text:
    Frank Kerting, Defendant in Error, v. Henry D. Sturtevant, Plaintiff in Error.
    Gen. No. 17,589.
    1. Gaming—recovery of money lost. In an action to recover for money lost in gambling transactions, plaintiff has the burden of proving such transactions by a clear preponderance of the evidence.
    2. Gaming—intention of parties dealing on board of trade. In order to recover money lost in transactions in grain on the board of trade through defendants as brokers, it must appear that neither party intended the grain to be delivered or intended actual purchases and sales to be made, but that both had the intention of settling on differences in price only.
    3. Gaming—when evidence insufficient to show gambling transaction. Where plaintiff orders defendant, a broker, to buy and sell grain for him on the board of trade, there being no evidence that plaintiff or defendant had any intention of gambling and it appearing that defendant made actual purchases and sales in good faith, plaintiff cannot recover money deposited with defendant which is required to cover a loss.
    Error to the Municipal Court of Chicago; the Hon. Arthur W. Deselm, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed June 30, 1913.
    Kir app & Campbell and William BEYE,,for plaintiff in error.
    Walter J. Miller, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff Kerting employed Shearson, Hammill & Co. to do business for him, as his brokers, on the Chicago Board of Trade. He deposited with them, for their protection in case the market went against him, $500. From August 22 to September 8, 1910, he ordered his brokers to make for him four purchases and sales of grain of 5,000 bushels each. The result of the transactions was a loss to plaintiff of $181.25, including commissions, and the defendants paid him $318.75, the remainder of his deposit. He then brought an action in the Municipal Court against his brokers “for money lost in gambling with the defendants in the following manner: grain fictitiously pretended to be bought, but in reality bet upon by the plaintiff with the defendants on the following dates.” . Sturtevant was the only defendant served and against him the court gave judgment for $181.25, and he prosecutes this writ of error. The plaintiff gave the defendants an order for each purchase and sale and the defendants executed such orders by making in their own names for the plaintiff actual contracts for the purchase and sale of grain with other brokers on the Board of Trade, and made reports of such purchases and sales to the plaintiff, giving the particulars of each purchase and sale and the name of the broker with whom the contract was made.

In order to recover the burden of proof was on the plaintiff to show by a clear preponderance of the evidence that such contracts of purchase and sale were in fact, as between plaintiff and defendants, gambling transactions. This he has not done. If it be conceded that ac-person representing the defendants said to plaintiff, “We want enough margins, we want that margin kept good for our protection in case the market goes against you, so that there has got to be enough margins to be good for the difference,” this does not tend to show that actual purchase and sales were not contemplated, but only that defendants required the plaintiff to protect them against loss on contracts they should make for him in their own name in case the market went against him. The agreement between the plaintiff and the defendants rendered it necessary that the defendants should as principals enter into contracts of purchase and sale with other brokers, ,and on such contracts they were personally liable to the brokers with whom they were made. To make the purchases and sales in question gambling transactions as between plaintiff and defendants it must appear that neither party intended the grain to be delivered or intended "actual purchases and sales to be made, but that both had the intention of settling on the differences in price only. Pelouze v. Slaughter, 241 Ill. 215; Johnson v. Milmine, 150 Ill. App. 218.

There is no evidence of any understanding and agreement between plaintiff and defendants that mere differences should be paid per se without anything further being done, but each transaction was begun by an order from the plaintiff to buy or sell grain at a fixed price, and the evidence shows that actual purchases and sales were made by defendants in obedience to such orders. The plaintiff disclosed no desire or intention to gamble in grain with defendants, and it is clear from the evidence that defendants had no purpose or intention to gamble in grain with him, and that they in good faith made actual purchases and sales for him by his order, and that in such transactions plaintiff lost $181.25, and this sum the defendants had the right to retain from the money deposited with them by the plaintiff. The evidence does not, in our opinion, show any right of recovery in the plaintiff, and the judgment will be reversed.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Emma L. Hammer, Defendant in Error, v. William O. Trainer, Plaintiff in Error.
    Gen. No. 17,624.
    1. Contracts—guaranty. Where defendant who is acting as broker for both parties in the sale of a flat building enters into a written agreement with plaintiff to the effect that if she will purchase the building and let defendant have the renting he will guarantee to rent the apartments to responsible tenants at a certain rental per month, the instrument is not a guaranty but a valid promise on the part of defendant for the breach of which he is liable.
    2. Brokers—liability on agreement to leaser Where defendant who acts as broker in the sale of a flat building to plaintiff agrees to act. as her agent in renting, to rent the apartments at a certain rate per month to responsible tenants, to guarantee the rent, and to pay the rent for apartments which are vacant, he is liable for the failure of tenants to pay rent, though the lease was made by plaintiff’s grantor before the deed was delivered to plaintiff.
    3. Brokers—not entitled to withhold excess rent. Where defendant acting as broker for plaintiff agrees to rent her apartments at a certain rental or more per month he is not entitled to withhold the amount collected in excess of the amount specified.
    Error to the Municipal Court of Chicago; the Hon. John D. Ttjrnbaugh, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    B. F. Langworthy, for plaintiff in error.
    George R. Jenkins, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

June 27, 1910, the defendant Trainer, acting as broker for both parties, negotiated a contract for exchange between plaintiff Hammer and one Woodley of Woodley’s six flat building, 5212 and 5214 Kimbark avenue, then approaching completion, for certain real estate of Mrs. Hammer and a sum of money. The contract provided that Mrs. Hammer should take Woodley’s property “subject to existing leases.” At the same time, as a part of the same transaction and to induce Mrs. Hammer to make the exchange, the defendant gave to Mrs, Hammer the following instrument in writing, addressed to her: “We herewith agree with you that if you purchase the building at 5212-14 Kim-bark, and will turn the renting agency of this property over to us, we will guarantee to you to rent the apart ments in the building to responsible tenants from September 1, 1910, at a rental of $60 a month for five of the apartments and $55 per month for the other.

“We will charge you 2y2 per cent, commission for renting and collecting rents, and the costs of advertising the apartments in the daily papers. We will keep a man at the building in the afternoons, upon Saturday and Sunday, until these apartments are rented, and use every facility of our office and do everything that is possible to secure tenants.

“We agree and guarantee to you that whatever apartments are vacant from the first of September we will pay the rent until they are rented. We also agree with you that if possible we will secure $65 or even more for any of the apartments and will use our best efforts to secure it.”

Between June 27, when the contracts were made, and July 21, when the deeds were exchanged, defendant negotiated two leases in the name of Woodley of apartments in the Kimbark avenue property, one of which was to Mary R. and Dwight "C. Haven for two years from September 1, 1910, at $60 per month. The Havens did not pay the rent for December, 1910, and January, 1911. Defendant also withheld $12.50 rents collected, on the claim that he had rented one apartment for $62.50 per month and was entitled to keep as his own $12.50 because he had collected that sum in excess of $60 per month. In an action in the Municipal Court plaintiff had judgment for $132.50, $120 of which was for the two months rent the Havens failed to pay and $12.50 for the rent retained under the claim above stated.

The instrument given by defendant to plaintiff is not a guaranty, but is a valid promise on the part of the defendant and for a breach of that promise he is liable to respond in damages. We think it is immaterial that the Haven lease was executed before deeds were exchanged. It was executed after the contract was made by which Mrs. Hammer agreed to take the Woodley property, “subject to existing leases,” and so was not then, ‘ ‘ an existing lease. ’ ’ Plaintiff agreed with Mrs. Hammer to rent the premises to “responsible tenants. ’ ’ From the evidence the court might properly find that the Havens were not “responsible tenants,” although they seem to have paid the first three months’ rent.

Neither do we think that it is material that the lease to the Havens was made by Woodley. The defendant promised the plaintiff to rent the apartments to responsible tenants and by that promise he is bound.

The claim of right to withhold from rents collected the amount of rent collected on an apartment in excess of $60 per month is without merit.

We think the judgment gives to the plaintiff only what she is justly entitled to on the evidence, and it is affirmed.

Judgment affirmed.


text:
    Mary A. Fox, Administratrix, Defendant in Error, v. George J. Cooke Company, Plaintiff in Error.
    Gen. No. 17,657.
    Landlord and tenant—cancellation of lease. In an action for rent under a lease containing a provision for cancellation in case a saloon license cannot be obtained for the premises, judgment for plaintiff affirmed there being no evidence that defendants made a reasonable effort to obtain a license.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.

      Harry A. Daugherty, for plaintiff in error.
    Edward B. Heady and Frank H. Graham, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The recovery in this case is for $210 for seven months’ rent from January 1, 1910, under a lease of certain premises from plaintiff’s intestate, Michael Donahue, to the defendant corporation for two years from May 1, 1909, at $30 per month. The lease contains the following provision:

“The said lessee shall not be liable for rent hereunder during the time said premises remain untenantable or if at any time during the term of this lease, or during the option of renewal given under this lease, a City of Chicago saloon license cannot he obtained for these premises, it is hereby agreed that upon the lessee giving thirty (30) days’ notice to lessor, that after the expiration of said notice this lease and agreement shall be null and void.”

