author: Mr. Presiding Justice Smith

text:
    Jacob W. Loeb, for use of Joseph W. Moses, Appellee, v. Daniel F. Flannery, Appellant.
    Gen. No. 14,558.
    1. Contracts—how far consideration may be attacked by parol. Parol evidence which tends to show an absence of consideration is competent, but such evidence which attacks the consideration to such an extent and in such a way as to contradict the terms of the contract or to overthrow the same, is incompetent.
    2. Principal and agent—when consideration sufficient to support undertaking by latter with third person. The contract by an agent with a third person may be supported by a consideration moving to the principal.
    3. Releases—when receipt cannot be attacked by parol evidence. A receipt of money recited by an instrument, which is both a receipt and a contract, cannot be attacked by parol evidence, so as to overthrow the contract portion of the receipt.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed June 4, 1909.
    Statement by the Court. This appeal is from a judgment of the Superior Court in an action of assumpsit brought by appellee, Loeb, against appellant, Flannery, to recover moneys alleged to be due on the following instrument in writing;
    “November 6, 1902.
    Eeceived of Jacob W. Loeb one thousand dollars to be held by me for him and to be returned to him by me upon ten days’ notice in writing.
    D. F. Flahuery. ’ ’
    The declaration consisted of a special count on the instrument and the common counts for money had and received, etc. The general issue, want of consideration and total failure of consideration were pleaded by appellant, Flannery. Loeb introduced the instrument in evidence, proved the delivery of $1000 of his own money to Flannery at the time the contract was signed and delivered, the assignment of the contract, and a demand in writing for the return of the money.
    Appellant, Flannery, sought to prove by appellee, Loeb, on cross-examination, and by his own testimony and other evidence, the circumstances connected with the making of the instrument, for what purpose and for whose account the money was actually paid, for whose account and for what purpose it was received, and the conversations and transactions between certain other parties prior to the time the instrument sued on was executed and delivered. The trial court excluded the evidence.
    Mr. Flannery then submitted an offer to prove the following facts and circumstances by the testimony of himself and other competent witnesses and by documentary evidence:
    “That some time during the summer of 1902, William Loeb, father of Jacob W. Loeb, was and had been for a number of years engaged in the sale of commercial paper and mortgages upon real estate in Chicago; that Ellen Maguire had intimately known said William Loeb and had had transactions with him consisting, among other things, of the purchase from him of mortgages on real estate; that such relations had continued for at least fifteen years prior to 1902; that during the month of July, 1902, said Ellen Maguire owned and held in her possession, which she had purchased from said Loeb, a certain trust deed conveying property in Cook county, Illinois, executed by Edwin G. Freedman, securing his note for $3,000, together with divers other trust deeds upon certain pieces of real estate; that at the time of the purchase by said Ellen Maguire of said. Freedman trust deed from said Loeb the latter represented to her that the property conveyed by it was located on Cottage Grove avenue near 55th street in Chicago; that it was improved with a three-story stone and brick flat building, and that it was of the fair cash value of $15,000, and was free from encumbrance except said trust deed of said Freedman; that Ellen Maguire, by reason of her long continued business relations with William Loeb, relied upon the statements and representations made by him with reference to the property covered by said Freedman trust deed and she believed the same, and purchased said trust deed and note from said William Loeb for $3,000; that said statements and representations made by Williám Loeb to said Ellen Maguire were untrue as to the location and value of said property in this, to wit: that the said property covered by said trust deed was not located on Cottage G-rove avenue near 55th street in Chicago, nor did it have erected thereon a three-story stone and brick flat building, nor was it of the value of $15,000, but, on the contrary, said property was located southwest of the Village of Oak Park in Cook county, and did not have erected thereon a building or structure of any kind, was not worth to exceed $200, and the title thereto was defective in that said Freedman was not the owner thereof in fee simple.
    “That during the summer of 1902, Ellen Maguire visited the office of said William Loeb in Chicago for the purpose of collecting interest then due on one of the loans she had purchased from him; that Morris Loeb, a son of William Loeb, who was then in charge of said office, refused to pay said interest and informed her that William Loeb was in Colorado in connection with a large mining deal, and would return to his office in Chicago in a few days; that upon inquiry Ellen Maguire learned from divers persons that William Loeb had absconded and had not been at his office for several weeks prior thereto. That said William Loeb never returned to Chicago and was reported to have died in South America during the summer of 1903.
    “That soon after Ellen Maguire learned that William Loeb had absconded, namely: sometime during the month of September, 1902, she employed the defendant as her attorney to represent her in procuring a return of the money paid by her to said Loeb for the Freedman trust deed and other trust deeds which said Loeb had fraudulently induced said Ellen Maguire to purchase from him; that during the latter part of September, 1902, the defendant, in company with one Louis Maguire, a son of Ellen Maguire, called upon Jacob W. Loeb at his office in Chicago and told him all of the facts in connection with the several transactions had between William Loeb and Ellen Maguire, and particularly in respect to the misrepresentation of the facts regarding the value, location and title of the piece of property covered by said Freedman trust deed, and requested information or advice as to the whereabouts of said William Loeb; that Jacob W. Loeb then and there stated to the defendant, in the presence of Louis Maguire, that his father William Loeb, was temporarily embarrassed, and was in Colorado attempting to raise money with which to pay off his indebtedness; that Jacob W. Loeb then and there stated to defendant and Louis Maguire that he represented William Loeb and had a power of attorney from him to act for him in' all matters, and exhibited to them a general power of attorney under seal authorizing said Jacob W. Loeb to act for said William Loeb in all matters relating to his business and property.
    “That said Jacob W. Loeb then and there said to the defendant and Louis Maguire that said Ellen Maguire need not worry about her business transactions in connection with his said father, and that the same would soon be settled in full by said William Loeb. That said Jacob W. Loeb then and there said that he was then engaged in selling and realizing on properties belonging to said William Loeb, for the purpose of using the proceeds thereof in settling the debts of said William Loeb; and that he would soon be able to submit on behalf of said William Loeb a proposition to said Ellen Maguire for the settlement of all her claims against him, said William Loeb. That said Jacob W. Loeb then and there said and acknowledged on behalf of said William Loeb that the property secured by the said Freedman trust deed did not exceed in value the sum of $500 and that said Ellen Maguire would be reimbursed and paid for all losses she had sustained and might sustain by reason of her said transactions with said William Loeb.
    “That several weeks thereafter Jacob W. Loeb submitted to the defendant a proposition to pay to said Ellen Maguire the sum of $2,000 in cash and convey, or cause to be conveyed, to her the title to certain real estate known as number 687 North Oakley avenue, in Chicago, which he then and there represented as having a value of $3,500, subject to an encumbrance thereon of $2,000; or certain real estate known as number 7719 and 7721 Sherman avenue, Chicago, which he then and there represented as being worth $8,500, subject to an encumbrance of $4,000; said cash and the conveyance of one of said pieces of property to be accepted by said Ellen Maguire in full settlement for the payment of said Freedman trust deed and notes. That shortly thereafter defendant submitted said proposition to Ellen Maguire, who shortly thereafter authorized and directed him to accept from said William Loeb said $2,000 in cash and a transfer to her of said premises known as number 687 North Oakley avenue, subject to an encumbrance thereon of $2,000; that defendant shortly thereafter told said Jacob W Loeb, as attorney in fact for said William Loeb, that said Ellen Maguire had accepted the latter proposition; and that said Jacob W. Loeb thereupon told defendant he would procure and deliver an abstract of title to said property and pay said $2,000 in cash and cause said conveyance to be made to said Ellen Maguire.
    “That said Jacob W. Loeb afterwards represented to defendant that he was being delayed in carrying out said agreement with Ellen Maguire on account of being unable to procure an abstract of the title to said premises so to be conveyed, on account of a lack of money to pay for said abstract and to remove tax sales or tax titles to said premises.
    “That on several occasions between the acceptance of said proposition by said Ellen Maguire and November 6,1902, said Jacob W. Loeb and Sigmund E. Loeb, the brother and partner of Jacob W. Loeb, stated to defendant that he, said Jacob W. Loeb, was then engaged in negotiating and closing the transfer of a large amount of property of said William Loeb, out of the proceeds of which he intended to and would make said cash payment of $2,000 to said Ellen Maguire.
    “That on November 6, 1902, defendant called at the office of said Jacob W. Loeb and asked him whether he had succeeded in closing said last named transfer, and was then and there1 informed by. said Jacob W. Loeb that he had succeeded in closing the same, but that he had not realized therefrom as much cash as he had expected, and would not be able to pay to Ellen Maguire said $2,000 in cash but would pay her therefrom the sum of $1,000 and would pay the balance of said cash payment and convey said property known as number 687 North Oakley avenue to Ellen Maguire within a very short time; that thereupon Jacob W. Loeb, acting for and on behalf of said William Loeb, and pursuant to said agreement between said William Loeb and said Ellen Maguire, paid to the defendant $1,000 in currency for said Ellen Maguire, which said sum defendant then and there accepted for and on behalf of said Ellen Maguire, and for no other reason or purpose whatever; that after receiving said $1,000 defendant, of his own motion and without any request whatever from said Jacob W. Loeb, or otherwise, made a lead pencil draft of the body of the instrument set forth in the first count of plaintiff’s declaration herein, and handed said draft to said Jacob W. Loeb, and requested him to have the same typewritten for signature; and that said Jacob W. Loeb then copied the same verbatim, which is the document introduced in evidence herein, which was then and there signed by defendant.
    “That prior to the delivery to defendant of said $1,000 no agreement had been entered into, nor had any conversation been had between any of said .parties, relative to the giving of any receipt or written instrument because of the delivery of said sum to defendant, nor was said sum delivered by said Loeb to defendant with any understanding or agreement that any receipt or other written instrument reciting the delivery of said sum of money to defendant should be given by defendant therefor; that no request or demand was ever made at any time by said Jacob W. Loeb, either before or after the delivery of said money to defendant, that the defendant should execute any receipt or other written instrument in relation to said $1,000; that there was no agreement, understanding or conversation had between defendant and said Jacob W. Loeb prior to the delivery of said $1,000 as aforesaid, nor did defendant at any time promise, that as a consideration for the delivery of said sum of $1,000 he would execute and deliver to said Loeb the instrument in writing designated as ‘Plaintiff’s Exhibit No. 1,’ nor any other written instrument of any kind or character; that there was never at any time prior to the delivery of said money to defendant as aforesaid, nor contemporaneously with the delivery of said money to him, any understanding or agreement between defendant and said Jacob W. Loeb, nor any promise made upon the part of defendant to said Loeb, that said $1,000 so delivered to defendant should be held by him for said Loeb, in trust or otherwise, nor was there any agreement or understanding between defendant and said Loeb, or any promise upon the part of defendant to said Loeb, ever at any time made, prior to or contemporaneously with the delivery of said $1,000 to defendant, that said sum should be returned to said Loeb by defendant upon ten days’ notice in writing or at any other time.

