text:
    Frank Chambers, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,835.
    Street railroads, § 97

      —when crossing ahead of an approaching street car is not contributory negligence. At the trial of a suit brought for personal injuries received as a result of a collision of the defendant’s street car with a single-horse buggy driven by a companion of the plaintiff, ijt appeared, among other things, that the plaintiff might have assumed control of the driving of the horse had he wished; that the buggy was driven across the car line at right angles in the face of the approaching car; that the plaintiff saw the approaching car; that he supposed it was coming at an ordinary rate of speed; and that he felt sure it was far enough away for the buggy to clear the track. Held, that the issue as to the plaintiff’s exercise of due care for his own safety was properly submitted to the jury, and that, upon the whole evidence, a finding by the reviewing court that the plaintiff was guilty of contributory negligence would not be justified.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Rehearing denied October 20, 1914.

      Charles LeRoy Brown, for appellant.
    Rice & O’Neil and Caswell & Healy, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

This case is in this court for the second time.. It was brought to recover damages for personal injuries sustained by the plaintiff in a street crossing collision between one of appellant’s street cars and a single-horse buggy in which the plaintiff and a companion named Hunt were riding. Upon the first trial, the plaintiff recovered a judgment for ten thousand dollars, which was reversed and the cause remanded on account of errors in the admission of evidence and in one of the instructions. Chambers v. Chicago City Ry. Co., 175 Ill. App. 362. Upon the second trial, a verdict for four thousand dollars was returned and judgment was entered for that amount. The defendant again appeals.

It is urged on behalf of appellant, that the judgment should be reversed because of the alleged contributory negligence of the plaintiff. Appellant’s counsel insists that there is no evidence in the record which shows that the plaintiff exercised ordinary care for his own safety, and that therefore the trial court should have directed a verdict for the defendant, but (he adds) “inasmuch as it is not necessary, in order to entitle appellant to a reversal of the judgment, that plaintiff’s conduct be pronounced negligent as a matter of law, we are indifferent, in this court, whether a finding of contributory negligence be made as a conclusion of law' or as a conclusion of fact.” This contention necessarily requires us to examine the whole of the evidence, for the double purpose of ascertaining, first, whether there is any evidence from which, if it stood alone, the jury could, “without acting unreasonably in the eye bf the law,” find that the averment of due care on the part of the plaintiff has been proved (Libby, McNeill & Libby v. Cook, 222 Ill.206); and second, whether upon the whole record, and as a pure question of fact, the verdict is manifestly contrary to the preponderance of the evidence upon this point.

The accident happened about 1:15 A. M. on a clear summer night in August, 1907, at the intersection of State and Congress streets in Chicago. Appellant operates a double-track electric street car line on State street. The west track is used for southbound cars and the east track for northbound cars. The total width of both tracks, including the space between the two, is fifteen feet. Congress street runs east from State street to Michigan boulevard, but does not run west. The first street north of Congress is Van Buren street and the first street south is Harrison street. There is an elevated railway on Van Buren street, crossing State street. At the time of the accident, the plaintiff lived on Woodlawn avenue near Fifty-Fourth street, was twenty-three years of age and was employed by a tunnel construction company. His place of work at that time was at a tunnel shaft located at Kingsbury and Indiana streets, which is north of the river, a considerable distance north of Congress street, and five blocks west of State street. Joseph Hunt, a young man about the same age as the plaintiff, worked at the same place at timekeeper, and lived in the same neighborhood. Chambers’ father owned an open, single-seated buggy, and Chambers and a friend named Burke together owned a horse. On the day preceding the accident, Chambers had worked at the tunnel shaft all day and reached home about 7:30 P. M. As he was dressing after supper, Hunt called and a drive was suggested, having for its ultimate object a visit to the tunnel shaft about midnight. The plaintiff told Hunt to hitch up the horse, which was kept in a nearby barn. Hunt did so, and throughout the evening, Hunt did the driving, sitting on the right-hand side of the buggy. They started from the barn about nine o’clock in the evening. They drove first to a cigar store, then to an undertaking establishment, of which Hunt’s brother was a part owner, stopped there for a while, then drove north towards Twenty-Second street, stopping at six saloons on the way, and taking a drink in each. Appellant’s counsel lays great stress on this last fact, claiming that it demonstrates that both men were intoxicated at the time of the accident, several hours later. The only evidence on this point, however, is that of the plaintiff himself, who testified that at the time of the accident both .“were absolutely sober,” that he “had a definite recollection that we' didn’t have over ten small glasses of beer,” and that he “doubted very much whether we drank more than half of them,” and that they “drank nothing after leaving 22nd street.” . They left Twenty-Second street about 11:15 P. M., and drove directly north on State street to Indiana street and then west to the tunnel shaft, arriving there about midnight. (There is evidence that State street, south of Jackson boulevard, was paved with granite blocks. We find none that it was paved with cobblestones, as counsel claims.) On arriving at the tunnelshaft, Hunt went into the office and looked over his time books. The plaintiff went into the boiler room and examined some machinery he had helped to install. They remained at the shaft thirty or forty minutes and then started for home, driving east on Indiana street to State street and directly south on State street to Congress. As they approached Van Buren street, the horse became frightened by the noise of a train passing along the elevated road on that street, “got skittish and jumped about,” and ran south at a gallop. Two policemen, who were standing at the northwest corner of Van Burén and State streets, testified that as the horse passed them, it was galloping and continued to gallop “until it disappeared in the partial darkness towards Congress street.” The plaintiff and the witness Peterson testified that Hunt had the horse under control twenty-five or thirty feet south of the elevated road; and all the eye-witnesses to the accident agree that as the horse approached Congress street it was trotting. At that time, the horse and buggy were on the west side of State street between the west rail of the car tracks and the west curb. As they reached a point about opposite the north line of Congress street, Hunt turned the horse eastward across the street car tracks to enter Congress street. The witness Strong, who was standing almost directly opposite them on the west sidewalk of State street, testified that they were then going “at a sort of jog trot,” that they “made a kind of rounding turn” across the tracks toward the center of Congress street and that “the horse kept on trotting.” One of appellant’s large cars, operated and lighted by electricity, was coming up from the south on the east track. The plaintiff testified that he first saw this car before reaching Congress street and that it was then “down near Harrison street;” that just as the horse turned, he looked towards the car and that at that time it was “two hundred feet away, at the least”; that he could see the car was moving, and “supposed it was coming at the ordinary rate of speed”; that “it was far enough away to enable us to clear if the car was running at the ordinary rate of speed”; and that he “felt sure that we could clear the track.” Whether Hunt saw the car approaching does not appear, except by inference from the fact that he was seen by several witnesses to urge the horse forward just before the collision. The plaintiff testified that he did not call Hunt’s attention to the car, that he had the control over Hunt “in this way, that I could have taken it away from him if I wished”; that Hunt was an experienced driver, and “was driving satisfactorily and safely.” The street car came on very rapidly and hit the rear wheel of the buggy with such force that both Chambers and Hunt were thrown against the sidewalk at the northeast corner of the street intersection. Hunt was killed instantly, Chambers’ skull was fractured, and he sustained other serious injuries.

