source: Caselaw Access Project

author: Mr. Justice Pam

license: Public Domain

text:
    Auto Parts Company, Defendant in Error, v. Mary A. Roberts, Plaintiff in Error.
    Gen. No. 20,374.
    1. Appeal and error, § 1414

      —when findings not disturbed. The Appellate Court will not interfere with the finding of the lower court where there is a conflict in the evidence unless such finding is clearly and manifestly against the weight of evidence.
    2. Principal and agent, § 180

      —when undisclosed agency established. Evidence in an action by an automobile supply company against an undisclosed principal to recover for supplies furnished to a company, held to sustain a finding that the defendant was an undisclosed principal of the company to which the supplies were sold.
    3. Election of remedies, § 8

      —what does not constitute. In the absence of full knowledge of all facts, neither the commencement of a suit against an agent, nor the prosecution of the suit to judgment, the judgment remaining unsatisfied, constitutes an election which will operate as a bar to an action against the undisclosed principal.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement by the Court. This writ of error was sued out to review a judgment of the Municipal Court of Chicago for $247.33 against Mary A. Boberts, plaintiff in error and hereinafter referred to as the defendant, in favor of the Auto Parts Company, defendant in error, and hereinafter designated as the plaintiff. The claim sued on in this case had already been made the basis of á prior suit against one John H. Shea and one Fred F. Boberts, the latter being the husband of the defendant. In the prior suit the case was dismissed as to Shea, and judgment for $247.33 taken against Fred F. Boberts, which judgment was never certified.
    The statement of claim sets forth that plaintiff’s claim is for merchandise sold the Union Automobile Company, not incorporated; that the said merchandise was delivered and was valued at $247.33; that the defendant was the real principal in said transaction; that she was in actual control of the business operated under the name of the Union Automobile Company, but her interest therein had not been disclosed to the plaintiff.
    Defendant in her affidavit of merits denied the allegations in the statement of claim, and further pleaded as a defense to plaintiff’s claim, the fact that plaintiff had brought suit for the value of the said merchandise against John H. Shea and Fred F. Roberts, and that in that case plaintiff’s statement of claim alleged that the said John II. Shea and Fred F. Roberts were doing business as the Union Automobile Company, and further, that plaintiff in that suit recovered judgment against the said Fred F. Roberts for the value of the said goods and merchandise, which suit and judgment constituted a bar to the present action.
    On behalf of the plaintiff, John II. Shea testified that in 1909 he entered the employ of the defendant and her husband; that this employment was in connection with the undertaking establishment operated either by the defendant or her husband, or both; that in February, 1910, in a conversation in which both the defendant and her husband participated, the said Shea was asked to become the nominal proprietor of an automobile business to be operated under the name of Union Automobile Company, and that he was to hold himself out as the manager of the said company; that thereafter he did hold himself out as the proprietor and manager of the said Union Automobile Company; that the Union Automobile Company used the following form of letter head:
    “J. H. Shea,
    Proprietor and Manager
    Telephone
    Lincoln Three Hundred and Nine.

      THE UHIOH AUTOMOBILE CO.
    Not Incorporated.
    1621 .Wells Street, Chicago.
    AUTOMOBILES
    Tonring cars, Town cars,
    Limousines, Theatre Busses,
    Busses, Ambulances and
    Hearses. ’ ’
    That the said automobile business was conducted in connection and as part of the undertaking business; that the automobiles used in connection with the said business, viz., a hearse and an ambulance, were on hand at the time he was asked to hold himself out as manager and proprietor of the automobile company, and that he had not a single dollar invested therein; that on March 29 or 30, 1911, he gave a bill of sale of the automobiles in question to the defendant; that shortly thereafter, defendant in turn gave permission to Fred F. Roberts to use the said machines under a contract of bailment; that defendant stated this arrangement was entered into so that no bills due in connection with the said business could be collected against him (Shea) or against Fred F. Roberts; that both defendant and Fred F. Roberts asked him to purchase of plaintiff certain material and supplies to be used in connection with the said automobiles; that thereafter he purchased the said material and supplies from the plaintiff, making out the orders therefor upon the letter heads of the said Union Automobile Company; that the material and supplies bought were used on the automobiles for ■ which he had given a bill of sale to the defendant.
    There was further evidence that some of these orders were in the handwriting of Fred F. Roberts and others bore the name of R. R. Roberts, son of the defendant. The vice-president of the plaintiff testified that he saw part of this material on the hearse and ambulance in question.

      Defendant testified that she' paid $1,000 for the automobiles that Shea transferred to her. Of this $1,000, $500 was given to Shea with the understanding that he would pay the bill of the White Company for certain repairs; and the other $500 was given to one Binder for work which he had done on these cars. Defendant further stated that these cars were turned over to her husband about April 1, 1911, who had the use of them from that time until September, when she took charge of the business. The contract of bailment dated April 1st, from defendant to her husband, was admitted in evidence. Under this contract her husband agreed to pay her $20 per month for the use of the automobiles in question.
    Defendant denied that she had had the conversations with Shea, as testified to by him, in the presence of her husband, in January or February. She further denied having told Shea to purchase goods from plaintiff and disclaimed any knowledge that goods were ever purchased from the plaintiff.
    Defendant further offered the testimony of her husband, Fred F. Roberts, who also denied having had the conversations Shea testified to. He testified that the business of the Union Automobile Company was separate from that of the undertaking establishment, and that the said Shea did operate the said Union Automobile Company; that other cars were in use as well as the ambulance and hearse; that the supplies which are the subject-matter of this suit were not used on said ambulance and hearse. He further testified that while he was not certain that any of the orders for materials purchased were in his handwriting, he thought that some of them were in the handwriting of his son.
    Luther W. Roberts, son of the defendant, testified that certain material purchased at the time he was present was not used in connection with the cars transferred by Shea to the defendant.
    Defendant further offered in evidence the files in the case of Auto Parts Company v. Frederick F. Roberts and John H. Shea, No. 321,818, in the Municipal Court of Chicago, in which the statement of claim showed that the plaintiff had previously brought suit for the same material against John H. Shea and Frederick F. Roberts, and that in said statement of claim plaintiff alleged that Frederick F. Roberts was the undisclosed principal, who did business under the name and style of Union Automobile Company. Affidavits of merits in that case were filed by both defendants, denying the purchase of the goods set forth in the statement of claim. In that case plaintiff dismissed as to Shea, and upon trial by the court, judgment was entered against Frederick F. Roberts in the sum of $247.33.
    Defendant also placed upon the stand the attorney for the plaintiff, and endeavored to show that at the trial of the case against Shea and Roberts, Shea had testified to the same effect as in the case at bar. The questions and the offer by which defendant endeavored to show this fact were objected to and objection sustained. On this state of the record the court entered the judgment complained of.
    Charles C. Spencer, for plaintiff in error.
    John A. Swanson, for defendant in error; Ernest C. Reniff, of counsel.

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

   Mr. Justice Pam

delivered the opinion of the court. Counsel for defendant, in his brief and argument to reverse said judgment, contends:

(1) “The merchandise in question was sold and delivered by the plaintiff to the Union Automobile Company, and there being no evidence to connect the defendant with the Union Automobile Company, there can be no recovery against her.

(2) “Even though Mrs. Roberts, the defendant, might have been originally responsible for the price of the goods, the bringing and prosecuting to judgment of the suit against Fred F. Roberts was a bar to a suit against her. ’ ’

Defendant, in urging the first contention, maintains that the uncontradicted evidence shows that the said Shea was the owner and proprietor of the business operated under the name of the Union Automobile Company; and further, that if Shea did not, it was operated on behalf of Fred F. Roberts, but that there is no evidence showing that the defendant had anything to do with the conduct of the said business. However, as we read the evidence in the case, we cannot concur in that contention. While it is true that the statements of Shea are all denied by both defendant and Fred F. Roberts, yet there are circumstances in evidence which the court, trying the case without a jury, had the right to consider in coming to a conclusion as to where the preponderance was on the issue, whether or not defendant was the undisclosed principal in control of the Union Automobile Company. There is evidence tending to show that the main assets of the Union Automobile Company were the hearse and the ambulance. The statement that Shea never ■invested a dollar in the purchase of these automobiles is not contradicted. Then there is the fact in evidence that there was a bill of sale on March 29th from Shea to the defendant, of these two automobiles. She claims to have paid $1,000 to Shea in consideration of the transfer, yet the evidence shows that not a dollar of that money ever reached Shea; on the contrary, the evidence shows that the $500 he received was paid to him on condition that he pay the bill of the White Company for the repairs to these automobiles; the other $500 was paid directly to some one else for other repairs. There is also the bailment from defendant to her husband, whereby, for a consideration of $20 per month, Fred F. Roberts has the use of these automobiles. Furthermore, this contract of bailment provides that it may be terminated upon one day’s notice, and it contains no provision as to who shall pay the repairs on these cars while being used. The court may well have regarded with suspicion a contract which provided for so small- a consideration for the use of these automobiles, and the fact that it might be terminated on one day’s notice. There is also in evidence the fact that in September defendant took actual charge of the business and with it the control of the automobiles in question; furthermore, there is the direct evidence that the defendant herself participated in the request to have the material sued for purchased by Shea from the plaintiff; and there is the further evidence that this material was used on the automobiles in question.

