text:
    John T. Morris, Appellee, v. O’Gara Coal Company, Appellant.
    Gen. No. 18,359.
    1. Mines—assumed risk. Where plaintiff, while working with a new machine used for cutting coal in a mine, uses a pinch bar as a substitute for a jack to help hold the machine in place and the bar drops out of his hand, knocking him into the machine, the facts are not of such a character as warrant the conclusion that, as a matter of law, there was an assumption of risk by the plaintiff, and the question is properly submitted to the jury.
    2. Mines—contributory negligence. Where plaintiff is injured while working with a new machine used for cutting coal in a mine, there being a conflict in the testimony as to the position of plaintiff and what he was doing at the time of the accident, the question whether he was guilty of contributory negligence is properly submitted to the jury.
    3. Evidence—when conversation admissible. In a personal injury action,-where it is alleged that plaintiff was inexperienced in the use of the machine which eausedi the injury, a conversation between an employe working with plaintiff and the machine boss, when the latter was explaining to them how to run the machine, is admissible.
    4. Appeals and errors—saving questions. Where plaintiff was injured while operating a new machine in a mine and evidence is admitted to sustain a count alleging that defendant failed to instruct plaintiff regarding the use of the machine, but the jury are afterwards instructed at the request of defendant to disregard the count, defendant cannot complain of the evidence when he does not request the court to instruct the jury to disregard it.
    5. Evidence—impeaching testimony. Where plqintiff was injured while operating a new machine in a mine, the machine boss having testified on cross-examination that he did not remember saying that he did not know how plaintiff and another employe “would get along, as they were both green men, ’ ’ a witness is properly allowed to testify that such a conversation took place, for the purpose of impeaching the testimony of the machine boss.
    6. Evidence—expert testimony as to mine machinery. Where plaintiff was injured while operating a new machine in a mine, testimony of machine experts as to what constitutes a full equipment of such a machine is admissible.
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 3, 1913.
    F. J. Canty, Harry M. McConnell and George W. 'Miller, for appellant.
    H. Robert Fowler, Pomeroy & Martin and Kramer, Kíramer & Campbell, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is a suit for damages on account of personal injuries sustained by the appellee (plaintiff) while in the employ of the appellant (defendant). There was a trial before the court and a jury. From a judgment based upon a verdict in favor of the plaintiff this appeal has been perfected.

It appears that on the day before the accident the defendant had installed several mining machines, and that it was while plaintiff was working with one of the machines that the accident happened. The purpose of the machine was to cut out a portion of the coal at the bottom of the bed of coal sought to be removed.

The machine in question was operated by electricity. As described in the briefs, it consists of a motor body at the back and a frame around which revolves a chain with bits attached. The chain revolves from right to left, and as the coal is cut the motor body travels forward, pushing the frame and the bits further under the coal until a cut of 5% feet deep and three feet wide is made. Then it works back from under the coal, and when the bits come out the machine is moved over on the skids and another cut is made, and so on until the miners are ready to blast. In order to make the machine stable, so that a cut can be made, it is necessary to have two supports or braces, which are called “jacks,” one at the front end of the machine and the other at the back end of the machine. The hind jack is attached firmly to the back part. From there it reaches upward and backward, where it is braced against the roof of the room. The front jack is fastened at the left corner of the front end of the machine and is braced against the coal at an angle to the right. The face of the coal not being absolutely smooth or even, it is necessary that the front brace to the machine be of different lengths, which is accomplished by fitting what are called “jack pipes” over the end of the front jack.

A jack pipe is described as a hollow iron pipe large enough to slip over the end of the front jack, and the front end of the jack pipe is flattened so as to make it hold more firmly against -the coal. On this front jack for a distance of eight to twelve inches threads are cut. There is a wheel upon it. The jack pipe is slipped over the end of the front jack, and the bottom of the pipe rests against this wheel. By turning the wheel to the right it is made to move upwards along these threads, and by this means the front brace can be lengthened and pressed firmly against the coal. This distance of eight to twelve inches of play is not sufficient for the operation of the machine, on account of the unevenness of the face of the coal, and it is thus necessary for the front brace to be of different lengths at different times.

The portion of the machine that does the cutting is called the “chain” or “saw,” and the box-like portion at the back end of the machine is called the “motor body. ’ * The portion of the machine to which the front jack and the back jack are attached is called the “rack-rails” or “frame.” The portion within the rackrails and between the motor body and the front end of the rackrails is called the “pan.” In making a cut the frame or rackrails remain stationary, but the chain, the pan and the motor body move forward along the rackrails, the chain passing under the coal as the cut is made. After the cut is completed the machine is reversed, the motor body backs up to the back end of the frame, and the chain and pan back out from under the coal, but this does not reverse the motion of the chain. It continues to pass from right to left. Connecting the front end of the frame, or connecting the two front ends of the rackrails, is a cast iron called an ‘ ‘ angle iron. ” It is possible to take a rod and place one end against the coal and the other end against this angle iron.

The machine on the day in question was operated by two men. One of the, men was known as the machine runner, whose duty it was to brace the hind jack and remain on the back end of the machine and apply the power. His name was Enoch Bennett. The other man, the plaintiff, was known as the machine helper, his duty being to brace the front jack and to stand at the left side of the machine near the face of the coal, and shovel „back the fine particles of coal that were made by the machine in cutting its way under the coal. These two men commenced work on the machine on the day before the accident. The machine was equipped with but one jack pipe, about 18 inches long, for the front end. The first work was done in what was known as room No. 6, and one James Pry, an assistant machine boss, showed them how to get the mining machine into the room and instructed them. Six cuts were made with the machine in the room that afternoon, and Pry remained with them until quitting time. Pry informed Bichard Bennett, the machine boss, after leaving the men that the machine had only one jack pipe, and Bichard Bennett replied that he could not get another until he obtained material out of which to make it.

There is evidence tending to show that on the following morning Bichard Bennett went to the mine with the plaintiff and Enoch Bennett, at the request of Enoch Bennett, who asked that he show them how to handle the machine; that when Bichard Bennett’s attention was called to the fact that the front pipe and jack pipe were too short to reach, the face of the coal, he instructed the plaintiff to use a pinch bar in place of the front jack and pipe, and showed him how to use it as a substitute. Thereupon it would appear that Bichard Bennett left the two men to operate the machine ; that plaintiff later found that the front jack and jack pipe were too short to reach the face of the coal, and used the pinch bar in the manner in which he had been shown to use it. The machine made the cut without difficulty, the power was reversed, and in some way the pinch bar fell from its position, was caught in the bits of the chain, struck the plaintiff and threw him against the chain.

At this point the testimony of the plaintiff and the only other witness to the accident, Enoch Bennett, is conflicting. The plaintiff states that the bar fell from its position before he had an opportunity to get into the pan; that he was standing on the left hand side of the machine, waiting for the motor body to back out so that he could take the bar down. Enoch Bennett, who was a witness for the defendant, testified that just before the accident happened Morris was in the pan of the machine; that he had hold of the pinch bar that he was using for a jack; that he did not know whether it was with one hand or two; that the pinch bar dropped out of his hand and hit him, knocking him onto the right hand side of the machine; that the chain caught his leg and pulled him from the right hand to the left hand side of the machine. After the accident he was found on the left hand side of the machine. His left leg was so badly mangled that it was necessary to amputate it between the knee and the hip. He had two ribs broken, and sustained other cuts and bruises.

The case went to the jury upon six counts of the declaration, which alleged in various ways the plaintiff’s inexperience and lack of knowledge of the danger ; charged the defendant with failure to supply the machine with a front jack of sufficient length; charged a negligent order by the defendant to use the pinch bar as a substitute for the jack, and alleged that plaintiff did not know that the pinch bar was a dangerous substitute, while the defendant did or should have known, if in the exercise of reasonable care and diligence.

The contentions of the defendant are, first, that there was an assumption of risk on the part of the plaintiff, and that a verdict should have been directed in the defendant’s favor on this ground; second, that plaintiff was guilty of contributory negligence; third, that there were errors in rulings on evidence; and, fourth, that there were errors in the refusal to' give certain instructions tendered by the defendant.