There is no evidence that either Hunt or Chambers looked towards the approaching car after the horse turned to cross the tracks, and much is made of that fact in the argument of appellant’s counsel. The space that intervened between the place where Chambers said he looked and the west rail of the east track was not more than seventeen feet. A horse going at a “jog trot” (assuming that means six miles an hour) goes seventeen feet in two seconds. It has been repeatedly held in this State that the mere failure of a traveler to “stop, look and listen” before crossing a railroad track at a public crossing is not negligence per se. Chicago & J. Elec. Ry. Co. v. Wanic, 230 Ill. 530, 535. A fortiori, if the traveler does look two seconds before he starts across, he cannot be held guilty of negligence merely because he fails to look again, or to keep on looking a second or two longer. Nor can it be held to be contributory negligence, necessarily and as a matter of law, to attempt to cross the tracks of a street railway company ahead of an approaching car. In Chicago City Ry. Co. v. Sandusky, 198 Ill. 400, a cable car collided at a street intersection with a junk wagon in which the plaintiff' was riding, and it appeared from the evidence that before he attempted to drive across the tracks he looked down the street and saw a car approaching the crossing about half a block away. Nevertheless, he started across and was injured. It was contended that upon "this evidence it must be held, as a matter of law, that the plaintiff was guilty of a failure to observe ordinary care for his own safety, but as to this contention, the Court said: “Attempting to cross the track of a street railway ahead of a moving car is not necessarily to be imputed as contributory negligence. It may or may not be prudent, depending upon the proximity of the car and the speed with which it is moving. Whether, in the particular instance, reasonable care was exercised in going upon the track is usually a question for the jury, under proper instructions. (2 Thompson on Negligence, 1450.) The evidence in the present case was not such as to justify the court in declaring, as a matter of law, the appellee did not act with reasonable care for his own safety.” In Chicago Union Traction Co. v. Jacobson, 217 Ill. 404, the driver of a heavy truck, loaded with flour, turned his team across the street car tracks in the middle of a block ahead of an approaching electric car. He saw the car coming a half block away, and after looking at it he gave no further attention to it. When nearly across the track, the car struck the rear end of the wagon, turning it over and throwing him from his seat to the pavement. The Court said that certain portions of the driver’s testimony “would justify the conclusion that appellee knew, when he drove upon the track, that a collision would be inevitable in the ordinary operation of the car, unless the motorman of appellant should prevent the collision by his care and diligence. But appellee also testified that when he turned his team to cross the track the car was about one hundred feet east of Whipple street; that said street was about two hundred feet east of him, and that he thought he had time to get across the track. He was bound to exercise a reasonable judgment in view of all the circumstances, and the court, in passing on the motion (for a directed verdict) , was required to consider all the evidence, including the distance of the car from the wagon, the rate of speed, and all the circumstances. We cannot say that in so considering it, the evidence necessarily led to but one conclusion, but we think that the question whether, under all the circumstances, appellee believed, upon reasonable grounds, that he had time to get across the track before the car would reach him, was proper to be submitted to the jury.”

This language of the Supreme Court is peculiarly applicable, in our opinion, to the facts of this case. Whether it was prudent for appellee to cross the tracks of appellant ahead of the approaching car depends upon the distance he had to go, the apparent proximity of the car,' the apparent speed with which it was moving at the time, and other like circumstances. Appellee was bound only to exercise a reasonable judgment in view of all the circumstances; and if, as he testified, after seeing the car and noting its apparent proximity and speed, he believed he had ample time to cross the tracks ahead of the car in' safety, it was a question of fact for the jury whether, under all the circumstances, he had reasonable grounds for that belief.