Defendant relies upon the further contention that the business of the Union Automobile Company was distinct and separate from that of the undertaking business, and that defendant’s connection with these automobiles arises out of the undertaking establishment and not out of the automobile business. As we read the evidence, defendant endeavors to make a distinction without a difference, and, in our opinion, the court could properly regard the business of the Union Automobile Company and the undertaking establishment as but one. The fact that letter heads were used wherein Shed was held out as the proprietor was but a circumstance which, in the light of the other evidence in the case, does not lend force to the contention of the defendant. It is true, the plaintiff did sue Shea and Roberts upon the theory that Roberts was the undisclosed principal; but from the evidence offered in the case at the trial, the court could properly conclude that plaintiff was in error and that defendant was the undisclosed principal in control of the business conducted under the name of Union Automobile Company and the owner of the chief assets of said business, namely, the automobiles in question.

The rule of law is well settled that this court will not interfere with the finding of the lower court where there is a conflict in the evidence, unless such finding is clearly and manifestly against the weight 'of the evidence. The court, sitting without a jury, saw these witnesses,, had the opportunity of observing their demeanor while upon the stand, and was in a much better position to judge as to the credibility of the witnesses than this court. Hess v. Killebrew, 209 Ill. 193, and cases therein cited. We cannot say, after a careful review of the record, that the finding of the court upon the questions in issue was clearly and manifestly against the weight of the evidence.

Defendant then argues her second contention, that even though she may have been originally responsible for the price of the goods, the bringing and prosecuting to judgment of the suit against Fred F. Roberts was a bar to a suit against her. Defendant contends for the principle that holds that where a person deals with an agent as principal- and afterwards discovers the undisclosed principal, while, should there be a cause of action, he has the right to sue the undisclosed principal, yet, having elected to sue the agent and prosecuted said suit to judgment, said judgment, even though unsatisfied, would bar a recovery thereafter against the undisclosed principal for the same cause of action. Defendant cites several authorities from foreign jurisdictions to support her contention. However, there is a different angle presented in the case at bar than was presented in the eases cited. In the case against Shea and Roberts, the former of whom might be considered the agent, judgment was obtained against Frederick F. Roberts as the undisclosed principal.

There is no doubt but that the plaintiff, in bringing the action herein pleaded in bar, believed at that time that Fred F. Roberts was the undisclosed principal in connection with the purchase of the material and supplies in question by the Union Automobile Company. There is no evidence in the present case, however, to show that at the time that suit was begun, the plaintiff had any knowledge of the facts which enabled the court in the" present trial to find that the defendant was the undisclosed principal. It is true, defendant endeavored to prove by the attorney for the plaintiff that upon the trial in the former case Shea testified to facts identical with what he testified to in the case at bar, but the questions whereby counsel sought to elicit this evidence were objected to and the objection sustained, after which counsel made an offer that in the former trial Shea had stated that Fred F. Roberts ordered these things, and that defendant had told him to buy them, as he had testified upon the trial in the present case. Our examination of the record shows that both the questions and the offer were not correct in form, and the objection was properly sustained.

In view of the fact that we have held that the court was warranted in finding that defendant was the undisclosed principal in the transaction, the court was even warranted in regarding that in the procuring of this material and the use thereof, not only was Shea the agent, but that Frederick F. Roberts was also the agent of the defendant. The rule of law contended for by defendant,—that a judgment taken against the agent, where the undisclosed principal is known, bars a recovery against the undisclosed principal,—does not apply in this case, because it wag only after the judgment was obtained against Fred F. Roberts as undisclosed principal that the plaintiff discovered the facts given in evidence in the case at bar, from which we have already held that the court properly found that defendant was the undisclosed principal. We believe the weight of authority, both in this State and in foreign jurisdictions, holds that the rule of law contended for by defendant is applicable only where plaintiff has knowledge of all the facts at the time suit is brought and judgment obtained. We are unable to find an Illinois case where an election to sue the agent instead of the principal has gone so far as to proceed to judgment upon a suit; yet there are cases where the bringing of .a suit against the agent has been held not a bar to an action against the principal. The Illinois cases hold that, before the commencement of a suit against the agént can be held to operate as an election discharging the principal, “there must be acts indicating an intent, with full knowledge of all the facts, to give sole credit to the ag’ent, and to abandon all claim against the principal.” Ferry v. Moore, 18 Ill. App. 135; Laguna Valley Co. v. Fitch, 121 Ill. App. 607; Netterstrom v. Peerless Portland Cement Co., 133 Ill. App. 579; Mussenden v. Raiffe, 131 Ill. App. 456.

In other States it has been expressly held that even though judgment has been obtained, where it remains unsatisfied, it will not bar a subsequent action against the principal, when he is in ignorance of the existence of the principal at the time of taking said judgment. This entire question was the subject of an extended opinion in Murphy v. Hutchinson, 93 Miss. 643, 21 L. R. A. (N. S.) 785.

While the exact situation presented in the case at bar has never been determined in our State, we have no hesitancy in saying that the better weight of authority holds that in the absence of full knowledge of all facts, neither the commencement of a suit against the agent, nor the prosecution of a suit to judgment (the judgment remaining unsatisfied) would constitute an election to bar a recovery against the principal. In the case at bar, the evidence fairly tended to show that plaintiff, at the time suit was brought against Shea and Eoberts, did not have knowledge of the facts, which this court has held warranted the court below in finding that the defendant was the undisclosed principal. The court therefore properly held that the former suit was not a bar to the present case.

Finding no reversible error, the judgment will be affirmed.

Affirmed.


text:
    Buyers Index Publishing Company, Plaintiff in Error, v. Triner Scale & Manufacturing Company, Defendant in Error.
    Gen. No. 20,384.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action by Buyers Index Publishing Company against Triner Scale • & Manufacturing Company for money due for advertising as per a written contract. From a judgment for defendant, plaintiff appeals.
    Plaintiff’s statement of claim set forth the contract upon which was based its cause of action, which was as follows:
    “The stereotype plate of the Spanish Writeup 'to be furnished.
    BEFORE SIGNING THIS CONTRACT MANUFACTURERS ARE REQUESTED TO READ IT IN ITS ENTIRETY.
    Chicago, Ill. _ _ Date June 28, 1907.
    _ _ Buyers Index Publishing C'o., 59 Pearl Street.,
    New York.
    Gentlemen:
    Please insert our illustrations, descriptions, etc., to occupy in advertising section only, of the ‘Buyers Index’ (copyrighted), (published monthly in alternate English and Spanish editions) 1/6 page, English and Spanish Editions, for full year term.
    1. We will, within ten days furnish to your order, matter, cuts, etc., subject to your approval, for printing same. If not furnished you are at liberty to prepare and print such matter as you may consider proper.
    2. It is understood that we will, within five days from date of receipt thereof, return to you corrected the proof which you are to submit to us before issue. If proof is not returned, you are to conclude that it is satisfactory to us. Copies of Index containing our advertisement to be mailed to us free of expense.
    3. It is clearly understood that the conditions above and herein set forth embody all agreements and understandings concerning this present contract, as made or had with said Buyers Index Publishing Co., its agents or employees acting in its behalf, either written or verbal.
    4. In consideration of the above we agree to pay to your order ($225.00) two hundred and twenty-five 00/100 dollars payable one-quarter said amount cash at date of third issue in which our advertisement appears, balance quarterly thereafter. Full amount $225.00.
    Name Triner Scale & Mfg. Co.
    By J. M. Triner.
    Address 1255 W. 21st St.
    Erwin de Montpellier
    Representative Buyers Index.”
    It was claimed that there was due on said contract the sum of $168.75.
    To this statement of claim defendant filed an affidavit of merits setting forth that the plaintiff had not complied with all the terms and conditions as agreed upon in said contract, and that therefore said contract had become cancelled, and that whatever advertising had been furnished prior to the said cancellation was paid for; wherefore defendant was in no wise indebted to said plaintiff.
    Defendant contended that at the time said contract was executed by defendant, one Erwin de Montpellier, a representative of the plaintiff, made certain agreements with reference to securing lists, writing an editorial in Spanish to be printed in the said publication, and stereotype plates of said editorial writeup to be furnished defendant by the plaintiff; that these agreements were written on a separate piece of paper which was pasted on the back of the printed form of contract, and constituted a part thereof; that the face of it was in form as set forth in the statement of claim, without the following writing in the upper margin:
    “The stereotype plate of the Spanish Writeup to be furnished.”
    and without the following language in the lower margin:
    “A list of names of hardware dealers to be furnished and translations of incoming and outgoing correspondence attended to during the term of this contract without extra charge. ’ ’
    J. M. Triner testified on behalf of defendant that two or three days after the contract had been signed, the said de Montpellier called him on the telephone and stated that the paper that had been pasted on the back containing the special agreements between the parties had become lost, and that he had written on the face of the printed form of contract the substance of the special agreements entered into; that he was the editorial writer and would see that these extra conditions agreed upon were fulfilled, and requested that he make no mention thereof to his principal. Triner testified that he acquiesced in the suggestion made by the representative of the plaintiff; that the contract offered in evidence contained his signature; that it was the contract he signed, save the writing in the margin, and save that the paper containing the extra conditions was not pasted on the back. Plaintiff’s testimony showed that the contract set forth in the statement of claim and offered in evidence was the contract it had received from its representative, de Montpelier, and which it had accepted on July 3, 1907, and under which the advertising had been printed in its publication.
    Abstract of the Decision.
    1. Estoppel, § 65

      —when contracting party estopped by silence to insist upon conditions. A person who enters into a contract for advertising is estopped to claim that the contract sued on is not the contract entered into where, shortly after the signing of such contract and upon hearing from the representative of the advertising concern that a supplement to the contract containing certain conditions insisted upon by the buyer had been lost, he simply relied upon a statement of such representative that the conditions had been written on the main contract, and that he would see that they would be fulfilled, and made no complaint to the seller, at such representative’s request.

