant v. Hutchinson, 40 Ill. App. 576, 582; Gutsch Brg. Co. v. Fischbeck, 41 Ill. App. 400; Jewett v. Sweet, 178 Ill. 96, 101; Kehm v. Mott, 187 Ill. 519, 522. “The theory of a bill must be made to appear from the allegations in it.” Quinn v. McMahon, 40 Ill. App. 593, 600.

The legislature adopted the practice and procedure in chancery, so far as not inconsistent with anything contained in the Mechanics’ Lien Act, rather than the more inapplicable procedure of the common law courts, to be used in the enforcement of mechanics’ lien suits. Section 12 of the Mechanics’ Lien Act, which relates to practice and procedure in the prosecution of lien proceedings, provides for the exercise of the powers and jurisdiction of the chancery forum, and the rules of that forum, as to practice and procedure, in the prosecution of lien proceedings. This applies both before the chancellor and upon review. Therefore, while a mechanics’ lien proceeding is a statutory proceeding, in derogation of the common law wherein the lien claimant is wholly dependent upon strict compliance with the statute for a lien and while the substantive principles of equity are totally inapplicable in furtherance or support of the statutory provisions in order to establish such statutory creation, yet, under the statute, the practice and procedure in these lien suits is according to the practice and procedure in chancery. It was therefore unnecessary, in order to save the point arising from a total absence of evidence to sustain the theory and the allegations of the bill, to take any exceptions before the chancellor. Swift v. Castle, 23 Ill. 132 (*209); Smith v. Newland, 40 Ill. 100; C. A. W. Co. v. C. M. L. I. Co., 57 Ill. 424, 434; Miller v. Whelan, 158 Ill. 544, 552. In chancery an appeal is, in effect, a retrial, de novo, of the case, upon the record of the proceedings before the chancellor. Dunnom v. Thomsen, 58 Ill. App. 390, 395; Flaherty v. McCormick, 123 Ill. 525, 533. If there is competent evidence in the record sufficient to sustain the decree, it must be affirmed; if not, it must be reversed. Treleaven v. Dixon, 119 Ill. 548, 551; Grogan v. Burdick, 182 Ill. 126; Davis Paint Co. v. Metzger Paint Co., 188 Ill. 295. There is not, in this record, sufficient competent evidence to sustain the allegations of the bill in respect to the subcontract.

The complainant, John E. Burns Lumber Company, the intervening petitioners, Schaller-Hoerr Company and William T. Waterstraat, who were allowed hens, and the intervening petitioner, South Side Lumber Company, who was not allowed a lien, are all furnishers of material for the subcontract and, being of that class, they, as they are obliged to do, claim liens under section 22 of the Mechanics’ Lien Act. They contracted with and trusted the subcontractor and, through that relation, they claim their lien upon the property. Should they eventually establish a right to liens and thereby the amount the owner would be obliged to pay for the carpenter work be made to exceed the contract price, a right to be reimbursed by the subcontractor, if not by the original contractor, would arise. It is, therefore, of the highest importance that the actual subcontractor, a party in interest and under the lien law a necessary party as such, be a party to this proceeding. The owner’s right to reimbursement would arise because of his being compelled, in order to protect his property, to pay out money which it was primarily the duty of another to pay. Chudnovski v. Eckels, 232 Ill. 312, 317, and Chicago v. P. C. C. & St. L. R. R. Co., 146 Ill. App. 403.