This conclusion brings us to the second branch of the contention of appellant’s counsel, viz., that the plaintiff was guilty of contributory negligence as a conclusion of fact from all the evidence. As to this, the theory of appellant’s counsel is that the evidence shows “that the car was running at a high but not excessive rate of speed, considering the hour and the locality; that plaintiff and his companion were driving south on the west side of State street at a reckless and uncontrolled rate of speed; that plaintiff and his companion were intoxicated; that when the northbound car was between twenty-five and forty feet away, the driver suddenly and erratically pulled the horse to turn east on Congress street, thereby bringing the vehicle immediately into the course of the car and necessarily producing the collision.” If this theory were supported by the preponderance of the evidence, there would be little doubt that the conclusion for which appellant contends would necessarily follow. Our own examination of the evidence, however, leads us to the conclusion that the greater weight of the evidence shows that the ear was running not only at high speed, but at an excessive rate of speed, under the circumstances; that appellee and his companion were not driving “at a reckless and uncontrolled rate of speed,” but had the horse under full control, and were going at a jog trot, or a little faster; that they were not intoxicated ; that they had reasonable grounds to believe that they had time to get across the tracks before the car would reach them; and that the evidence of the defendant’s witnesses, to the effect that -Hunt turned his horse directly in front of the car when it was between twenty-five and forty feet away, is, to say the least, highly improbable, in view of the admitted fact that the car hit the rear wheel of the buggy. The evidence clearly shows, and appellant’s counsel admits, that the distance from the point where Hunt turned the horse eastward to a point where the horse and buggy would have been wholly clear of the east track was about thirty-five feet. Several of the witnesses testified that when Hunt began to make the turn, the street ear was “about opposite the Folly Theatre,” which is located, according to one witness, “about the middle of the block” between Congress and Harrison streets; according to another “five or six doors” south of Congress street; and according to the plaintiff, at least twp hundred feet south of Congress street. One witness testified that Congress street is fifty feet wide. If these witnesses are to be believed, and we see no reason to doubt them, then it follows that when Hunt began to turn, at or near the north line of Congress street, the street car was at least one hundred and seventy-five feet away, and the car must have been going at least five times as fast as the horse in order to hit the rear wheel of the buggy. Upon this evidence, two different juries have found that appellant was guilty of negligence and that the plaintiff was in the exercise of due care at and before the time of the accident. We cannot say they were not justified.

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

Affirmed,.


source: Caselaw Access Project

author: Mr. Presiding Justice Fitch

license: Public Domain

text:
    Otto Miller et al., Appellees, v. Gustave Anderson, Appellant.
    Gen. No. 19,849.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 28

      —necessity of preserving exception to judgment in hill of exceptions. On appeal from a judgment of the Municipal Court in a non jury case, the sufficiency of the evidence to support the judgment cannot he inquired into where the appellant chooses the hill-of-exceptions method of review and the bill does not show any exception to the judgment.

      Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by Otto Miller et al., against Gustave Anderson to recover brokerage commissions earned by plaintiffs in procuring a purchaser for certain real estate belonging to defendant. The trial was had before the court without a jury and plaintiffs recovered a judgment for $1,291.87. To reverse the judgment, defendant appeals.
    The defendant urged as ground for reversal that the evidence was insufficient to sustain the judgment.
    Rathje & Wesemann, for appellant; Tenney, Harding & Sherman, of counsel.
    Charles A. Williams, for appellees; Epstein & Marx, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Appeal and error, § 578 —Amendment of 1911 to section 81 of Practice Act construed. The Amendment of 1911 to section 81 of the Practice Act, J. & A. ¶ 8681, merely inserts a provision for an alternative method of presenting questions for review in the form of a “stenographic report’’ of the trial, and does not have the effect of abolishing the former rule which requires formal exceptions, and the same to be preserved in the bill of exceptions, where the party chooses the bill-of-exceptions method of review.

3. Municipal Court of Chicago, § 27 —when hill of exceptions cannot he treated as stenographic report. Failure of bill of exceptions to show that any exception was taken to the judgment of the Municipal Court cannot be cured by treating the bill as a stenographic report where it appears on its face not to be a stenographic report.


author: Mr. Justice Pam

text:
    In re Estate of Sarah Atkins, Insane. Louise Rittmiller, Defendant in Error, v. Samuel B. Overmass, Plaintiff in Error.
    Gen. No. 19,432.
    1. Appeal and error, § 626

      —when appeal from Prohate not properly perfected to give Circuit Court jurisdiction. The final account of a conservator of the estate of an insane person was approved by the Probate Court during the September term, 1908. No appeal was prayed therefrom, and no formal order allowing appeal was entered. During the October term, 1908, the succeeding conservator-presented an appeal bond in the Probate Court reciting that an appeal to the Circuit Court from the order approving such final account had been prayed and allowed. On October 15, 1910, the Circuit Court entered a decree by default directing the original conservator to pay certain sums to the succeeding conservator. On November 11, 1910, the original conservator filed his special appearance to vacate said decree and to dismiss the appeal, which relief was denied. Held, that the appeal to the Circuit Court had not been properly perfected, and that the Circuit Court was without jurisdiction.