Defendant, November 27, 1909, gave plaintiff notice of its election to declare the lease null and void after December 31, 1909, for the reason, “that a City of Chicago saloon license cannot be obtained for said premises.” Duffy kept a saloon in the demised premises from May 1 to October 31, 1909. John Ryan, an employe of the defendant, assigned to Duffy a license to keep a saloon at 383 E. 23rd street. May 1, 1909, with this assignment and $500, the license fee for six months, advanced by the defendant, which he repaid in monthly instalments, Duffy obtained a license to keep a saloon in the demised premises. He on the same day assigned the license to Ryan, who assigned it to George J. Cooke, the president of the defendant company, June 20, 1909. About that time Ryan quit the service of the defendant. Cooke assigned the license to Peter Anderson October 29, 1909. A clerk in the office of the city clerk testified that licenses were not issued for shorter terms than six months from May 1 or November 1, and that no license could have been issued November 29, when the notice of election to declare the lease void was given, but an ordinance introduced in evidence provides that saloon licenses, “may be issued for the full license year or for the unexpired portion thereof, or for any period of the unexpired portion thereof.” We do not regard it material to decide whether a license might have been obtained after November 1. If not, it was the duty of the defendant to use reasonable effort to obtain a license on or before that date. The evidence fails to show that the defendant at any time made any effort to obtain a license for the period beginning November 1, 1909, and it does show that the president of the company had, in his own name, a large number of saloon licenses, and that October 29 he assigned the Duffy license to Anderson. The ordinance does not permit a saloon license to be issued to a corporation, but the defendant company loaned to its customers money to pay for their licenses, and both Ryan, when he was in the service of the defendant, and Cooke, its president took assignments of saloon licenses and reassigned them to customers of defendant to enable them to obtain licenses. In Omensky v. George J. Cooke Co., 172 Ill. App. 507, D. Branch of this court affirmed a judgment against the defendant in that case, where the defense set up was based on the same provision in a lease that is relied on in this case. In another case between the same parties we affirmed a judgment recovered on the same lease for substantially the reasons stated in the opinion of Mr. Justice Fitch in the case just cited. In each case the basis of the decision is that the evidence failed to show that the defendant could not, by reasonable effort, have obtained a new license, and we think that the same conclusion must be reached from the evidence in this case.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Martin Bendik, Defendant in Error, v. Pennsylvania Company, Plaintiff in Error.
    Gen. No. 17,692.
    1. Master and servant—railroads. "Where plaintiff, an employe in the yards of defendant railway company, is struck by an engine the question whether plaintiff assumed the risk and the question whether he exercised ordinary care are for the jury.
    2. Master and servant—city ordinance. In a personal injury action where there is evidence that plaintiff’s injury resulted from the neglect of defendant in starting an engine without giving any signal it is proper in an instruction to the jury to set out an ordinance which requires the bell of each locomotive running in the city to be rung continuously.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Loesch, Scofield & Loesch, for plaintiff in error.
    R. Wilson More and Fred B. Ho vet, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action in the Municipal Court to recover damages for personal injuries alleged to have been sustained by plaintiff Bendik through the negligence of the defendant railroad company, plaintiff had a verdict for $825 damages and from a judgment thereon the defendant prosecutes this writ of error.

In the 14th street yard of the defendant are a large number of north and’ south tracks. There is a coal hoist just east of track 17 and also a tramway track on which small cars loaded with coal are run to the hoist and then hoisted and the coal dumped into the tenders of engines standing on track 17. Just west of track 17 are hydrants. Plaintiff in the discharge of his duty attached a section of hose to one of these hydrants and intended to run it under the rails and between the ties of track 17 to the tramway and then, by the use of the hose, wet the coal in cars standing on the tramway. Plaintiff had worked in the yards two or three months. Hose was frequently used to wet coal in tramway cars and was always attached to the same hydrant and passed under track 17 at the same place. "When plaintiff went onto track 17 to run the hose under that track there was an engine on track 17 at the coal hoist about 30 feet south of him, and another engine on the same track from 5 to 15 feet north of him, with the tender towards him. While plaintiff was standing between the rails of the track, with his back to the north, the engine at the hoist proceeded south and the engineer of the other engine proceeded to back his engine south, intending to run it to the coal hoist. He had run only a few feet when it ran over the plaintiff’s foot and knocked him down, inflicting the injuries for which he sued. From the evidence the jury might properly find that the engine which injured plaintiff was started and run without ringing a bell or giving any other signal or warning, and also that the custom was to ring the bell before the engine started up. We think that from all the evidence the jury might properly find that the defendant, in starting the engine without giving any signal or warning, was guilty of negligence which caused the injury to plaintiff. We also think that on the evidence the question whether the risk or danger of being injured in the manner in which he was injured, and the question whether he was in the exercise of ordinary care for his own safety, were questions of fact for the jury, on which their finding should not he disturbed. Chicago City Ry. Co. v. Fennimore, 199 Ill. 9; Lake Shore & M. S. Ry. Co. v. Enright, 227 Ill. 403; Henry v. Cleveland, C., C. & St. L. Ry. Co., 236 Ill. 219; City of LaSalle v. Kostka, 190 Ill. 130; Slack v. Harris, 200 Ill. 96; Klofski v. Railroad Supply Co., 235 Ill. 146.

The court instructed the jury as follows: “The court instructs the jury, as a matter of law, that at the time of the accident in question there was in force in the City of Chicago an ordinance of said City as follows:

“ ‘The bell of each locomotive engine shall be rung continuously while running within said city, except of locomotives while running upon the railroad tracks situated east of Indiana avenue on the shore of Lake Michigan, between 22nd street and Park Row, in said city, and except locomotives while running upon those portions of railroad tracks which have been elevated. In the case of both of these exceptions no bell shall be rung or whistle blown except as signals of danger.’ ”

Section 54 of the Municipal Court Act provides that the court shall take judicial notice of ordinances of the city of Chicago. We think that the court properly gave the instruction, thereby advising the jury of the existence of such ordinance and making it possible to make the ordinance a part of the record by the bill of exceptions. We think the record is free from error and the judgment is affirmed.

Affirmed.


text:
    Ferdinando Guerra, Defendant in Error, v. Michele Rocco, Plaintiff in Error.
    Gen. No. 17,772.
    . 1. Municipal court—practice. The Municipal Court Act does not require a copy of the writing sued on to be filed with the statement of claim.
    2. Contracts—validity. The fact that a party was blind and unlearned in English does not affect the validity of the contract in the absence of fraud.
    3. Practice—when defendant is limited to defense set up in affidavit. In an action for money due under a written contract for the erection of a building, defendant cannot question the validity of the contract where in the affidavit of merits he does not deny its validity and claims damage for plaintiff's failure to perform.

      4. Evidence—when terms of contract control in determining who employed architect. In an action for money due under a written contract for the erection of a building, the terms of the contract control in determining who employed the architect.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Rehearing denied July 14, 1913.
    John J. Swenie, for plaintiff in error.
    Herbert Green, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of the fourth class in the Municipal Court on a written contract for the erection of a building and the alteration of another building by plaintiff for defendant, plaintiff had judgment for $897.74, $600 of which was for the amount unpaid of the contract price, and $297.74 was for extras and the defendant sued out this writ of error. The grounds of reversal argued by plaintiff in error are, first; that no copy of the contract was attached to or filed with plaintiff’s statement of claim. The Municipal Court Act does not require a copy of the writing sued on to be filed with the statement of claim. Ferguson v. Hale, 162 Ill. App. 523.

Second: that defendant was blind, an Italian, who understood very little English, and the contract was not interpreted or the substance made known to him. That the defendant was blind and unlearned in English does not affect the case in the absence of any fraud practiced on him. He testified that the paper writing to which he made his mark was not read or explained to him, but did not state that his signature was obtained by duress or fraud, and it has been often decided that a man is bound to take ordinary care of his own interest, and such care requires him to refrain from signing a paper unless he knows its contents. Weller’s Appeal, 103 Pa. St. 594; Muller v. Kelly, 116 Fed. 545; Deering v. Hoeft, 111 Wis. 339; 9 Cyc. 390.

The second resolution in Thoroughgood’s case in the time of Lord Coke, 2 Coke R. 9b, was that an illiterate man need not execute a deed before it is read to him in a language which he understands; but if he do so without desiring it to be read, the deed is binding. The contention under consideration cannot be sustained for another reason. The defendant did not in his affidavit of defense deny that the contract sued on was valid and binding on him, but claimed damage for the alleged failure of the plaintiff to fulfil the contract, and was limited to the defense set up in his affidavit of defense.

Walter Cabinet Co. v. Russell, 250 Ill. 416.

Third: that the court erred in admitting the contract in evidence. What has been said disposes of this contention.

Fourth: That defendant did not employ Fortin, the architect, but the plaintiff “got Fortin to make the plans for the building.” The contract expressly provides that the work shall be done “according to plans, specifications and drawings which are declared to be a part of this agreement made by J. T. Fortin acting as agent for the owner;” that the contract shall be performed to the satisfaction of Fortin; that in the case of dispute as to the value of work added or omitted by the contractor the same shall be arbitrated by Fortin, “who has been mutually selected and whose decision shall be final and binding,” etc. The contract conclusively shows that the defendant employed Fortin as his architect, and it is immaterial that the plaintiff may have suggested to Fortin that he prepare plans for the building with a view to his employment by defendant in case the plans were satisfactory to him.