It appears that on March 19, 1906, Nicholson contracted with the owner to furnish “the material, labor, tools, machinery, etc.,” and to build and complete “all the General Work” of the building in question, to be completed on or before September 1, 1906. In that contract Bradshaw, the owner, as the consideration, agreed to pay Nicholson $45,300 and, in addition to that sum, $1104.39 became due the contractor for extras. The building was completed about November 1,1906. ' At the time of the institution of this proceeding, payments had been made by the owner so that only $2208.80 was due the contractor and, through the owner or his agents, the architects, payments had been made by the contractor to the subcontractor so that there was then only $1055.53 due to the carpenter subcontractor from the contractor. At the same time there was due the furnishers of material, John E. Burns Lumber Company, the Schaller-Hoerr Company, William T. Waterstraat and the South Side Lumber Company, under their contracts with the subcontractor, an ággregate of $4892.52, exclusive of interest. This aggregate includes $1281.84 disallowed to the South Side Lumber Company and $1405.15 disallowed to the John E. Burns Lumber Company. Thus it appears that there was due to the material furnishers from the subcontractor more than there was due him from the contractor and even more than there was due from the owner to the contractor. Hence it was, in this particular case, of .the greatest importance, both to the owner and to the contractor, that the subcontractor should have been made a party and shown, by a preponderance of the evidence, to be the subcontractor.

Complaint is made by the owner because there was taxed against him $350 for fees for the solicitors of •the successful lien claimants under a provision in the Mechanics’ Lien Act which has been held unconstitutional by our Supreme Court in Manowsky v. Stephan, 233 Ill. 409. The opinion in that case was not published until some time in April, 1908. According to that decision there is no warrant in law for allowing attorneys’ or solicitors’ fees to successful lien claimants and there is no inherent justness in the imposition of any such penalty upon an owner, whatever may be said in that respect with reference to the contractor or subcontractor who defaults in his obligation. It appears very much like enforcing a collection from one of what may be justly due from another. However, on the part of the lien claimants it is said that in this particular case the allowance has been agreed upon. That is disputed. The verbal stipulation, the interpretation, of which is in contention, was made in May, 1907, before the above mentioned decision of the Supreme Court was rendered. It may therefore be regarded as inadvertently made, although the lien claimants’ view of the stipulation should be regarded as the true one. The chancellor may, upon application, relieve solicitors from stipulations in a cause inadvertently made and will always do so when it is just that it be done. As this cause is remanded, it is unnecessary for us to pass upon the effect of the stipulation in question.

There are other questions in this record with reference to the lien claims, but in view of the state of the record, as heretofore shown, upon the question of who was the subcontractor and whether, in that respect, there has been a failure to bring in a necessary party, we do not pass upon those other questions. The decree of the chancellor is reversed and the cause remanded for such further proceedings as may not be inconsistent with what we have said herein.

The costs of this appeal will be paid by the lien claimants in whose favor a decree was rendered, John E. Burns Lumber Company, Schaller-Hoerr Company, and William J. Waterstraat in the proportions of 14/22 by the Lumber Company, 6/22 by the Schaller-Hoerr Company and 2/22 by Waterstraat.

Reversed and remanded.


author: Mr. Justice Chytraus

text:
    Isaac N. Rice, Appellant, v. Thomas E. Dougherty et al., Appellees.
    Gen. No. 14,992.
    1. Trusts—classification. Trusts are of two kinds: express and implied; implied trusts are again divided into resulting and constructive trusts.
    2. Trusts—what essential to establish resulting trust. In order to establish a resulting trust the one claiming it must show that he has furnished the consideration money or some aliquot part thereof, as part of the original transaction at the time the property, in which the trust is claimed, was acquired.
    3. Accounting—chancery follows profits. No matter what form profits may be converted into, equity will follow them.
    4. Decrees—what aids construction of. A decree must be read and" construed in connection with the pleadings.
    5. Decrees—when final. A decree is final which clearly and conclusively fixes the relative rights of the contending parties in respect to the questions in contest.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied May 25, 1909.
    Reversed and remanded.
    Opinion filed May 11, 1909.