      2. Appeal and error, § 624

      —essentials for taking appeal from Prodate to Circuit Court. Under section 40, ch. 86 of the act relating to lunatics, J. & A ¶ 7324, and section 226, ch. 37, of the Probate Court Act, J. & A. ¶ 3269, an appeal from the Probate Court to the Circuit Court can only be had pursuant to a formal order allowing such appeal entered in the Probate Court within the term in which the order or judgment to be appealed from was entered.
    3. Appeal and error, § 31

      —when special appearance in Circuit Court on appeal from Probate Court does not confer jurisdiction. On appeal from the Probate to the Circuit Court, a special appearance for the purpose of moving to set' aside a judgment entered in the Circuit Court on such appeal, and to dismiss the appeal, confers no jurisdiction upon the Circuit Court other than to pass on the motion to dismiss the appeal.
    Error to the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed.
    Opinion filed October 8, 1913.
    McCaskill & McCaskill, for plaintiff in error; Ransom E. Walker, of counsel.
    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. The writ of error in this case was prosecuted to reverse a decree of the Circuit Court sustaining objections to the report and final account of the conservator of Sarah Atkins, an insane person, and directing him to pay Louise Rittmiller, named in the decree as his successor, sixty dollars expended by him on account of attorney’s fees, and forty dollars credited to himself as conservator’s fees. Samuel E. Overmass, the conservator of the estate of Sarah Atkins, an insane person, resigned-and filed his final account with the Probate Court, containing among other items one of sixty dollars expended on account of attorney’s fees, and one of twenty dollars on account of his fees as conservator. On one of the days of the September term, namely, October 2, 1908, this account was approved by the Probate Court and Overmass was discharged as conservator. On October 22, 1909, being one of the days of the October term of court, Louise B. Rittmiller, successor to Overmass, as conservatrix of the estate of Sarah Atkins, presented an appeal bond, reciting that she had prayed for and obtained an appeal to the Circuit Court. There was no order granting an appeal, and it does not appear that Overmass was present or had any notice that the appeal was to be prosecuted.

On October 15, 1910, nearly two years after this appeal bond had been presented, Samuel E. Overmass was defaulted in the Circuit Court, and said court entered the decree sustaining certain objections to the report and final account, and found that an item of sixty dollars for attorney’s fees was unreasonable, and disallowed said amount as attorney’s fees; and also that the allowance of forty dollars for conservator’s fees was unreasonable and disallowed any fees to Overmass as conservator; and ordered the said Overmass to pay to said Louise Rittmiller the aforesaid sums, to which objections had been sustained, and further ordered said Overmass to pay the costs and expenses of said appeal. These payments were directed to be made within twenty days.

On November 11, 1910, Overmass, the plaintiff in error, filed a special appearance in the Circuit Court, and moved to vacate the decree entered against him, and to dismiss the appeal. His appearance was specially limited to those purposes. On December 3rd, he was given leave to add to the reasons in support of said motion, and among the reasons filed by him on that day was, that no appeal was prayed within the time allowed by law, and that consequently the court was without jurisdiction. The motion was denied and this appeal followed. •

The plaintiff in error has set forth several reasons in the course of his brief why the decree of the Circuit Court should be set aside, the first one being, that appeals from the Probate Court must be prayed and allowed by formal order and must be allowed within the term; there being no order granting an appeal, and the approval of the bond being beyond the term, the Circuit Court was without jurisdiction.

Under the statutes of our State, an appeal in this case to the Circuit Court should have been formally prayed and a formal order entered allowing said appeal. Section 40 of chapter 86, Hurd’s R. S., 1911 (J. & A. ¶ 7324), of the lunatics, etc., Act, reads as follows: “Appeals shall be allowed to the Circuit Court from any order or judgment made or rendered under this act upon the appellant giving such bond and security as shall be directed by the court.” Section 226 of chapter 37 of the Probate Court Act (J. & A. ¶ 3269) reads as follows: “Appeals may be taken from the final orders, judgments and decrees of the Probate Court to the Circuit Court of their respective counties * * * upon the appellant giving bond and security in such amount and upon such conditions as the court shall approve, and upon such appeal the case shall be tried de novo.” The record in this case shows that no appeal was prayed and no formal order was entered allowing said appeal. There was merely an appeal bond presented and approved. As we have indicated in our statement of facts, defendant in error endeavored to appeal from an order entered by the Probate Court on October 2nd, being one of the days of the September term of that court, while the appeal bond was presented and approved on October 22nd, a day in the October term of that court.

Ho prayer for an appeal having been made, and no order of appeal having been entered on any day of the September term of the court, the court was without jurisdiction in approving the bond on October 22nd. The case of McFarland v. McFarland, 4 Ill. App. 157, is determinative of the question involved in this case. That was a case very similar in facts to the case at bar. In that case there was an appeal from the final settlement of a guardian. The order allowing the settlement was entered on one of the days of the December term. The appeal bond was approved by the county judge on the twenty-fourth day of January, one of the days of the January term of the court. There was nothing in the record showing that the appeal was ever prayed or granted. In that case, as in the case at bar, upon such appeal there was an ex parte hearing and judgment entered against the guardian, who occupied the corresponding position in that case that the plaintiff in error does in the case at bar. Afterwards, the guardian entered a general appearance and filed a motion for a new trial, and set up the fact that she had no notice of the appeal, and that she had no knowledge or information whatever that an appeal had been taken in said cause until after the trial of the cause in the Circuit Court.

So in the case at bar. No notice came to the plaintiff in error until more than two years after his final report had been approved, and the defendant in error had endeavored to perfect an appeal from the order •approving said final report. The Court in deciding the McFarland case supra, says:

“In this case the appeal was irregularly and improperly taken. Section 43 of chap. 64 of the Guardian and Ward Act provides that the court shall direct the character of the bond and security to be given; and section 187 of chap. 37 provides that the appellant shall give bond and security in such amount and upon such, conditions as the court shall approve. ’ ’

It will be found, upon reading section 43 of chapter 64 (J. & A. ¶ 6040) that it is in the identical words of section 40 of chapter 86 of the Lunatic Act, and that the section 187 referred to is the same as section 226, which we have already cited. The Court goes on to say that, in its opinion:

“It is the court that is to direct and approve, and not the judge of the court acting after the close of the term and in vacation. The appeal should be allowed and an order made directing the character of the bond and security, at the term at which the judgment is rendered; and not at a subsequent term, when the court no longer has jurisdiction of the subject matter of the controversy, and when the opposing party in interest is not in court, otherwise the right of an appellee would always be in jeopardy, litigations would become complicated, and fraud, oppression, and injustice would be the inevitable results.”