      “That the said instrument in writing was voluntarily executed and delivered by defendant to said Jacob W. Loeb in the form in which the same was drafted for the sole and only purpose, upon the part of defendant, of protecting and saving him, the defendant, free and harmless from any claim or contention that might thereafter be made upon the part of said Jacob W. Loeb or said William Loeb, that he, the defendant, had accepted from said Jacob W. Loeb, for and on behalf of said William Loeb, said sum of $1,000 to compound or in compounding a felony or criminal act upon the part of said William Loeb; and that the said written instrument was not executed or delivered by defendant for any other purpose. whatever.
    “That defendant never at any time had any business relations or transactions of any kind or character with said Jacob W. Loeb involving either the personal business of said defendant, or the personal business of said Jacob W. Loeb, but that all the business relations and dealings had by the defendant with said Jacob W. Loeb, prior to the commencement of this suit in July, 1905, were had by defendant as the attorney for said Ellen Maguire and with said Jacob W. Loeb as the attorney in fact or attorney for said William Loeb, and related solely and exclusively to business transactions between said Ellen Maguire and said William Loeb.
    “That on or about February 1, 1903, said Ellen Maguire called upon said Jacob W. Loeb and requested him to give her an abstract of title to a certain lot or lots on which she held a trust deed purchased by her from said William Loeb; and that in a conversation then and there had with said Jacob W- Loeb in reference to the agreement theretofore made by said Ellen Maguire in relation to the settlement of her claim against William Loeb on account of the money paid by her for the Freedman trust deed and note, said Jacob W. Loeb then and there said to said Ellen Maguire that he had already paid to her said attorney, Daniel F, Flannery, the sum of $1,000 on account of said agrees ment, and that he expected soon thereafter to be able to pay the remaining $1,000 and convey to her the property so agreed to be conveyed. That thereafter said Jacob W. Loeb and said Sigmund E. Loeb had several conversations with defendant in relation to the payment of the remaining $1,000 so due to said Ellen Maguire under said agreement and in relation to the conveyance of said property so agreed to be conveyed, and that each said Sigmund E. Loeb and Jacob W. Loeb said to defendant that said Jacob W. Loeb had not been able to realize in cash out of the property of said William Loeb a sum sufficient to pay said remaining $1,000 so due on said agreement, and in lieu thereof offered to execute and deliver to said Ellen Maguire the joint promissory notes of said William Loeb, said Jacob W. Loeb and said Sigmund E. Loeb, payable in monthly instalments of $50 each with interest on deferred payments at the rate of six per cent, per annum from date. That said Ellen Maguire refused to accept said notes in lieu of said remaining $1,000 without additional security, which said Jacob W. Loeb and Sigmund E. Loeb refused to give. That thereafter said Ellen Maguire demanded that the agreement theretofore made should be fully complied with and notified said Jacob W. Loeb that she stood ready and willing to accept said remaining sum of $1,000 so due under said agreement and the conveyance of the property agreed to be conveyed. That neither said William Loeb nor said' Jacob W. Loeb ever at any time paid or offered to pay to said Ellen Maguire said remaining sum of $1,000 so due on said agreement nor conveyed, nor offered to convey, to said Ellen Maguire the said property so to be conveyed according to the terms of said agreement; and the said Ellen Maguire has at all times been ready and willing and has offered to fully perform said agreement upon her part. That the defendant never at any time received from the hand of Jacob W. Loeb any money other than said sum of $1,000 so delivered to him by said Jacob W. Loeb on November 6, 1902, in part payment of the said money so agreed to be paid to said Ellen Maguire.”
    On objection by appellee the evidence was excluded, and the court gave the jury a peremptory instruction to find the issues for the plaintiff and assess his damages at the sum of $1,000. Appellant’s motion for a new trial was denied and judgment was entered on the verdict.
    Flannery, McKinley & Sample, for appellant.
    Moses, Bosenthal & Kennedy, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The sole question presented by the record, as stated by the attorneys for the respective parties, is whether the trial court erred in refusing to admit the evidence offered by appellant under his plea of want of consideration for the promise contained in the instrument in suit, and in directing a verdict in favor of appellee.

If the proffered evidence was properly excluded by the trial court there was no other course left open to the court than to direct a verdict in favor of appellee, for no defense to the case made by appellee was shown. Hence the sole question presented for consideration is the propriety of the action of the court in refusing to admit proof of the facts sought to be introduced by appellant before the jury.

The first contention of appellant is that oral evidence is admissible to contradict or explain a receipt, and to contradict an instrument in writing for the payment of money as to the consideration for which it is given. This contention is sound, we think, and we do not find it controverted by attorneys for appellee, for they say in their argument filed herein that, “If appellant had offered to show that the sum of $1,000 had not in fact been received by him on the 6th of November, 1902, from appellee, we have no hesitancy in saying that snch proof would have,been competent, and if made would have established the truth of the plea of want of consideration, and have constituted a complete defense to the action.”

This brings us to the question whether the evidence offered by appellant tends to show a want of consideration for the undertaking contained in the instrument sued on to hold the $1,000 for appellee and to return the same to him upon ten days7 notice in writing. If the evidence tendered shows a want of consideration, it is concededly admissible. If, on the other hand, it does not tend to show a want of consideration for the agreement, but tends to contradict the terms of the contract, the evidence was clearly inadmissible. We are, therefore, required to analyze the evidence excluded for the purpose of determining what it tends to prove.

The evidence shows without controversy that at the time of the execution of the writing sued on, appellee delivered to appellant $1,000. The offer of appellant does not question this fact, but admits it. The testimony of appellant shows he received the money. The instrument signed by appellant acknowledges the receipt of the money and expresses the contract between the parties with reference to the money. It clearly appears from the instrument itself that the receipt of the money was the consideration for the promise to hold it, and return it upon ten days7 notice in writing. There was no other consideration given or received, and no other document executed at that interview between the parties. It is, therefore, conclusively proved and admitted that appellant on November 6, 1902, received from appellee $1,000 and that appellant immediately thereafter signed and delivered the instrument, and that the recital of the instrument— “Received of Jacob W. Loeb one thousand dollars”— is strictly in accordance with the truth.

How then can it be said or claimed that appellant’s evidence, or the proof of the facts sought to be introduced on behalf of appellant by the offer made on the trial, tended to contradict or overthrow the receipt of the money by appellant? In our opinion it does not. The fact sought to be established that appellant was acting as attorney for Ellen Maguire, and that the $1,000 paid to him on November 6, 1902, was not paid for his account or benefit, but for the account of his client, and as a part payment in pursuance of a contract between her and appellee, in no wise tends to disprove that the $1,000 had been received by appellant. With reference to the defense of want of consideration it was wholly immaterial whether the money paid appellant was received by him for his account, or for the account of his client, Maguire; if for the latter it still formed ample consideration for the promise contained in his personal undertaking. For, it is not necessary, in order that there be a consideration for appellant’s undertaking, that the consideration therefor move to appellant or be for his benefit. Even though the consideration paid appellant was for the benefit and account of Ellen Maguire, his principal, it was sufficient to support the undertaking executed by appellant in his own name. Hypes v. Griffin, 89 Ill. 134; Scanlan v. Keith, 102 id. 634; Powers v. Briggs, 79 id. 493; Bingham v. Kimball, 33 Ind. 184; Crum v. Boyd, 9 Ind. 289; Stackpole v. Arnold, 11 Mass. 27.