      The following instruction for the plaintiff was refused :
    “You are instructed that if you find from the evidence that the defendant’s manager, Mr. Triner, signed an order at the solicitation of the plaintiff’s solicitor, and that said solicitor had no authority from the plaintiff to make a contract but only to solicit orders, and that the order contained the clause—‘It is clearly understood that the conditions above and herein set forth embody all agreements and understandings concerning the present contract made or had with the principal, its agents or employees acting on its behalf either written or verbal ’—and that a copy of the contract containing such clause was thereafter delivered to defendant and received by it, then the defendant is es-topped from setting up as against the plaintiff, after said order has been accepted and filled (if you find it has been accepted and filled) any other agreements or representations not embodied in said written order, unless there was fraud on the part of the solicitor in securing the signing and execution of said order.”
    Cratty Bros. & Flateau and Charles Hudson, for plaintiff in error.
    No appearance for defendant in error.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

2. Evidence, § 352 —when parol evidence admissible to explain contract. A contract for advertising held ambiguous so as to authorize the admission of parol testimony to interpret its language.

3. Witnesses, § 327 —what proper as affecting credibility. Evidence that a witness for the defendant in an action on a written contract for advertising, the defense being that there were certain conditions which were pasted on the contract, and that they had not been fulfilled, testified at a former trial that the conditions were written on a card and pinned on the contract, is admissible as affecting the credibility of the witness.

4. Witnesses, § 325 —when prior statements admissible as affecting credibility. In an action upon a written contract for advertising, in which the defense is that there were certain conditions pasted on the contract, and that such conditions had not been fulfilled, such supplement having been lost, evidence that a witness for the defendant just before a prior trial of the case, in the presence of his counsel, stated to plaintiff’s counsel, that the added provisions were in fact written on a card attached to the contract, is admissible as affecting the credibility of the witness.

5. Witnesses, § 257 —what proper as affecting credibility. In an action by an advertising concern on an account for advertising, where a witness for defendant testified that plaintiff had agreed to furnish a Spanish editorial and to furnish stereotype plates for a period of one year and had failed- to do so, held that as affecting the credibility of such witness, evidence was admissible to show that the defendant had himself furnished material for copy for the advertisement for three months, and that thereafter no further material was furnished by defendant but plaintiff continued the insertion for the balance of the period as he claimed the right to do according to the contract.

6. Trial, § 128 —when refusal to permit counsel to comment on evidence erroneous. The refusal of a court to permit counsel for one party to comment in his argument on a letter which has been admitted in evidence by the adverse party, and which will support the first party’s claim, is reversible error, although the court has allowed such first party to simply read the same to the jury.

7. Principal and agent¡ § 249 —when instruction on effect of admission correct. An instruction that “the admissions of a solicitor or other agent of a principal are not binding on the principal unless the admissions are within the scope of the agent’s authority and are made with reference to the subject-matter of his agency and at the time of the transactions between the parties,” approved.

8. Estoppel, § 65 —when instruction correct. An instruction in an action on an advertising contract, the defense being that certain conditions had been added to a supplement to the contract which had been lost, and that such conditions had not been fulfilled; that if the jury believed the plaintiff’s agent had authority only to solicit orders and not to make a contract, and that a copy of the contract containing a clause that the contract contained all the terms thereof had been delivered to defendant, the latter was estopped, after the filing of the order by plaintiff, from setting up any other terms not embodied in the order, in the absence of fraud,, approved.


text:
    Frank C. Weber Company, Defendant in Error, v. Stevenson Grocery Company, Plaintiff in Error.
    Gen. No. 20,414.
    1. Automobiles and garages, § 2

      —when finding as to warning of intention to turn sustained. A, finding in an action for damages for injury to an automobile truck, due to a collision between two automobile trucks, that the driver of plaintiff’s automobile gave timely warning of his intention to turn north, after having proceeded in an easterly direction, held sustained by the evidence.
    2. Evidence, § 10

      —when ordinance judicially noticed. Judicial notice may be taken of a city ordinance where there is an admission of the existence thereof by counsel.
    3. Roads and bridges, § 228

      —when driving on wrong side of street negligence. The driving of a motpr vehicle on the wrong side of a road is prima facie evidence of negligence.
    4. Roads and bridges, § 228

      —how “rule of the road" on turning corners determined in Chicago. In determining what is the “rule of the road” in the city of Chicago for the passage of one motor vehicle by another upon turning at a street corner, both vehicles turning to go in a northerly direction after having proceeded in an easterly direction, the Rev. Mun. Code of Chicago, art. 3, sec. 216, relative to vehicles turning corners, and the Rev. Ord. of Chicago, ch. 72, sec. 2493, relative to proceeding as close to the right-hand curb as possible, except when passing another vehicle, govern.
    5. Roads and bbidges, § 228

      —when “rule of the road” violated in turning curve. The driver of a motor vehicle is proceeding on the wrong side of the road in the city of Chicago when he drives to the left of the center of the street for two blocks in an easterly direction behind another motor vehicle which had just turned ahead of it around a corner, and upon signal being given by the first driver of his intention to turn north at a street corner, turns to the left and north and while attempting to pass, runs into the first vehicle, the first driver having all the time kept to the right.
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement by the Court. This is a suit brought in the Municipal Court of Chicago by defendant in error, hereinafter referred to as the plaintiff, for damages to plaintiff’s auto truck sustained in a collision with defendant’s auto truck, at or near the intersection of 115th street and Wentworth avenue, both streets being public highways within the city of Chicago. On the trial below the jury returned a verdict for the plaintiff, assessing its damages in the sum of $550 and costs, upon which the court entered judgment, to reverse which defendant has sued out this writ of error.
    J. L. Baily and Franklin Twyman, for plaintiff in error.
    Arnold D. McMahon and Joseph A. Graber, for defendant in error.

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

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

   Mr. Justice Pam

delivered the opinion of the court. Wentworth avenue runs north and south, 115th street east and west, Yale avenue is one block west, and Princeton avenue two blocks west of Wentworth. Wentworth avenue from curb to curb is thirty-three feet wide, 115th street, thirty-eight feet. On 115th street there is one track located north of the center of the street. The distance from the south rail of said car track to the south curb is twenty-one feet, and the distance between the rails is five feet, leaving the distance from the north rail to the north curb eleven feet.

The evidence shows that plaintiff’s truck was proceeding in an easterly direction on 115th street; that when about one hundred feet west of Princeton avenue, defendant’s truck entered 115th street from Princeton avenue and proceeded also in an easterly direction on 115th street, to the left of the center of the highway. There is some conflict in the evidence whether the south wheels of defendant’s truck were north of the south.rail or south thereof. The evidence further showed that plaintiff’s truck continued eastward and passed that of the defendant; that it proceeded eastward in the same direction and in about the same relative position that it was in while passing defendant’s truck.

The evidence of the plaintiff shows that on its truck there was a driver and a helper, both sitting at the front end of the machine, protected by a canopy with the curtains tied in the back; that as the truck was nearing Wentworth avenue, the helper seated to the left held out his hand, signifying that a turn was going to be made towards the left and north into Wentworth avenue, and at the same time a whistle or horn was blown; that after the truck had passed the center of Wentworth avenue and had turned north so the driver of plaintiff’s truck was facing almost due north, it was run into by defendant’s truck, as a result of which it was forced up against the curb at the northeast corner and sustained the damages for which the judgment complained of was rendered.

The evidence of the defendant corroborates plaintiff with reference to the plaintiff’s truck having passed that of the defendant. Defendant’s evidence further shows that its truck, after having been passed by that of the plaintiff, commenced to pick up speed; that it continued eastward in the same relative position it was in after making the turn into 115th street; that between Yale and Wentworth avenues it gained on the other truck so that its front wheels were opposite or, rather, overlapped the rear wheels of the plaintiff’s truck; that this relative position was maintained until within twenty or twenty-five feet of Wentworth avenue; that plaintiff’s truck made the turn into Wentworth avenue without giving any signal of its intention to do so; that thereupon defendant’s truck endeavored to stop' but could not do so in time to avoid the collision; that to break the force of the collision it also turned north on Wentworth avenue, striking plaintiff’s truck near the front wheels, forcing it against the curb at the northeast corner. The evidence of the defendant further showed that its driver also intended to turn north on Wentworth avenue.