The reasoning of the Court in that case seems to us to be directly applicable to the case at bar. We have already expressed the opinion' that under the statute of our State the appeal to the Circuit Court must be formally prayed and a formal order entered-allowing said appeal. This must be done at the term of the court that the order was entered, from which it is sought to take an appeal; the record showing that the law not having'been complied with in that respect, there was no appeal perfected, and the Circuit Court was without jurisdiction to enter the decree complained of.

The plaintiff in error in this case entered a special appearance for the purpose of moving to set aside the judgment and dismiss the appeal therein. This did not confer any jurisdiction upon the Circuit Court other than to pass on plaintiff in error’s motion to dismiss the appeal.

Inasmuch as our decision on this point disposes of the case, we will not concern ourselves with any of the other reasons assigned by plaintiff in error.

As we are of the opinion that no appeal had been perfected, and as the Circuit Court was without jurisdiction, the judgment of the Circuit Court will be reversed without remanding.

Reversed.


text:
    Edward E. Hamer, Plaintiff in Error, v. John F. Butterly, Defendant in Error.
    Gen. No. 19,452.
    1. Landlord and tenant, § 502

      —what not evidence of a declaration of forfeiture. In an action of forcible entry and detainer it appeared that the written lease covering the premises involved contained a provision that if default were made in the payment of the rent reserved, or any .part of it, when due, the lessor might, at his election, without notice, declare the term ended; that the lessee tendered the rent due January 1, 1913, to an employee of the lessor authorized to receive the same on the third of January following; that such employee refused to receive the same telling him that she had been so instructed by the lessor by telephone that morning and, in reply to his question as to the reason therefor, that he should see the lessor; that evidence that the lessor had told said employee over the telephone prior to such tender: “Don’t accept any rent because I forfeit the lease,” was ruled out as proof of forfeiture; and that the court directed the jury to find the defendant not guilty. Held, that the evidence so ruled out was not evidence of a declaration of forfeiture, and that the tender of the rent due having been made prior to declaration of forfeiture, the lessee was not in default.
    2. Landlord and tenant, § 463

      —what not a declaration of forfeiture. A mere mental declaration of forfeiture for nonpayment of rent, or the communication of such declaration to a third person in no way connected with the lessee, does not amount to a declaration of forfeiture terminating the lease.
    3. Landlord and tenant, § 470

      —when provision in lease does not dispense with declaration of forfeiture. A clause providing that the lessee waived all right to any notice or demand under any statute relating to forcible entry and detainer, held not to dispense with a declaration of forfeiture for nonpayment of rent arising under a different clause in the lease.
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement by the Court. This is an action of forcible entry and detainer brought in the Municipal Court of Chicago by Edward E. Hamer, plaintiff in error (hereafter referred to as plaintiff), against John F. Butterly, defendant in error (hereafter referred to as defendant), to recover possession of certain premises in the city of Chicago known as 1216-1218 Lawrence avenue. Upon the trial of the case the court directed a verdict in favor of the defendant.
    Ode L. Rankin, for plaintiff in error.
    Everett & McGonigle, for defendant in error; John C. Everett, 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.

Defendant held a lease on the premises in question for a term of ten years, commencing May 1, 1910, for $17,500, payable in sixty' instalments as follows: $125 on the first day of each month, for the first sixty months; and sixty instalments of $166.67 each, payable on the first day of each month, for the last sixty months of said term. The original lease was executed between defendant as tenant and Alexander F. Shuman as landlord, and passed through Oliver H. Perry and Richard T. Davis by assignment from said Shuman to the plaintiff, Hamer, who became the owner of the property on the twenty-third day of June, 1911.

From that time on the defendant paid his rent regularly to the plaintiff in advance for each month up to and including December, 1912. The evidence shows that these payments were made either on the second, third, fourth or fifth days of the various months and accepted on such days by the plaintiff.

The month of January, 1913, came along, and on the third, about eleven o’clock in the morning, defendant called at the office of plaintiff, and tendered to a Miss Amelia Meyer, an office assistant of the plaintiff who had been in the habit of receiving rents from said defendant, the rent for the month of January, 1913. The said Miss Meyer, however, refused to accept the rent. She told defendant that the plaintiff, Hamer, had instructed her over the telephone that same morning not to accept the rent. Defendant then asked to know why, and she told him to see Mr. Hamer. Defendant returned several times to plaintiff’s office that afternoon to see him, but was not successful in finding plaintiff in.

At the trial plaintiff testified as follows: On January 3, 1913, about nine o ’clock in the morning, he telephoned his office and Miss Amelia Meyer answered the telephone. He asked her if defendant had been in on the second, and she said “No.” He then asked if defendant had been in that morning (January 3), and she said “No.” He then said: “If he should come in, don’t accept any rent because I forfeit the lease”; and he also told her: “He is liable to ask you why you don’t accept the rent; simply tell him to see me.” Plaintiff did not see defendant until January 4, which was at plaintiff’s office; that he was busy and it was arranged that .they should meet on the following Monday about twelve o’clock, at which time they met. Defendant offered to pay the rent and plaintiff refused to accept it. The plaintiff then stated for the first time that he had forfeited the lease because defendant had not paid his rent on the first of the month, and closed the interview by saying that he did not wish to talk to him any further. There were present at this latter conversation two other gentlemen who had come with defendant.