The foregoing authorities and many others establish the inadmissibility of the testimony offered upon this theory of the defense for which appellant contends. They conclusively establish the law to be that, having signed the instrument in suit in his own name after receiving from appellee the $1,000 therein recited, appellant cannot be permitted to assert that such consideration was received by him for the benefit and account of Ellen Maguire and as her attorney, and not for his own benefit, and that there was therefore no consideration' for Ms promise as expressed in the instrument. The proposed proof would have established the consideration, not the want of it. It was wholly immaterial, therefore, to the defense set up in the plea of want of consideration.

The instrument here involved is one of that class of documents which have often been before the courts for adjudication. It is both a receipt and a contract, and calls for the application of the rules of evidence applicable to both, and hence, some confusion in some decisions of courts has arisen with reference to them. In as far as it is a receipt for money, it is peculiarly open to contradictory evidence. “It is only prima facie evidence either that the sum stated has been paid, or that any sum whatever was paid. It is in fact not regarded as a contract, and hardly as an instrument at all, and has but little more force than the oral admission of the party receiving. It often happens that a paper which contains a receipt, or recites the receiving of money or of goods, contains also terms, conditions and agreements or assignments. Such an instrument, as to everything but the receipt, is no more to be affected by extrinsic evidence than if it did not contain the receipt. 8 * * From general expressions as to the rules governing a receipt in many opinions, it would seem that some courts have overlooked this dual character of which a receipt is capable.” Ramsdell v. Clark, 20 Mont. 103 (49 Pac. 591). For this reason, perhaps, appellant’s argument proceeds upon the assumption that the proffered evidence tended to contradict that portion of the instrument in sMt which is in the nature of a receipt and therefore open to oral contradiction, whereas, in truth and in fact, it has no such tendency, but it was really sought by the evidence to vary and contradict the contractual terms and provisions of the instrument.

We have above referred to the cases of Hypes v. Griffin; Scanlan v. Keith; Powers v. Briggs; Crum v. Boyd; Stackpole v. Arnold, and other cases. In Andrus v. Mann, 92 Ill. 40, the court had before it an instrument of like character which contained a receipt for an organ followed by terms and provisions constituting a contract of lease. The trial court permitted appellee in that case to introduce oral evidence to prove that the agreement between the parties was for a sale and not a lease of the organ. In reversing the judgment solely on the ground of the error in admitting this evidence, the court said: “There is no rule more familiar or of more uniform application than, parties cannot introduce verbal evidence to contradict, change or vary written contracts on a trial at law. It is a maxim that all written contracts must speak for themselves, and their meaning or interpretation cannot be changed by verbal testimony. The books abound in decisions announcing the rule, and it is announced and applied in every case in this court. The rule is so elementary that we regard it unnecessary to refer to adjudged cases in its support.” The court then proceeds in its opinion with a conclusive argument upon the inadmissibility of the evidence, which is as applicable to the case now before us as it was to the case in which it was written.

Schultz v. Plankinton Bank, 141 Ill. 116; Ryan v. Cooke, 172 id. 302; Fowler v. Richardson, 32 Ill. App. 252; Hossack v. Moody, 39 Ill. App. 17; First Nat. Bank of Litchfield v. Southworth, 117 id. 143 (affirmed in 215 Ill. 640); Egleston v. Knickerbocker, 6 Barb. 458; Henry v. Henry, 11 Ind. 236; Blakely v. Bennecke, 59 Mo. 193; Wykoff v. Irvine, 6 Minn. 344; and Holcomb-Lobb Co. v. Kaufman, 29 Ky. L. R. 1006, 96 S. W. 813, all involved this principle as applied to similar contracts. The above cited authorities clearly point out the grounds of discrimination between the right of a party to contradict or explain, by parol evidence, a document which is nothing but a receipt, and the absence of such right in cases where the instrument is both a receipt and a contract.

It will he found, we think, upon examination of the authorities relied on by appellant, that in each instance the proof sought to be introduced tended to show that the consideration recited had never been received by the defendant, or that the proof was offered for the purpose of showing that there was a conditional delivery of the instrument, which condition had not been complied with, and that therefore the instrument was never operative. These elements are not present in the case at bar.

We think the proffered evidence was properly rejected by the court. Finding no error in the record the judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Walter Foster, Trustee, Appellant, v. Frank Staar et al., Appellees.
    Gen. No. 14,562.
    1. Corporations—when payment for stock subscribed may properly be made. Payment of stock subscriptions to a corporation need not be made until after the charter has been issued, as until such time no legal entity exists.
    2. Corporations—when organization not in fraud of creditors. The organization of a corporation is not in fraud of creditors where there is no effort or purpose shown by the evidence to simulate a compliance with the law or to create a fictitious or deceptive corporation for any fraudulent or dishonest purpose.
    Bill for receiver. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed June 4, 1909.
    Statement by tlie Court. December 7, 1907, Walter Foster, trustee in bankruptcy of Hip Lung, appel-. lant, filed a bill of complaint in the Circuit Court against Moy Tong Hoy and Moy Tong Tee, and Frank Staar, alleging that prior to and at the °time of the bankruptcy of Hip Lung, said Hip Lung, Moy Tong Hoy and Moy Tong Tee were copartners engaged in a grocery business at 323 South Clark street, Chicago, and that by. reason of the bankruptcy the copartnership was dissolved, and Moy Tong Hoy and Moy Tong Tee had failed to account and had denied the partnership.
    After amendments had been filed to the bill, on December 9, 1907, the court appointed Barry Herzberger receiver “to take charge of the effects and property, and to receive the outstanding effects of the copartnership composed of Hip Lung, Moy Tong Chen or Jon and Moy Tong Tee, doing business under the name of Hip Lung Ting Kee & Co.”
    Under the authority of this appointment Herzberger took possession of the place of business and property of the appellee, Hip Lung Ying Kee & Co., a corporation, at 323 South Clark street, Chicago.
    December 10, 1907, leave was given Hip Lung Ying Kee & Co., a corporation, appellee, to file an intervening petition. The petition was thereupon filed and alleges that Hip Lung Ying Kee & Co. is a corporation organized and incorporated under the laws of Illinois, on November 16, 1907, with an authorized capital stock of seventeen thousand dollars, for the purpose of conducting, operating, owning and managing a Chinese grocery and dry-goods store for the importing and sale of all kinds of Oriental merchandise; that on November 19, 1907, it purchased from Moy Tong Hoy and thirty-five associates, the property and business theretofore conducted by them at 323 South Clark street, paying them therefor $4,900, and immediately obtained possession thereof, and has since that time and until December 9, 1907, been in undisputed possession, conducting the business provided by its charter; that on December 9, 1907, Barry Herzberger, accompanied by several associates, took possession of said place of business by force, and deprived the petitioner, itsoofficers and agents, of all control of the same, drilled the safe and took therefrom $200 in cash; that said Herzberger claimed to be acting by virtue of an order of court appointing him receiver.
    The petition prayed that an order be entered directing said receiver to vacate said premises and surrender and deliver possession to petitioner of all property and effects so forcibly seized by him.
    Leave was given to all parties to the suit to answer the petition, and the answer of appellant having been filed, the issues on the petition and answer were referred to a master in chancery to take proof and report to the court whether or not the prayer of the petition should be granted. Appellant’s answer denied that petitioner was a corporation, that it purchased from Moy Tong Hoy and thirty-five associates the property and business in question; denied that petitioner had been in possession of the business, and that Herzberger and others committed trespasses against the petitioner.
    December 19, 1907, on the coming in of the master’s report, the court entered a decree appealed from in this case. By that decree Barry Herzberger, receiver, was ordered to “forthwith surrender and deliver up to said intervening petitioner the possession of the premises at No. 323 South Clark street and all the property, effects, merchandise, moneys, papers and documents therein, heretofore seized and taken possession of by said receiver and now in his possession.” The court further ordered that Walter Foster, trustee, etc., and Barry Herzberger pay the costs, taxed at $148.
    Louis Greenberg, for appellant; Edward H. Morris, of counsel.
    Bulkley, Gray & More, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Two errors are assigned on the decree: First, that the court erred in ordering the property in the possession of the receiver to be restored to the intervening petitioner; and second, the court erred in overruling the exceptions to the master’s report. On these assignments of error, the main argument of counsel -for appellant is devoted to the establishment of the proposition that the intervening petitioner Hip Lung Ting Kee & Go. was fraudulently organized and incorporated. This contention is based upon the evidence in the record tending to show that the capital paid in by the subscribers to the capital stock at the time of the formation of the corporation was not paid to the corporation prior to the filing of the report of the commissioners with the secretary of state, November 15, 1907, but afterwards, on November 26, 1907; and that therefore the report of the commissioners was false and fraudulent.

The question thus presented in this proceeding is not precisely the question which would bé presented in a direct proceeding by quo warranto, in a court of law, but, it is a question of fraudulent organization, or such fraud in the organization of the intervening petitioner, which will prevent it from coming into a court of equity and asserting any rights, because it has no existence as a legal entity upon the familiar principle that fraud vitiates every transaction.