Finding no error in the record, the judgment is affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    The Journal Company of Troy, Defendant in Error, v. F. A. L. Motor Company, Plaintiff in Error.
    Gen. No. 17,344.
    1. Corporations—foreign corporation. Under the Act of May 18, 1905, the bringing of suit is not within the prohibition of “the exercise of corporate powers.”
    2. Corporation—single act not an exercise of corporate power. The doing of single act of business in this state by a foreign corporation is not a violation of the statute.
    .3. Corporations—defense to action by foreign corporation. In an action by a foreign corporation where defendant pleads that plaintiff is exercising jporporate powers in violation of the statute, the acts relied on must have been prior to the beginning of the suit.
    4. Corporations—right of foreign corporation to sue. In determining whether a foreign corporation is entitled to sue the statute should be construed liberally.

      5. Corporations—when foreign corporation has not exercised corporate functions in this state. Where a New York corporation, the business of which is 1 ‘ publishing trade papers, managing trade shows and general advertising” rents an office in Chicago which is used as headquarters for a solicitor and stenographer who send out advertising literature and correspondence, there is not an “exercise of corporate powers” in violation of the statute and the corporation may maintain suit on a note given in payment for advertising furnished plaintiff at a show in New York. .
    Error to the Municipal Court of Chicago; the Hon. William N. Maxwell, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Eastman & White, for plaintiff in error.
    Delavan B. Cole, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This writ of error is brought to reverse a judgment for $286.48 and costs recovered by the Journal Company of Troy against the plaintiff in error, the F. A. L. Motor Company, in the Municipal Court of Chicago, January 21, 1911.

The judgment was obtained by the Journal Company of Troy on the following note given by the plaintiff in error:

“$284.29. Chicago, III., May 3, 1910.
Ninety days after date we promise to pay to the order of the Journal Company of Troy, New York, Two Hundred & Eighty-four. 29/100 Dollars at our office No. 171 May street, Chicago. Value received.
F. A. L. Motor Company,
E. H. Lowe, Secretary.”

An affidavit setting out the defense of the Motor Company was filed in the Municipal Court which alleged that the note was obtained by fraud, and also, on information and belief, “that the said plaintiff is a foreign corporation for profit and is not an insurance company, building and loan company or surety company; that it is and was at the time this suit was brought doing business within the State of Illinois and not organized or existing under and by virtue of the law of the State of Illinois, or properly qualified as a foreign corporation to transact business in the State of Illinois, as by statute in such case made and provided.”

Evidence was heard in the Municipal Court on both the issues thus presented, but the defense on the merits has been in this court abandoned and reliance for reversal of the judgment is placed solely on the position that the evidence disclosed the incompetency of the plaintiff to maintain a suit in the courts of Illinois because of its failure to comply with the Act of May 18, 1905, entitled “An Act to regulate the admission of foreign corporations for profit to do business in the State of Illinois. ’ ’ Section 1 of this Act enacts:

“That before any foreign corporation for profit shall be permitted or allowed to transact any business or exercise any of its corporate powers in the State of Illinois other than insurance companies, building and loan companies and surety companies, they shall be required to comply with the provisions of this Act as well as all other regulations, limitations and restrictions applying to corporations of like character organized under the laws of this State.”

Section 6 of this Act provides that:

“Every foreign corporation amenable to the provisions of this Act which shall neglect or fail to comply with any of the provisions of the same as herein provided shall be subject to a penalty of not- less than one thousand dollars ($1,000) nor exceeding ten thousand dollars ($10,000) to be recovered before any court of competent jurisdiction, and it is hereby made the duty of the Secretary of State, as he may be advised or may ascertain that any corporation is doing business in contravention of this Act, to report such fact to the Attorney General of this State, and it shall be his duty and the duty of the State’s Attorney of the proper county to bring such actions at law as shall be necessary for the recovery of the penalties imposed hereby and in addition to such penalty, if after this Act shall take effect, any foreign corporation shall fail to comply herewith, no suit may be maintained either at law or in equity upon any claim, legal or equitable, whether arising out of contract or tort in any court in this State.”

The defendant in error does not contend that it has ever complied with the provisions of the statute, but does maintain that it is not amenable to the same, and has never transacted business in the State of Illinois or exercised its corporate powers therein, within the meaning or intention of the Act of 1905 or its predecessors. The first of these disqualifying Acts was of the date of May 26, 1897, and the later ones, including that of May 18,1905, do not materially differ from it, except that the last one adds to the prohibited actions the “exercise of any corporate powers in the State of Illinois.”

It having been contended, however, that under the Act of 1905, the very act of bringing suit fell within the prohibition of “the exercise of corporate powers,” the Supreme Court in Alpena Cement Co. v. Jenkins & Reynolds Co., 244 Ill. 354, and Frank Simpson Fruit Co. v. Atchison, T. & S. F. R. Co., 245 Ill. 596, explicitly negatived this proposition and held that the transaction of business prohibited by these acts relating to foreign corporations meant only the “transaction of the ordinary business in which the corporation is engaged and did not, nor did the exercise of corporate powers” include “acts not constituting any part of its ordinary business, such as instituting and prosecuting actions in court.” In the Alpena Cement Co. case, supra, the court also said:

“We think the words ‘corporate powers’ as used in this Act refer to the franchises belonging to the corporation or those powers which are specially conferred upon a corporation for the purpose of authorizing it to do or transact the particular business in which it intends to engage, together with those implied powers which are necessary to enable it to carry on that business, and do not include the right to sue or any other of those powers incident to the existence of every corporation which arise from the mere act of incorporation and do not depend for their existence upon the authority to transact or engage in any particular business. ’ ’

In the same case the Supreme Court held, following and citing Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, that the doing of a single act of business (in the Alpena Co. case, supra, the sale of five carloads of cement) did not constitute a violation of the law and was not within the inhibition of the statute.

It is plain, therefore, that neither the single transaction which was the occasion of the note, nor the reception of the note nor the bringing of the suit was inhibited by the statute.

The “transaction of business” or “exercise of corporate powers” which brought the plaintiff corporation within the operation of that clause of the statute which takes away from offending corporations the right to sue, must be found, if at all, in other activities on its part. The field for search for such inhibited action is again limited by the position heretofore taken by this court and implicitly approved by the Supreme Court, that this activity in order to be effective as a defense must have been prior to the beginning of the suit to which it is used as a defense.

In Delta Bag Co. v. Kearns, first reported in 160 Ill. App. 93, this court said on a question directly involved in the case:

“We hold * * * that there is no power in our trial courts in a case brought by a foreign corporation, not on a forbidden act, * * * but on a matter entirely unconnected with the transaction of any business within this State, to inflict on the plaintiff for infractions of the ‘Foreign Corporation Act,’ pending the suit, the punishment for such infraction provided by the Act as an additional penalty to the fine to be enforced by criminal proceedings.”

Although for failure to file a proper finding of fact the judgment of the Appellate Court in this cause was at first reversed and the cause remanded to it for such finding, the same decision was reached and the same opinion was again filed on such remandment (173 Ill. App. 570) and on application by the defeated party to the Supreme Court a certiorari was denied, making the judgment final.

The only question, therefore, for us to consider is whether the evidence clearly shows that prior to September 20, 1910, the date this suit was begun, the defendant in error, the Journal Company of Troy, had “transacted business” or “exercised its corporate powers” within the meaning of the statute involved, and thus rendered itself incompetent to bring the suit at bar. That this proof should be clear we think follows from the highly penal character of a provision which practically outlaws an offending corporation within the state. We agree with Mr. Justice F. A. Smith, who, speaking for the Branch Appellate Court in Chicago & M. Tel. Co. v. Type Tel. Co., 137 Ill. App. 131, said:

“Under the rules of construction applicable to statutes of this character this statute should be construed liberally and unless corporations of this character come within the plain provisions of the Act, it should not be so construed as to nullify their contracts and deprive them of their legal remedies. ’ ’

It would be difficult to deduce a precise rule to apply to a given case defining what is and what is not “transacting business” or “exercising corporate powers” within the state from the various and somewhat variant decisions of the Appellate Courts in this and other districts. There are many of them. Among those that have, on the facts proven or admitted by the pleadings, held the corporation involved in the case incompetent to sue are: Union Cloak Co. v. Carpenter, 102 Ill. App. 339; Central Mfg. Co. v. Briggs, 106 Ill App. 417; International Text Book Co. v. Mueller, 149 Ill. App. 509; Simpson Fruit Co. v. Atchison, T. & S. F. R. Co., 152 Ill. App. 235; Erie & M. Ry. & Nav. Co. v. Central By. Equipment Co., 152 Ill. App. 278; Oil, Paint £ Drug. Pub. Co. v. Stroud, 156 Ill. App. 312.

Among those in which this attempted defense against a foreign corporation has been unsuccessful are: Bradbury v. Waukegan & W. Mining & Smelting. Co., 113 Ill. App. 600; Peoria Star Co. v. Floyd Agency, 115 Ill. App. 401; McCarthy v. Alphons Custodis Co., 125 Ill. App. 119; DeWitt v. Walling Mfg. Co., 132 Ill. App. 356; Black-Clawson Co. v. Carlyle Paper Co., 133 Ill. App. 61; National Bolling Mill Co. v. Bubenstein, 147 Ill. App. 84; Yost Elec. Mfg. Co. v. Cavanaugh-Darley Co., 147 Ill. App. 418; A. H. Woods Production Co. v. Chicago, C. & L. R. Co., 147 Ill. App. 568; Lehigh Portland Co. v. McLean, 149 Ill. App. 360; Hill Lumber Co. v. McLean, 149 Ill. App. 368; Cohen-Schwartz Rail & Steel Co. v. East St. Louis Locomotive & Machine Shop Co., 158 Ill. App. 645; Journal Printing Co. v. Inter Ocean Co., 167 Ill. App. 274; American Sales Book Co. v. Wemple, 168 Ill. App. 639.