The defendant was called by the plaintiff and admitted that he had not offered to pay the rent for the month of January previous to the time that he called about eleven o’clock on January 3rd.

The lease in question was offered in evidence and contained the following clauses under which the plaintiff claimed he had the right to take the action he did in forfeiting the lease. These two clauses we will designate as clause A and B, and they are as follows:

“(A) It is expressly agreed, between the parties hereto, that if default be made in the payment of the rent above reserved or any part thereof, or in any of the covenants and agreements herein contained, to be kept by the party of the second part, it shall be lawful for the party of the first part or the legal representatives of said party, at any time thereafter, at the election of said first party, or the legal representatives thereof, without notice, to declare said term ended, and to re-enter said demised premises, or any part thereof, either with .or without process of law, and the said party of the second part or any person or persons occupying the same, to expel, remove and put out, using such force as may be necessary so to do, and the said premises again to repossess and enjoy, as before this demise, without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenants, and said party of the second part further covenants and agrees, that said party of the first part, or the representatives or assigns of said party, shall have, at all times, the right to distrain for rent due, and shall have a valid and first lien upon all personal property of said party of the second part, which he now has or owns or may hereafter acquire or have an interest in, whether exempt by law or not, as security for the payment of the rent herein reserved.”
(B) “The party of the second part hereby irrevocably constitutes any attorney of any Court of Record of this State, attorney for him in his name, on default by him of any of the covenants herein, and upon complaint made by said first party, his agent or assigns, and filed in any such Court, to enter his appearance in such Court, waive process and service thereof, and confess judgment from time to time, for any rent which may be due to said party of the first part, or the assignees of said party, by the terms of this lease, with costs and Twenty Dollars attorney’s fees, and to waive all errors and all right of appeal from said judgment and judgments, and to file a consent in writing that a writ of restitution or other proper writ of execution may be issued immediately, said party of the second part hereby expressly waiving all right to any notice or demand under any statute of this State, relating to forcible entry and detainer.”

The plaintiff contends that the evidence of the plaintiff as to the telephonic conversation between himself and Miss Meyers, his office assistant, was evidence of the fact that he had declared the lease forfeited, as he had a right to do under the covenants thereof. Defendant asked that such evidence be not considered, competent as a declaration of forfeiture. The motion of the defendant was sustained and the court ruled out all the testimony concerning the conversation over the telephone between plaintiff and his office assistant, Miss Meyer, so far as the same was introduced for the purpose of proving a forfeiture of the lease. The court thereupon directed the jury to find the defendant not guilty, which verdict was returned by the jury as directed by the court.

The plaintiff opens his argument by making the statement that the main question presented by the record in this case is the one of admissibility and competency of evidence. ' Plaintiff says further:

“The only facts which tended to show a forfeiture by the plaintiff of the lease under which the defendant Butterly held the premises in question were the acts and statements of the plaintiff Hamer, and his office assistant Miss Amelia Meyer. This action, based as it was upon a forfeiture, was without support when the court ruled out all the evidence offered to show a forfeiture and the point presented therefore is: • Were the statements of Hamer to his clerk that he forfeited Butterly’s lease and directing his clerk not to receive the rent from Butterly, which statements were made out of the presence of the defendant Butterly, admissible for the purpose of showing a forfeiture of the lease in question.”

To this statement should be added the fact, however, that the reason why Miss Meyer should not receive the rent, namely, that the plaintiff had forfeited the lease, was not communicated to the defendant at any time prior to the time when defendant offered the rent for the month of January to Miss Meyer.

While plaintiff in his brief bases his action on both clauses A and B, the record shows that in the trial he depended upon only clause A. This will be seen from the statement just hereinabove cited from plaintiff’s brief.

Plaintiff attempts to argue that this telephonic communication to his office assistant was a declaration of forfeiture and terminated the lease. He argues the admissibility of this testimony on the theory that it is evidence of a verbal act. To this, however, we cannot agree. Merely declaring to someone over the telephone that he forfeited the lease did not constitute a verbal act,—it simply stated an operation of his mind. He does not contend that notice of that declaration was brought home to the defendant before the defendant had tendered the money. In fact, he had instructed his assistant not to disclose the reason why she should not accept the rent, but to refer defendant to him should she be asked the reason why. If his act in telephoning could be regarded as a declaration of forfeiture, then the mere operation of his mind to declare a forfeiture without communicating that intention could be said to amount to a declaration of forfeiture.

Suppose, instead of stating to his assistant over the telephone on January 3rd that he had forfeited the lease, the plaintiff had forfeited the lease (mentally) on January 2nd and made that statement to a member of his family at home; and that his office assistant had accepted the rent on January 3rd when offered by defendant : Could such an act be construed as a declaration of forfeiture?

If the evidence submitted by plaintiff were competent to declare a forfeiture, then this supposititious case would likewise declare a forfeiture. We believe, however, there is no merit in such contention.

In the case at bar there was no clause in the lease like in the case of Espen v. Hinchliffe, 131 Ill. 468, where, in addition to the waiving of notice, there was an express provision that “the simple fact of non-payment of the rent reserved shall constitute a forcible detainer as aforesaid.”