Under the amendatory act of 1905, the commissioners are required to make and file in the office of the secretary of state a full report of their proceedings, including therein “a copy of the subscription list, a statement of the amount of the capital, not less than one-half actually paid in, the amount of such capital not paid in,'what disposition has been made of stock subscribed and not paid, and if any portion of the capital has been paid in property, the same shall be appraised by said commissioners, and they shall report the fair cash value thereof. ’ ’

The commissioners’ report states that the am mint of capital stock actually paid in is $17,000; that the property paid in on capital stock was appraised at $4,250, which was applied on the shares of each subscriber pro rata, and the balance paid in full on said stock in cash.

Aside from the report of the commissioners, the evidence shows that all of the capital stock subscribed had been paid in full and there is no direct evidence in the record that one-half of the capital subscribed had not been paid in to the commissioners or to the directors prior to the making of the report of the commissioners. There is no evidence in the record showing or tending to show that the subscribers to the capital had not arranged and provided for the payment to the corporation the full amount of the capital stock, as the commissioners reported, as soon as the final certificate could be issued, and the legal payment could be made. This was done. The obligations of the subscribers to the capital stock of the corporation were to the corporation. There,; was no corporation to which payments could be made until the final certificate was issued, and then payments were promptly made before the corporation assumed to transact any business.

To whom under the statute could the subscriptions be paid before the report of the commissioners was filed with the secretary of state? The act does not provide. It may be, as contended by appellant, that the statute by implication confers the authority to receive the money or property in payment of stock subscriptions upon the commissioners or upon the directors, to hold in trust for the corporation. This question we are not called upon to decide on this record. . We are here concerned only with an alleged fraud which, it is claimed, wholly invalidates in equity the organization of the intervening petitioner, when the issue is raised in a proceeding in a court of equity, by a party having no contractual relations with it, express or implied, who has voluntarily and without equitable right or priority of lien, as shown by_ the evidence, obtained possession of the property of the intervenor. In onr opinion the evidence shows no fraudulent intent on the part of the subscribers to the stock or the commissioners appointed to organize the corporation. It fails to show any actual fraud, either upon appellant or any other person. The subscriptions to stock were all genuine and were paid in full. There was no effort or purpose shown by the evidence to simulate a compliance with the law, or to create a fictitious or deceptive corporation for any fraudulent or dishonest purpose. On the contrary, the intervening petitioner was organized for the legal and legitimate purpose of conducting a lawful business.

In Martin v. Ohio Stove Co., 78 Ill. App. 105, cited by appellant, the question was whether a foreign corporation could become a stockholder or an incorporator in an Illinois corporation, and it was held that. it could not. Beyond _ all question the decision of the court is in accord with the laws of Illinois.

In Jersey City Gas Co. v. Dwight, 29 N. J. Eq. 242, on which appellant relies, the Gas Company brought suit against thirteen defendants, charging them with an invasion of its franchises. The defendants undertook to justify, claiming corporate existence, and failed. The court held that “defendants have attempted to acquire corporate life and power by a feigned compliance with the law, and their efforts must be adjudged abortive.” No such question is presented by this record.

In Booth v. Bunce, 33 N. Y. 139, also cited by appellant, the questions submitted to the jury were, first, whether the corporation was formed to defraud creditors of Montgomery & Lund; and second, whether it was formed to hinder, delay or defraud the plaintiff Booth. The court held that the evidence submitted warranted the verdict of the jury in favor of the plaintiff. This was simply applying the principle that if the persons constituting a partnership form a corporation and transfer their assets and property to it, creditors of the partnership at the time of the transfer may have the question examined as to whether or not the corporation was organized to defraud them. If such was the fact, the corporation took no title as against such creditors. No such question is involved here. And so with the other cases cited by appellant; the principles announced in them are sound, but they are not applicable to the case before us.

What we have said above disposes of the error assigned on the overruling of the exceptions to the master’s report.

The decree is correct, in our opinion, and it is therefore affirmed.

Affirmed.


text:
    Walter Foster, Trustee, Appellant, v. Frank Staar et al., Appellees.
    Gen. No. 14,563.

      Contempt—effect of appeal as supersedeas. An appeal from a decree punishing for contempt operates as a supersedeas and strips the court until the appeal is disposed of, of the power to proceed to punishment.
    Bill for accounting, etc. Appeal from the Circuit Court of Cook county; the Hon. Chaeles M. Waikek, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed June 4, 1909.
    Loins Greenberg, for appellant.
    Bulkley, Gray & More, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Walter Foster, trustee in bankruptcy of the estate of Hip Lung Ying Kee, bankrupt, filed a bill in the Circuit Court for the dissolution of partnership existing between the bankrupt and certain other persons, and the appointment of a receiver and an accounting. Appellant Herzberger was appointed receiver over the partnership property and effects located at No. 323 South Clark street, Chicago, Illinois. While appellant was in possession of the property, leave was given by the court to Hip Lung Ting Kee & Company, a corporation, to file an intervening petition wherein it claimed to own the property in the possession of the receiver, and prayed for an order of court directing the receiver to turn the property and effects and the possession of the premises over to the intervening petitioner. Upon the hearing of the petition, to which Foster, as trustee, had filed an answer, the court entered a decree on December 19, 1907, restoring the property to the intervening petitioner according to the prayer of its petition. From this decree Foster, trustee, etc., prayed an appeal to the Appellate Court, which was granted, and on the same day, Foster perfected his appeal by filing the bond required by the court and the bond was approved.

The receiver did not turn over the property and the possession of the premises in compliance with the decree, and two days later a rule was entered upon the receiver to show cause why he should not be attached for contempt of court for having failed to turn over the property of the intervening petitioner. A few days later another order was entered requiring the receiver to appear before the court on December 30, 1907. On that day Herzberger, the receiver, filed an answer setting up the facts as to the appeal and the perfection thereof.

January 6, 1908, the court ordered that an attachment forthwith issue to the sheriff to bring the body of Herzberger into court. And on January 8, 1908, an order was entered finding said Herzberger guilty of contempt of court and committing him to the county jail of Cook county, there to remain until he complied with the order of December 19, 1907, or is otherwise discharged by due process of law. From this order this appeal is prosecuted.

The question presented on this appeal is the right and authority of the Circuit Court to proceed against the appellant for contempt and commit him to the county jail for failure to comply with the order or decree of December 19,1907, after an appeal had been allowed to Foster, trustee, etc., and perfected by him by filing his appeal bond, which had been approved by that court.

Foster, as trustee in bankruptcy, was the only party in interest before the court who had a right to an appeal. The receiver, Herzberger, had no interest to protect by an appeal, and had no right to an appeal. The perfected appeal of Foster, trustee, transferred to the Appellate Court the whole case under the intervening petition, and, under the practice and the law of this State, operated as a supersedeas or stay of proceedings under the decree. Heyman v. Heyman, 117 Ill. App. 542, 546, and authorities there cited; Steele v. Hohenadel, 141 Ill. App. 201, and cases there cited. The appeal suspended all proceedings under the decree, leaving the matters in the condition in which they were when the appeal was perfected. It took from the Circuit Court all jurisdiction or authority to enforce the decree until the appeal was disposed of by this court. The question whether that decree should be enforced could not be before the Circuit Court and this court at the same time. Hohenadel v. Steele, 237 Ill. 229.

The order of the Circuit Court is therefore reversed and the cause is remanded.

Reversed and remanded.


text:
    Lydia Bohn, Appellee, v. Standard Laundry Company, Appellant.
    Gen. No. 14,572.
    1. Master and servant—what does not tend to show negligence in use of defective machinery. Evidence of the use of a particular machine with equipment of a different character from that employed hy other machines used hy the same master, or evidence that a different equipment for protection purposes was subsequently employed, does not tend to show that the particular machine in question was negligently defective at the time of the accident in question.
    2. Evidence—what not sufficiently definite to show lack; of ordinary intelligence. The testimony of a witness to the effect that the servant who was suing his master for personal injuries, asked foolish questions and was very dull, is too indefinite and general-to establish a lack of ordinary intelligence.
    3. Bill oe exceptions—when cannot he impeached. A bill of exceptions containing an endorsement by the presiding judge as to the time when it was presented to him, is properly filed nunc pro tunc as of the date of such presentment, and the Appellate Court will not look to any other document which purports to impeach it, even though such other document may likewise be signed by such presiding judge.
    Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed June 4, 1909.
    Statement by the Court. This appeal is from a judgment of the Superior Court in favor of the plaintiff, appellee, and against the defendant, appellant, for damages for injuries which the plaintiff received while working for the defendant in its laundry.
    The defendant at the time of the accident, August 6, 1904, was engaged in the general laundry business in Chicago. The plaintiff was one of its employes. At the time of the injury, she was engaged in her work of feeding roller towels into a mangle. As she was doing her work she says her fingers caught in a hole in a towel and before she could disengage them, her left hand was drawn between the heated rolls of the mangle and so crushed and burned that it was amputated at or near the wrist.
    At the time of her injury plaintiff was nearly seventeen years old. Suit was brought by her against th'e defendant August 11, 1904, and a declaration consisting of one count, in which the only negligence averred against the defendant was failing to have any guard on the mangle.
    Four additional counts were filed later, January 16, 1907. The negligence averred in the first of these additional counts is that the defendant permitted a certain piece of cloth which contained a hole in it to be in the quantity of clothes to be put through the mangle by the plaintiff. The negligence averred in the second, third and fourth additional counts is a failure to have a guard on the mangle.
    Three more counts were filed July 16, 1907. The first of these three counts avers negligence in the adjustment of the guard in such a manner that it was incapable of and did not prevent the hands of the operator from passing into the mangle and under the rollers, and that defendant had notice thereof and the plaintiff was not informed thereof. In the second of these counts the improper position of the guard is alleged, and that the plaintiff was mentally immature and deficient, and not of the ordinary understanding of girls of her age, and on that account she did not appreciate the danger to which she was exposed. The third of these counts is substantially the same as the second.
    F. J. Canty and J. C. M. Clow, for appellant.
    F. A. Bockhold, Francis V. Busch and S. Kruse, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

In the view we take of this case the judgment must be reversed for errors in procedure at the trial, and the cause must be remanded for a new trial. We therefore do not pass upon the merits of the controversy presented in the record.