We think the question was properly submitted to the jury as to whether or not the risk taken by the plaintiff was one assumed by him. It is one of those cases in which “all the circumstance's must be taken into account, and not merely the isolated fact of risk.” Hartrich v. Hawes, 202 Ill. 334; Swift & Co. v. O’Neill, 187 Ill. 337. Plaintiff had worked in a mine for many years prior to the accident. The machine upon which the accident occurred was a new one, and one with which the plaintiff had had practically no experience; there was an attempt by the foreman to instruct him; the machine lacked a front jack pipe long enough to brace the front end of it. In our opinion the facts are not of such a character as would warrant the conclusion that, as a matter of law, there was an assumption of risk by the plaintiff, nor are we prepared to say, after taking all of the circumstances into consideration, that the evidence in the record is of such a character as that the determination of the jury, as reflected in its verdict, was in this regard against the manifest weight of the evidence.

It was for the jury to determine whether the plaintiff was or was not in the pan holding the pinch bar; whether, if he was not in the pan, he should have been; whether or not plaintiff had hold of the pinch bar and allowed it to drop from his hands on the chain or saw, and, by their determination of these and other questions in the case, come to a conclusion as to whether or not the plaintiff was guilty of contributory negligence. We are unable to say that the plaintiff, as a matter of law, was guilty of contributory negligence, and we are not persuaded that the jury came to a wrong conclusion with respect to this phase of the case.

A conversation between Richard Bennett and Enoch Bennett in the presence of the plaintiff, was allowed to be recited. This had to do with the alleged request of Enoch Bennett to Richard Bennett that he show the former and the plaintiff how to handle the machine. We think this was competent in view of the allegations of the declaration as to the inexperience of the plaintiff, etc.

It is also complained that the plaintiff was allowed to testify as to the condition of the room in respect to the light at the time of the accident, and to the alleged fact that the mine manager did not give him any instructions with reference to his work as a machine helper. We find no error here such as should reverse the judgment.

Attention is called by the defendant to the provision of the statute, section 20, chapter 93, under which, in mines in which the works are so extensive that all the duties devolving upon the mine manager cannot be discharged by one man, other persons may be designated as assistants to the mine manager, who shall exercise these functions under the mine manager’s instructions. In the same division of this section it is provided that the mine manager shall have power to instruct employes as to their respective duties, and to require of all employes obedience to the mining law.

It is argued that because Frank Taggart and Richard Bennett, who were assistants to the manager, instructed the plaintiff, evidence that he was not instructed by the manager was harmful. At the time the testimony was admitted the seventh count of the declaration was still in the case. By instruction No. 1, given at the request of the defendant, the jury was directed to disregard the seventh count of the declaration, in which it was charged that the mine manager wilfully failed to instruct the plaintiff as to his duties, etc., and by instruction No. 23, given on behalf of the defendant, the jury were advised that the defendant was not required by law to instruct or give notice to the plaintiff as to risks or dangers which were obvious to him, or which might have - been discovered by him by the exercise of ordinary care, observation and attention; that plaintiff must be held to have assumed and taken upon himself all such risks or dangers, etc. Other long instructions on the question of assumption of risk were also given. We think that under the circumstances the case should not be reversed for the ruling on the evidence last referred to. The defendant did not request the court to instruct the jury to disregard it.

On cross-examination Richard Bennett, heretofore referred to as a witness for the defendant, stated that he did not remember having had a conversation with one John Smith regarding Morris and Enoch Bennett, in which he told Smith that he did not know how Morris and Bennett “would get along as they were both green men.” On rebuttal Smith was allowed to testify that such a conversation took place. The court, upon ruling upon the objection, stated in effect that the defendant was not bound “by any fear that Richard Bennett might have,” but that the question would be allowed to be answered merely for the purpose of impeaching the testimony of Richard Bennett. The testimony was properly received.

Certain questions propounded to machine experts, who testified as to what constituted a full equipment of a machine such as that upon which the accident occurred, were allowed to be answered. We think, under the authority of Donk Bros. Coal & Coke Co. v. Stroff, 200 Ill. 483; Henrietta Coal Co. v. Campbell, 211 Ill. 216, and Kellyville Coal Co. v. Strine, 217 Ill. 516, that no error was committed in receiving' the testimony.

Complaint is made of the refusal of the court to give two instructions proffered by the defendant. We feel it unnecessary to discuss tliis alleged error. The court gave more than thirty instructions tendered by the defendant, many of them of great length, and we think the jury were fully and thoroughly advised as to the law that should control them in their consideration of the case.

The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Clark

license: Public Domain

text:
    In re Estate of Robert Rudowsky, deceased. Charles Gottlob Todtleben, Executor, Appellant, v. Margaret E. Rudowsky, Executrix, Appellee.
    Gen. No. 18,394.
    1. Husband and wife—liability of husband for necessaries. The estate of the husband is liable for necessaries furnished to the wife during a separation due to the husband’s fault, by a son with whom she lived.
    2. Husband and wife—what testimony by wife in action for necessaries against husband’s estate proper. In an action by a son against his father’s estate for necessaries furnished his mother during a separation, testimony of the mother in favor of the son, which is against her interest, is proper when it does not include conversations with the father in his lifetime.
    3. Evidence—when introduction of will in action for necessaries against husband’s estate not prejudicial. Held, in an action against the father’s estate by a son for necessaries furnished his mother during a separation, that the introduction of the will of the deceased was not prejudicial to defendant.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 3, 1913.
    Christian Meier and Paul C. Meier, for appellant.
    Albert C. Wenban, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This suit arises out of a claim filed by Oscar F. Rudowsky against the estate of Robert Carl Rudowsky, deceased, for the maintenance of his mother, Margaret Rudowsky, the widow of the deceased, during a period extending over the last five years of the decedent’s life. On an appeal to the circuit court there was a trial before the court and a jury and a verdict and judgment rendered in favor of the claimant in the sum of $1,266.

There was evidence tending to show that the deceased and his wife had lived apart for about thirteen years prior to his death, and that she had lived during these years with her son, who was not married; and that the separation was due to the fault of the husband.

The case would seem to be governed by the well known principle of the common law, that the husband is liable for necessaries furnished the wife living apart from him, where the separation was caused by improper treatment on his part, or he assents to or acquiesces in such separation (Evans v. Fisher, 10 Ill. [5 Gilm.] 569; Ross v. Ross, 69 Ill. 569), unless the rule is different where a mother lives with her son. Our attention has not been called to any authority which holds that the fact that the person who furnishes the necessaries is a son or daughter, in any way alters the rule. In the case of Watkins v. DeArmond, 89 Ind. 553, a recovery was allowed the father of a wife who was thus living apart from her husband. We think the same principle should govern when the person making the claim is the son. The estate in the case before us is solvent, and it would appear that the husband during the last years of his life was amply able to support the wife if he had chosen to do so.

It is urged that the testimony of Mrs. Rudowsky was improperly received. We do not agree with that contention. She did not testify as to any conversations with her husband in his lifetime. Baker v. Baker, 239 Ill. 82. She was testifying against her own inter-, est, as she was entitled under the statute to one-third of the personal estate after the payment of all debts.

The will of the deceased was admitted in evidence over objection. Whether or not it was'allowable in evidence, we do not think its introduction prejudiced the appellant.

It is urged that the verdict was against the manifest weight of the evidence. We have carefully examined the record, and do not think there should be a new trial on that ground.

If any instructions were given by the court to the jury in the case, they do not appear in the record before us, and, therefore, we are unable to say whether or not the court properly instructed the jury as to certain questions of law which are raised in the briefs. So far as the record shows, the points are argued in this court for the first time. The judgment will be affirmed.

Affirmed.


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    Colonial Trust and Savings Bank, Appellant, v. Louis Thexton, Appellee.
    Gen. No. 18,403.
    1. Trover—what evidence in rebuttal of defendant’s testimony erroneously excluded. It is error in an action in trover for certain notes to reject a certified copy of the account of defendant with plaintiff bank and a copy of the accounts of defendant with the banks with which he had theretofore done business, when such evidence is in rebuttal of testimony by defendant that he had paid the notes and tends to indicate that payments when made on other notes were made by separate checks for a certain amount and that defendant did not have sufficient funds at the time in question to pay the notes.
    * Appeal from the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 3, 1913.
    Follansbee, McConnell & Follansbee, for appellant; Mitchell D. Follansbee and Clyde E. Shorey, of counsel.

      Harvey Strickler, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This suit was brought by the appellant, as plaintiff, against the appellee, as defendant, to recover the possession of four notes executed by the defendant on March 10, 1905. The possession of the notes not having been obtained by the officer serving the writ of replevin, the suit was tried as one in trover.