The only real conflict in the evidence was as to whether or not the man in charge of plaintiff’s truck gave a timely warning of his intention to turn north. Defendant contends that he failed to do so, and insists that it has so shown by the greater number of witnesses. The jury by their verdict evidently gave more weight to the evidence of the plaintiff, and in view of the conflict in the evidence on this point, we are unable to say that such finding was clearly and manifestly against the weight of the evidence.

Defendant further complains of instructions designated in the record as 1, 2, 3 and 4, claiming that in view of the conflicting evidence, the giving of these instructions was so prejudicial to the defendant as to constitute reversible error. These instructions have to do with what may be termed the “rule of the road.” In determining what the law is as to the so-called rule of the road, we must take into consideration two ordinances in force in the city of Chicago at the time of the accident, viz.:

“Sec. 216, Art. 3, Rev. Mun. Code of Chgo.—Vehicles turning corner: Before turning a corner on a street or public highway the driver or person in possession, charge or control of any vehicle being driven or propelled around such corner shall give a signal by raising his hand or whip so that such signal can be plainly seen from behind on such vehicle, and such signal shall be given in a manner which will plainly indicate the direction in which such vehicle is about to turn. In turning corners of the road vehicles shall turn to the right and center of the street; in turning corners to the left vehicles shall also pass to the right of the center of the intersection of two streets.”
“Sec. 2493, Chap. 72, Rev. Ord. of Chgo., Code of 1911.—All vehicles shall keep as close to the right-hand curb as safety and prudence shall permit, except when overtaking and passing another vehicle, and except when running within the car tracks, as provided in section 2487 hereof. An overtaken vehicle must at all times be passed on its left side.”

Although section 2493 supra, was not introduced in evidence, we may take judicial notice thereof, by reason of the admission of counsel that it exists. City of Chicago v. Williams, 254 Ill. 360.

Defendant contends that these instructions were erroneous : First, because they assumed that there was a wrong and a right side of the road and that the defendant drove its vehicle on the wrong side of the road; and secondly, that it was an incorrect statement of the law that to drive a motor vehicle on the wrong side of the road is prima facie evidence of negligence. In urging these contentions, defendant does not cite a single authority in support thereof. We, however, have made an extensive examination of the authorities bearing on this subject, and find that it is uniformly held that although driving on the wrong side of the road may not be conclusive evidence of negligence, yet it is prima facie evidence thereof. Lind v. Beck, 37 Ill. App. 430; Cook v. Fogarty, 103 Iowa 500, 39 L. R. A. 488; Needy v. Littlejohn, 137 Iowa 704; Loyacano v. Jurgens, 50 La. Ann. 441; Damon v. Inhabitants of Scituate, 119 Mass. 66; Riepe v. Elting, 89 Iowa 82, 26 L. R. A. 769.

| Defendant relies in the main upon section 2493, supra, claiming that its truck was on the left-hand side of the road for the purpose of overtaking and passing the plaintiff’s truck. But this assumption is negatived by defendant’s own testimony, which shows that its vehicle entered 115th street on the left-hand side, about fifty feet in advance of plaintiff’s, and continued on that side to Wentworth avenue, where the collision occurred. Plaintiff’s truck, occupying the right-hand side of the road, had passed defendant’s truck, which kept to the left side of the highway, shortly after the latter had entered 115th street. The two then ran parallel, with plaintiff’s slightly in the lead. Notwithstanding there was ample opportunity to shift to the right-hand side, defendant’s driver chose to remain continuously on the left side of the road after he had entered 115th street. To make defendant’s contention tenable, we must assume that the man in charge of defendant’s truck suddenly concluded to pass plaintiff’s vehicle when they were both nearing Went-worth avenue, despite the fact that he intended to turn north. Such argument does not commend itself to this court. The only reasonable inference that can be drawn from these facts is, that the man in charge of defendant’s truck voluntarily maintained his position on the left-hand side of the road, contrary not only to section 2493 but also to section 216 above quoted, the latter having reference to vehicles turning corners.

We can readily suppose a case where an instruction in the exact language employed by the court in the case at bar might be considered as not accurately stating the law, namely, a case wherein there is evidence from which the jury might reasonably conclude that the position taken by a person on the left-hand side of the road was justified by reason of the driver’s intention to overtake and pass another vehicle. But in view of the facts in the case at bar, no such conclusion could reasonably have beeen arrived at by the jury, and therefore we are of the opinion that the instructions were proper.

Finding no reversible error, the judgment will be affirmed.

Affirmed.


text:
    Margaret E. French, Appellee, v. Modern Woodmen of America, Appellant.
    Gen. No. 20,417.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of facts.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action in assumpsit by Margaret E. French against Modem Woodmen of America to recover upon a benefit certificate issued upon the life of George Edwin French and payable to plaintiff as beneficiary. From a judgment for plaintiff, defendant appeals.
    In his application for a benefit certificate, the insured warranted that the answers to questions propounded to him in the medical examination were correct and true, and he agreed that if any of these answers were not true, the certificate issued should be null and void, in which event neither he nor his beneficiary should be entitled to any benefits under the certificate. The application containing the questions and answers made thereto in the medical examination was signed by the insured. Question No. 14 in said application consisted of three parts, viz.:
    Abstract of the Decision.
    Insurance, § 241

      —when false answer as to consulting physician bars recovery. The false answer in an application for life insurance as to having consulted a physician within a specified time before the date of the medical examination, the applicant having warranted that his answers were true, and having agreed that if the answers were untrue all rights to himself or to his beneficiary should be forfeited, is a bar to recovery on the benefit certificate issued.
    “(a) Have you, within the last seven years, been treated by or consulted any physician or physicians in regard to personal ailment?
    “(b) If so, give dates, ailment, duration of attack, and physician’s or physicians’ name and address.
    “(c) Was recovery complete ? ’ ’
    The answer of the insured to (a) was “No.” The insured had, within seven years prior to the making and signing of the application heretofore referred to, consulted a doctor for personal ailment and he was treated by him for a personal ailment within that period.
    Truman Plantz, George C. Perrin and A. W. Fulton, for appellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Max Draeger and Otto Draeger, trading as Draeger Brothers, Plaintiffs in Error, v. Wisconsin Steel Company and F. E. McGrew, Defendants in Error.
    Gen. No. 20,436.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Feed C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Abstract of the Decision.
    1. Assignments, § 3

      —when void as to wages. An assignment of wages executed prior to the time a person obtains employment is void as to wages earned under such employment.
    2. Bankruptcy, § 72

      —when discharge hars recovery on assignment of wages. A discharge in bankruptcy is a good defense to an action upon an assignment of wages where the assignment was of wages to be earned under a future employment.'
    Statement of the Case.
    Action by Max Draeger and Otto Draeger, trading as Draeger Brothers against Wisconsin Steel Company, a corporation and F. E. McGrew for moneys and groceries furnished by plaintiffs to said McGrew, and upon an assignment of wages due, or to become due to said McGrew, while in employ of the other defendant. From a judgment for defendants, plaintiffs appeal.
    Harry C. Leemon, for plaintiffs in error.
    Elmer O. Rathfon and C. S. Stilwell, for defendants in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Lena Bieber, Defendant in Error, v. Fred Thoma and Otto Thoma. Fred Thoma, Plaintiff in Error.
    Gen. No. 20,495.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Rehearing denied July 3, 1915.
    Abstract of the Decision.
    1. Appeal and error, § 839

      —hill of exceptions must he filed. Where a bill of exceptions has once been signed, the parties charged with presentation and filing thereof must file same within a reasonable length of time.
    2. Appeal and error, § 843

      —what is purpose of section 81 of Practice Act. The provision in the Practice Act, sec. 81 (J. & A. If 8618), permitting another judge to sign the bill of exceptions, is only to provide for a contingency that might arise, for which neither of the parties is responsible,—the disability of the judge.
    3. Appeal and error, § 843

      —ulhat showing necessary to permit signing of hill of exceptions hy another judge. The fact that the trial judge is physically disabled must affirmatively appear in the order, by virtue of which another judge under the Practice Act, sec. 81 (J. & A. jf 8618), signs a bill of exceptions nunc pro tunc.