The court permitted Ellen Terry, a witness called by the plaintiff, to testify that the mangle was equipped with a device which would allow the use of a roller guard, a different style of guard from that in use on the machine at the time of the injury; and that there was at one time a roller guard upon the mangle; that it was used for more speed, carried the cloth through quicker, and prevented the operator from catching her hand in the machine.

Prom the statement of the declaration given above we think it clearly appears that this evidence did not tend to prove the negligence averred in any of the counts. It was, therefore, not relevant to the issues presented by the pleadings, and was misleading to the jury. The question on the trial was, whether it was negligence to use the guard on the mangle in the manner in which it was used—not as to the possibility of using a roller guard and the effect thereof.

The same witness was permitted, over objections by appellant, to testify that the plaintiff worked on another machine—a little mangle with a roller guard —before she worked on the mangle in question, and that it was practicable to operate that mangle with that roller guard. The" witness Bessie Beese, who testified on behalf of the plaintiff, was permitted, over objection, to testify that there was no roller guard on the mangle at the time or just before plaintiff was injured. Substantially the same testimony by other witnesses was admitted.

In the first place negligence of the appellant cannot be predicated on the fact that there was a roller guard on some other machine and that there was no roller guard on the mangle in question. It cannot be held that the use of some other guard than a roller guard on a mangle is of itself a negligent act. Secondly, no such negligence is averred in the declaration.

As said in American Malting Co. v. Lelivelt, 101 Ill. App. 320: “There is no obligation resting upon the employer to adop$ every new device in machinery which may be invented. Nor is it of itself negligence to use machinery which is reasonably safe, although other machinery might be found which would be more safe, and in use of which the injury could not occur. Simmons v. C. & T. R. R. Co., 110 Ill. 340; Stafford v. C., B. & Q. R. R. Co., 114 Ill. 244; Penn. Co. v. Backes, 133 Ill. 255.”

We think the assignment of error upon the admission of the above evidence must be sustained, upon the grounds that it does not tend to prove any material allegation of any count in the declaration, or any act of negligence averred. The admission of the testimony of Anna Aiding and Josephine Terry to the effect that plaintiff did not understand anything, and asked foolish questions and was very dull, was of such indefinite, general and sweeping conclusions of the witnesses as to make it clearly erroneous.

The defendant requested the court to give to the jury the following instructions:

“If you believe from the evidence that at the time of this injury mangles of the character of the one in question and provided with a guard of the same style as was the mangle in question, were in common and general use by persons carrying on the same business as this defendant, then this defendant did, as a matter of law, furnish a proper style of guard on the mangle on which plaintiff was hurt, and you would not be justified in finding that this defendant was negligent in not equipping this mangle with some other or different style of guard.”
“If you believe from the evidence in this case that at the time of the injury to this plaintiff mangles of the same character as the one on which plaintiff was hurt were in common or general use for the purpose of doing the same work which was being done on the mangle in question at the time of the injury, then the fact, if it be a fact, that there were other mangles equipped with other or different or safer guards is immaterial in this case, and should not be considered in any way by you in determining whether or not the mangle in question was equipped • with a proper or safe guard.”
_ ‘ ‘ The jury are instructed that no man is held to a higher degree of skill than the fair average of his trade or his profession, and the standard of his care is the conduct of the ordinarily prudent man under similar circumstances and conditions, and if you believe from the evidence in this case, that the mangle in question was of a character in common use for performing the work for which it was used at the time the plaintiff was injured, and if you further find from the evidence that it was in good condition, then the plaintiff cannot recover, unless you find from the evidence that the defendant was otherwise guilty of some negligence charged in the declaration.”

The court refused to give these instructions. In our opinion that was material error. The instructions are based on the evidence in the case, and announce correctly the law applicable to the facts shown by the record.

The motion to strike the bill of exceptions from the record, which was reserved to the hearing, is denied. The bill of exceptions, with the endorsement of the presiding judge as to the time when it was presented to him, was properly filed nunc pro tunc as of December 19, 1907, and we cannot look to any other document which purports to impeach it, although it may be signed by the trial judge.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Baker

text:
    Arthur G. Stollery and Thomas J. Symmes, Administrators, Appellees, v. Cicero and Proviso Street Railway Company et al., Appellants.
    Gen. No. 14,524.
    1. Negligence—when maintenance of attractive nuisance constitutes. Held, under the evidence, that the maintenance and operation in a thickly settled neighborhood on a block of land that was unfenced and unguarded, of coal-conveying machinery consisting of a frame work, chains, sprocket-wheels and other appliances that were dangerous, constituted negligence which would sustain a recovery hy a young child injured in consequence.
    2. Evidence—when verdict of coroner’s jury competent. Held, that the verdict of a coroner’s jury received in evidence in this case, was competent as tending to prove that the plaintiffs’ intestate came to his death on a particular day hy being caught and crushed hy the defendant’s machinery.
    3. Ordinary care—how proof of, may he made in the absence of eye witnesses to the accident. Where there were no eye witnesses to the killing of a person, his administrator in an action for damages may establish the exercise of ordinary care on the part of th& deceased by the highest proof of which the case is capable, including the habits of the deceased and facts and circumstances from which the jury may rightfully find that he was in the exercise of such care, and in determining such question the jury may take into consideration the natural instinct that prompts every person to preserve life and avoid danger.
    Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the Match term, 1908.
    Affirmed.
    Opinion filed June 4, 1909.
    . Statement by the Court. In an action on the case for wrongfully causing’ the death of plaintiffs’ intestate, a boy ten years of age, plaintiffs had judgment for $4,000 and the defendants appealed.
    Defendants occupied a block bounded by Lake street on the north, Harvey avenue on the east, North boulevard on the south, and Cuyler avenue on the west. In the southeast corner of the block was the power house of the defendants; west of the southern part of the power house was a building twelve feet wide and thirty feet high called a coal bin. At the north end of the coal bin was a frame work made of timbers ten inches square which carried and supported certain sprocket wheels which formed a part of a coal conveyor. This frame work was eight feet long from north to south, three and a half feet wide and three feet high. It consisted of two beams placed three feet' apart, of cross beams at each end of said side beams, which beams formed the top of the structure, of posts which supported the beams and of sills on which the posts rested. At each end of the frame work was a pair of sprocket wheels attached to a driving shaft. On the end of the coal bin twenty feet above the ground was another pair of sprocket wheels on a shaft. The conveyor proper consisted of two endless chains between which ran strips of metal which scraped and carried the coal from the coal bin to the power house. The conveyor proper came out of the north end of the coal bin, passed over the sprocket wheels which were attached to the coal bin, thence down and over the sprocket wheels which were on the frame work next to the coal bin, thence out from the coal bin to and over the sprocket wheels which were at the outer end of the frame work, thence just above the ground back into the coal bin, and thence on the floor of the coal bin to the power house.
    The sprocket wheels were thirty-one inches in diameter with teeth three inches long. Each of the sprocket wheels next to the coal bin was placed inside of and two inches from a beam. Nearly one-half of the wheel was above the beam and they came within eight inches of the north wall of the coal bin towards which they revolved. The frame work with its machinery could be seen from the street and access to it from the street was open and unobstructed.
    Plaintiffs’ intestate was last seen alive on the afternoon of March 2,1904. March 4th, he was found dead, his body wedged between the sprocket wheel which was inside of the west beam next to the coal bin and the coal bin, with one arm between said sprocket wheel and the beam inside of which it revolved. When found his body was frozen, his clothing torn and one side of his face had been worn away by the rubbing of the sprocket wheel against it.
    The declaration alleged that the defendants negligently, etc., left said machinery and appliances unguarded and unprotected; that, as defendants knew, children had been in the habit of playing about said machinery and appliances; that plaintiffs’ intestate was attracted to said machinery and appliances by childish curiosity, and that while in the exercise of ordinary care for his own safety he was caught by said sprocket wheel and killed on the second of March, 1904.
    John A. Rose and Frank L. Kriete, for appellants; W. W. Gurley, of counsel.
    David K. Tone and H. M. Ashton, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

The declaration alleged and the evidence for the plaintiffs tended to prove that on and for a long time before March 2. 1904, the defendants maintained and operated in a thickly settled neighborhood, on a block of land that was unfenced and unguarded, certain coal conveying machinery consisting of a frame work, chains, sprocket wheels and other appliances that were dangerous; that young children had for two years before that time been in the habit of playing on and about said machinery, and that said structure and machinery were attractive and alluring to children and dangerous.