It appears that the plaintiff had had placed in its hands for collection 102 notes, all of the same amount and payable monthly. It is plaintiff’s contention that in December, 1909, the defendant paid to it $880, to be applied on the payment of notes numbered 47, 48, 49 and 50; that the notes were retained until the following month in order to ascertain whether the owner would accept payment at the face of the notes, thus waiving the interest; that having obtained such authorization, the four notes referred to were in the following month sent to the defendant, and that by the mistake of a clerk notes 51, 52, 53 and 54 were also sent, having previously, also by mistake, been marked “paid.”

Conferences were had between the parties, which resulted in the defendant’s turning over to the plaintiff the four notes last mentioned, and later on the defendant was allowed by the plaintiff the possession of the notes in order, as claimed by the plaintiff, that they might be shown to defendant’s attorney. At this time what is called a “trust receipt” was executed by the defendant, addressed to the plaintiff, reading as follows:

“Please deliver to the bearer the under mentioned property, which I hereby agree to hold in trust for you (I being your agent in handling said property) until I account to you by returning same, or its proceeds this day, to your satisfaction, or its equivalent, satisfactory to you to be rendered in its place, viz:
“Notes Nos. 51 to 54 inc. for $220 each, dated March 10, 1905, signed Louis Thexton.
Louis Thexton.”

There was a trial of the case before the court and a jury, and a verdict rendered for the defendant, upon which judgment was entered. On the trial the defendant claimed that the four notes had been paid by him. It appeared that other notes were not always, or perhaps ordinarily paid, as they fell due, but often months after they fell due. The defendant testified that he usually paid by check, and that previous to the fall of 1909 his checks were drawn-on a bank other than that of plaintiff; that in November, 1909, he opened an account with the plaintiff, and that thereafter, in so far' as checks were given, they were usually drawn upon plaintiff’s bank; that he did not know whether he had paid the notes other than by check; that he might have so paid them but that he did not remember. He further testified, in answer to a question as to whether it was probable that he paid $1,760 worth of the notes in November and December of the year 1909, that it was quite possible, and that he thought his bank book would show that he had money enough to pay them; that in November, 1909, he had no bank account other than the one with the plaintiff.

At the trial the plaintiff offered to introduce in evidénce a certified copy of the account of the defendant with the plaintiff, for the purpose, as it is alleged, of showing that never at any one time did the defendant have money enough in his account to pay eight of the notes. The plaintiff also offered in evidence copy of the accounts of the defendant with the banks with which he had theretofore done business. On objection of the defendant this proof was excluded.

The objection was not based, as we understand the record, on the ground that the evidence offered was in the shape of a transcript, but on two other grounds: first, that it was not rebuttal, and, second, that the accounts as offered did not tend to prove the things for which they were offered. We think that the evidence was in rebuttal of the testimony given by the defendant, a part of which has heretofore been referred to, and that the objection should have been overruled. These transcripts of the account appear in the record, and tend to indicate that payments when made were made by separate checks of $220 each, being the amount of each note. One of them further tends to prove that the defendant did not, after he opened an account with the plaintiff, have sufficient funds to his credit in the months of November and December, 1909, with which to pay eight of the notes.

For this error in the rejection of evidence the judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded. -


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    P. A. Lord Lumber Company, Appellee, v. John Callahan et al., Appellants.
    Gen. No. 18,408.
    1. Estoppel—waiver of mechanic’s lien. A materialman who executes a waiver of lien should not be heard to say that he gave it to allow the contractor to get money from an agent of the owner and at the same time say that he did not intend that the instrument should be treated as a waiver.
    2. Mechanics’ liens—waiver. A materialman’s waiver of lien, under seal, given to the contractor, and presented to the owner s agent, is supported by sufficient consideration where it is given to enable the contractor to get money belonging to the owner from such agent which the agent pays to such contractor.
    Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed June 3, 1913.
    Willis Melville and Charles 0 ’Donnell, for appellants.
    William A. Adams, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is a suit brought by the appellee against the appellants and others for the foreclosure of a mechanic’s lien.

The evidence would tend to establish the fact- that the appellant John Callahan was the owner of the lot upon which the building was erected; that he made a contract with one Walter Simpson (a defendant in the case but not an appellant) to erect a building on the lot; that a building loan was made with Engle, Zutz & Company for $1,500, which loan was sold to Ottlie Hinz; that Simpson had contracted to purchase lumber from the appellee to be used in the erection of the building; that the lumber was supplied; that Engle, Zutz & Company paid Simpson, by direction of Callahan, $1,000 of the $1,500 for which Callahan had given his note and trust deed; that Simpson asked them for more money with which to pay the appellee, and was told that he would have to get a waiver of lien from appellee before any more money was furnished. . This waiver was secured. It was addressed “to whom it may concern,” and recites that the appellee had been employed by Simpson to furnish lumber and millwork for the building in question, and then proceeds:

“How, therefore, know ye, that we, the undersigned, for and in consideration of the sum of one 00/100 Dollars and other good and valuable consideration, the receipt whereof is hereby acknowledged, do hereby waive, release any and all lien, or claim or right to lien on said above described building and premises under the Statutes of the State of Illinois relating to Mechanic’s Lien on account of labor or material, or both, furnished up to this, date by the undersigned to or on account of the said Walter Simpson for said building or premises.

“Given under our hand and seal this 15th day of February, A. D. 1910. ’ ’

It is signed “P. A. Lord Lumber Company, by J. H. Drees, Ass’t Secy.,” and the seal of the company affixed.

Upon presentation of this waiver Engle, Zutz & Company paid Simpson the balance of the loan. It further appears that in order to secure the waiver, Simpson executed his promissory note, payable ninety days after date, in the sum of $550, which was taken by the appellee and discounted at a bank; that after-wards Simpson failed to pay the note and it was taken up by the appellee. It further appears that at the time the waiver was given the amount due the appellee was $451.30. The master in his report, and the court in its decree, found among other things:

“that said Walter Simpson made application to the complainant for a so-called waiver of lien for the sole purpose of-, securing money from the trustee to pay for the materials delivered by the complainant; that the complainant issued and delivered to Walter Simpson, contractor, said waiver of lien so that Walter Simpson could secure from the trustee, Emil A. Zutz, the money to pay complainant for the material delivered; that said Walter Simpson, contractor, agreed to pay the note evidencing his indebtedness to complainant, ‘as soon as he secured the money;’ that said Walter Simpson, contractor, received from Einil A. Zutz, trustee, on presenting said waiver of lien the sum of five hundred dollars ($500); that he then and there notified said trustee that he, the said Walter Simpson, had given his note to the complainant herein; that after receiving said sum of five hundred dollars ($500) from said trustee, said Walter Simpson failed to pay for the material delivered to him by the complainant and failed and has since failed and refused to pay said note by him delivered to the complainant. ’ ’

It was further found that the note of Simpson, delivered to complainant, became due before deliveries of the material to the premises were completed; that the waiver of lien given by the complainant was for the purpose of enabling Simpson to pay complainant the amount of money due the complainant; that there was an entire failure of consideration of the waiver, and that the evidence showed that the acts “of said defendants” operated as a fraud on the complainant; that the owner of the property, Callahan, failed to require of the contractor a statement in writing of the amount of material purchased by said contractor, as required by statute, or any statement of the amount due any sub-contractor; that he allowed Simpson to receive $1,000 from the trustee of the first trust deed, without inquiring how this sum was disbursed; that in addition Callahan gave to the contractor personally the trust deed for $420 on the property described, after the owner had knowledge that the complainant’s claim was unpaid.

We do not agree in the conclusion of the chancellor with respect to this transaction. It would seem that the complainant accepted the note of Simpson, the contractor, in the sum of $550 as payment upon account, whether on the account of the lumber furnished on the premises involved in this case, or generally upon account, is not clear. Upon receiving this note the appellee gave to Simpson a waiver of lien and thus permitted Simpson to get from the brokers, who must be regarded in this matter as the agents of the appellant Callahan, the sum of $500, and the waiver executed by the appellee is under seal. A seal imports a consideration. Dymond v. Bruhns, 101 Ill. App. 425. In this case also, as in the case just cited, it would seem to be plain that an absolute waiver of lien was intended. The appellee ought not to be heard to say that it gave the waiver for the purpose of allowing Simpson to get from Callahan’s agent the $500, and at the same time that it did not intend that the paper given should be treated as a waiver. It is difficult to obtain from the record support for the finding that Callahan was guilty of fraud upon appellee. It was Callahan’s money which Simpson was enabled to get from Callahan’s agent by means of the waiver executed by the appellee. We think the payment by Callahan’s agent was ample and sufficient consideration to support the waiver upon the part of appellee. It was as though appellee had requested the payment to be made to Simpson upon the condition of its relinquishment of its right to claim a lien for the material theretofore furnished. Such has been the views expressed under similar circumstances by other courts. Hughes v. Lansing, 34 Ore. 118; Rand v. Grubbs, 26 Mo. App. 591; Edward Hines Lumber Co. v. Anderson, 141 Ill. App. 527; Benneson v. Thayer, 23 Ill. 317; Croskey v. Corey, 48 Ill. 442.