But it must be noted that no Appellate Court decision is of binding authority on us unless affirmed expressly by the Supreme Court, or, as in the case of the Delta Bag Co. v. Kearns, supra, implicitly so affirmed by a denial of a certiorari.

The result of the variance is that each case involving this question must.be determined from its particular circumstances, unless it comes within some decision of the Supreme Court. In the case at bar the following are the facts disclosed by the evidence:

The plaintiff (defendant in error here) the Journal Company of Troy, New. York, is a New York corporation, the business of which is “publishing trade papers, managing trade shows and general advertising. ’ ’ Its principal office is in Troy, New York, at which place its contracts for advertising or show space at the exhibitions it gives are dated. The company has arranged shows or exhibitions of vehicles and of automobiles at various places. It appears that it had such a show in New York City in 1908 and one in 1909, and when this suit was begun had arranged for one on December 31, 1910, at the Grand Central Palace in that city. In 1901 it organized a carriage and harness show to be given in Chicago, and in October, 1910, it managed another show here of automobiles, trucks, harnesses and accessories, but was concerned with none here between these times.

Among their employes was one George B. Lounsberry. He was not an officer or director of the Company, but described himself in his testimony as a hired traveling salesman, who “hustled for advertising and to sell space” in the shows, both at New York and Chicago. He had been with the Journal Company several years, and traveled over'the whole country but more particularly in the West. He reported his work to the principal office of the Company at Troy and received his instructions from Troy. On April 3,1910, his headquarters were in' Cincinnati, where he then resided, but he was on that day in Chicago and called on the officers of the defendant Company and solicited a contract from it to take space at the show to be given at the Grand Central Palace in New York City on December 31. A contract was entered into for such space, dated April 3, 1910, and was signed in Chicago by Lounsberry as agent for the Journal Company. The Journal Company’s copy was sent by him to the office at Troy. He testified, however, that the Journal Company had never questioned his signature on such a contract or his right to sign a contract of that nature.

The contract itself is not in the record, although admitted in evidence and marked as an “exhibit.” The note sued on was given in part payment (25 per cent.) of the amount to be given for space at the exhibition and was, although post dated by a month, delivered by the defendant to Lounsberry April 3rd, the day the contract was signed. Lounsberry testified that he thought on the same trip he sold space in the show to one other manufacturer.

Under date of February 21, 1910, the Journal Company executed a lease with the owners of the McCormick Building in Chicago for an office in that building. The lease was signed by the President of the Journal Company and bore its seal. It was sent on from here to Troy to be signed. It evidenced the renting of an office to the Journal Company for three years from May 1, 1910. Lounsberry testified that although he did not know on April 3, 1910, that the Company had signed a lease for space in the McCormick Building, “the matter of Chicago Manager had been discussed for two or three years.” Sometime during May, 1910, Lounsberry took possession of the office, and then for three months his family and he- resided in Chicago, boarding at various hotels, “mostly where I can get advertising with them” he says. At the time of the beginning of the suit in September, 1910, he had since the middle of May been in charge of this office and occupying it with a stenographer. On the door was his name, designated as that of “Manager of Chicago office.” His duties, however, he testified, were only the same as theretofore, those of “a traveling solicitor for advertising and show space for the Journal Company. ’ ’ He further testified:

“This office here was started more particularly on this carriage show that we opened here to have as a kind of headquarters. * * * There is a stenographer there besides myself, but no officers of the company are here. We don’t transact any business there. I have never signed a contract in that office since I have been there. We sent out literature from there and mail.”

We do not think that this evidence makes clear proof that before the beginning of this suit the Journal Company had “transacted business” or “exercised its corporate franchises” in Illinois within the prohibition of the statute, although it must be conceded it closely approaches.the line.

The business of the Company was publication'and selling of advertising and the organization of shows for advertising purposes. These shows were held at 'various places over the country, but the business of the Company which organized them appears, except so far as it was done by traveling salesmen or drummers, who sent their orders into the main office, to have been transacted at its main office in the State of New York.

In A. H. Woods Production Co. v. Chicago, C. & L. R. Co., 147 Ill. App. 568, this court did not find that a corporation for the purpose of producing theatrical shows was doing business within this state in the purview of the statute because it gave one of its shows here, as it did in other places.

And even if supervising and arranging an exhibition here was “transacting business” in the state, which we do not hold, there had been at the time this suit was brought but one isolated exhibition held here, that in 1901. The exhibition of 1910 did not take place until after this suit was begun and the right of the plaintiff fixed, so far as maintaining it was concerned. Delta Bag Co. v. Kearns, supra. In 1901 “the exercise of corporate powers”—if that phrase adds anything to the “transaction of business”—was not within the prohibited acts. The specification first appears in the revision of the Foreign Corporation Act in 1905.

Speaking of a sale of five carloads of cement made by the Alpena Cement Company to the Jenkins & Beynolds Company and of the effect of the Foreign Corporation Statute, the Supreme Court of Illinois in Alpena Cement Co. v. Jenkins & Reynolds Co., heretofore referred to (244 Ill. 354, p. 359) said: “The circumstances under which this sale was made are immaterial, as it was but a single transaction and under the holding in Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, was not a violation of the statute. In that case the constitution and a statute of the State of Colorado were under consideration. Bach provided that no foreign corporation should do any business in the State of Colorado without complying with certain conditions-therein expressed, and the United States Supreme Court held the doing of a single act of business without such compliance ivas not a violation of the statute. The transaction as set out in the plea under consideration here being a single act did not constitute a violation of the law as it then existed, and it would not be within the inhibition of the present Act.”

Nor do we think that the rénting of an office as a headquarters for employes—a solicitor and a stenographer—who sent out therefrom advertising literature and letters, brought the actions of the Journal Company within the penalties of the statute. Opening an office in this state “for the convenience and use of the secretary and treasurer” of a foreign corporation, in which office he kept the books of the corporation, was held not to show that the company was doing business in .this State, by the Appellate Court of the Second District (Bradbury v. Waukegan & W. Mining & Smelting Co., 113 Ill. App. 600), and Mr. Justice Puterbaugh, speaking for the Appellate Court of the Third District, said in reference to proof that letters weré sent out by the agent of a foreign corporation from an office in this state on letterheads advertising the office as that of the company:

“Counsel insist that such facts support their contention that appellee was doing business in Illinois at the time of the transaction; that when a foreign corporation has an established place of business or an agency and office located in the State, through which it transacts its business, it is doing business within the language of the statute. While the evidence referred to tended slightly to establish appellant’s contention standing by itself, it has but little probative force. We do not think the mere fact that appellee had an agent in the State and that said agent had an office would have the broad effect claimed.” Pressed Radiator Co. v. Hughes, 155 Ill. App. 80.

It is true, as we have before said, these opinions are not of binding authority on us. The propositions advanced in them, however, seem sound to us.

In the opinions of the Supreme Court affecting the question we find nothing at variance with them nor anything which seems to constrain us to a different conclusion. In United Lead Co. v. Reedy Elevator Mfg. Co., 222 Ill. 199, the suit was brought for merchandise sold and delivered within the state by a foreign corporation admitted to be doing business within the state, and the only question involved and discussed was whether an after compliance with the statutory requirements made the forbidden act a legal one on which a recovery could be had.

The case of People v. Chicago, I. & L. Ry. Co., 223 Ill. 581, cited by plaintiff in error, arose under another statute, the “Railroad and Warehouse Commission Act,” and the court said: “In addition to the general averment in the petition that the company was doing business in this State, facts are set out from which it is manifest that this company was extensively engaged in the operation of a railroad line in this State and carried on generally the business of a common carrier of both freight and passengers.”

In Finch & Co. v. Zenith Furnace Co., 245 Ill. 586, p. 593, the court said:

“It was a part of the business of the plaintiff to purchase coal, hut isolated transactions do not constitute carrying on business by a foreign corporation in the domestic State, numerous instances of which are given in 19 Cyc. 1268.”

The illustrations thus approvingly referred to are prefaced in the Cyclopedia of Law and Procedure by this statement:

“The general conclusion of the courts is that isolated transactions, commercial or otherwise, taking place between a foreign corporation domiciled in one state and citizens of another state are not a doing or carrying on of business by the foreign corporation within the latter State, even according to the weight of authority, where the transaction is of such a character as to constitute a part of the ordinary business of the corporation.”

Among the illustrations given is canvassing for subscribers by a foreign publication corporation.

We think the judgment of the Municipal Court of Chicago should be affirmed, and it is so ordered.

Affirmed,


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    Anna Pisko, Defendant in Error, v. United Breweries Company, Plaintiff in Error.
    Gen. No. 17,365.
    Landlord and tenant—liability of landlord for excavation. Wherein a narrow passageway between buildings, constantly used for ingress and egress, a hole was either originally excavated by a subtenant of the adjoining landlord partly on the lot occupied by plaintiff, or resulted from an excavation and lack of lateral support, such adjoining landlord who could have anticipated the danger to children and protected against it, is liable for injuries received by plaintiff child of tender years on its falling into the hole.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.