The rule of law applicable to such cases is thus stated in Pekin v. McMahon, 154 Ill. 141-148:

“Where the land of a private owner is in a thickly settled city, adjacent to a public street or alley, and. he has upon it, or suffers to be upon it, dangerous machinery, or a dangerous pit, or pond of water, or any other dangerous agency, at a point thereon near such public street or alley, of such a character as to be attractive to children of tender years, incapable of exercising ordinary care, and he is aware or has notice of its attractions for children of that class, we think that he is under obligations to use reasonable care to protect them from injury, when coming upon said premises, even though they may be technical trespassers.”

Appellants insist that if the negligence alleged in the declaration is proved, still the verdict is against the evidence and not supported by the evidence: First, because it does not appear that the negligence proved was the proximate cause of the death of plaintiffs’ intestate; second, because it does not appear that the deceased was in the exercise of reasonable care; third, that it does not appear that the deceased was attracted to defendants’ premises by said coal conveyor; and fourth, that it does not appear that deceased died from injuries sustained by him in said conveyor.

The following coroner’s verdict was produced by a deputy coroner who testified that he took it from a vault in the coroner’s office, and over the objection of defendants it was admitted in evidence:

“State or Illinois, County of Cook. } SS.
An inquisition was taken for the people of the State of Illinois at 135 Lake street in the village of Oak Park, in the said county of Cook, on the 5th day of March, A. D. 1904, before me, John E. Traeger, Coroner, in and for said county upon view of the body of Thelmer Washington Letts, then and there lying dead, upon the oaths of six good and lawful men of said county, who being duly sworn, to inquire on the part of the people of the State of Illinois into all the circumstances attending the death of said Thelmer Washington Letts, and by whom the same was produced and in what manner and when and where the said Thelmer Washington Letts came to his death do say, upon their oaths as aforesaid, that said Thelmer Washington Letts, now lying dead at 135 Lake "street in said village of Oak Park, county of Cook and State of Illinois, came to his death on the 2nd of March, 1904, from shock and injuries caused by being caught and crushed by the wheel and beam of the coal conveying machinery owned and operated by the Chicago Consolidated Traction Company at their plant at Harvey and Lake street, A. D. 1904.
In testimony whereof, the said coroner and the jury of this inquisition have hereunto set their hand the day and year aforesaid.
(Signed) M. A. McQueen,
Foreman.
W. C. Beam,
George Harges,
C. Beese,
George H. Beese,
A. N. Snyder.
John E. Traeger (Seal),
Coroner.”

We think the verdict was properly admitted in evidence (U. S. Life Ins. Co. v. Voeke, 129 Ill. 357), and that it is competent evidence tending to prove that the deceased came to his death March 2, 1904, by being caught and crushed in the coal conveying machinery of the defendants.

The other evidence tending to show how deceased came to his death is circumstantial. A witness testified that she saw the deceased in the afternoon of March 2nd, standing near the coal conveyor which was not then in motion, leaning over and looking into it. We think the jury might from the evidence properly find that the deceased was not seen alive after he was seen standing by the conveyor. Other children were attracted to the conveyor, and had been in the habit of playing on and about it. The conveyor was operated by electricity and was set in motion by an operator inside of the coal bin who could not, from the place where he turned on the current, see the frame work outside of the coal bin. The conveyor was set in motion soon after the deceased wag seen standing by it. The position in which his body was found and his torn clothing would seem to-indicate that the deceased was caught by the sprocket wheel and his body thereby crowded and forced into the position it was in when found. The verdict of the coroner’s jury in terms states that he came to his death: “by being caught and crushed by the wheel and beam of the coal conveying machinery” of the defendants.

The deceased had lived in the vicinity of the preriiises in question but one day prior to March 2nd. There was a well on the premises to which children were in the habit of going for water. A little girl who lived in the building in which the deceased and his mother lived testified that she went to the well for water, that deceased followed her and then went over to the coal conveying machinery, and when the witness last saw him he was standing by said machinery looking into it. There was, as has been said, evidence that other children had been in the habit of climbing on said frame work when the machinery was in motion; that boys used to pull and play around the chains. The machinery was not in motion when the deceased went to it, but not long afterwards was set in motion.

The deceased was an intelligent and ordinarily careful boy ten years old. He could readily climb upon the frame work, which was only three feet high. If he was on the frame work, or in a position, when the machinery was set in motion, where his clothing was caught by the sprocket wheel, the revolving of that wheel, driven by electricity, might readily force his body into the position in which it was found, and cause such injuries to his face as he sustained.

We think that from all the evidence the jury might properly find that the defendants were guilty of the negligence alleged in the declaration in respect to said conveyor; that plaintiffs’ intestate came to his death in the manner alleged in the declaration, and that the negligence of the defendant was the proximate cause of his death.

Where there are no eye witnesses to the killing of a person his administrator, in an action for damages, may establish the exercise of ordinary care on the part of the deceased by the highest proof of which the case is capable, including the habits of the deceased and facts and circumstances from which the jury may rightfully find that he was exercising such care. Collison v. I. C. R. R. Co., 239 Ill 532, and cases there cited. There was in this case testimony that the deceased was an intelligent and ordinarily careful boy. We think that from the evidence, taking into account the natural instinct that prompts every person to preserve life and avoid danger, the jury might properly find that the deceased was in the exercise of reasonable care for his own safety. The contention of appellant that the verdict is against the evidence cannot, therefore, in our opinion, be sustained.

We find no reversible error in the rulings of the court on questions of evidence or in the refusal to give the instructions asked by the defendants which were refused.

Finding in the record no reversible error, the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Mederic G. Ouimette, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,559.
    1. Notices—when of accident given to city pursuant to statute insufficient. The statute requires that the notice in question he in writing and give “the date and about the hour of the accident.” A notice which states that the accident occurred upon any other day than the true one is insufficient and will not support a recovery.
    2. Notices—hoiv insufficiency of, given of accident to city pursuant to statute may he availed of. The insufficiency of the notice of an accident given to the city, pursuant to statute, may be availed of by a motion for a peremptory instruction.

      Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robebt W. Weight, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed with finding of facts.
    Opinion filed June 4, 1909.
    Statement by the Court. The City of Chicago, for the purpose of lighting certain of its streets, maintained an electric light plant. As a part of such plant it maintained in Ashland avenue two wires suspended over the street, which carried a current of 7,000 to 8,000 volts. In some way one of these wires became broken and one end fell to the ground. Plaintiff, having occasion to pass over this wire when it was about the height of his knees from the ground, caught hold of it to throw it out of his way and thereby the current of electricity carried by the wire passed through his body, inflicting on him severe injuries. To recover for such injuries he brought his action against the city, alleging that the city was guilty of negligence in respect to said wire and that in consequence thereof he, while in the exercise of due care, was, by coming in contact with said wire, burned and injured.
    It is undisputed that the accident occurred about 8 p. m. on October 10, 1905. In his declaration plaintiff alleged that he gave a notice to the city which stated that the accident occurred about 8 p. m. on the tenth day of November, 1905, and set out said notice.
    On the trial plaintiff offered in evidence the notice set out in the declaration, and the court admitted said notice over the objection of defendant. At the close of plaintiff’s case, and again at the close of all the evidence, the defendant moved the court to instruct the jury to find the defendant not guilty, and requested the court to give the following instruction in writing: ‘ ‘ The court instructs the jury to find the defendant not guilty;” but the court denied said motion and refused to give either of said instructions, and the defendant excepted. The jury returned a verdict for the plaintiff for $4,000 damages. The court denied defendant’s motion for a new trial, entered judgment on the verdiet, and the defendant appealed. Among the errors here assigned is the refusal to give said instructions.
    Edward J. Brukdage and John B. Caverly, for appellant; John L. Fogle, of counsel.
    James C. McShake, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In the view taken by us of this ease it is only necessary to decide two questions—first, whether the notice was a sufficient legal notice under the statute; and second, if not, whether the question of the sufficiency of the notice was properly raised by the defendant on the trial so as to be open to review here.

The accident happened October TO, 1905, but the statutory notice given to the defendant by the plaintiff states that it occurred November 10th.

Section 2 of the Act of 1905 (Hurd’s Stat. 1905, p. 1154) is as follows: “Any person who is about to bring any action or suit at law in any court against any incorporated city, village or town for damages on account of any personal injury shall, within six months from the date of injury, or when the cause of action accrued, either by himself, agent or attorney, file in the office of the city attorney (if there is a city attorney, and also in the office of the city clerk) a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom such cause of action has accrued, the name and residence of person injured, the date and about the hour of the accident, the place or location where such accident occurred and the name and address of the attending physician (if any).” Section 3 provides that if the notice provided for in section 2 is not given as therein required, any such suit brought against any such city shall be dismissed, and the party suffering such dismissal shall be forever barred from suing on account of such injury.