      Statement of the Case.
    Action by Lena Bieber against Fred Thoma and Otto Thoma, for damages for injuries sustained by reason of having been bitten by a dog alleged to have been the property of the defendants. From a judgment for plaintiff; Fred Thoma appeals.
    F. H. Novak and Charles Hughes, for plaintiff in error.
    Vincent G. Gallagher and Ernest Messner, for defendant in error.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

4. Appeal and error, § 843*—when signing of bill of exceptions by another judge unauthorized. The signing of a bill of exceptions and the ordering of the filing thereof as per day of presentation by a judge who did not try the case does not confer validity upon it, where the bill of exceptions was marked “presented” by the trial judge and filed without his signature with the clerk of court before the expiration of the time for filing, and there was nothing in the order of the second judge or in the record to show that the trial judge was unable to sign the bill of exceptions before it was filed with the clerk, or for five weeks after expiration of date of filing.


text:
    Jennie Ledowsky and Rosina Rubin, Defendants in Error, v. Abraham D. Gordon and Jacob Gordon, Plaintiffs in Error.
    Gen. No. 20,500.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Suit brought in the Municipal Court of Chicago by-Jennie Ledowsky and Rosina Rubin against Abraham and Jacob Gordon to recover damages for breach of contract of warranty in and abont the purchase of certain realty in the State of Indiana. On the trial the issues were determined in favor of the plaintiffs, and judgment entered for $538.43, to reverse which the defendants sued out a writ of error.
    The plaintiffs purchased the property in question “subject to all special assessments and taxes after the 18th day of October, 1910.” Plaintiffs contended that the defendants obligated themselves to convey the property free and clear of all special assessments and taxes levied or payable prior to the 18th day of October, 1910; that prior to that date certain street assessments amounting to $456.99, and interest thereon, had been levied and were payable prior to that date, for which the defendants were liable to the plaintiffs. In support of their contention plaintiffs offered in evidence an exemplified copy of the transcript of the special assessment for the paving of Jefferson street, town of Gary, Lake county, Indiana, including the property involved in this controversy. This copy purported to contain a record of all proceedings by virtue of which plaintiffs claim that the special assessment was levied and payable prior to October 18, 1910. The proceedings set forth therein cover the period from January 14, 1908 to October 12,1909. 'The exemplified copy had attached to it a certificate of the city clerk of Gary, certifying “that the foregoing is a true and correct copy of the proceedings in re improvement of Jefferson street” between designated points. There was also attached to it certificates of various officials, to the effect that the person signing the proceeding certificate was the clerk of the city of Gary. The record did not show that the laws of the State of Indiana were introduced in evidence.
    Sonnenschein, Berkson & Fishell, for plaintiffs in error.
    Isadore S. Blumenthal, for defendants in error; Menz I. Rosenbaum and Maurice Alschuler, of counsel.

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

   Mr. Justice Pam

delivered the opinion of the court.

Abstract of the Decision.

1. Evidence, § 241 —when exemplified copy of foreign special assessment proceedings inadmissible. An exemplified copy of special assessment proceedings of an Indiana city is not admissible in the courts of this State, where the certificate of the city clerk attached to such copy does not show that the proceedings conformed to the laws of Indiana, and the special assessment laws thereof were not proven.

2. Evidence, § 241 —when exemplified copy of foreign special assessment proceedings inadmissible. An exemplified copy of special assessment proceedings of an Indiana city is not admissible in the courts of this State, where the certificate of the city clerk attached to such copy does not show that the proceedings conformed to the laws of the former State.

3. Covenants, § 41 —payment of assessment as condition to recovery for breach of covenant against taxes. A grantee cannot recover more than nominal damages for the breach of a covenant against a special assessment without proving that it has been paid by him.


text:
    Hartvig Erickson and Fred A. Erickson, trading as H. Erickson & Son, Defendants in Error, v. A. L. Weinberger, Plaintiff in Error.
    Gen. No. 20,542.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Chables H. Bowles, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Suit brought in the Municipal Court of Chicago by Hartvig and Fred A. Erickson, trading a.s H. Erickson & Son, for commissions earned in securing a purchaser for land owned by A. L. Weinberger. On a trial by the court without a jury, plaintiffs’ damages were assessed in the sum of and judgment entered for $120, to reverse which defendant sued out a writ of error.
    Defendant telephoned to several real estate agents that he desired them to sell certain lots. Fred A. Erickson, of plaintiff’s firm, testified that on January 24, 1914, defendant telephoned him that he wanted to make a quick sale of his lots, and that he replied that if the selling price was reasonable, he could find a purchaser; whereupon defendant made a price of $2,100 net to him, and that he might have as commission any sum above that amount; that he (Erickson) replied he would sell them by the following day. Erickson further testified that at 2:45 p. m. the following day he sold the lots to one Hoppe for $2,400; that he received $25 as part payment, and it was agreed that on the following day a contract of sale would be drawn up and $175 additional deposit made; that on the following morning between ten and eleven o’clock a written contract was entered into and the additional $175 paid. Erickson further testified that the said Hoppe w.as a man of means and able and willing to carry out the terms of the contract; that on Sunday he tried several times to reach defendant by telephone but was unable to do so. Hartvig Erickson, a brother of Fred A. Erickson, and also a member of the plaintiffs’ firm, testified that he also tried to reach defendant by telephone at his office on Sunday, but that he was unsuccessful; that he called at defendant’s office early on Monday morning but did not find him in; that he succeeded in reaching defendant by telephone at his home, and told him he had sold the lots in question and that the purchaser had made a deposit; that he was then informed by defendant that he had already sold these lots on Sunday to one Brandt, but that no money had been paid as a deposit, nor had a written contract been entered into, but that his word was given and that he would not break his promise to Brandt.

      Abstract of the Decision.
    1. Brokers, § 48

      -—right of broker to compensation where owner makes enforceable contract of sale with another. A real estate broker, although, he does not have an exclusive agency, who procures a purchaser who is able, ready and willing to buy property on the owner’s terms, is entitled to compensation where the owner is notified before he has entered into a binding contract of sale with another.
    2. Appeal and error, § 1575

      —rwhen defeated party cannot predicate error on inadequacy of recovery. That a judgment is for a smaller amount than for which the plaintiff was entitled, if his evidence was to be believed, cannot be urged by the defendant as error.
    Fitch and Scanlan, JJ., specially concurring.
    Defendant admitted that at the time he was telephoned to on Monday morning, no deposit had been made nor had a written agreement been entered into.
    Jacob Levy, for plaintiff in error; Josiah Burnham, of counsel.
    Michael Koch, for defendants in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Templeton Lime Company, Defendant in Error, v. George A. Schmidt and Camillo Marcuccilli. Camillo Marcuccilli, Plaintiff in Error.
    Gen. No. 20,579.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Suit brought in the Municipal Court of Chicago by the Templeton Lime Company against George A. Schmidt and'Camillo Marcuceilli to recover a mechanic’s lien. Schmidt was a contractor for certain work in connection with a building being erected for Marcuceilli, and the plaintiff was a subcontractor who furnished Schmidt materials to be used in connection with the building. On a trial without a jury the issues were found for the plaintiff and its damages assessed in the sum of and judgment entered for $93.80 and costs, and a lien on the premises decreed, from which the defendant Gamillo Marcuceilli prosecutes a writ of error.
    The single controverted question of fact was the time when the subcontractor’s notice was served on the defendant Marcuceilli, the service being conceded but the date disputed. The last day on which the notice could have been served was January 2, 1914. Mr. Halleman, secretary and treasurer of the plaintiff company, testified that on that day about 6:45 p. m. he served the necessary notice on Marcuceilli at his home, that he made a memorandum of this fact upon the notice; that prior to that day he called Marcuceilli’s attention to the amount due and stated that unless it was paid by January 2nd he would have to serve a lien notice. Marcuceilli, in addition to his own testimony, offered the evidence of two other witnesses who he claimed were present when the notice was served. Marcuccilli stated that the notice was served January 9th or 10th, and that after keeping the notice in his possession for two or three days, he handed it to his bookkeeper; that he fixed the date because it was four or five days after he had reopened his ice cream cone factory, about January 5th. Marcuccilli further stated that he told Halleman when he served the notice that the money had already been paid to Schmidt, and that he was not liable therefor. The two other witnesses for Marcuccilli testified that the notice was served about the 9th or 10th of January, and they fixed the date by reference to the opening of the ice cream cone factory.
    Abstract of the Decision.
    1. Evidence, § 475

      —when province of court to determine where preponderance lies. It is the province of a court sitting without a jury to weigh and consider conflicting evidence and to determine where the preponderance lies; and in doing so to take into consideration the intelligence, fairness and means of information of the witnesses, their appearance and demeanor on the stand, and their interest in the suit and relationship to the parties, together with any and all circumstances attendant upon the giving of their testimony.
    2. Evidence, § 475

      —what constitutes preponderance. Mere number of witnesses does not control in determining where the preponderance lies.
    3. Mechanics’ liens, § 196