The amount of appellee’s lien as fixed by the decree was $697.28. This exceeded the amount that should be allowed by the sum of $451.30. The decree will be reversed and the cause remanded for further proceedings, in accordance with the views herein expressed.

Beversed and remanded with directions.


text:
    T. E. Overby, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 18,440.
    1. Evidence—parol. Where written contracts were entered into between an insurance company and an agent concerning the salary and commissions of the agent, testimony of such agent as to the terms of agreement is improper in an action by him for salary and commissions.

      2. Insurance—what provisions in contract between agent and company valid. Provisions in contracts between an insurance company and its agent to the effect that no suit at law or in equity should be maintainable by the agent against the company until ten days should have expired after service on the president or secretary of the company of a written statement of particulars and amount of claim against the company, nor after six months from the date of the official transfer of the business obtained by the agent for the company, are valid.
    Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed.
    Opinion filed June 3, 1913.
    Hoynb, O’Connor & Irwin, for appellant; Carl J. Appell, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this suit, brought by the appellee, as plaintiff, against the appellant, as defendant, a declaration consisting of the common counts was filed, together with an affidavit reciting that the demand of the plaintiff was for “money due on contract for salary and commissions earned as agent for plaintiff, including monies unlawfully withheld for alleged lapses and forced contribution for maintaining a ‘Booster Club,’ ” etc.” Afterwards an “additional bill of particulars” was filed, setting up a claim for “money due to plaintiff for amounts withheld from him for lapses on other agents’ business from December 15, 1910, back to September 6, 1909, $79.35.” Then follows a list of names of the policy holders, and a claim for deduction for lapse of policies where new policies were issued in substitution thereof, and for commissions due for renewals from April 8, 1908, to December 15, 1910. A list of names of other alleged policy holders is added.

A plea of the general issue was filed, together with an affidavit of merits stating the nature of the defense to be that the defendant had paid the plaintiff all moneys due, and never unlawfully withheld moneys for alleged lapses, etc.

There was a trial before the court and a jury, and a verdict rendered in favor of the plaintiff for $250, upon which judgment was entered.

The plaintiff, at the hearing, undertook to establish an oral agreement. Later on it appeared that there were several written contracts entered into, which were afterwards introduced in evidence by the defendant, excepting one dated April 29, 1905. The last of those introduced was dated September 6,1909, and the one of 1905 was attached to an affidavit on the motion for a new trial. All of the contracts had in them a provision to the effect that no suit at law or in equity should be maintainable by the plaintiff against the defendant until ten days should have expired after service on the president or secretary of the defendant of a written statement of particulars and amount of claim against the company, nor after six months from the date of the official transfer of the business obtained by the plaintiff for the company.

The only evidence offered by the plaintiff consisted of his own testimony and the testimony of two other ' witnesses, the latter on apparently immaterial points.

In view of the fact that written contracts were entered into, all of the testimony of the plaintiff with respect to the terms of agreement between the parties was improperly received.

It is not claimed that either of the provisions in the written contracts, heretofore referred to, had been complied with by the plaintiff. These provisions have been held to be valid in similar cases. Prudential Ins. Co. v. Hite, 69 Ill. App. 416; Better v. Prudential Ins. Co., 16 Daly (N. Y.) 344, 32 N. Y. St. Rep. 686; Prudential Ins. Co. v. Meyers, 15 Ind. App. 339.

We have carefully examined the record in the case and are of the opinion that the jury should have been instructed at the close of the case to find a verdict in favor of the defendant, a motion to that effect having been made by the defendant. The judgment will therefore be reversed.

Reversed.


text:
    William Condon, Appellee, v. Chicago Railways Company et al., on appeal of J. C. Pennoyer Company, Appellant
    Gen. No. 18,461.
    1. Appeals and errors—where certificate does not recite that transcript contains all the evidence. Where the certificate to a bill of exceptions is signed by another judge in the absence of the trial judge and does not recite that the transcript contains all the evidence adduced at the hearing, the question whether the verdict is against the manifest weight of the evidence is not before the court of review.
    2. Evidence—when not part of res gestos. Where plaintiff while standing on the foot board of a crowded street car was struck by rods on defendant’s wagon, the testimony of a witness as to what she heard the driver of the wagon say to the motorman is no part of the res gestee.

    3. Appeals and errors—where liability of defendants is several. In a personal injury action where the liability of defendants is several and the evidence against the defendant found guilty is sufficient to sustain the judgment, errors in rulings of the court as between the defendants, with which errors plaintiff has nothing to do, are not grounds for reversal. •

      4. Roads and bridges—duty of one driving a vehicle along a public street. Where plaintiff while standing on the foot board of a street car is struck by rods on defendant’s wagon, an instruction that it is not the duty of a driver of a vehicle moving along a public street to look out behind, that on the contrary the duty of such a driver is to look ahead so as to avoid collision with other vehicles or persons, is properly refused.
    5. Roads and bridges—duty of driver of wagon to look behind. Where a driver, knowing a street car is behind him, causes the wagon to leave the tracks to let the street car pass it is his duty to look hack to see that bars extending beyond the wagon are clear of the track as he changes the course of the wagon.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 3, 1913.
    Rehearing denied June 17, 1913.
    Boyle, Mott & Haight, for appellant.
    Quin O’Brien and O. A. Arnston, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the appellee, as plaintiff against the appellant and the Chicago Railways Company, as defendants, for damages on account of personal injuries received. There was a trial before the court and a jury, the court directing the jury to. find a verdict in favor of the Railways Company, which was done, and at the same time a verdict rendered finding the appellant guilty and assessing the damages at $7,000. Afterwards a remittitur was entered of $2,000 and judgment rendered for the balance.

The evidence tends to show the following facts:

The plaintiff, a man thirty-three years of age, was riding as a passenger on an open car of the Railways Company; the car was crowded, and appellee, with other men, was standing on the foot board on the right-hand side, about the center, with an arm around one of the uprights, others on the foot board being in front of him; the car upon which the appellee was riding came to within one hundred or one hundred fifty feet of the wagon of the appellant as the two were approaching a viaduct, the wagon being upon the car tracks and the horse moving slowly. The speed of the car was slackened, the driver on the wagon looked toward the car and caused the wagon to be pulled out of the tracks to the west, leaving a clearing space of four to six feet to the nearest part of the side of the car. The wagon was loaded with some sheet steel, on top of which were a number of rods of angle iron made of steel about twenty-four feet long, and so made as to be the shape of the letter “V” on the end. They were thrown on the wagon on top of the sheet iron, lying diagonally, and were so loaded that they extended a distance of. eight to twelve feet beyond the rear end of the wagon and projected over the east side of the wagon some distance, variously estimated at from six to eighteen inches. There is also evidence tending to show that when the car was about one hundred feet back of the wagon the speed was decreased so that it came almost to a stop; that the wagon was driven westerly out of the track; that when it was moving south on the west roadway its wheels were from four to six feet from the line of the car; that the end of the nearest projecting rod had a clearance of a foot and a half from the line of the outer edge of the foot board and the passengers thereon; that the motorman then moved the car forward slowly and kept ringing his gong; that when the car was passing, appellant’s driver suddenly turned his wagon to the right, and the rods were swung into the side of the car, knocking from the foot board all of the men who stood from about the center of it to the rear end; that the accident happened between street crossings; that several of the rods struck appellee, one of them running through his- thigh and strildng the woodwork of the car and bent downward into a curve; that he was shoved along the foot board and onto the street; that there was no intimation or warning that the driver was to make this unnecessary turn, and no opportunity for the men on the foot board to get off of the car or into the car before the accident; that the car ran only a few feet after the rods struck the appellee.

The only witness for the appellant as to the manner of the accident was the driver of the wagon who denied he was upon the tracks at any time. The great preponderance of the evidence, however, was to the contrary as heretofore indicated.