In Erford v. Peoria, 229 Ill. 546, it was held that the giving of the notice required by the statute was a condition precedent to the right to bring a suit against the municipality for damages on account of a personal ■ injury, the performance of which must be averred and proved by the plaintiff to enable him to maintain his suit. The language of the statute is clear and positive. It requires the notice to be in writing and to give, “the date and about the hour of the accident.” There can be but one “date” of the accident, and that is the day on which it occurred. To hold that under this statute the plaintiff may, in his notice, state that the accident occurred on a day other than the true one, would be in effect to repeal the statute rather than to construe it. The statute requires the date to be stated, and this certainly cannot be done by stating that the accident occurred on a day on which it did not occur. Gardner v. New London, 63 Conn. 267.

We think that the notice given by the plaintiff in this case was fatally defective and gave to the plaintiff no right to maintain an action for the injury which he sustained on October 10, 1905. His right to maintain his action for that injury depends on the sufficiency of his notice, and it is immaterial what notice the defendant may have had of the time of the injury from other sources. Gardner v. New London, supra.

The contention that the question of the effect of the failure to give a statutory notice is not open for review because the defendant, in place of moving that the suit be dismissed for failure to give such notice, asked for a peremptory instruction to find the defendant not guilty cannot, we think, be sustained in view of the decision in Erford v. Peoria, supra. In that? case no notice was given; the defendant did not move to dismiss but asked a peremptory instruction to find the defendant not guilty, which was given, and a judgment on the directed verdict was affirmed on the sole ground that the statutory notice was not given. In this case, as has been said, the notice given by the plaintiff was fatally defective and cannot be held a notice of the “date’5 of the accident.

We think that the peremptory instruction to find the defendant not guilty should have been given for the reason that the plaintiff failed to give the notice the statute required him to give as a condition precedent to his right to bring this suit, and for the error in refusing to give such instruction the judgment will be reversed. The plaintiff having failed to give to the defendant the notice the statute required him to give of his injury as a condition precedent to his right to bring action therefor, the judgment will be reversed with a finding of facts, and the cause will not be remanded.

Judgment reversed with finding of facts.


text:
    Helen C. Maine, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,599.
    1. Negligence—when evidence in collision case establishes. Where the Injury to the plaintiff occurred by reason of a motor car being run upon a railroad track, and being there struck by a railroad engine, the evidence of such manner of occurrence, coupled with the testimony of the motorman to the effect that he knew that it was his duty to bring his car to a full stop within a safe distance of the railroad crossing, establishes a prima facie case of negligence in favor of the plaintiff, which, under the evidence in this case, it was held was not rebutted.
    2. Verdicts-—when not excessive. Held, in an action on the case for personal injuries, that a verdict for $3,000 was not excessive, where the evidence tended to show that as a result of an accident both' bones in one of the plaintiff’s feet and arms were broken—■ the ulna near the elbow and the radius near the wrist; that the first union of the ulna was not satisfactory and the union was broken up and the bone re-set; that, in consequence, the arm is deformed and its motion limited and that these conditions are permanent; that other serious effects followed, and that the sum of $700 was expended for medical attendance and nursing.

      Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Mebbitt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the. March term, 1908.
    Affirmed.
    Opinion filed June 4, 1909.
    Statement by the Court. In an action on thé case for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant, plaintiff had judgment for $3,000, and the defendant appealed.
    The defendant operated in Centre avenue, a north and south street, a double track electric street railway. A switch track of the Pan Handle railroad company crossed defendant’s tracks at right angles and at grade at a point 303 feet south of Fifty-eighth street. Plaintiff was a passenger on a south bound car of the defendant, and when the car reached the switch track it was struck by an engine going west on that track, and as a result of such collision plaintiff sustained the injuries complained of. The grounds of reversal urged are, that the verdict is against the weight of the evidence, and that the damages are excessive.
    William J. Hynes, Franklin B. Hussey and Watson J. Ferry, for appellant; John E. Harrington, of counsel.
    Quin O’Brien and Lawrence W. Potter, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

The negligence alleged in the declaration is, that the defendant so negligently ran and managed the car in which plaintiff was a passenger that it ran upon the track of a steam railroad company, and there was struck by an engine on said track, and that in and as a consequence of such collision plaintiff was injured.

The motorman in charge of defendant’s car testified that he knew that it was his duty to bring his car to a full stop within a safe distance of the railroad crossing. We think that this evidence, with the evidence that the car did not stop before reaching the switch track but ran upon that track and was there struck by an engine, aixl that in and as a result of such collision plaintiff was injured, made a prima facie case in favor of the plaintiff and against the defendant.

The contention of appellant is that the failure to stop the car before it ran upon the switch track was not attributable to any act or default of the defendant or its servants, but to a cause that the highest degree of care could not have obviated. The testimony relied on in support of this contention is testimony of witnesses for the defendant which tended to show that the speed of the car, after leaving Fifty-eighth street, was ten miles per hour; that at that speed, with the track in the condition it was on the day of the accident, a car could be stopped in about 175 feet; that when the motorman turned off the power and set the brake to stop the car before reaching the switch track, the brake locked the wheels, so that they did not revolve but slid on the tracks; that the brake became stuck so that the motorman was unable to release it or prevent the wheels from sliding on the track; that he applied sand to the rails; that when he found the brake was stuck he reversed the power but was unable to stop the car before it reached the switch track; that the brake became stuck because the wood in the disc got wet from the snow which covered the ground, and as a consequence became swollen; that the brakes on the cars were properly constructed, of proper material; that the brake became stuck without the fault or negligence of the defendant. To support this contention it devolved upon the defendant to prove that the motorman began his efforts to stop the car a sufficient distance from the crossing to enable him, if the appliances for stopping the car worked properly, to stop the car at a safe distance from the railroad crossing, and that he set the brake properly. The witnesses called by the defendant testified, as has been said, that in the then condition of the track a distance of 175 feet was required to stop the car. The motorman testified that he shut off the power when he was 200 feet from the crossing; that he at once set his brake and at the same time applied sand to the track with his foot. On his cross-examination he testified that after the accident he saw sand on the track. Asked how far back the sand extended he answered, seventy or eighty feet from the crossing. The conductor testified that the car, when the motorman began his efforts to stop it, was about half way between Fifty-eighth street and the track, and therefore was only about 150 feet from the track. Wyman, a witness called for the defendant, testified that he stood by the motorman on the front platform, and that when the motorman turned off the power the car was but seventy-five or eighty feet from the switch track; that the front end of the car was twenty-five or thirty feet from the switch track when the reverse current was put on; that he had ridden on the front platform of the car from Twenty-sixth street and had noticed that the car wheels slid whenever the motorman tried to make a stop.

From all the evidence we think the jury might properly find that the car wheels had become locked and slid in making previous stops. It was the duty of the motorman, in determining when to begin to stop his car for the crossing, to take into account the then condition of the track and the fact that his car wheels had become locked and slid in making previous stops. From the evidence we think the jury might properly find that the motorman did not begin his efforts to stop the car until it was within seventy-five or eighty feet of the crossing.

We find no evidence tending to show the wet and swollen condition of the disc, if it was wet and swollén, contributed in any manner to the locking and consequent sliding of the wheels. We think that the jury might, from the evidence, properly find that the wheels became locked and were made to slide by the manner in which the brake was set by the motorman, and the most that caff be said as to effects of the wet and swollen condition of the disc is that snch condition prevented the motorman from releasing the brake in order to set it again. We think that from the evidence the jury was not bound to find as a fact that the sole cause of the collision was the wet and swollen condition of the disc, but might properly find that the motorman was guilty of negligence in failing to begin his efforts to stop the car at a proper, sufficient and safe distance from the switch track, and also in setting the brake in such a manner as to lock the wheels and cause them to slide, and that such negligence directly contributed to cause and bring about the collision between the street car and engine in and by which collision the plaintiff was injured. We do not think that on the evidence in this record the verdict can be held to be against the evidence.

In the collision both bones in one of the plaintiff’s feet and arms were broken, the ulna near the elbow and the radius near the wrist. The first union of the ulna was not satisfactory and the union was broken up and the bone re-set. The arm is deformed and its motion limited, and these conditions are permanent. Plaintiff suffered other injuries to her head and back, and the evidence tends to show that during the four years which elapsed between her injury and the trial she had serious nervous symptoms and troubles; that during all that time she suffered and probably will always suffer from neurosis or • psychoneurosis. She was a teacher, and her loss in salary and her expenditures for medical attendance and nursing, amounted to about $700. Whether her nervous condition subsequent to her injury was the result of the injury was a question for the jury on which their verdict, on the evidence, must be held conclusive. We do not think that the trial court erred in refusing to disturb the verdict on the ground that the damages were excessive.

Finding no error in the record, the judgment of the Circuit Court will be affirmed.