      Rubens, Fischer & Mosser, for plaintiff in error.
    Michael C. Zacharias, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error sued out to reverse a judgement of the Municipal Court of Chicago for $700 in favor of Anna Pisko, a minor, the defendant in error, plaintiff below, against the United Breweries Company, plaintiff in error, defendant below.

The judgment, after a remittitur of $300, was rendered February 4,1911, on the verdict of a jury which had assessed $1,000 as damages for injuries incurred by the plaintiff (who was a child between three and four years old) by falling on October 19, 1910, into a hole or excavation between the house she lived in at No. 13457 Erie avenue in the city of Chicago, and a saloon on a lot owned by one Wm. S. O’Brien and under lease to the United Breweries Company, numbered 13459 Erie avenue. The suit was brought not only against the United Breweries Co., but also against Wm. S. O’Brien. The plaintiff’s statement of claim recited that there had been for a long time prior to October 19,1910, a passageway between the two buildings No. 13457 and 13459 Erie aveune; that this passage was used in common by the tenants or occupants of 13457 and their children as an ingress and egress and led from the street to the rear of the said premises, and that while the plaintiff Anna Pisko was attempting to walk along said passageway on said October 19th she fell into a hole which the defendants had negligently allowed to remain in a dangerous, unguarded and uncovered condition.

The jury found a verdict in favor of the defendant O’Brien, but against the defendant United Breweries Company.

The plaintiff in error in this court assigns and argues as error the failure of the Municipal Court peremptorily to instruct the jury to find it not guilty and the failure as an alternative to instruct the jury on various propositions of law as requested by it. It also complains of the instruction on the subject of damages given by the trial judge and alleges that the verdict was grossly excessive and was not cured by the remittitur, which left the amount for which judgment was rendered still excessive.

We do not think it would serve any good purpose to discuss the evidence in this case in detail. The evidence shows that the hole or excavation into which the plaintiff, a child too young to be held guilty of negligence, fell, was made by a subtenant of the United Breweries Company for his convenience in getting into a basement with beer barrels; that the United Breweries Company knew of it and had undertaken a few days before the accident to modify its condition. The evidence strongly tended also to prove that a portion of the excavation was on the lot on which the plaintiff lived. But it does not seem to us material, for it is certain that there was a narrow passageway between the buildings, which was necessarily constantly used by both adults and children living at No. 13457 for ingress and egress and passage to the outhouses in the rear. It is also clear that either the hole was originally excavated partly on the adjoining lot, or that in consequence of the excavation and lack of lateral support, earth from the adjoining lot had broken away and enlarged the hole. In either case we think the jury might properly find the plaintiff in error liable.

As counsel for defendant in error points out, there is no logical difference between dangerous “excavations adjoining highways and those adjoining much traveled and commonly used private ways.”

That for injuries in consequence of excavations so situated, the person responsible for them is liable, the cases cited in the arguments of both parties in this controversy agree.

From the position of this hole in relation to a private way used in common by the tenants of both Nos. 13457 and 13459, the person responsible for it might well have anticipated the danger to the children residing in No. 13457, and should have protected it. The cases which hold that a mere licensee or trespasser, going upon land of another on which there is a hole, cannot hold the owner liable for injuries suffered by falling into that hole, are not in point here. That is all that even the case most relied on by the plaintiff in error (Reardon v. Thompson, 149 Mass. 267) holds. The case at bar is more like Toomey v. Sanborn, 146 Mass. 28, than Reardon v. Thompson, supra, although it is not on all fours with either of them.

But it is governed by the fundamental maxim sic utere tuo ut-alienum non laedas, and we do not think that the application of it is doubtful in this case.

Nor do we think that the jury were improperly instructed on the subject of damages and on the issue of negligence, nor that the court erred in refusing to modify its instructions at the request of the defendant.

If the verdict under the evidence was too large in the first instance, on which we express no opinion, it was not so large as to show passion and prejudice, and the remittitur cured it.

The judgment of the Municipal Court is affirmed.

Affirmed.


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    William Brownson, Administrator, Appellee, v. Nicholas B. Brown, Trading as Nicholas B. Brown & Co., Appellant.
    Gen. No. 17,409.
    1. Appeals and eerors—grounds for reversal. To justify a reversal of a judgment for a plaintiff in an action of negligence, for refusing to grant a peremptory instruction, or, in the alternative for refusing to grant a motion for a new trial, the court must hold that there was no evidence that the proximate cause of the accident was the negligence of the defendant, or that the weight of the evidence was clearly against the existence of the negligence or against its being the proximate cause of the accident. .
    2. Master and servant—effect of failure to view part of defective appliance. Where a boiler temporarily supported by a wooden horse falls on a person working on the permanent support, and the jury with one half of the horse before them and the testimony of a carpentry expert, have sufficient data to find that a defect in the horse was apparent or discoverable, they may make such an inference even though they did not have the other half of the horse before them.
    3. Master and servant—evidence of strength of support from length of time it supports toiler. Where a defective wooden horse supported a boiler which fell, that one end of the boiler had rested on the horse for two weeks without splitting it does not prove that the horse was sufficient.
    4. Master and servant—when proximate cause is for the jury. Where a boiler supported by a defective wooden horse fell and defendant claimed that the proximate cause was not the defective horse but a change of the incidence of the weight of the boiler by a change of position of blocks and the horse without defendant’s authority, even if there is evidence that there was a change in the weight upon the horse that turned it into a dangerous support, the question of proximate cause is for the jury and verdict for plaintiff will not be disturbed, where there also is evidence that it was defendant’s duty to place the boiler in position and leave it correct in level and feasible to work under, that this duty was recognized by both parties, and that the change in the incidence of weight was made with the knowledge and assent of an authorized representative of defendant.
    Appeal from the Superior Court of Cook county; the Hon. Bichard E. Burke, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.

      Oscar A. Kropf and Fred S. Abraham, for appellant.
    Johhsoh & Molthrop, for appellee; Charles P. Molthbop, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

A judgment for $2,000 and costs was rendered against the appellant, defendant below, Nicholas B. Brown, by the Superior Court of Cook county February 4, 1911. It was in favor of "William Brownson, administrator of the estate of one Frank G-riefnow, and was rendered on the verdict of a jury in a suit brought under the 11 Campbell Act” of Illinois for causing the death of the plaintiff’s intestate through negligence. The defendant having appealed to this court, herein assigns several errors, but confines himself in argument to the propositions that there being no sufficient evidence to warrant a verdict against the defendant, the jury should have been peremptorily instructed to find him not guilty, and that in default of such instruction, which should have been given, the court on the return of the verdict for the plaintiff should have granted the motion for a new trial.

It will thus be seen that the question for us is primarily one of fact and that to justify us in reversal on the ground of the first error argued, we must hold that there was no evidence that the proximate canse of the accident was the negligence of the defendant (Seymour v. Union Stock-Yards & Transit Co., 224 Ill. 579), and to justify us in reversal on the alternative error charged, we must hold that the weight of the evidence was clearly against the existence of the negligence or against its being the proximate cause of the accident. We are unable to come to either of these conclusions.

We have carefully read the record presented to us and believe that the question was properly left to the jury and was one for the jury to decide. Any detailed discussion of the evidence by us would be useless.

It appears to .us that there was evidence sufficient to warrant the jury in finding that it was the defendant’s duty, due to all who had to work on the permanent supports of the boiler the fall of which crushed and killed the plaintiffs intestate, to use reasonable care to see that it was placed in position on supports sufficient to hold it up, that he violated this duty when setting the boiler by placing the tubular end of it on a frail wooden horse of an inferior material and defective sustaining power, and that this was the primary and proximate cause of the accident. We do not feel by any means sure that it might not properly be held negligence to have used for that purpose the horse in question, with its hemlock top piece and southern pine braces and legs, without reference to its defective condition. Whether or not that was so, we think the jury, with the split horse before it and the testimony of the carpenter expert, had sufficient data to find, if that was necessary for their verdict, that the defect must, before the splitting, have been to some extent apparent, or at least on inspection inferable. It is unfortunate that they could not have had also the other half of the horse before them. Then inference and probability might have given way to certainty on one side or the other. If the defect of an interior cleavage in the top piece, which it is so plain existed in this horse, had, before the horse was used, an outward indication in a crack, the evidence of negligence would be very strong. In the absence of means of acquiring certainty, the jury were at liberty to make fair inferences from inspection of the half that remained. .

The jury were, as it is conceded, correctly instructed that they could not find the defendant guilty if they believed from the evidence that a workman of ordinary care and intelligence, acting in the light of his knowledge and attending circumstances at the time of the alleged negligence, could not reasonably expect or foresee that the blocking up of the boiler in question in the manner in which the same was originally done by the servants and agents of the defendant, as shown by the evidence, would be liable to result in some such injury as that complained of herein; and it therefore inhered in their verdict that they did not so believe, but on the other hand found that there might and should have been an apprehension of calamitous result from the means employed.

We are entirely mindful of the contention of the defendant that the horse had proved that it was of ..sufficient strength as it was originally placed to bear up the boiler without breaking, and could not, therefore, have been dangerous. We do not agree with it, however. That one end of the boiler had rested on the horse for two weeks without splitting it did not prove the horse was sufficient.