      Statement by the Court. This is an appeal from a a decree, rendered October 14, 1907, in the Circuit Court of Cook county, dismissing for want of equity the complainant’s, appellant’s, bill of complaint.
    Appellant, Isaac Ñ. Rice, filed his bill, on January 22,1900, against Thomas E. Dougherty and the Schaeffer Piano Manufacturing Company. The controversy involved is between Rice and Dougherty.
    The hill in substance alleges: That complainant is a man of long experience in the manufacture and sale of pianos; that on January 1, 1908, and for some ten years prior thereto, he was president, superintendent and practical head of the Schaeffer Piano Company, an Illinois corporation, of which his wife was the principal stockholder; that the company had the right to manufacture and sell the “Schaeffer” piano which had been sold on the market for twenty-five years and had a valuable reputation with the trade; that in his aforesaid position he had assembled over one hundred workmen skilled in the manufacture and building of pianos; that, in December, 1897, the Chicago Cottage Organ Company, a creditor, obtained a judgment for about $16,000 against the Piano Company, and levied an'execution upon the plant of the company, including real estate, machinery, raw material, pianos in all stages of manufacture and equipments; that these assets were bought in, at a sheriff’s sale, by the Organ Company; that the real estate, machinery and equipments were of the value of $50,000 and the other assets were of the value of $30,000; that immediately thereafter the Piano Company made an assignment for the benefit of its creditors; that knowing the value of the assets and business and knowing the scales, patterns, the name of the “Schaeffer” piano and good will of the Piano Company’s business were not levied upon, and that the business could not be carried on successfully without these, complainant arranged with the Organ Company to purchase the assets bought by that company and with the assignee to purchase the assets he had; that when the Piano Company closed, the workmen were without employment and complainant arranged with them that they hold themselves in readiness to be assembled to resume work at the same plant; that having made these arrangements complainant advertised for some one with capital and the defendant Thomas E. Dougherty responded; that when he so responded complainant gave Dougherty full information concerning the plant, assets and business and of the profits to be made in continuing the same; that complainant and Dougherty then entered into negotiations regarding a partnership for the purchase of these assets and the continuation of this business; that the negotiations resulted in an agreement of partnership upon the terms that Dougherty was to furnish the necessary money for the purchase of these assets according to the terms previously arranged by complainant with the Organ Company and the assignee; that these assets were purchased and for that purpose Dougherty furnished about $23,000; that by mutual agreement these assets were to be transferred to Dougherty for the use and benefit of himself and complainant and he was to have a lien thereupon and hold the same to secure himself for the money he had advanced; that it was arranged complainant and Dougherty should, each, first draw from the business $200 per month for living expenses and then, after Dougherty had been repaid, all accruing profits were to be equally divided between them, they being equal partners in the excess above the purchase price; that they started in business on January 1, 1898, and continued for one year and further arranged for a continuation during the year 1899 and started upon the business of that year; that complainant having implicit confidence in the integrity and financial and business ability of Dougherty, and Dougherty having no knowlege or experience in manufacturing pianos, it was arranged that Dougherty should have charge of the financial affairs and have control of the books and management of the factory, in so far as the supervision and operation of the plant and business was concerned, and that complainant should have charge of the sales and policy to be adopted in conducting the business and the sales and he supervised and determined the character of pianos to be made and controlled the sales; that these duties on the part of complainant required him to spend the greater portion of his time away from Chicago and outside of the state of Illinois; that during the year 1898, after the forming of the partnership, it was agreed to organize a corporation to be called the Schaeffer Piano Manufacturing Company and that the assets should be transferred to that corporation in payment for its stock, and, further, that Dougherty should take charge of the matter of forming such corporation; that a proposition of issuing preferred stock to Dougherty, in payment of his investment, was at first considered but, later, it was agreed that the corporate stock should be equally divided and bonds, to the amount of $35,000, secured by the property of the corporation, should be issued to Dougherty in payment of the money then owing to him; that the difference between $35,000 and what was due him he agreed he would advance to be used as working capital; that, subsequently, during complainant’s absence, Dougherty organized such corporation and himself subscribed for all the stock except two shares, one of which was issued to his wife and the other to his attorney; that the assets purchased from the Organ Company Dougherty caused to be conveyed directly to the new corporation ; that the business aforesaid began to be profitable at the start and has continued to be a profitable and paying business ever since and complainant’s just share of the profits is $40,000; that the new corporation has conducted the business ever since its organization; that complainant has frequently requested of Dougherty that the corporate stock be equally divided, as arranged, and that bonds be issued, as was also arranged, but Dougherty has from time to time put bim off and has failed and neglected to comply with the requests; that, in 1899, while complainant was away from the state, Dougherty assumed exclusive control and has ever since refused and declined to allow complainant to have any connection with the business, or, thereafter, to draw the $200 per month or any portion thereof and Dougherty now holds and claims sole and exclusive ownership.