The certificate to the bill of exceptions was not signed by the trial judge, but by another judge of the Superior Court in his absence, and recites “that the above and foregoing is a true, full and correct transcript of the proceedings taken before the said trial judge in the above entitled cause.” As the certificate does not recite that the transcript contains all the evidence adduced at the hearing, the question as to whether or not the verdict was against the manifest weight of the evidence is not before us. Grand Lodge Ind. Order Free Sons of Israel v. Ohnstein, 110 Ill. App. 312. We have, however, examined the record, and are of the opinion that the verdict was justified in respect to the question as to the responsibility for the accident, if it be assumed that the record does contain all the evidence. ■

The first point raised in the brief of the appellant is the alleged error of the court in refusing to permit a witness for the plaintiff to answer a question propounded by the attorney for the appellant, as to what she heard the driver of the wagon say to the motorman. The objection was made by the Railways Company and not by the plaintiff. It was held by the court to be not proper cross-examination. We agree with counsel for the plaintiff that it was no part of the res gestae. Springfield Consol. R. Co. v. Puntenney, 200 Ill. 9; Lecklieder v. Chicago City Ry. Co., 142 Ill. App. 139.

It is next suggested by the appellant that the court erred in directing a verdict in favor of the Railways Company. The liability of the defendant was a several and not a joint one, and where, as in this case, the evidence against the defendant found guilty is sufficient to sustain the judgment, errors in rulings of the court as between the defendants, with which errors the plaintiff had nothing to do, are not grounds for reversal. Schmidt v. Chicago City Ry. Co., 239 Ill. 494.

An instruction was asked by the appellant to tlie effect that it is not the duty of a driver of a vehicle moving along a public street or highway to keep a lookout behind; that on the contrary the duty of such a driver is to look ahead so as to avoid collision with other vehicles or persons. We think the instruction was properly refused. If the driver knew that the street car was behind him, and caused the wagon to leave the tracks in order to let the street car pass, it was his duty to look back to see that the bars extending beyond the wagon were clear of the track as he changed the course of the wagon.

Other instructions are complained of as being improperly refused, but we think they were either covered by instructions which were given, or that they were inapplicable to the case for reasons heretofore set forth with reference to the instruction first commented on.

It is urged that the judgment should be reversed as being largely excessive in amount. The trial judge, who had before him the witnesses, required a remittitur to be entered by the plaintiff, and on the whole case we are unable to say that justice has not been done between the parties.

We do not agree with appellee in the contention that statutory damages for a frivolous appeal should be allowed in this case.

The judgment will be affirmed.

Affirmed'.


author: Mr. Justice Barnes

text:
    August J. Schultz, Administrator, Plaintiff in Error, v. Franz Meyer, Defendant in Error.
    Gen. No. 18,345.
    1. Evidence—to show note is payable on a contingency. Where after entry of judgment on a note against defendant on a narr. and cognovit, defendant ip permitted to plead, it is error to admit evidence that the note was given for the purpose of securing plaintiff, who signed certain notes as surety for defendant, and that in case defendant paid the notes, the note is question was to be void and returned to defendant.
    2. Evidence—to vary terms of a note. Parol evidence must not go to the extent of varying the terms of a note absolute on its face, showing that though on its face, it was given for one purpose, yet in truth and fact, it was given for a different purpose.
    3. Evidence—where note is payable on a contingency. The maker of a note cannot show as against the .payee an oral contemporaneous agreement which makes the note payable on a contingency.
    Error to the Circuit Court of Cook county; the Hon. Mazzini Slusseb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed June 3, 1913.
    A. J. Bedard and Samuel B. King, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff in error and defendant in error were plaintiff and defendant respectively in a suit brought on a judgment note. After entry of a judgment for plaintiff against defendant on a narr. and cognovit, defendant was permitted to plead. He filed a plea of general issue and notice of special matter of defense to the effect that the note in question was given to plaintiff’s intestate for the sole purpose of securing him for having signed as surety certain notes given by defendant and subsequently paid, and that there was an understanding between them at the time of the execution of said note sued on that in case the defendant made payment of said notes, which plaintiff’s intestate had signed as surety, the note in question would be void and returned to defendant.

On the trial plaintiff made a prima facie case by the introduction of the note sued on, arid defendant sought to prove the matter set up in said notice by the proof of certain facts which need not be recited, but which tended to support the defense relied upon in said notice.

The important question is whether such defense can be made. It necessarily conceded a consideration for the note and no failure thereof. The purport of it was to show a contemporaneous oral agreement limiting defendant’s liability; in other words, that he would he liable only on the contingency that the payee should be damnified as such surety.

We cannot look upon such evidence otherwise than an attempt to vary the terms of the note absolute on its face. Not only will the law presume that it was given for a valuable consideration, but the mortgage given to secure it expressly recites that the precise amount of the note was paid to defendant by plaintiff’s intestate. In Foy v. Blackstone, 31 Ill. 538, it was said that the “proof must not go to the extent of varying the terms of a note absolute on its face, showing that though on its face, it was given for one purpose, yet in * truth and in fact, it was given for a different purpose.” The court further declared that the rule is well settled that the maker of a note cannot show against the payee an oral contemporaneous agreement which makes the note payable on a contingency, and cites 2 Parsons on Bills and Notes, 508, and certain cases. The same rule was followed in Penny v. Graves, 12 Ill. 287; Harlow v. Boswell, 15 Ill. 56; Harris v. Galbraith, 43 Ill. 309, and Weaver v. Fries, 85 Ill. 356.

All these cases relate to actions upon promissory notes where the defense proved not to be want or failure of consideration but an attempt to vary the terms of the note itself. In the opinion of the Weaver case, supra, are cited other cases of the same character, and in all the principle above stated is adhered to. In some of them, as in the case at bar, an attempt was made to show that the note, absolute on its face, was in fact payable on a contingency, and such proof was held inadmissible.

This case must be reversed for receiving proof of such character. The other objections to the proof need not be considered.

Reversed amd remanded.


text:
    Frank Stipe, Appellee, v. Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company, Appellant.
    Gen. No. 18,387.
    Master and servant—railroads. Where plaintiff while engaged with a gang of men in cleaning snow from defendant’s tracks was struck by a push car which collided with a train at an intersection of the tracks, the negligence relied on being the failure to stop the train before reaching the crossing, to give warning of its approach and to * ascertain whether the way was clear before crossing; there being testimony of four witnesses for defendant that the engine stopped within 200 feet of the crossing and gave two whistles for the right of way, that the semaphore was then so placed as to signal to the engine that it had the right of way, and that it proceeded over the crossing with the bell ringing, the testimony of plaintiff being very meagre, a verdict in his favor is manifestly against the weight of the evidence.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 3, 1913.
    Rehearing denied June 17, 1913.
    Loesch, Scofield & Loesch, for appellant.
    Elmer & Cohen, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Being of the opinion that the judgment in this case must be reversed and the cause remanded on the ground that the verdict was manifestly against the weight of the evidence, we shall review the record only with reference to that conclusion.

The plaintiff, Stipe, was an employe of the Atchison, Topeka & Santa Fe By. Co., engaged with a gang of men in cleaning snow and ice from its tracks. They threw the material upon a car, called a push car, which the evidence tends to show they were pushing westward on said tracks, which ran east and west. Crossing them, north and south, were the tracks of the defendant Company, and one of its engines, hauling a freight train north, struck said push car at said crossing, hurling it to the west of defendant’s tracks against plaintiff and causing the injuries sued for.

The case was submitted to the jury on two counts, one of which charged negligence in the operation of the engine, and the other that defendant failed and neglected to bring the train to a full stop before reaching said crossing within 800 feet thereof but continued over- the same without stopping and without its engineer ascertaining whether the way was clear, contrary to provisions of the statute in such case made and provided.

The negligence relied on was failure in one or more of three things—to stop the train before reaching the crossing, to give warning of its approach, and to ascertain whether the way was clear before crossing.

Plaintiff’s case was supported by the testimony, more or less meagre, of himself and two of his fellow laborers. Testifying for defendant with reference to the accident were three persons on the engine, the locomotive engineer and two yard brakemen, a switch-tender, who at the time was at a shanty about twenty-five feet east and seventy-five feet north of the crossing, and two engineers, who at the time were engaged in running a survey fine for the Sanitary District of Chicago, and were about 150 feet north of said crossing. Their testimony was more or less replete with details consistent with their different points of observation.