As the Supreme Court of South Dakota said in Waterhouse v. Schlitz Brewing Co., 12 S. D. 397, concerning a building, so we, with appropriate change of the word “days” for “years” might say in this case concerning the horse: “The fact that it had stood for a number of years without falling would afford very slight evidence that it had been properly constructed and of suitable material.” The plaintiff may well say in this aspect of the case that the margin of safety should have been greater; that during the two weeks it stood without falling, the strain was gradually developing the defect which existed, the cleavage from the “sap crack” was becoming greater, and the few fibres that held the two halves of the top piece together were parting strand by strand until the end came.

The defendant, however, maintains that the proximate cause of the accident was not the peculiar splitting of the horse from the obvious defect, but the change of the incidence of the weight of the boiler by the change in the positions of the blocks and the horse without the authority of the defendant.

The question, “What was the proximate cause of this accident” was one for the jury primarily, and it is bound in with their verdict, under the concededly correct instructions given them, that they found it to be the negligence of the defendant. We see no reason to disturb that conclusion on any theory of the case. If it should be assumed that, as defendant contends, and we doubt, the evidence clearly shows such a change on the day before the accident in the weight or strain on the defective horse as turned a safe support into a very dangerous one, nevertheless the jury’s verdict ought, in our opinion, to stand. For they had,-evidence before them, which we do not think clearly overborne, from which it was fairly to be deduced by them that it was the duty of the defendant to place the boiler in position and leave it correct in level and feasible and safe to work about and under; that this was recognized on the one hand by the employer and fellow employes of the plaintiff’s intestate and on the other by the defendant and his employes; that the change that was made in the incidence of weight, so far as the horse was concerned, was made by the order, or at least under the direction and guidance, or at the very least with the knowledge and assent of an authorized representative of the defendant about this work, one who, in his own words, “had charge of the steam fitting in the two buildings ’ ’—* running in conjunction. ” We have considered all that is so confidently urged against this view by the defendant’s counsel in argument, but the evidence in the record left it open to the jury, without going clearly against its weight, to take this view.

The judgment of the Superior Court is affirmed.

Affirmed.


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    Mary Zeman, Appellee, v. North American Union, Appellant.
    Gen. No. 17,482.
    1. Appeals and errors—grounds for reversal. Failure of the appellee to file a brief or argument in the Appellate Court is not a ground for reversal.
    2. Fraternal insurance—waiver of forfeiture. Reception and retention of membership dues and recognition of membership by a fraternal benefit society, with knowledge on the part of its general officers that the member is or has been engaged in a prohibited occupation subsequent to admission to membership, will, in the absence of any formal and official action taken to effect his suspension or expulsion, waive a forfeiture of benefits; notwithstanding the existence of a by-law providing that receipt and retention of dues should in no case constitute a waiver.
    3. Fraternal insurance—prohibited occupation. If a mutual benefit society has with knowledge of the facts, in its course of conduct or by acts or declarations, misled the insured in regard to his right to engage in a prohibited occupation, or created a belief on his part that the strictest compliance with the letter of the contract as to engaging therein would not be exacted, and the insured in consequence fails to comply with that portion of the contract, the society will be held to have waived the requirement and to be estopped from holding the condition as a cause of forfeiture.

      4. Fraternal insurance—By-law involving forfeiture of contract rights should be unambiguous. Where a by-law of a fraternal benefit society involving the forfeiture of contract rights that have been paid for is sought to be drastically enforced in the teeth of an apparent reliance of the assured up to the time of his death upon the supposed continuance of those rights, the by-laws should be clear and unambiguous and the record should show it.
    5. Fraternal insurance—by-law held ambiguous. A by-law, the earliest part of which provides for suspension and forfeiture without notice, while the latter part directs that no benefits shall be paid to the beneficiary on account of the death of the member while in any of certain employments enumerated, as the direct or indirect result of engaging therein, is ambiguous upon the question of whether a forfeiture is effected where the assured dies after quitting such prohibited employment.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.

      R, E. Hamilton, for appellant.
    F. J. Karaseic, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court of Chicago in a case of the first class. The judgment is for $2,000 in favor of Mary Zeman. It is against the North American Union—a fraternal beneficiary organization, and was rendered on the verdict of a jury in a suit brought by Mary Zeman as beneficiary under a benefit certificate for $2,000 issued to one James Zeman, who was her husband, in his life time. The certificate was dated July 1, 1902, and was made payable to Mary Zeman out of the defendant’s mortuary fund

“in accordance with and under the provisions and the laws governing the said fund upon satisfactory proofs of the death of said member, and upon the surrender of this certificate, provided that said member is in good standing in this Association at the time of his death and provided also that this certificate shall not have been previously surrendered by said member, or cancelled in accordance with the laws of this Association, and subject also”

to certain provisions which follow in the certificate, among which are:

“If said member shall suffer his membership to be terminated from any cause prior to his death he shall forfeit to said North American Union all monies paid in by him on account of his membership in the Association, and he and his beneficiary shall forfeit all rights acquired by virtue of his said membership, and shall not be entitled to any of the payments herein provided.
“This contract shall be incontestable after two years from the date hereof except for * * * engaging in prohibited occupations or becoming habitually addicted to the excessive use of intoxicating liqnors, opium or other injurious drugs or substances contrary to the laws, rules and regulations of the Association and the agreements of the members.”

The promise to pay the benefit is also made on condition that the statements made by the member, James Zeman, in his application for membership and in the medical examiner’s blank, etc., are a part of the contract, and

“On condition that the said member complies in future with the Laws, Rules and Regulations now governing the said North American Union and the Mortuary and Reserve Funds thereof, or that may hereinafter be enacted to govern the same, all of which said Laws, Rules and Regulations are also made a part of this contract.”

The plaintiff in the court below maintained that James Zeman was in good and regular standing at the time of his death and that she is entitled to the benefit provided for in the certificate.

The defendant contended that the said James Zeman was not at the time of his death a member in good standing in the Association, and proved that although he was an upholsterer in 1899, when he was admitted to membership in the North American Union, and in 1902, when the amount of his benefit certificate was increased from $1,000 to $2,000 and a new certificate issued to him, yet on May 1st, 1906, he became engaged in the business of a saloon keeper until July 18, 1909, when he withdrew from said saloon business on account of ill health resulting from a surgical operation from which he never fully recovered, and that during a portion of each day at least while he was engaged in the saloon business he tended bar in his various saloons.

The defendant also proved that in a written application dated June 14, 1902, ostensibly “for the purpose of securing membership in the North American Union,” but really for the purpose of having his benefit certificate increased as before stated, Zeman “represented and declared” (truthfully) that he was not then “engaged in any of the following occupations or employments,” (here follows a long list of occupations, not including an upholsterer and closing with) * * * “saloon keeper, bar tender or personally engaged in the manufacture or sale of intoxicating liquors,” and that this application signed by Zeman also contained the following clause:

“I am not now addicted to the excessive use of intoxicating liquors, opium or other injurious substances, and should I become so addicted or actively engaged in any of the above enumerated occupations or employments my so doing shall forfeit and absolutely terminate thereafter all rights, interests, payments, benefits or privileges of myself, my family, heirs, dependents or beneficiaries without proceedings for expulsion or otherwise on the part of said Association. ’ ’

The evidence showed that all dues to the Association up to and beyond the death of James Zeman, which occurred on November 26, 1909, were promptly paid by said Zeman to the proper officer of that Local Council of the Association to which he belonged, and that the last payment was made on November 9, 1909, and that at the date of his death Zeman was not in arrears to the North American Union on account of any unpaid premiums, dues, assessments, fines or other charges.

Proper proofs of death were made, showing these matters. It was admitted also that a demand had been made on the Association for payment of the certificate, and refused.

In its defense the defendant introduced the original certificate of the State Insurance Superintendent in 1895, certifying that it was a legally organized Fraternal Beneficiary Society under the laws of Illinois, and the “articles of association” appended thereto, which declare the objects of the association to be “to unite fraternally * * * all white men between the ages of twenty-one and sixty years of age who are physically and morally acceptable,” and make provision for a mortuary fund and plan of insurance, but say nothing as to prohibited or permitted employments. Amendments to the articles of association, adopted July 2, 1903, reducing the minimum age to 18 and extending the purposes of the benefit fund, were also admitted in evidence. In relation to the mortuary fund the amendments provide:

“That clause ‘Third’ of the objects of said association be changed so as to read as follows:
Third—to establish and maintain a Mortuary Benefit Fund from which shall be paid benefits, in case of disability and death or either resulting from disease, accident or old age of its members. Such payments to be subject in all cases to compliance by the member with the contract, rules and laws of this Order. ’ ’

The defendant then introduced, with the assent of the plaintiff, certain by-laws of the association, with the date of their enactment. The most material parts of them so introduced, with such dates, follow:

“LAW 3, SECTION 2, AS AMENDED.

Persons who are engaged in the following occupations are not acceptable risks and are ineligible for membership in the order: Railroad switchmen,

* * * saloon keepers, bar tenders, and those per-

sons engaged in the manufacture or sale of intoxicating liquors. ******** *#***-*#***#

Said amended Section 2 of said Law 3 was enacted on May 20, 1909, and in force and effect on May 20, 1909.

LAW 3, SECTION 3.