    The prayer of the bill is for a general accounting; that the respective rights of complainant and defendant may be ascertained; that a receiver be appointed; that the partnership be decreed dissolved, and for general relief.
    The corporation answered admitting the purchase of the assets of the old corporation, but denied that complainant had any interest therein, and set up that complainant, was merely a salesman who had been discharged "by the corporation.
    Dougherty filed his answer on February 5,1900, and denied substantially all of the allegations of the bill of complaint except the purchase of the assets of the old corporation. This answer sets up the organization of the new corporation on February 10, 1898, with a capital stock of $75,000, and asserts that complainant has no interest therein.
    On November 21, 1900, an order was entered in the cause referring it to a master “to take and report the evidence together with his opinion thereon as to whether the complainant is entitled to an interlocutory decree directing an accounting herein.”
    After the lapse of a period of substantially five years from the date of reference, the master, on October 26,1905, made a report to the court of the proceedings during the reference. The testimony of the witnesses heard during the reference appears upon less than 123 typewritten pages. Neither party appears to have exhibited any diligence in the prosecution of the cause; nor did the master make any effort to expedite or terminate the same.
    The master states his conclusions as follows: “Taking, therefore, into consideration all the facts and circumstances surrounding the parties at the time, their subsequent course of conduct, as well as the testimony of the parties, I am of the opinion that the only arrangement at the time the property was purchased by Dougherty was the arrangement, as testified to by Dougherty, that is, that Bice should be employed with a salary of $200 per month as sales agent and should receive, in addition, one-half the net profits for the first year if there were any.
    “I find further that the complainant has failed to sustain the allegations of his bill of complaint, and that the bill should be dismissed for want of equity.” Objections to this report were filed by complainant, and, having been overruled by the master and filed in court they were, on January 3, 1906, ordered to stand as exceptions to the report.
    At the June term, 1906, viz: July 13,1906, the exceptions having been heard, a decree was rendered by the then sitting chancellor, as follows: “It is considered and ordered by the court that the said exceptions of complainant, to the said report of the master in chancery herein, be, and the saíne are, hereby sustained.
    “The court finds that the complainant is entitled to an interlocutory decree, directing an accounting herein; and It is ordered this cause be, and the same is, referred to Boswell B. Mason, one of the masters in chancery of this court, to take and state an account herein, allowing the defendant, Thomas E. Dougherty, interest on the money invested by him, at the legal rate, and a salary of two hundred dollars ($200) per month, and allowing the complainant a salary of two hundred dollars per month and half of the net profits.” At the September term, 1906, on the nineteenth day of that month, the following order was made: “On motion of defendants it is ordered that the motion of defendants to vacate the order of July 13, 1906, be and hereby is entered and continued.” We find no motion, such as that referred to, in the record.
    On October 3, 1907, the following order was made and entered: ‘ ‘ On motion of solicitor for defendants the interlocutory order entered herein on the 13th day of July, 1907, [?] directing an accounting herein is set aside and a rehearing herein is allowed upon the exceptions filed by complainant to the master’s report. ’ ’
    On October 14, 1907, the chancellor reheard the exceptions to the master’s report and rendered a decree as follows:
    “This cause having been brought on this day to be heard upon a bill of complaint, the several answers of the defendants thereto, the replications to said answers, the proofs and exhibits herein and the report of Edward A. Dicker, a master in chancery of this court, made in pursuance of an order of reference and the exceptions of complainant to said report; and said exceptions having been argued by counsel for the respective parties hereto, it is ordered, and adjudged by the court that said exceptions be overruled, and the said report be and is hereby confirmed.
    “Now, therefore on consideration thereof, it is ordered, adjudged and decreed that the complainant’s said bill of complaint be and the same is hereby dismissed for want of equity, with costs to the defendant to be taxed by the Clerk”
    This appeal is prosecuted to reverse that decree. Among the errors assigned are: one that the chancellor erred in allowing a rehearing upon the exceptions to the master’s report, and one that the chancellor erred in dismissing complainant’s bill of complaint for want of equity.
    Fraucis M. Lowes, for appellant; Walter Olds and Thomas Marshall, of counsel.
    W. S. Oppenheim, for appellees.
   Mr. Justice Chytraus