Affirmed.


author: Mb. Justice Chyteaus

text:
    Estate of Henrietta Snell, deceased, Albert W. Adcock et al., Executors, Appellants, v. Home Mutual Building Loan Association et al., Appellees.
    Gen. No. 14,514.
    1. Conveyances—how language of construed. Language in a deed must be construed most strongly against the grantor.
    2. Conveyances—effect of receiving, subject to encumbrances. A grantee does not become personally obligated to the payment of an encumbrance subsisting against the property where the language of the deed is as follows: “Said grantee assumes all encumbrances which is now of record against said property.”
    Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthili,, Judge, presiding.
    Heard ini the Branch Appellate Court at the March term, 1908.
    Reversed and remanded with directions.
    Opinion filed June 4, 1909.
    Statement by the Court. Albert W. 'Adcock, and others, executors of the last will and testament of Henrietta Snell, deceased, on September 29, 1904, filed a petition in the Probate Court of Cook county, where the estate of the decedent was pending, alleging that a claim allowed against the estate, on September 24, 1909, for $4,762.10 in favor of the Home Mutual Building and Loan Association of Bacine, Wisconsin, .had been paid and should be satisfied. It was also alleged that Prank C-. Wright and Susan P. Gunsolus claimed to be the owners of the claim. The petition prayed for a hearing; that the claim might be found and decreed to be paid, and for general relief.
    Wright and Gunsolus answered and it appears from their answers that Susan P. Gunsolus alone claimed to be the owner of the claim.
    On April 18, 1905, the Probate Court denied the prayer of the petition. Prom that order the executors appealed to the Circuit Court. In the latter court a jury was waived and the cause submitted to the court. On November 9, 1907, the Circuit Court rendered a judgment denying the prayer of the petition and dismissed the petition, at the costs of the executors, to be paid in due course of administration. From that judgment the executors are now prosecuting this appeal.
    The claim, allowed on September 24, 1901, originated in a note, bond, and mortgage upon some Wisconsin land, executed and delivered to the Building Association; not, however, by Henrietta Snell.
    Grace S. Coffin made her note and bond, dated October 21, 1898, evidencing her indebtedness to the Association. The note and bond were secured by the above mentioned mortgage, executed by her, dated October 21, 1898, and recorded October 24, 1898. By a war-' ranty deed dated December 1, 1898, Grace S. Coffin and her husband, upon a stated consideration of $10,000, conveyed the mortgaged property to Henrietta Snell. In that deed two clauses appear which are as follows: 11 Said grantee assumes all encumbrances which is now of record against said property,” and “In the event of the death of the said grantee Henrietta Snell, during the life time of said grantor Grace S. Coffin, the title to said premises shall revert to and vest absolutely in the0 said Grace S. Coffin, her heirs and assigns forever.”
    Subsequently, on February 24, 1900, Henrietta Snell died and under the provision in the aforementioned deed the title to the land reverted to Grace S. Coffin. While she, Grace S. Coffin, held the title to the property the Building Association’s claim was proved up against the estate of Henrietta Snell, on September 24, 1901, for $4,762.10, as already stated, and, an appeal being prosecuted in the Circuit Court, that court entered judgment upon the claim for $4,871.20, on March 8, 1902. During the time she held the title Grace S. Coffin also created other encumbrances upon the property, but we are not concerned with these in the present controversy except for the purpose of differentiation from the one now before us.
    On August 30,1902, by a contract bearing that date, Mrs. Coffin contracted to sell the property to Herbert Hammond, who acted for his wife, Florence E. Hammond. In that contract three mortgages are mentioned as existing upon the property, but nothing is said with reference to the Building Association mortgage. That mortgage was, however, then oS record as a lien upon the property and, furthermore, Hammond testified that he knew of the mortgage and bought the property knowing the mortgage was there. But, he said, Mrs. Coffin told him that her mother had assumed that debt. The deed from Mrs. Coffin to Mrs. Florence E. Hammond, made to carry out the contract with Mr. Hammond, is dated and acknowledged August 29, 1902, was recorded on September 2, 1902, and recites a consideration of $15,000. It was testified that the actual consideration was $10,000.
    On March 2,1903, Mrs. Hammond paid the Building Association its claim, had the note and bond marked paid, obtained and recorded a release of the mortgage, and took an assignment of the claim or judgment of the Building Association against Henrietta Snell’s estate to one Frank Gf. Wright. Wright transferred the assignment of the judgment to Susan F. Gunsolus, sister of Mr. Hammond. Wright paid nothing for the transfer to him and what, if any, consideration Susan F. Gunsolus gave for the assignment to her does not appear. That is, however, immaterial. Mr. Hammond sold the premises to one Joseph C. Yeager on or about October 30, 1903.
    George A. Trude and M. Maeso, for appellants.
    Ritsher, Montgomery, Hart & Abbott, for appellees.
   Mb. Justice Chyteaus

delivered the opinion of the óourt.

The disposition of this case depends wholly upon the situation of Mrs. Coffin, at her mother’s death, with reference to the property and the indebtedness upon the Building Association mortgage. Mrs. Hammond took title with both actual and constructive .notice. Wright, it appears, acted for and on behalf of Mrs. Hammond. We consider the claim in the hands of Susan F. G-unsolus precisely the same as if it were held by Mrs. Hammond. Originally Mrs. Coffin devoted the property to the payment of the indebtedness. We know nothing about the consideration in the transaction whereby the property passed from Mrs. Coffin to her mother, except that it recited a consideration of $10,000, and it appears that Mrs. Snell, as purchaser and as part of the transaction, assumed the Building Association mortgage, then of record against the property. The deed between the parties stated that she assumed it as an “encumbrance” of record against the property. The assumption, in this form, cannot be separated from but must be taken as part of the consideration for the property. As between these two parties the property was the primary fund for the payment of this indebtedness. Mrs. Snell received from Mrs. Coffin the land burdened with the encumbrance. Had no mention been made, in the deed, of the encumbrance, the encumbrance, as between the two, would not have followed the land, but it would have been Mrs. Coffin’s legal duty to relieve the land therefrom. For the title to the land, burdened, Mrs. Snell paid $10,000. She assumed the encumbrance but she did not agree to pay to the Building Association the debt as an obligation of her own. Other than as an encumbrance she did not, as between the two, by the particular language used, assume any liability by reason of the indebtedness of Mrs. Coffin, her grantor. Had Mrs. Snell died the day after she received the title, Mrs. Coffin would not then have been entitled to a reversion of the property, free and clear of this encumbrance. From the language used in this instrument we are not justified in deducing any intention to pay. Such intention is not expressed therein and courts do not, under pretense of construction, add to the contracts that parties have themselves made. If Mrs. Snell had suffered the property to be foreclosed and sold in payment of the indebtedness, Mrs. Coffin would have been entitled to no remedy against Mrs. Snell upon this form of assumption. Mrs. Snell did not covenant to pay the indebtedness. She merely, as part of the consideration, “assumed it, as an encumbrance * * * against the property. ’ ’ Mrs. Coffin, in her deed, inserted a provision that in the event she survived Mrs. Snell the title to the property should revert to her, Mrs. Coffin, the grantor. No language used in this provision for reversion expresses the idea that in case of the death of Mrs. Snell, the grantee, before the maturity of the encumbrance, the property-should revert to Mrs. Coffin, free and clear of this encumbrance. We can imply no such idea or intention, merely from the provision that Mrs. Snell, in the purchase, assumed the encumbrance. By so doing we would imply a contract the parties did not make and that Mrs. 'Snell agreed to something which might be impossible of performance by her. Suppose the Building Association were not willing to accept payment otherwise than as it had contracted with Mrs. Coffin to be paid? Now that Mrs. Snell is dead, so that the property has reverted to Mrs. Coffin, no equitable consideration and no promise to pay the indebtedness, independent of the property, or to preserve the property for Mrs. Coffin, express or implied, appearing, we see no reason, legal or equitable, why Mrs. Coffin should recover from the estate of her mother the indebtedness to the Building Association. Language in a deed must be construed most strongly against the grantor. The deed we are now concerned with is Mrs. Coffin’s deed. We cannot infer, from the language used, that it expresses on the part of Mrs. Snell an intention to pay Mrs. Coffin the amount of the consideration she did pay and, in addition, a promise to clear the property from encumbrance. There is certainly no language clearly expressing such promise. Mrs. Coffin, the maker of the deed, is entitled to no benefit from intendments and inferences, in her favor, in the construction of the language used. Mrs. Snell did not, according oto the language used, assume the indebtedness, except as an encumbrance. So far as any promise to Mrs. Coffin, by reason of the language used in the deed, is concerned, Mrs. Snell might, by extension or otherwise, have continued the existence of the encumbrance .as long as she lived. Mrs. Coffin’s conveyance of the property to another, under the circumstances here shown, gave that other no greater rights against Mrs. Snell than Mrs. Coffin herself had, in respect to that indebtedness.

We are of the opinion that the courts below have extended to the language used, as against Mrs. Snell, the grantee, a meaning greater than it can bear and imputed to her a promise beyond what the language of the deed fairly imports. Therefore the judgment of the Circuit Court is reversed, and this cause is remanded to the Circuit Court with directions to allow the prayer of the petition.

Reversed and'remanded with directions.