      —when decree on conflicting evidence as to service of notice sustained. A decree granting a subcontractor a mechanic’s lien will not be disturbed, where the question whether notice thereof was given in the proper time rested on conflicting testimony, and the court trying the case without a jury accepted that of the plaintiff instead of that of the defendant although the latter was sustained by the greater number of witnesses.
    William A. Jennings, for plaintiff in error.
    Nels H. Olson, for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Lockport Corn Flake Company, Defendant in Error, v. John A. Tolman & Company, Plaintiff in Error.
    Gen. No. 19,114.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action in the Municipal Court of Chicago by the Lockport Corn Flake Company against John A. Tolman & Company to recover $58.15, alleged to be due for the sale of fifty cases of Gold Medal corn flakes at $1.60 per case. The defendant in its affidavit of merits admitted that it purchased and received such merchandise, but denied that it was indebted to the plaintiff in any amount for the same, and alleged that there had been a complete accord and satisfaction of the claim of the plaintiff. The case was tried before the court without a jury and the plaintiff’s damages were assessed and judgment entered thereon for $58.15, from which the defendant appeals.
    The facts in the case were that prior to the transaction in question, the Cooked Boiled Oats Company, a corporation, had become indebted to the defendant in the sum of $13.15, and the George B. Walker Company, a partnership (George B. Walker being' one of the partners in the same), had also become indebted to the defendant in the sum of $50, “for the benefit of the said Cooked Boiled Oats Company.” Early in February, 1912, the plaintiff’s agent, the said George B. Walker, called on the defendant for the purpose of selling it a certain brand of corn flakes called “Gold Medal” corn flakes, which had previously been manufactured by the Cooked Boiled Oats Company. The defendant refused to buy any of such com flakes from the plaintiff unless it assumed the amounts due to the defendant from the Cooked Boiled Oats Company and the George B. Walker Company. Thereafter, Walker called on the defendant and stated that he was authorized by the plaintiff to make arrangements with the defendant whereby the plaintiff would allow the defendant credit for the items of $13.15 and $50 on its purchases of Gold Medal com flakes if the defendant would buy its trade requirements of the flakes from the plaintiff. The defendant accepted this proposition and at once gave Walker an order for fifty cases of the flakes at $1.60 per case, and received the same in accordance with such agreement.
    Walker testified that the contract he made with the defendant was in accordance with instructions that he received from the general manager of the plaintiff company. After the transaction in question, the defendant gave the plaintiff a second order for flakes, but this order was filled by Walker through another firm, as the plaintiff company had become bankrupt and had gone out of business. On February 22, 1912, the defendant sent to the plaintiff its check for $14.52, together with the following letter and statement:
    Chicago, Feb. 22,1912.
    “The Lockport Corn Flakes Co.,
    Chicago, Ill.
    Dear Sir:
    We enclose herewith our check' for $14.52 in payment for the following invoices. Please place to our credit and oblige,
    Yours respectfully,
    John A. Tolman & Company.
    INVOICE AMOUNT DISCOUNT FREIGHT NET REMARKS
    2/9 80.00 .80 1.53 14.52 Frt. Bill
    Enclosed.
    Contra Accts. $50.00
    13.15.
    $63.15.”
    The plaintiff did not reply to this letter until April 3, 1912, when it sent the defendant a letter acknowledging the receipt of the defendant’s letter of February 22nd, and stating in effect that the understanding that it had with Walker, in reference to the arrangement between the parties, was that the defendant was to deduct 10 cents a case for all flakes purchased until the items of $13.15 and $50 “were settled up;” that it had given the account of the defendant “credit for cash $14.52, freight $1.53, discount 80 cents and 10 cents per case special discount, amount to $5, leaving a balance on our books due us of $58.15. If this is not your understanding we would like a letter from you explaining just what you understand the agreement to be with Mr. Walker. We are anxious to get this matter straightened out.” The defendant replied to the above letter on April 4,1912, stating in effect that its understanding of the arrangement was as indicated by the letter and statement of February 22, 1912, and that it had no other understanding with Mr. Walker in reference to the matter. The plaintiff retained the check of the defendant until after the receipt by it of the defendant’s letter of April 4th, when it deposited the check in its bank and the same was paid. The plaintiff never answered defendant’s letter of April 4th.
    Abstract of the Decision.
    1. Accord and satisfaction, § 8

      —when accord and satisfaction shown. Where defendant purchased certain goods upon the strength of an alleged agreement on the part of plaintiff’s representative, by which the plaintiff was to assume certain indebtedness due the defendant, and in paying for such goods, defendant deducted from its check the amount of such indebtedness, advising the plaintiff thereof and tendering the check in full payment of the account, and the latter after several weeks delay, acknowledged the receipt of the check, stating its version of the arrangement with the defendant, and requesting the latter to explain its understanding of the agreement, if different, which the defendant did, whereupon plaintiff cashed defendant’s check and retained the proceeds without replying to defendant’s letter, it was held that the transaction constituted an accord and satisfaction.

      Ashcraft & Ashcraft and Albert Kocourek, for plaintiff in error; Charles F. Rathbun, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

2. Appeal and error, I 1805*—when cause not remanded on reversal on merits. Where the facts are not in dispute but the trial court misinterpreted the law applicable to them, the judgment will he reversed without remanding the case.


text:
    Hattie Gutkowsky, Appellee, v. Grand Lodge, Progressive Order of the West, Appellant.
    Gen. No. 20,284.
    1. Insurance, § 722

      —when subordinate lodge may waive grand lodge’s approval oí applicant’s medical certificate. A subordinate lodge of a fraternal benefit society held not to have the power to waive a requirement of the constitution and by-laws of the Grand Lodge, making the approval of the latter body of an applicant’s medical certificate a prerequisite to membership.
    2. Insurance, § 794

      —when receipt of dues by subordinate lodge estops Grand Lodge from denying liability on certificate. The receipt and retention by a subordinate lodge of a fraternal benefit society of the dues of an applicant for three months, held not to constitute a payment to the Grand Lodge so as to estop that body from denying liability on a benefit certificate on the ground of the non-approval by it of the applicant’s medical certificate, which its constitution and by-laws made a prerequisite to membership.
    3. Insurance, § 739

      —when contract of insurance exists between applicant and fraternal benefit society. Where an applicant’s medical certificate was never approved by the Grand Lodge of a fraternal benefit society, the constitution and by-laws of which made such approval a prerequisite of membership, held that no contract arose between that body and the applicant, notwithstanding his initiation by a subordinate lodge which accepted and retained dues from him for three months.
    Appeal from the County Court of Cook county-; the Hon. D. T. Smiley, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Rehearing denied July 3, 1915.
    Statement by the Court. This was an action in assumpsit brought in the County Court of Cook county by Hattie Gutkowsky, appellee, hereinafter called the plaintiff, against Grand Lodge, Progressive Order of the West, a corporation, appellant, hereinafter called the defendant. The defendant is a fraternal benefit society organized under the laws of Missouri and is qualified to do business in the State of Hlinois. One of the purposes of the society is to pay death benefits to the families, heirs, blood relations or legal beneficiaries of deceased members. The defendant carried on the work of the order through the Grand Lodge and subordinate lodges. This' action was brought to recover a five hundred dollar death benefit alleged to be due the plaintiff from the defendant as the legal beneficiary of her deceased husband, Max Gutkowsky, who, the plaintiff claims, was a member in good standing of said society at the time of his death. The case was tried before the court without a jury, and the issues were found in favor of the plaintiff, and the damages were assessed at five hundred dollars. A motion for a new trial was overruled, judgment was entered on the finding, and this appeal followed.
    The declaration consisted of the common counts and a special count alleging, inter alia, that in July, 1912, Max Gutkowsky became a member of and was initiated into the defendant order pursuant to its laws; that he remained a member in good standing from his initiation until the time of his death, August 29, 1912; that section 5 of article 1 of the laws of said order provides that, “in the event of a death of a member in good standing the sum of five hundred dollars ($500) shall be paid to the legal heirs or beneficiaries of the deceased member within sixty (60) days after the approval of the claim by the executive board;” that section 6 of article 1 of said laws provides that, “payment of death claims shall be made only to the husband, wife, children, father, mother, lawful heirs or blood relations of the deceased, as designated on the medical certificate on file in the Grand Lodge Office;” that at the time of his initiation, the said deceased designated the plaintiff, his wife, as his beneficiary; that the plaintiff gave notice to the defendant of the death of the deceased and demanded from it the sum of five hundred dollars; that the defendant has refused and still refuses to pay the same or any part thereof. The defendant filed a plea of the general issue and an affidavit of merits, as follows: That he (Benjamin E. C'ohen, agent for the defendant) verily believes that defendant has a good and meritorious defense to the whole of plaintiff’s demand; that the nature of such defense is as follows: (1) That no medical examiner’s report was ever made upon the application of Max Gutkowsky as provided by the laws of said defendant corporation. (2) That no membership certificate was ever issued to said Max Gutkowsky as provided by the laws of said defendant corporation and no medical examiner’s report was ever made on the application for such certificate to the Grand Lodge. (3) That section 6 of the constitution and by-laws of said defendant corporation provides that no applicant shall be initiated in any subordinate lodge until the recording secretary shall have received a notice from the Grand Secretary that the medical certificate of the applicant was approved by the Grand Medical Examiner. (4) That Max Gutkowsky at the time he made the application for membership in said society was over forty years of age; that section 7 of the constitution provides that no one over forty years of age shall be admitted to membership until his age shall have been examined by the Grand Medical Examiner; that it was. necessary for the Grand Medical Examiner to approve or disapprove such application in writing; that no application was ever presented to said Grand Medical Examiner for approval or disapproval. . The facts in the case were stipulated. It appears that Max Gutkowsky, the deceased husband of the plaintiff, on or about August 10, 1912, filed an application for membership in the defendant order with a subordinate lodge of the defendant (Malbein Lodge No. 131), located in the city of Chicago; that he was examined by Dr. S. M. Robin, medical examiner for the said subordinate lodge, who recommended him for a beneficiary membership in the order; that his application was voted on and he was elected a member by the members of the subordinate lodge; that in the subordinate lodge he went through the ceremonies of initiation and was given the signs and obligations of the order; that his wife (the plaintiff) was designated by the deceased as his beneficiary; that he paid to the subordinate lodge the initiation fee and dues for three months; that he died August 29, 1912; that he was not under suspension and did not owe any money or assessments to the said lodge, “and, so far as his connection with the lodge was concerned, he was in good standing at the time of his death;” that the said application for membership and the medical certificate of Dr. Robin were delivered to the secretary of the subordinate lodge; that they were never forwarded to the Grand Lodge; that no membership certificate in the order was ever issued to the deceased; that the deceased at the time he filed his said application for membership was forty-two years old. The laws of the order, material to the present ease, provide: That an applicant for membership shall first familiarize himself with the constitution and by-laws of the order; that he shall not be considered a member until he has received the initiatory degree and is in possession of a membership certificate issued by the Grand Lodge; that he shall not be initiated by any subordinate lodge unless a notice shall have been received from the Grand Lodge that the medical certificate of the applicant has been approved by the Grand Medical Examiner; that if the applicant is over forty years of age he shall not be admitted to membership until his age shall have been first investigated by the Grand Medical Examiner and approved by him in writing; provided, that in lodges meeting outside of St. Louis, Missouri, the district deputy shall make such investigation personally and report in writing to the Grand Secretary his opinion as to the eligibility of such candidate; that the applicant shall appear for initiation within thirty days after the approval of his medical certificate; that if he be admitted contrary to the above requirements he shall not be entitled to any of the benefits of the order nor his beneficiaries to any of the benefits of the endowment fund; that if he be rejected by the lodge or medical examiner all fees except the medical examiner’s fees shall be refunded; that the Grand Lodge shall not be responsible for any or all of the actions of the subordinate lodge or its officers to its subordinate members in reference to acceptance, expulsions or other actions; that the subordinate lodges and their officers are the joint agents of their respective members only and the managers for their respective lodges since they are chosen by them and not by the Grand Lodge; that the contract between the order and its members shall consist of the membership certificate, the constitution of the order, the laws and rules of the order and those governing subordinate lodges, the application for membership, and questions and answers of the member contained in the medical certificate signed by Mm prior to Ms initiation. In the application for membership signed by deceased, he stated that he was acquainted with the objects of the order and familiar with its laws and indorsed them. He represents that he was in sound bodily health, and forty-three years of age on his last birthday; that should the Grand Lodge or its executive officers for any cause whatsoever refuse to recogmze his imtiation into and acceptance by the lodge of the order which has initiated and accepted him as a member, he consents that the said initiation be void and his acceptance into the order of no value,
    G. J. Norden, for appellant.
    Harry C. Levinson, for appellee; Leo W. Hoffman, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