delivered the opinion of the court.

Trusts are of two kinds: express and implied. Implied trusts are again divided into resulting and constructive trusts. A resulting trust—being one of the class of implied trusts—arises only by implication of law and not by contract. ‘ ‘ Such a trust is never raised unless the money of the cestui que trust was used in the purchase of the property in which the trust is claimed to exist;” Jacksonville Nat. Bank v. Beesley, 159 Ill. 120, 125. In order to establish a resulting trust the one claiming it must show that he has furnished the consideration money or some aliquot part thereof, as part of the original transaction at the time the property, in which the trust is claimed, was acquired. We agree fully with appellees’ contention that there is in this case no room for establishing a resulting trust. But the bill is not framed upon the theory of establishing a resulting trust. The theory thereof seems to be a mixed one of constructive trust and partnership. It is a very inartificial bill of complaint and was apparently drawn without opportunity of full preparation and without a clear and well-defined idea, in the mind of the pleader, of maintaining the bill upon any definite theory of law. The ground covered and the scope of the statements rather incline to the theory of a constructive trust. These trusts, like the resulting trusts, arise, wholly, by implication of law and irrespective of contract. Equity establishes them in order to prevent one person from taking any unfair or unjust pecuniary advantage of another where that is made possible either by reason of some position or relation in which that other has been placed by such person or by some other fiduciary relation. See, for instance, Davis v. Hamlin, 108 Ill. 39. In the bill before us the theory of a constructive trust appears to be that Bice, at the time Dougherty appeared, was in a situation of some financial value and advantage, in connection with the assets and business of the old piano company and the opportunity of forming a new and promising business. The new business was formed, as a result of the combined efforts of Dougherty and Bice, although the contribution by each was of a different character and the business, as alleged, did in fact become a very profitable and prosperous business. Thereupon, it is alleged, Dougherty, who was, by reason of the trust and confidence imposed in him, enabled so to do, availed himself of the opportunity for his sole financial benefit and advantage and excluded Bice from the business and profits. It appears to be claimed that a constructive trust has arisen in favor of Bice in the profits that have grown out of the use of Dougherty’s money and Bice’s plans, initial knowledge, co-operation, time and other efforts. In this connection the manner in which Dougherty was brought into the business and what he has led Bice to believe and from time to time said to him, is also invoked. If it be true that Dougherty obtained a profitable investment of his money through Bice’s knowledge and efforts, together with his own, and, in the same connection, Bice was led to believe that, after Dougherty had been refunded his investment, they would share equally in the surplus or profits, Dougherty would be estopped from claiming the contrary after the business had proved profitable and then, no matter what form those profits might be converted into, equity would follow them.

But, as we are obliged to reverse and remand this cause, without consideration of the merits, we have refrained from an examination into these merits and we have no opinion thereupon.