On the question whether the train stopped, no one of plaintiff’s witnesses testified that it did not stop. Four of defendant’s witnesses, those on the engine and the switchman, swore positively that it did, and to circumstances so indicating. They testified that the engine stopped within 200 feet of the crossing; that, as was customary, it gave two blasts of the whistle for the right of way; that the semaphore was then so placed as to signal to the engine that it had the right of way over the crossing; that in response to such signal, the engine again gave two blasts of the whistle; that it thereupon started up, and was going from four to six miles an hour at the time it reached the crossing. They also testified that the automatic bell was ringing from the time the engine started. The switchman and Sanitary District engineers heard the train and saw it when it was about 150 to 200 feet south of the crossing.

The foreman of the gang, who at the -time of the accident had gone to a tool shanty about 150 feet away from the crossing, testified that the men of his crew had caps over their ears, it being a cold morning, which, in part, tends to explain their failure to hear the warnings that were unquestionably given, or the exhaust that was heard by the said engineers 150 to 200 feet farther north. ' -

There was another reason for their failure to hear or heed the warnings. It appears that they were accustomed to rely upon their foreman to give them notice of the approach of a train, and may thus have become more or less indifferent to such sounds, as trains were frequently passing in that vicinity. The testimony of the switch-tender that the men had their heads down when they were pushing the car toward the crossing, and that of the plaintiff that he did not look out for the approach of trains and did not know that the foreman had gone to the shanty, tend to support such an inference. On the whole we think the evidence tended most strongly to show that the train stopped and warnings of its approach were given.

Assuming for the sake of argument that the statute requiring the engineer to ascertain, after stopping the engine, if the way is clear before starting it again, applies to a “push car,” yet we think the testimony on this point also preponderates against plaintiff’s claim. While the plaintiff and one of his witnesses testified that the push car had been on the crossing about five minutes and his other witness that it had been there about fifteen minutes, the testimony of the switch-tender and the engineers, together with other circumstances, is strongly to the contrary. They testified that the men in the crew were pushing the car from the east toward the crossing after the train started; that some of the crew saw the train coming and “hollered,” and that all got out of the way except plaintiff. One of said Sanitary District engineers said the men were about twenty-five feet east of the track when the train was coming; that they “seemed to be in a hurry to cross in front before the train would come and when about 20 feet or 15 feet probably, some one called to hold the flat car back and a number of the men tried to hold it back and they found that they could not; the momentum of the car was pulling them in front of the engine and they all let go with the exception of two men, one of the men that was injured and the other man.” The testimony of his companion was substantially the same. He said that plaintiff stuck to the car and was pushing it along, and when he was just about in the act of getting away from the car, the engine struck it. The switch-tender testified that he saw the men about 15 or 20 feet east of the crossing, pushing a car toward it after the engine whistled and started, and that the plaintiff continued to stand by the push car after the others jumped away from it. Both of the Sanitary District engineers and the switchman testified there was nothing to obscure their sight of the train. None of the crew on the engine saw the push car. Whether or not the steam of the engine about them and blown in front of them after the train started up, prevented their seeing the approach of the push car, we think the particularity of detail as to the relative movements of the train and push car given by disinterested observers of the accident strongly supports the conclusion that the track was clear when the engine started.

"Under the foregoing circumstances, we think the evidence for the plaintiff was too meagre as against the harmonious testimony to the contrary of so many witnesses, some of them entirely disinterested, to establish negligence on the part of defendant.

Whether or not the evidence did not preponderate in favor of defendant also on the question of contributory negligence seems more than doubtful, but as the case must be remanded for a new trial on the ground stated, we need not consider it. We cannot say that it was a question of law. The judgment is reversed and the cause remanded for a new trial.

Reversed cmd remanded.


text:
    Marcus Sachs, Complainant, v. Simon Sachs et al., Defendants. Henry D. Raff, Appellee, v. The West Side Trust and Savings Bank, Appellant.
    Gen. No. 18,437.
    1. Banks—relation with depositor. The relation between a bank and its depositor is one of debtor and creditor and as a general rule a bank may deduct from the depositor's account a debt due from him.
    2. Beceivers—when not entitled to bank deposit. Where in an action between partners it is decreed that defendant pay complainant $1,500 and in case of default that a receiver should take possession of the partnership assets including its bank deposits, a bank which has appropriated a deposit in payment of a note which it held against defendant will not be required on petition to pay the receiver the amount thereof.
    3. Beceivers—eolleetion of assets. Where a receiver files a petition for an order requiring a bank, not a party to the receivership proceeding, to turn over a deposit alleged to belong to defendant, the petition not containing any averment of jurisdiction of the court over respondent should be dismissed.
    4. Beceivers—where bank is not a party to the proceedings. "Where a decree is entered in receivership proceedings that the receiver take possession of defendant’s bank deposits, the receiver is obliged to resort to a separate action to determine his right to a deposit where the bank, which was not a party to the receivership proceedings, claims the right to appropriate the deposit in payment of a note.
    5. Evidence—judicial notice. Where a receiver, files a petition for an order requiring a bank, not a party to the receivership proceeding, to turn over a deposit alleged to belong to defendant, the court cannot take judicial notice of the records in the receivership proceeding since respondent is a stranger to it.
    6. Evidence—where recital in decree does not prove appointment of receiver. "Where a receiver files a petition for an order requiring a bank, not a party to the receivership proceeding, to turn over a deposit alleged to belong to defendant, a recital in the decree referring to petitioner as receiver of the partnership property is not legal proof of his appointment.
    Appeal from the Circuit Court of Cook county; the Hon. Bichard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed June 3, 1913.
    McEwen, Weissenbach, Shrimski and Melgan, for appellant; Jerome J. Cermak, of counsel.
    Silber, Isaacs, Silber & Woley, for appellee; Frederick D. Silber, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from an order requiring the West Side Trust & Savings Bank, respondent to the so-called intervening petition of Henry D. Raff, receiver, to pay him the sum of $507.67, which it had charged against a deposit account therein of S. Sachs & Co., a corporation, one of the defendants to the chancery suit in which said petition was filed and to which respondent was not a party.

A final decree had been entered in said suit about a year before the filing of said petition, finding that another defendant, Simon Sachs, was a copartner of Marcus Sachs, complainant, and requiring him to pay the latter $1,500, and in case of his default, directing said Raff, as receiver of the partnership property, to take possession of certain property held in the name of said corporation, declared to be partnership assets, including its bank deposits.

The petition set up in substance that Raff was the “duly qualified and acting receiver of the assets of Simon Sachs and of S. Sachs & Co., a corporation,” and was administering the same under said final decree; that he served a copy of said decree upon said bank April 12, 1911, and that thereafter, April 17th, it appropriated a portion of the deposit account of S. Sachs & Co., as aforesaid, and asked for a rule on said bank to answer the same and that the issues presented be heard and determined by the court. Respondent appeared and moved to dismiss the proceeding for want of jurisdiction. The motion was overruled.

Respondent then filed its answer in which it neither admitted nor denied that Raff was the duly authorized and acting receiver of Simon Sachs or of said S. Sachs & Co., but demanded strict proof thereof. It also set up facts on which it claimed it was entitled to the sum in dispute, and that the court had no jurisdiction in the matter. The facts alleged were that on January 15, 1911 (more than two months after said decree, or any appointment of a receiver), S. Sachs & Co. discounted with it the note of one Seltzer for $500, due ninety days thereafter with interest at six per cent.; that on April 17th demand for payment was duly made on S. Sachs & Co. and Simon Sachs as endorser, and refused; that due notice of dishonor of said note was given them and that the sum aforesaid, being the amount of the principal and interest of said note, was, on account of the liability thereon of said S. Sachs & Co., appropriated by the bank as aforesaid, which it claimed the lawful right to do.

The court proceeded to hear evidence, consisting mainly of the decree in said suit and proof of service thereof on part of the petitioner, and the facts of the discounting of said note and charging the sum due as aforesaid on the part of respondent.

The record discloses no question of fraud, nor any circumstances or evidence tending to show any relation of agency or of a fiduciary character on the part of the bank toward either the corporation or the copartnership. Its relation to the copartnership was the simple one of debtor and creditor that exists between a bank and a depositor, and, as a general rule, a bank may deduct from the depositor’s account a debt due from him. Morse on Banks and Banking (3d Ed.), secs. 324, 328; Fort Dearborn Nat. Bank v. Blumenzweig, 46 Ill. App. 297. It plainly appears that the corporation was liable to the bank for the amount due on the note in question when it was deducted from the account. If the deduction was wrongfully made, the corporation itself had no remedy except by an appropriate action to recover a debt, and the receiver, asserting a claim thereto, would be obliged to resort to a separate action, as the bank claimed title to the fund and was not a party to the receivership proceedings. High on Receivers (4th Ed.), sec. 145; 34 Cyc. p. 213.