In the case of McKinney v. Charles Mulvey Mfg. Co., 157 Ill. App. 339, the lease also contained covenants much stronger than the lease in the case at bar which, in addition to the clause in the lease at bar, contained the following: “But the fa'ct of non-performance of any of the covenants in this lease shall in itself, at the election of the party of the first part, without notice or demand, constitute a forfeiture of the said lease,” etc. And the court in its opinion in that case refers to the case of Espen v. Hinchliffe, supra, and to the special clause referred to by this court in that lease. These are cases upon which plaintiff places great reliance.

We think the case of Lane v. Brooks, 120 Ill. App. 501, is applicable to the case at bar. The covenant giving the lessor the right to declare a forfeiture at his election in that case is practically similar to the covenants with reference to the same point in the lease in the case at bar. The court in its opinion had before it the case of Espen v. Hinchliffe, supra, and said it did not apply because of this special covenant that we have already referred to. And the court in Lane v. Brooks, supra, held that:

“A contract once made can be rescinded or put an end to only by the mutual assent of both parties. The same rules that apply to the making of a contract apply to the rescission or the putting an end to the contract.
Under the provisions of this lease the nonpayment of rent did not put an end to the lease or to the term thereby created. The lease gave to the landlord a continuing option at his election to declare the term ended in such case. But he could not make this election and put an end to the term, by any secret resolve of his ■own mind, any more than can one to whom an offer or proposal is made accept same and make a contract by mere ‘mental assent’ to such offer or proposal.”

To the same effect is the case of Gradle v. Warner, 140 Ill. 123.

The covenant which plaintiff claims the benefit of, without question, gave him the right to declare the lease forfeited without notice; but until he had so declared the forfeiture, the lease was in force, and such declaration of forfeiture cannot take the shape of merely a mental operation. We do not believe the telephonic conversation was such an act as to manifest an intention to declare a forfeiture. We believe the telephonic conversation was merely and can only be regarded as a secret mental operation of which the defendant could not have notice, and in fact did not have notice; and, moreover, plaintiff expressly directed his office assistant not to "disclose the reason why the rent should not be accepted.

While the plaintiff had the right to declare the term of the lease ended, yet there being no competent evidence of such declaration, the lease remained in force.

Plaintiff in his brief urges the benefit of the covenants in clause B hereinabove set forth, viz., that part of clause B which reads as follows:

• ‘ ‘ Said party of the second part hereby expressly waiving all right to any notice or demand under any statute of this State relating to forcible entry and detainer.” A .reading of the lease shows that these words appear in a different paragraph of the lease from the one wherein he declares a. right to elect a forfeiture without notice, namely, these words do not appear in clause A. A careful reading of the evidence discloses that in no way has plaintiff in the case below relied upon those words of clause B. This is also clearly evidenced from the fact that plaintiff states in the opening argument of his brief that it was necessary to have this telephonic conversation remain in the evidence in order to prove that there had been a declaration of forfeiture. This statement clearly negatives that clause B, which has reference to confession, etc., has any application. A reading- of clause B indicates that the words just quoted have no relation to clause A, and cannot in any way be of benefit to plaintiff with reference to his declaration of forfeiture under clause A.

Plaintiff in his brief cites Belinski v. Brand, 76 Ill. App. 404, and Sherman House Hotel Co. v. Cirkle, 136 Ill. App. 388, in support of his contention with reference to his rights under clause B. Inasmuch as we are of the opinion that the evidence in the case at bar indicates that plaintiff based his action on clause A instead of on clause B, and, moreover, that the covenant in clause B of which plaintiff claims advantage, namely, “said party of the second part hereby expressly waiving all right to any notice or demand under any statute of this State relating to forcible entry and detainer,” is in no way applicable to clause A, we cannot consider these authorities as controlling.

It is true that plaintiff on or about January 7th informed defendant as to why he declared a forfeiture, but at that time no breach existed. Defendant had offered to pay the rent on the third of January; moreover, the evidence in this case shows that for about a year and one-half defendant had been in the habit of making payment on the third, fourth and fifth of the month, and that the money had never been refused prior to the January 3rd in question, because of having been tendered after the first of the month.

We know that January 1st is a legal holiday and that no business is transacted on that day. While it is true the rent was not paid on January 2nd, yet on January 3rd, during the forenoon of that day, the rent was offered.

Here was a valuable leasehold with many years to run; the rent had been offered practically as for many months previous, and yet the plaintiff wishes this court to hold that the telephonic evidence offered in the court below constituted such a declaration of forfeiture as to entitle him to a directed verdict in the court below. We cannot subscribe to such contention, but are of the opinion that the court properly ruled that the telephonic conversation was not competent evidence of a declaration of forfeiture. Plaintiff having stated in his argument that his declaration of forfeiture depended on such evidence, he could not proceed further, and the court below was justified in directing the jury to find the defendant not guilty.

Finding no reversible error, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    George Lauth, Defendant in Error, v. Ralph G. Badeaux, Plaintiff in Error.
    Gen. No. 19,480.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by George Lauth against Ralph G. Badeaux, brought in the Municipal Court of Chicago to recover on a promissory note given by defendant to plaintiff. The note was as follows:
    “375.00 April 14, 1911.
    On or before three years after date, I promise to pay to the order of George Lauth, Three Hundred and Seventy-five and no/100 dollars, at Chicago, Illinois, value received.
    Number-Due- R. G. Badeaux.”

      Abstract of the Decision.
    I. Bills and notes, § 422

      —when note sued on not admissible in evidence. In a suit on a promissory note purporting on its face not to be due, held that the note was improperly admitted in evidence.
    2. Evidence, § 327

      —when terms of note cannot be varied by

      parol. In an action on a promissory note purporting on its face not to be yet due, the admission of testimony offered by plaintiff to show that there was an understanding that the note was to become due when defendant collected money on a certain note which had been given to defendant by a third person, held error.