We are of opinion that the decree rendered July 13, 1906, is a final decree. While that decree was drafted regardless of the rules and practice governing the formation of decrees yet, in' and by the language thereof and the necessary intendments and inferences that follow thereupon, that decree, so far as the chancellor, that is the Circuit Court, is concerned, finally operates upon and disposes of the rights of the parties which are in contention. The decree determines how the property subject-matter in controversy shall be disposed of. In that respect it does not contemplate, but clearly negatives the idea, that the chancellor shall again inquire or investigate any further. Obviously it is designed to be final and conclusive in that regard. That a decree must be read and construed in connection with the pleadings is an elementary rule, and that rule aids us here in understanding a decree which would, without it, perhaps, be unintelligible. The decree definitely and expressly allows each of the parties —Dougherty and complainant—two hundred dollars per month, which the bill discloses to be for living expenses. The payments of these amounts must, by necessary and reasonable intendment, be considered to begin when the business involved began. Being payable monthly these payments, by necessary inference, take precedence, in order of payment, ahead of other allowances provided for in the decree. In the light of the rule referred to we find the decree determines that Dougherty has the right to be refunded the money invested by him, there is no contention to the contrary in the pleadings, and the decree expressly provides that he shall have lawful interest thereupon, which is, in this state, five per centum per annum. The pleadings show no contention but what this investment, with interest thereupon, shall have priority, subordinate only to the monthly payments of two hundred dollars, and, besides, the use of the word “profits” in the decree, in providing for the disposition of the remainder determines for the master, who is to take the accounting decreed, the order of priority between this item and the remainder. Profit is naturally subordinate to investment. Finally the decree disposes of one-half of the net profits by allowing the same to the complainant and thus limits what he is entitled to, necessarily the other half is allowed to Dougherty, the only other person in contention according to the pleadings. Thus it appears that the basis upon which an accounting, if necessary in regard to the business conducted before the incorporation, might be had and the principles that should govern the master in taking such accounting, are clearly ascertainable from the decree. The decree further orders the cause to be referred to a master to take and state an account. The relative rights of the two contending parties, in respect to the questions in contest, are clearly and conclusively fixed by the decree. Without reversal of that decree the relative rights of the parties, so far as judicial adjudication is concerned, cannot be otherwise than as thus fixed by the decree.

When a decree determines and definitely settles the rights of the contending parties, relatively, with reference to the subject-matter of the controversy, then the decree is final. That is, when the relative quantity of interest of each of the parties is judicially fixed so that nothing remains but to carry out that adjudication in detail, as, for instance, by a reference to a master to take proof and report upon an accounting, between the parties, according to some basis fixed by the decree, or to ascertain the money equivalent of each of the interests, or to make a sale for division of the proceeds, then the decree is final and appealable. Such is the principle of De Grasse v. Gossard Co., 236 Ill. 73, 76. This is the more practical and, in reason, the better rule; for, perchance, the chancellor has erred in his determination in respect to the substantial relative rights of the parties. In such case to compel the parties to carry through lengthy and expensive accountings and make proof before the master upon an erroneous theory, before rectification of the error upon review, would put the parties to great and needless expense and, quite possibly, to irreparable injury, through waste of time and onerous expense. The rule, that a decree is final when it determines and definitely settles the rights of contesting parties, irrespective of the fact that something remains to be done, which the chancellor directs to be done before a ministerial officer of the court, such as a master or commissioner, is unquestionably correct on principle. The contrary, rule would, in some instances, involve a second exhausting proceeding before a master upon the correct theory and, sometimes, an accounting and public exposure of books, before a master, in the first instance, where, rightfully, there should be none. It appears clear to us that the decree of July 13,1906, is a final decree. Whether that decree is supported by the evidence is a different and distinct question, which is not involved in the present appeal. We hold that there was error in setting aside the decree of the June term of court at the September term of court and in then allowing a rehearing upon the exceptions to the master’s report. Consequently the decree of October 14, 1907, was erroneously rendered. The fact that the decree rendered at the June term was called an “interlocutory” decree is immaterial. The question whether a decree is final is not determined by what it is called, but by the contents thereof. The substance and effect thereof controls; not the intention of the chancellor, except as ascertained from the contents.

Reversed and remanded.