All members of the order are prohibited from engaging in or pursuing any of the occupations or employments enumerated in the preceding Section of this law, * * * and any member of the order who shall, after obtaining membership therein, become engaged in or pursue any business or employment enumerated in Section 2 of this law * * * shall stand suspended from the Order by operation of law without notice and forfeit all interest in the Mortuary and Reserve Funds from and after the date of engaging in such prohibited business * * * and no benefit or benefits shall be paid to the beneficiary of any member on account of the death of such member occurring while engaged in any of the employments enumerated * * * either as the direct or indirect result of engaging in such prohibited occupation. * * *

Said Section 3 of said Law 3 was enacted on March 15, A. D. 1906, and in force and effect on July 1, A. D. 1906.

LAW 9, SECTION 3.

A member of this Order who shall at any time after obtaining membership therein become engaged in any of the prohibited occupations specified in Section 2 of Law 3, or who violates any of the provisions of Section 3 of Law 3, shall stand suspended from the Order by operation of law without notice. Such suspension shall date from the time when such member so became engaged in such prohibited occupation or violated such provisions,, and any and all payments thereafter to the collector of the Council to which such suspended member belonged shall in no case be held or construed as a waiver on the part of this Order of the provisions of this Section or of the laws of the Order applicable thereto.

If such member shall permanently relinquish such prohibited occupation or employment, he may be reinstated to membership in the same manner as is provided by the laws of the Order for reinstatement of members suspended for nonpayment of assessments, dues and premiums.

Said Section 3 of said Law 9 was enacted on March 21, A. D. 1901, and in force and effect on July 1, A. D. 1901.

LAW 3, SECTION 11.

The receipt and retention of any premium or assessments shall not in any case constitute a waiver on the part of the Order of any law or defense which might or could have been relied on by the Order had such payments not been received or retained.

Said Section 11 of said Law 3 was enacted on March 19, A. D. 1908, and in force and effect on May 1, 1908.”

The other by-laws introduced in evidence relate to the form of the necessary application for reinstatement on the part of a suspended member, and the method of his reinstatement.

It was admitted on the record by counsel for plaintiff that James Zeman, after he ceased to be in the saloon business, did not attempt to become “reinstated” in the defendant. To this defense that James Zeman was not in good standing in the Order at the time of his death, but stood suspended from the time of going into the saloon business in 1906, and never even sought reinstatement, the plaintiff opposed the proposition that the defendant had waived the right to take this position in regard to the membership and standing of Zeman in the Order at the time of his death, by taking fom him, without objection, his dues as such member, both while with the knowledge of its officers he was actively and personally engaged in the saloon business and after his relinquishment of that business. Evidence was introduced before the jury strongly tending to prove that an assistant general manager of the defendant organization and a medical officer of the organization, whose offices were with the main offices of the Union and who were in constant touch with the Supreme Council of the Order, treated and did business with James Zeman as a member of the Order in good standing while he was engaged, as they knew, in the saloon business. The evidence showed beyond question that the officers of the Local Council to which Zeman belonged had knowledge of his business at all times. Indeed Zeman himself was president of the Local Council (Plzen Council No. 80) while in the saloon business.

The judg-e in effect instructed the jury before whom the case was tried, that they should find for the defendant unless they found from the evidence that the defendant waived the laws in relation to the prohibited occupation of saloon keeping, and that the burden of proving the waiver was on the plaintiff; but that if they found from the evidence that the defendant had, by its course of conduct or acts with the knowledge of the facts, misled Zeman in any way in regard to his engaging in the saloon business, and created a belief on his part that strict compliance with the letter of the contract as to his engaging in the saloon business would not be exacted and the insurance annulled by his continuing to engage in the saloon business, the defendant should be held “to have waived the requirement and to be estopped from holding the condition as a cause of forfeiture. ”

The jury found a verdict for the plaintiff for the sum of $2,000, and after a motion for a new trial, supported by elaborate reasons in writing, had been overruled, judgment was entered on the verdict and ‘ the defendant-appealed.

In this court the appellant has assigned errors in relation to the admission and exclusion of evidence, as to the instructions or charge given to the jury and the refusal to modify it at the request of the defendant, and as to the denial of the motion for a new trial, and it is asserted that the finding of the jury and the judgment of the court were plainly against the law and the evidence in the case.

These assignments of error have been argued fully by the appellant in this court, but counsel for appellee, although entering an appearance, has not filed a brief or argument, but has left the court to investigate the questions of fact and law presented without aid from the point of view of the plaintiff and without any other knowledge of the positions relied on to support the judgment than can be gathered from the abstract and the transcript of the record of the proceedings in the Court below. For this reason, according to former rules of the Supreme Court which have since been revised, and according to rules in the Appellate Courts of other districts in the state which may still be in force, this judgment could be reversed. Winstanley v. Meacham, 58 Ill. 97; Wm. Nevius Banking Co. v. Brunges, 72 Ill. App. 596, and cases therein cited; Kurtz v. Kurtz, 71 Ill. App. 71.

This has never been the rule in this district; a judgment, as we think, being entitled to a presumption in its favor which appellants- and plaintiffs in error must overcome by a showing. But to abandon a meritorious judgment, as we have concluded this to be, to the investigation of the court, unaided except by the arguments of those who would overthrow it, is an unusual proceeding and we hope will continue to be so. It is unfair to the court, which ought not, in view of the volume of its work, to be unnecessarily burdened.

We cannot suppose the cause or judgment has been settled, for in that case the appeal would undoubtedly have been dismissed. We do not sit to make academic precedents, but to decide actual disputes.

We have given the cause, therefore, a thorough investigation. We cannot agree with the contention of the appellant.

In Bruley v. Royal League, 166 Ill. App. 440, this court, after a full consideration of the very able and exhaustive opinion of the learned judge in the court below (Bruley v. Royal League, 3 Ill. Cir, Ct. Rep. 313), found itself unable to agree, one of the judges of this court being then unable to take part in the decision. The judgment of the circuit court rendered on the pleadings in favor of the Company was therefore affirmed. But the present case differs from that in many particulars, and there is nothing in the rulings or instructions of the court below in it, as we think, inconsistent with the rulings made by the circuit court in the Bruley case, supra.

Herein the jury were instructed in effect that the amended by-laws introduced in evidence by the defendant and on which it relies for its defense, although passed after the benefit certificate was issued and going into effect after Zeman had engaged in saloon keeping, were binding on him and were reasonable, and that the receipt and retention of the dues of Zeman by the local council after he engaged in the business of saloonkeeping and after the same became known to the Council of which he was a member, if such knowledge is shown from the evidence, would not constitute a waiver of the defendant to refuse payment of the certificate.

It was precisely this last proposition concerning the effect of the action of the local council in accepting and retaining dues from a member engaged in a prohibited business, that the circuit court sustained in Bruley v. Royal League, supra, and that is the whole purport of that decision affirmed by us under the rule.

The question in that case was whether the action of the Local Council or lodge, although held, as it has been clearly, to be the agent of the supreme or general body, must be held binding on that general body in a matter of waiver, in the teeth of regulations or by-laws to the contrary; not, as in the case at bar, whether the evidence tended so to show as to render a verdict by a jury to that effect reasonable, that the main or general or supreme body itself had by recognition of membership and acceptance of contemporaneous and subsequent dues waived or estopped itself against the enforcement of a forfeiture which it otherwise could have insisted on. The real question of fact in this case was1 whether representatives of the main or supreme body had knowledge of the business of Zeman between May, 1906, and July, 1909. It inhered in the verdict of the jury, we think, under the instruetions, that the jury found that such knowledge existed.

The question of law in the case is whether, in the absence of formal and official action, the reception and retention of membership dues and the recognition of Zeman’s membership by the order, with such knowledge on the part of representatives of its management, waived the suspension or separation from the order for which the by-laws provided, in the face of section 11 of Law 3, providing that “The receipt and retention of any premium or assessments shall not in any case constitute a waiver on the part of the Order of any law or defense which might or could have been relied on by the Order had such payments not been received or retained,” which section went into force in 1908.

We do not think that it was possible for the Order to incapacitate itself to waive a forfeiture of a valuable privilege or contract right or to estop itself from enforcing it.

The organization might, perhaps, limit by by-law the power of its agents, the local councils, and make this limitation binding on persons dealing with them; but it remains the law as laid down by the Court below in its instruction, that

“If the defendant company has with knowledge of the facts in its course of conduct or acts or declaration misled the insured in any way in regard to his being engaged in the said business or created a belief on the part of the assured that the strict compliance with the letter of the contract as to his engagement with the saloon business would not be exacted and the assured in consequence failed to comply with that portion of the contract which prohibits him from engaging in the saloon business, the Company will be held to have waived the requirement and to be estopped from holding that condition as a cause of forfeiture.”
And that
“The defendant may waive the condition by which the rights and privileges accruing to a member may be forfeited and such waiver may be either by express agreement or by conduct of the association with knowledge of the facts indicating that the insured was still recognized as a member of the society.”

That which we have already said is sufficient to dispose of the case in our view, and it might, solely on the grounds stated, be affirmed. But we may note another consideration leading to the same end.

If a by-law involving the forfeiture of contract rights that have been paid for is to be drastically enforced in the teeth of an apparent reliance of the assured up to the time of his death upon the supposed continuance of those rights, the by-law should be clear and unambiguous and the record should show it. In the case at bar the assured, Zeman, unlike Bruley in the case of Bruley v. Royal League, supra, had left the “prohibited business” before his death.