The petition, therefore, should have been dismissed not only for the reason that it lacked any averment of jurisdiction of the court over the respondent, it not showing either that the bank was party to the decree, or that the account in question was adjudicated therein, or that the bank was in possession of any property of the copartnership as agent or otherwise, but because respondent’s answer disclosed that the petition related to a fund to which one not a party to the original proceeding, nor alleged to be the agent of one, was asserting an adverse claim which the court had no power to try in such summary fashion.

Even the decree itself offered in evidence in support of said petition contains no finding that such account, or that which entered into it, consisted of partnership property or had in any way been brought within the jurisdiction of the court. To be sure, it directed Raff, as the receiver of said partnership property of Marcus and Simon Sachs, on the failure of the latter to pay the former $1,500, to take possession of certain property enumerated as partnership property, including “all moneys deposited in bank by said corporation, S. Sachs & Co.,” but the account in question was not specified, even if it was in existence.

The theory of the proceeding was that the court acquired jurisdiction of the respondent merely by a demand of the receiver for the fund accompanied by a notice of the decree. But the bank was not bound by said decree. Its rights had not been adjudicated therein, and neither its claim nor that of the receiver against it could be adjudicated upon a rule entered in a cause to which the bank was a stranger.

Even if, as claimed by petitioner, the matter of jurisdiction was waived, the allegation of the petition as to the receivership, of which strict proof was required by respondent’s answer, was not proved. No order of Raff’s appointment as receiver was introduced. The only evidence relating thereto was his testimony to the effect that he was “the receiver in this case,” but of whom or what was not shown. This proceeding not being properly a part of said case, nor against a party to it, the court could not take judicial notice of the record thereof as against a stranger to it. Only the final decree of the record of said case was introduced in evidence, but a recital therein, referring to Raff as receiver of the partnership property, was not legal proof of his appointment, and in no event tended to show that he was receiver of said Simon Sachs or of said corporation as claimed in the petition.

The order appealed from will be reversed with directions to dismiss the petition.

Reversed and remanded with directions.


text:
    Jehu M. Tague, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,448.

      Carriers—evidence of negligence. A verdict for plaintiff in an action for injuries received while attempting to board a street car is against the weight of the evidence, where plaintiff and a policeman, who is a personal friend, testify that the car stopped to permit them to get on and started while plaintiff was attempting to do so, but their testimony is contradictory, incongruous and improbable and the conductor, motorman and two passengers testify that plaintiff attempted to board the car while it was in motion and the testimony of the passengers, who are unimpeached, is intelligent, consistent and natural.
    Appeal from the Superior Court of Cook county; the Hon. John McNutt, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 3, 1913.
    John E. Kehoe and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    Lynn & Baumer, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

After a careful review of the evidence in this case, we can reach no other conclusion than that the verdict was- manifestly against the weight of the evidence.

The suit was one for personal injuries received while plaintiff was attempting to board one of defendant’s street-cars in Chicago on Thirty-fifth street, east of Michigan avenue.

One of the main questions at issue was whether the plaintiff made the attempt while the car was in motion. It was going east and had stopped on the west side of Michigan avenue. Plaintiff contended that it also stopped on the east side thereof to permit him and his sole witness as to the accident, a policeman and personal friend, to get on, and that it started up while he was attempting to do so. Defendant’s witnesses, the conductor and motorman, and two passengers who were standing on the rear platform while plaintiff attempted to get on, testified that the car did not stop on the east side of Michigan avenue until after plaintiff’s attempt to get on it, and then only upon an emergency signal, and that the policeman got on the car on the west side of Michigan avenue. The two passengers also positively swore that they saw plaintiff run out from the curb on the east side of Michigan avenue, and that he attempted to get on the car while it was in motion.

The testimony bearing on the vital question whether the car was in motion was irreconcilable, and the jury must have reached the conclusion that the defendant’s four witnesses deliberately falsified, for each was in a position to know, and under the circumstances none of them could hardly be confused or mistaken about the fact.

We may make due allowance for the interest of the two employes of the company, as well as for that of plaintiff and his friendly witness, but we find no good reason for rejecting the positive and corroborated evidence of the two passengers. They were unimpeached; had been steadily employed at fair wages; were disinterested observers of the affair, and gave an intelligent, consistent and natural account of it. There is nothing in the record to support the belief that they perjured themselves. The fact, freely admitted, that defendant promised to make good any wages they might lose while attending court, is hardly sufficient alone, in view of all the other evidence, to justify such belief. Immediately after the accident, their names were taken and they knew that they might be called as witnesses to the occurrence, and for that reason were more likely to be impressed with its details. The chances of mistake were so remote that we are forced to.believe their testimony was either true or deliberate perjury. As it was consistent in every way and also in harmony with that given by defendant’s other witnesses, and as the versions given by plaintiff and his witness were so variant in many respects, and so contradictory and incongruous in parts as to have little persuasive force, we think their evidence went far to establish a preponderance for the defense.

Some parts of plaintiff’s testimony seem improbable. For instance, he said that the car started up gradually and went faster and faster and that after he fell he was dragged behind the car a distance of 237 feet while hanging on to its rear dash rail by one hand. The testimony of his witness made the distance about' 75 to 100 feet; that of the two passengers from 10 to 25 feet. Being, as he was, behind the car, hanging to its dash rail by one hand and in no danger from it by letting go, and realizing, as he testified, that the car was constantly increasing its speed, it seems contrary to the instinct of self-preservation that he should under such circumstances continue his hold and permit himself to be dragged any considerable distance, whatever the speed of the car.

All agree that he grasped the rear dash rail with his left hand while holding an open umbrella in his right, and keeping his hold ran some distance before he fell. Why he continued to retain his hold and so run, unless he expected the car to stop so he could get on, was not consistently explained, and the incident tends to corroborate the testimony that he caught hold of it while it was in motion.

We do not deem it necessary to point out the several inconsistencies in the testimony given for the plaintiff, for, after a thorough review of the evidence, we think that the manifest weight of it, considering both the number of witnesses and the quality of their testimony, was with appellant’s contention that plaintiff attempted to get on a moving car. In such a case it is the duty of the trial judge to set aside the verdict and grant a new trial, and for error in his failure so to do, it is our duty to reverse the judgment and remand the cause for a new trial. Donelson v. East St. Louis & S. Ry. Co. 235 Ill. 625; Drum v. Capps, 240 Ill. 524, 553; Trybula v. Plamondon Mfg. Co., 153 Ill. App. 298.

The judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Mr. Justice F. A. Smith

text:
    Knox Engineering Company, Appellee, v. Rock Island Southern Railway Company, Appellant.
    Gen. No. 18,379.
    1. Appeals and errors—when no propositions of law submitted. Where no propositions of law are submitted, it must be presumed that the court proceeded, on correct legal principles and properly applied the law to the facts.
    2. Account stated—when established. An account stated is established where plaintiff rendered accounts to defendant for the preparation of certain plans and specifications and for services as consulting engineer and superintendent of construction for a certain building at defendant’s instance and it appears that defendant examined the account and promised to pay it without objecting thereto.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 3, 1913.
    Quin O’Brien, for appellant.
    Helmer, Moulton, Whitman & Whitman, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The plaintiff, appellee, obtained judgment in the Municipal Court of Chicago against the defendant, appellant, for services rendered, labor performed, money expended and material furnished by the plaintiff at the special instance and request of the defendant in the preparation of plans and specifications, and acting as consulting engineers and superintendents of construction in the building of a power station for the defendant on the Edwards river near Gilchrist, Illinois.

At the close of the evidence, the defendant submitted and presented to the court six propositions of law, so-called, to be held by the court in the decision of the case. The court refused to hold each and all the propositions. Error is assigned upon the ruling of the court. The propositions submitted were not propositions of law but statements of facts to be found by the court. Inasmuch as the court, upon all the evidence, found the facts different from, and opposed to, the propositions submitted by the defendant, the court committed no error in marking the propositions refused, unless it was in finding the facts incorrectly upon the evidence.

No propositions of law having been submitted to the court to be held by it in deciding the ease, it must be presumed that the court proceeded on correct legal principles of law, and applied the law properly to the facts. Allison v. Leslie, 40 Ill. App. 441. The refusal to hold the propositions of fact presented by the defendant, if treated as findings of fact, is consistent with the general finding of the court, and no question of law was raised'nor can be raised here in this court upon the refusal of the propositions submitted.