The defendant contends “that Gutkowsky’s relation to the order at the time of his death was merely that of an applicant—one who had made a proposition for membership—who had applied for a contract of insurance which had not been accepted, not having been placed before the only authority in the order which could accept such a proposition for membership; that the society imposed, and had a right to impose, conditions precedent to membership and to insist upon them; that whatever right- the Grand Lodge might have by its own acts to waive any of these conditions precedent, the local lodge having no authority in these matters did not and could not waive the right of the Grand Lodge to insist upon them and to determine for itself whether or not the applicant should become a member; that the applicant knew of these several conditions precedent having acknowledged his familiarity with the order’s laws and having fully indorsed them."

The plaintiff, in answer to this contention, says that the subordinate lodge was the agent of the Grand Lodge and had the power and authority to waive the conditions which the by-laws of the Grand Lodge made precedent to the acquisition of membership; that the issuance of a benefit certificate was not essential to the rig’ht of recovery in this case, and that the deceased, under the facts of this case, was a member in good standing of the defendant order at the time of his death.

The defendant concedes that in many instances insurance orders are bound by the acts of officers of the subordinate lodges, but it insists that in all such eases the acts of omission or commission of the subordinate lodg’e officers are such as are within the apparent scope of their authority—of their agency—in the handling of matters confided to their care by the Grand Lodge; but that the present case does not fall within the principle that governs those cases, for the reason that the subordinate lodge of the defendant had no power to act in the matters in question; that while the Grand Lodge might have, by its own acts, the authority to waive the conditions precedent, that were not observed in the present case, the local lodge had no such authority.

. There is no doubt but that a subordinate lodge, in an order like the defendant, is the agent of the Grand Lodge when it acts in matters within the apparent scope of its authority and the Grand Lodge is bound by its conduct. Beggs v. Supreme Council Catholic Knights and Ladies of America, 146 Ill. App. 168; High Court Independent Order of Foresters v. Schweitzer, 171 Ill. 325; Coverdale v. Royal Arcanum, 193 Ill. 91; Grand Lodge Ancient Order of United Workmen v. Lachmann, 199 Ill. 140; Court of Honor v. Dinger, 221 Ill. 176, are cases in point. But it is not true that a subordinate lodge is a general agent of the Grand Lodge and authorized to do everything that the Grand Lodge or its officers may do. Love v. Modern Woodmen of America, 259 Ill. 102. In the present case, it was not within the apparent scope of the authority of the subordinate lodge to approve or disapprove the medical certificate of the applicant, or to perform the duties required of the Grand Medical Examiner under section 7, or to issue the membership certificate, as provided for by section 4, and the subordinate lodge had, therefore, no power to waive these conditions precedent to membership in the order. The subordinate lodge was the agent of the defendant in receiving the application of the deceased, and in having the latter examined by the medical examiner of the subordinate lodge, and possibly in the matter of the initiatory ceremonies performed by it, but all these acts were but conditional steps towards membership in the order, and the Grand Lodge alone had the final power to determine whether or not the applicant should be admitted to membership. The laws of the order are clear on this subject, and it is apparent from the application signed by the deceased that he understood the said laws, and the force and effect of the actions of the subordinate lodge, and the power of the Grand Lodge in the premises. There is no suggestion that fraud was practiced oh the deceased by either the Grand or subordinate lodge, nor do we find anything in the record to indicate that the subordinate lodge in any way deceived the deceased as to -the power or authority it possessed in the matter of making him a member of the order. The application for membership by the deceased, in itself, was but a mere offer to the defendant order and, under the facts of this case, we fail to see how it can be held that there was any acceptance of the same by the Grand Lodge. There was, in our judgment, no contract between the deceased and the defendant order, i

The plaintiff contends, however, that the deceased paid the subordinate lodge “dues” for the months of August, September and October, 1912; that this payment was due to an agent of the Grand Lodge, and that as these " dues ’ ’ have never been returned to the plaintiff, or to anyone else, by the Grand or subordinate lodge, these facts estop the defendant from now denying its liability to the beneficiary designated by Max Gutkowsky in his application. We find no merit in the contention that the Grand Lodge is presumed to have received from the subordinate lodge—as membership dues of the deceased—the "dues” paid by the deceased to the subordinate lodge. If the deceased had been admitted to membership in the order by the Grand Lodge, the subordinate lodge would, of course, be the agent of the Grand Lodge in the collection of dues of the deceased, and, in such case, there would be a presumption that the Grand Lodge received the dues paid to its said agent, but in the present case the deceased was not admitted to membership in the order by the Grand Lodge, nor did the latter body, it appears, even know of the steps taken by the subordinate lodge in the matter of the application of the deceased;, and the subordinate lodge in the acceptance of the so-called dues from the deceased, if it be held that the subordinate lodge received the same as dues and unconditionally, was not acting within the scope of its authority, and was, therefore, not the agent of the Grand Lodge in the premises, and there would be no presumption that the said " dues thus paid to the subordinate lodge were received by the Grand Lodge as membership dues of the deceased. But we do not think that it can even be held that the subordinate lodge received the "dues” unconditionally. On the contrary, it would seem that it received the “dues,” as dues, conditioned upon a favorable action by the Grand Lodge in the matter of the application of the deceased. Plattdeutsche Grot Gilde v. Ross, 117 Ill. App. 247; High Court Independent Order of Foresters v. Schweitzer, supra; Dromgold v. Royal Neighbors of America, 261 Ill. 60, cited by the plaintiff in support of its present contention, are not in point, as the subordinate lodge, or council, in each of those cases, collected the dues from one that had been admitted to membership by the Grand Lodge, or Council.

The plaintiff, in the court below, tried the case solely upon the theory that the subordinate lodge, in what it did, was the agent of the Grand Lodge; the contention that the Grand Lodge is presumed to have accepted the “dues” paid to the subordinate lodge by the deceased and that its failure to return the same before or after the death of Gutkowsky estops it from denying liability to the beneficiary of the deceased is apparently raised for the first time in this court. This may explain why the parties to this suit failed to incorporate in the stipulation of facts any statement in reference to the “dues” paid by the deceased, save that the subordinate lodge accepted the same. It may be that upon a new trial of the case the plaintiff may be able to introduce evidence tending to show that the Grand Lodge received the “dues” of the deceased from the subordinate lodge, knowing that it was money paid by the deceased as dues for membership in the order, or facts from which said knowledge would be presumed, and that it retained the same. Of course, if the defendant order did receive and retain the said “dues” as dues of the deceased, as a member of the order, it would be estopped to deny that the deceased was a member of the order. We fail to see anything in this record that would justify the conclusion that the defendant order, by its conduct, is estopped from denying that the deceased was a member, nor are we even warranted in assuming from the stipulated facts that the “dues” were retained by the Grand Lodge or the subordinate lodge.