Although in his “application” made in 1902, Zeman declared without reservation that his “engaging in saloonkeeping shall forfeit and terminate thereafter all rights, etc., without proceedings for expulsion, etc.,” yet there is nothing in the record which shows any law or regulation of the Order malting the business of keeping a saloon or engaging in the sale of intoxicating liquors a “prohibited occupation” before the one enacted on May 20, 1909. It is very probable, in view of the language in the application, that there was before this date, a section of a by-law (and very probably it was section 2 of Law 3), which declared that a “saloonkeeper” was ineligible for membership in the Order. But if there was, the record does not show it. All that the record shows is an amended section 2 of Law 3, which declares saloon keepers ineligible for membership, which was enacted May 20, 1909.

As to the suspension of one who, becoming a member, afterwards engages in saloonkeeping, there are two provisions in the record supposed to apply.

But do they necessarily do so ? The one first enacted was section 3 of Law 9, enacted March 21,1901, and in force July 1,1901.

It says that a member of the Order who shall at any time, after obtaining membership therein, become engaged in any of the prohibited occupations specified in section 2 of Law 3, or who violates any of the provisions of section 3 of Law 3, shall stand suspended from the Order by operation of law without notice.

We have no means of knowing what were the “prohibited occupations” specified in section 2 of Law 3, or what were the provisions of section 3 of Law 3 in 1901. Section 2 of Law 3 as we know it was enacted May 20, 1909, and section 3 of Law 3, to be hereafter recited, on March 15, 1906. If section 2 of Law 3 and section 3 of Law 3 did not in 1901 specify saloonkeeping as a prohibited occupation, and there is no proof before us that they did, did the enactment of these sections or “By-laws” under these denominations in 1909 and 1906 respectively read into a by-law enacted in 1901 anything which made it apply'to “saloonkeeping?” It is at least doubtful. But section 3 of Law 3 as presented to us does not specify the prohibited occupations any more than section 3 of Law 9. It says:

“All members of the Order are prohibited from engaging in or pursuing any of the occupations or employments enumerated in the preceding section of this law, etc.”

It was enacted on March 15, 1906, as we have said. We know nothing of “the preceding section of this law” except as we are shown section 2 of Law 3, enacted three years later.

But if we should assume that in 1906, section 2 of Law 3 was exactly the same so far as saloonkeeping is concerned as it was after May 20,1909 (although we see no reason why we should), still the by-law presented to us as section 3 of Law 3 is ambiguous. We have quoted it in full before in this opinion and we now call attention to the italicized portion. The italics were used by us for the purpose of easy reference to it. Although the earlier part of the section provides for suspension and forfeiture without notice, the portion we have italicized, inconsistently or certainly superfluously, directs that no benefits shall be paid to the beneficiary of said member on account of the death of such member while engaged in any of the employments enumerated, as the direct or indirect result of engaging in such prohibited occupation. Zeman did not die “while engaged in saloon keeping,” nor is there any evidence that his death was the direct or indirect result of his engaging in that occupation.

We do not think the by-laws are presented to us in any such shape, or are so framed as they are presented, as to justify us in enforcing a forfeiture in this ease for failure to observe them.

If the contention of the defendant is referred solely to the contract right of forfeiture secured to it in the application and certificate, that is certainly something that could be waived by continued recognition of the membership.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


text:
    Jacob Lanski, Defendant in Error, v. Chicago & North Western Railway Company, Plaintiff in Error.
    Gen. No. 17,620.
    1. Appeals and errors—where Appellate Court may pass on assignments of error. The Appellate Court may pass on all questions raised by the assignments of error, though no proposition of law were submitted to the court at the time of trial and none are preserved in the record.
    2. Carriers—when initial carrier is liable for loss under Carmack amendment. The provisions of the Carmack Amendment (Act of Congress of June 29, 1906) to the Federal Interstate Commerce Act, declaring any common carrier receiving property for transportation from a point in one state to a point in another state to be liable to the holder of any receipt or bill of lading issued therefor for any loss or damage thereto caused by it or any carrier to which such property may be delivered or over whose line it may pass, are applicable where a shipment to another state is diverted or stopped within the state of shipment by direction of the consignee.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Calhoun, Lyford & Shbean, for plaintiff in error.
    Sabath & Levinson, for defendant in error; Leo W. Hoffman, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

In this case the defendant in error insists that this court cannot consider the contentions of the plaintiff in error because they turn on questions of law, and no propositions of law were submitted to the court at the time of trial and none are preserved in the record. We do not so hold. To preserve questions of law for the Supreme Court in cases in which that court has no jurisdiction to pass on controverted facts and which have been tried below without a jury, there must have been propositions of law offered and passed on; but that is not necessary to enable the Appellate Court, which passes on both law and fact, to consider all questions raised by the assignments of error. This is the view always taken by the Appellate Courts of this District. See, for example, City of Chicago v. Bartels, 146 Ill. App. 180, p. 185.

We shall therefore consider this cause on its merits.

The suit was brought in the Municipal Court of Chicago by Jacob Lanski against the Chicago and North Western Railway Company for failure to deliver to the consignee, the Illinois Steel Company, the entire shipment made by the plaintiff Lanski of certain scrap iron. 85,800 pounds net weight were shipped, and only 38,600 pounds were received by the consignee. The damages to the plaintiff on account of the shortage it is conceded were $326.61, and for this amount judgment was rendered against the Chicago and North Western Railway Company, which it has sued out this writ of error to reverse.

The iron was shipped from West Chicago, Illinois, on November 25, 1909. A bill of lading or shipping receipt; was issued by the Chicago and North Western Railway Company, in which the party from whom the goods were received is named as Jacob Lanski, the receiving point as West Chicago, Illinois, the consignee as Illinois Steel Company, the destination as Gary in the state of Indiana, and the route as the Chicago and North Western Railway. In this bill of lading the Chicago and North Western Railway Company “agrees to carry” 1 car scrap borings of the net weight of 85,800 lbs. “to its usual place of delivery at said destination if on its road, otherwise to deliver to another carrier on the route to said destination.”

It is recited on the face of the bill of lading that all conditions printed on the back have been agreed to and accepted by the shipper and on the back among other “conditions” is the following:

“In issuing this bill of lading this Company agrees to transport only over its own line and except as otherwise provided by law acts only as agent with respect to the portion of the route beyond its own line.
No carrier shall be liable for loss, damage or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law, but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from any such liability so imposed.”

The car was taken by the Chicago and North Western Railway Company over its road from West Chicago to 40th street in Chicago and there delivered by it to a connecting carrier, the Belt Railway Company of Chicago. By the Belt Railway it was delivered to the Elgin, Joliet and Eastern Railroad Company, and on December 3, 1909, was at South Chicago, Illinois, on the tracks of the Elgin, Joliet and Eastern Railroad, which runs to the plant of the Illinois Steel Company at South Chicago and to the plant of the same Company at Gary, Indiana. It was then weighed and the shortage discovered.

On December 6, 1909, the Distributing Agent of the Illinois Steel Company, as he testified, “ordered the car diverted or held at the plant of the Illinois Steel Company at South Chicago.” He gave the order to the General Yard Master and the car was pushed from the track it was then on in the yards of the Elgin, Joliet and Eastern Railway Company at South Chicago to another track in the same yards a half a mile or more away.

The Distributing Agent testified that it was a standing order that any scrap received over the Elgin, Joliet and Eastern Railway at the plant at South Chicago would be held there for inspection, and anything that was suitable to use at that plant was to be used there and everything that was not was to be forwarded to Gary.

The defendant in error contends that under the law of Illinois, independently of Federal Statutes, this state of facts makes the initial carrier, the Chicago and North Western Railway Company, ■ liable. This the plaintiff in error denies, insisting first, that there is a presumption that the unexplained shortage and loss took place while the shipment was in the hands of the terminal carrier, and, second, that for such a shortage or loss so taking place it is not, under its bill of lading and the law of Illinois, liable.

We do not think it necessary in this case to pass on these questions, for we have no doubt that the plaintiff in error is liable under the Carmack Amendment, so-called, to the Federal Interstate Commerce Act. The Carmack Amendment (Act of Congress of June 29, 1906) to the Act to Regulate Commerce (of February 24,1887) is as follows:

“Any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed. Provided, that nothing in this Section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing laws.
The common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad or transportation company on whose line the loss, damage or injury shall have been sustained, the amount of such loss, damage or injury as it may be required to pay to the owners of such property as may be evidenced by any receipt, judgment or transcript thereof. ’ ’

The constitutionality and validity of this enactment have been upheld by the Supreme Court of the United States (Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186), and are not challenged by the plaintiff in error. But it maintains that this legislation does not apply to the case at bar because of the diversion or stoppage of the shipment within the state at the order of the consignee. This, it is contended, turned the shipment from an interstate to an intrastate one, and relegated the matter to the common law as interpreted by the courts of Illinois.

We think the language of the Federal Act too plain to bear construction. It places the liability on any common carrier receiving property for transportation from a point in one state to a point in another. This scrap iron was so received, and after the plaintiff in error so received it, it became “eo instanti” the subject of interstate commerce and as such subject to the regulating power of Congress.” Smeltzer v. St. Louis & S. F. R. Co., 158 Fed. 649.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.