The question presented on this record is whether or not there was an account stated between the parties. It is urged upon this question that the evidence does not show an account stated, and, further, that the business and transaction shown in the evidence was not a proper subject-matter for an account stated.

The evidence shows that in September, 1909, the defendant was desirous of erecting a power plant at or near Gilchrist on the Edwards river, Illinois,, and desired to arrange with the plaintiff company, which was then engaged in engineering work in Chicago, for its services in and about the construction of the plant. Mr. Knox, the president of the plaintiff company, was asked his terms and replied that he would charge $25 a day for such days as he acted as consulting engineer on the work. Thereupon he was requested to go to Gilchrist and look over the site for the purpose of erecting the power plant for the defendant, and while at Gilchrist the general manager of the defendant requested him to prepare plans and specifications for the plant. This work was undertaken by the plaintiff and the land was staked out for the site of the plant and building, and plans and specifications were prepared from time to time and sent to the defendant at Gilchrist. The plans under the original instructions were prepared for a brick building. About March, 1910, defendant notified the plaintiff that on account of the advance in the price of brick they had abandoned the idea of using brick and would use steel construction, and directed plaintiff to look after that construction. Thereupon the vice president of the plaintiff company went to the power plant at Gilchrist, laid out the work, and it was agreed with the defendant that the plaintiff should furnish a superintendent who was to give his personal attention to the erection of the plant at an agreed charge of $200 a month and his expenses; Under these arrangements, the plaintiff prepared complete plans and specifications for the entire work, and superintended the erection of the entire plant with all machinery and appurtenances.

About April 1,1910, plaintiff sent a statement to the defendant, requesting $1,500 on account, and from that time on, at various dates, other letters and statements were sent, requesting payment of $1,500 on account; but to these statements no response was made by the defendant. On June 15, 1910, plaintiff wrote another letter to defendant, inclosing a statement and requesting remittance. To this letter a reply was received under date of June 21, 1910, acknowledging receipt of the letter, together with the bill, and stating that the matter had been taken up with the treasurer and that after July 1st the plaintiff’s account would be given prompt attention. Further correspondence continued between the parties until September 8, 1910, when a detailed statement to September 1st was forwarded to the defendant, amounting in all for services and expenses to $6,550. In the meantime the plaintiff went on with the work until about the middle of November, 1910, when it was completed, and a detailed statement was sent to defendant showing $8,824.14 due. to plaintiff. In the fore part of December following, the plaintiff took up directly the matter of securing pay for its services and disbursements, only about $29, the expense of the initial trip having been paid, and statements of account and letters requesting payment were sent by the plaintiff to the defendant at various times. October 26, 1910, Mr. Knox went to Davenport to see J. W. Walsh, one of the officers of the defendant, in regard to a settlement of the account. Walsh promised him he would settle the account within ten days; that he would then have some money, and gave some excuses for not attending to it before. Finally on the 12th of December Mr. Knox met the officers of the defendant in Chicago, and upon their claims that they had no itemized statement at hand of the account, handed a duplicate of the statement of November 15th to Mr. Walsh. This statement appears in full in the record. Upon receiving the statement, according to the testimony of Mr. Knox, the president of the defendant company expressed surprise that plaintiff had not received any payment on account, and promised to settle the account within a short time. No objections had been made to the accounts that had been rendered. This proved an account stated. King v. Kahn, 157 Ill. App. 251.

While it is true that the defendant’s witnesses, McCullough and Walsh testified that at various times, after the interview of December 12, 1910, they had made objections to items in the bill or statement rendered to defendant, the record is barren of any written evidence of that kind, and it is difficult to believe that if objections had been made to the accounts as rendered the correspondence of the parties would not have shown them.

In our opinion the evidence fully warranted the trial court in finding the issues of fact in favor of the plaintiff. The evidence is quite voluminous and no useful purpose would be subserved in analyzing it in detail. We find no questions preserved, as above indicated, in the record as to the law applicable to the facts in the case, and we find no errors in the rulings of the court on questions of evidence.

The judgment is affirmed.

Affirmed.


text:
    John Minwegen et al., Appellants, v. John J. Coughlin et al., Appellees.
    Gen. No. 18,405.

      Mandamus—where right terminated. Where it appears from a petition for mandamus against the aldermen of a city to compel them to act upon and approve official bonds of the petitioners, that the terms of office of the petitioners have expired, the appellate court has no power to grant the relief prayed for and will dismiss the appeal sponte sua.

    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Dismissed.
    Opinion filed June 3, 1913.
    McEwen, Weissenbach, Shrimski & Melgan, for appellants.
    Frank Johnston, Jr., and John W. Beckwith, for appellees; William H. Sexton and Philip J. Mc-Kenna, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This appeal if from a judgment of the Superior Court of Cook county sustaining demurrers to three several petitions for mandamus, dismissing the petitions and awarding costs against petitioners.

The petitions set forth that July 14, 1910, the petitioners, appellants, were, by the then mayor of Chicago, appointed members of the Board of Local Improvements of the city of Chicago for a term of two years; that following such appointment, appellants made and executed their bonds as provided by the ordinances of the city of Chicago, and the same were approved by the City Council and appellants became and were duly elected, qualified and acting members of the Board of Local Improvements of the said city; that afterwards and upon the first day of May, 1911, the Honorable Carter H. Harrison, then mayor of the city of Chicago, by communication addressed to the City Council, made a pretended removal of appellants without charges of any kind and for no reason whatever except political reasons, and appointed a successor for each of the appellants respectively, which removal and appointment was, upon the same day, concurred in by the City Council; that afterwards, each of appellants presented a communication to the City Council of the city of Chicago, setting forth that pursuant to his appointment to the office of member of the Board of Local Improvements in and for the city of Chicago, and of section 7, art. II, chap. 24 of the Cities, Villages and Towns Act of the state of Illinois, and following an alleged removal as such member of the Board of Local Improvements, they each respectively tendered his official bond as such member and requested the City Council to approve said bonds according to law and the ordinances of the city of Chicago, and averring that the bonds so tendered were good and sufficient bonds; that petitioners also prepared and filed with the city clerk of the city of Chicago oaths of office and that the bonds so tendered were referred by the City Council to the Committee on Judiciary, but that the City Counoil has failed and refused to consider the sufficiency of the bonds, and have unreasonably delayed action on the same.

The petitions further set forth and charge that the purpose of the City Council in making such reference, and of the Judiciary Committee in delaying and failing to pass upon the matter, was to prevent the petitioners having the bonds approved in order to prevent them and each of them from assuming his duties as a member of the Board of Local Improvements; that the pretended removal was without cause and an arbitrary exercise of power wholly unwarranted by law.

The seventy aldermen of the city of Chicago then in office were made parties to the petitions, and a writ of mandamus was prayed directed to the said aider-men, commanding them that they act upon and approve said bonds.

The ultimate question as presented by the record is one of pleading as to whether or not the petitions were sufficient in law. This question involves the consideration of preliminary questions involving more or less doubt and difficulty.

It appears- from the petitions that the terms of office for which petitioners were appointed expired on the first Monday of July, 1912. It is, therefore, clear that if this court should reverse and remand the cause, the trial court could not issue a mandamus to the City Council of the city of Chicago, requiring it to consider the approval of the official bonds as prayed by the petitions, the terms. for which the petitioners- were appointed and for which the official bonds were tendered having expired by lapse of time. Appellants have no right now to have the City Council act upon the bonds so tendered. That right, if any they had, expired on the first Monday of July, 1912. The court, therefore, has no power to grant the relief prayed for in the premises, and it would serve no useful purpose for this court to consider and determine the questions involved in this appeal inasmuch as they have become mere abstractions as applied to this case. State v. Porter, 58 Iowa 19; Cutcomp v. Utt, 60 Iowa 156; Chicago, R. I. & P. Ry. Co. v. Dey, 76 Iowa 278. Under such circumstances it is our duty to dismiss the appeal sponte sua.

“It is a well recognized principle that courts, in exercising their jurisdiction in mandamus, will not award the peremptory writ where the right sought to be enforced is or has become a mere abstract right, the enforcement of which, by reason of some change of circumstances since the commencement of the suit, can be of no substantial or practical benefit to the petitioner.” Gormley v. Day, 114 Ill. 185; Cristman v. Peck, 90 Ill. 150; People v. Rose, 81 Ill. App. 387; Board of Education v. Bolton, 85 Ill. App. 92.

The court, therefore, of its own motion, dismisses the appeal.

Appeal dismissed.