If we are right in the conclusions we have expressed, it follows that the trial court erred in holding, under the stipulated facts, that there was a contract between the deceased and the defendant, and the judgment of the County Court of C'ook county must be reversed, and for the reason stated the cause will be remanded for a new trial.

Reversed and remanded.


text:
    Isaac N. Rice, Appellant, v. Thomas E. Dougherty and Schaeffer Piano Manufacturing Company, Appellees.
    Glen. No. 20,393.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Rehearing denied July 3, 1915.

      Certiorari denied hy Supreme Court (making opinion final).
    Statement of the Case.
    Isaac N. Rice filed an amended bill of complaint against Thomas E. Dougherty and the Schaeffer Piano Manufacturing Company, to which the defendants filed a general and special demurrer. The chancellor sustained the special demurrer and dismissed the bill, and this appeal followed.
    The amended bill alleged that on January 22, 1900, the complainant filed a bill of complaint alleging that the complainant and the defendant Dougherty were partners and owners of certain property, business and profits in the hands of the defendant, the Schaeffer Piano Manufacturing Company, and praying that an accounting be had between the complainant and the defendants in relation thereto. The facts alleged in the bill of January 22, 1900, were substantially the same as those alleged in the present one. It was further alleged in the bill of January 22, 1900, that the matters and things set forth therein constituted a partnership between the complainant and the defendant Dougherty; that such proceedings were had on said bill that on July 13, 1906, a final decree was given in favor of the complainant and against said defendant; that afterwards, on October 20, 1911, such decree was reversed by the Appellate Court of Illinois in and for the First District thereof (without a finding of facts), with directions to the Circuit Court to dismiss the bill of complainant (165 Ill. App. 125); that thereafter an order was entered in the latter court dismissing the bill.
    Abstract of the Decision.
    Limitation of actions, § 55

      —when expiration of statute pending appeal precludes new suit after reversal. The provisions of section 25 of the Revised Statutes (J. & A. j[ 7220) that if a judgment in favor of a plaintiff shall be reversed by the Appellate Court that a new action may be brought within one year thereafter, does not apply where a case is reversed on the merits, and the new action is based on the same state of facts as the former action, although on a different legal theory.
    It was further alleged that the facts stated in the first bill of complaint showed that Dougherty was a constructive trustee for the complainant, and that such question was not disposed of in the previous decision. Complainant thereupon brought the second action on the ground that Dougherty was a constructive trustee.
    Rice, Lowes & O’Neil, for appellant.
    Musgrave, Oppenheim & Lee, for appellees.

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

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Anna Weidenmann, Administratrix, Appellee, v. Mount Hope Cemetery Association of Chicago, Appellant.
    Gen. No. 20,360.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hoist. William E. Dbveb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action of assumpsit by Anna Weidenmann, administratrix of the estate of Jacob Weidenmann, deceased, against Mount Hope Cemetery Association of Chicago on a contract of employment. From a judgment for plaintiff, defendant appeals.
    By the terms of the written contract the defendant appointed the plaintiff’s intestate, Jacob Weidenmann (now deceased), its landscape engineer and gardener and superintendent of its cemetery grounds for a term of five years. The plaintiff’s intestate entered upon his duties under the same on October 1,1885. On June 14, 1886, the defendant discharged plaintiff’s intestate from further service under the contract, and he brought an action in the Superior' Court of Cook county on October 22, 1886, to recover damages for an alleged breach of the contract.by the defendant. The case was heard before the court without a jury, the issues were found for the plaintiff and judgment was entered on the finding for $14,700. On appeal, the Appellate Court of the First District sustained the said judgment, but the judgments of the Superior and Appellate Courts were reversed by the Supreme Court, and the cause was remanded to the Superior Court for a new trial. (Mt. Hope Cemetery Assn. v. Weidenmann, 139 Ill. 67.) The cause was redocketed and on February 6, 1893, Jacob Weidenmann died, and on September 24, 1895, by leave of court, Anna Weidenmann, plaintiff in the present action, was substituted as plaintiff in said cause. Thereafter the said action was dismissed for want of prosecution, and thereafter this action was brought. The declaration in the present action consisted of the common counts and a special count based on the alleged breach. The defendant filed a plea of the general issue and a plea of the Ten-Year-Statute of Limitations. The plaintiff filed a replication to the plea of the statute of limitations, alleging that in the former action she was involuntarily nonsuited on April 2, 1906, and that the present action was brought March 15, 1907, and within one year after the said nonsuit, and that it was brought for the same cause of action as the former one. To this replication the defendant filed a rejoinder, denying that the present action was brought for the same cause of action as the former one, and alleging that the former action was for other and different causes of action than the causes of action for which the present suit was brought. The plaintiff filed a sur-rejoinder, again asserting that the causes of action in the two suits were the same.
    The defendant contended that the present action was barred by the statute of limitations. The suit was not begun until seventeen years after the termination of the contract of employment. The plaintiff, in her replication to the defendant’s plea of the statute of limitations, alleged that the present action was brought within one year after the said nonsuit, and set out in haec verba two orders in the former action; one entered December 28,1905, and the other April 2,1906. The order of December 28, 1905, recited that the former suit was on that date, by stipulation of the parties, passed, to be taken up on ten days’ notice, within ninety days. The order of April 2, 1906, recited that the former suit was on that date dismissed for want of prosecution. Neither the allegation in the plaintiff’s replication that the present action was begun within one year after the said nonsuit, nor the dates of entry, nor the terms, of the said orders in question, were in any way traversed by the defendant in its rejoinder to said replication.
    The contract entered into provided in part as follows:

      “Third. Said party of the first part further agrees to pay said party of the second part a salary of thirty-five hundred dollars ($3,500) per year, for the space of five years, commencing October 1, 1885, payable monthly on or before the tenth (10th) day of each •month, for the services of the preceding month, during said term, or such portion of said term as the services of the said party of the second part may be satisfactory and rendered to said party of the first part.
    “Fourth. Said party of the second part, in consideration of the agreements and payments aforesaid, hereby accepts the said appointment upon the terms, conditions and agreements herein contained, and agrees that his entire services, skill and abilities as landscape engineer and gardener and superintendent as aforesaid shall be given and devoted to the employment by, and the interests of the said party of the first part, during said term of five (5) years, and that he will promptly and faithfully do and perform all services pertaining to said positions, that are or may hereafter be required of him, by said party of the first part'during said term.
    # * *
    “Sixth. In case of any substantial breach of any oí either of the terms of this contract by either party, the other party shall have the right to declare this contract forfeited, and the terms and agreements herein contained shall, upon such declaration being made in writing, be and become thenceforth null and void.”
    Kretzinger & Kretzinger, for appellant; Holt, Cutting & Sidley, of counsel.

      Abstract of the Decision.
    1. Pleading, § 117

      —what is effect of failure to traverse. In an action of assumpsit on a contract for breach of employment to which a plea of the statute of limitations was interposed, held that the failure to traverse material allegations in the .plaintiff’s replication constituted an admission that the action was brought within a year after the dismissal of a former action, and that a certain order was not one of dismissal but one simply passing the case, and also that the former action was dismissed for want of prosecution.
    2. Limitation of actions, § 55

      —when action not tarred. The defense of bar by the statute of limitations to an action of assumpsit on a contract for breach of employment, for the reason that the form of action was different from that in a former suit, is not available where the stipulation of the parties is that the suit is brought for the very same cause of action as the former suit, and assumpsit was the form of action in both cases, and the declaration in each case consisted of the common counts and a special " count based upon the alleged breach.
    3. Limitation of actions, § 55

      —when remedy in second action not different. The remedy was not different so as to allow the bar by statute of limitations to an action of assumpsit for breach of a contract of employment, where the former action was commenced before the expiration of the term of the contract, and the amount of damages then recoverable was limited to the actual loss to the date of the trial, and such case was dismissed after the expiration of the term of employment, and the amount of damages recoverable in the second suit was larger, the measure of damages remaining the same.
    4. Master and servant, § 30

      —when may discharge under agreement for “satisfactory” services. Where a person enters a contract of employment for a term of years, providing for payment of an annual salary at stated monthly periods during the term, or such portions of the term as the services of the employee shall be satisfactory to the employer, such employer, acting in good faith, stating that the services performed have been unsatisfactory, and refusing to accept the services performed, may discharge the employee, as the employer is the sole judge of the services rendered.
    5. Master and servant, § 30

      —when contract of employment

      breached. The failure to render satisfactory services under a contract of employment requiring such services constitutes a substantial breach of the contract.

      Jones, Addington, Ames & Seibold, for appellee.

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

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

   Mr. Justice Scanlan

delivered the opinion of the court.

6. Master and servant, § 30 —how contract construed as to power to discharge. In an action of assumpsit for damages for breach of a contract of employment, evidence held to establish that the parties did not construe contract so as to exclude ahy right in the employer to discharge employee if his services were unsatisfactory.

7. Master and servant, § 30 —when good faith in discharging material. Where the trial court does not consider the' question of good faith of an employer in discharging an employee because his services were unsatisfactory under a contract of employment permitting a discharge for such reason, a new trial should be granted.