      At the time the note was given, plaintiff was in the employ of the defendant who was then in the real estate business. Plaintiff had assisted defendant in a certain real estate transaction wherein defendant bought a certain piece of property and resold it at a profit of $750, and for the services rendered, plaintiff was to receive one-half of the profit. It appeared that at the time of giving the note in question there remained unpaid from the purchaser of the land a note held by defendant, which was not due, for the sum of $750 with interest, secured by a mortgage, which represented the profit, and which was payable on or before three years from date. It also appeared this note was paid prior' to the beginning of this suit.
    Plaintiff’s statement of claim, after setting out the note, made reference to an understanding or agreement that when the mortgage was paid, the $375 note would be due and payable, and also that said note had been paid and the mortgage released. Defendant filed an affidavit of merits setting up that the note set out in plaintiff’s statement of claim was not yet due and that, therefore, the action was prematurely brought. It also denied the fact that there was an understanding such as claimed by plaintiff. The jury trial was had and plaintiff recovered a judgment. To reverse the judgment, defendant prosecutes a writ of error.
    H. P. Sinden, for plaintiff in error.
    Rose, Symmes & Kirkland, 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,j and Cumulative Quarterly, same topic and section number.

   Mr. Justice Pam

delivered the opinion of the court.

3. Evidence, § 338 —when parol evidence inadmissible. The rule that when a written instrument is incidental to an agreement the whole transaction may be shown by parol, held not applicable when the suit instead of being based on a parol agreement is based on the terms of the written instrument which plaintiff endeavors to alter by offering evidence of the parol agreement.


text:
    City of Chicago, Defendant in Error, v. Frank J. Geraghty, Plaintiff in Error.
    Gen. No. 19,522.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Quasi-criminal action by the City of Chicago against Frank J. Geraghty charging defendant with making, aiding, countenancing and assisting in making an improper noise, riot and disturbance, breach of the peace, etc., contrary to and in violation of section 2012 of the Chicago Code. The court found defendant guilty and fined him five dollars and costs. To reverse the judgment, defendant prosecutes a writ of error.
    Defendant urged as ground for reversal that the court erred in overruling his motion for a continuance, whereby he was not given an opportunity to present all his evidence; that the finding of the court was against the weight pf the evidence, and that the court erred in refusing to hear affidavits in support of Ms motion to vacate the judgment and grant a new trial, and also erred in overruling his motion for a new trial.
    Abstract of the Decision.
    1. Continuance, § 66

      —when refusal of constitutes an abuse of discretion. Action of a judge of the Municipal Court in refusing a request by defendant for a continuance to enable him to engage an attorney, and in saying to defendant that he had no need of an attorney’s services, held an abuse of discretion, it appearing that defendant was arrested Sunday afternoon charged with a violation of a city ordinance and was not released on bail until 7:40 p. m.; that he lived in a suburb of the City, more than twenty miles away, and that he was required to be present in court at 9 o’clock the next morning.
    2. Municipal corporations, § 864

      —when finding of guilty for violation of ordinance not sustained by the evidence. On a complaint filed in the Municipal Court charging defendant with disturbing the peace in violation of a city ordinance, a finding of guilty held not sustained by the evidence, it appearing that the only evidence introduced on behalf of plaintiff was the testimony of the officer who arrested defendant, and that his testimony did not show wherein the defendant was guilty of the offense charged. "
    William E. Cloyes, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, 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.


text:
    R. A. Wells Lumber Company, Defendant in Error, v. Jonathan Dunfee, Plaintiff in Error.
    Gen. No. 19,566.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph B. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.

      Statement of the Case.
    Action by R. A. Wells Lumber Company, a corporation, against Jonathan Dunfee to recover the sum of $123.75 and interest on the following written contract, or evidence of indebtedness signed by defendant:
    “Sold subject to our inspection only.
    No. 13250. Chicago, September 16, 1899.
    Deceived from R. A. Wells Lumber Co.,
    S. W. Cor. Clark and 22nd Sts., 2743 Ft.

      1" walnut.
    This lumber is to be $45.00 per M ft.
    (Signed J. Dunfee)”
    The defendant filed an affidavit of merits wherein his defenses were as follows:
    First. That said suit is not brought on said instrument but is brought on the lumber mentioned therein and is an open account barred by the statute of limitations.
    Second. That this defendant never accepted said lumber and never received same.
    Third. That said lumber was not up to grade and was refused by defendant upon tender to him for that reason and has never been accepted or received by defendant.
    Fourth. That this defendant never signed said instrument.
    On the trial of the cause without a jury plaintiff received a judgment for $207.52. To reverse the judgment, defendant prosecutes a writ of error.
    This case was tried once before in the Municipal Court, from which an appeal was taken to this court. See 170 Ill. App. 475. In this, as in the previous trial, the case was tried by the court without a jury and on the same statement of claim and affidavit of merits.
    The undisputed facts were that on or about September 15, 1899, defendant called Wells on the telephone and stated he desired a wagonload of walnut lumber; that Wells agreed to send defendant over a load and that the price was $65 per one thousand feet; that on September 16, 1899, Charles Lindgren, driver for the plaintiff, delivered the load of lumber, and when he arrived at defendant’s yard with the lumber, he had with him and gave to the defendant the instrument set forth in plaintiff’s statement of claim, which was the usual delivery ticket in the following words and figures:
    Abstract of the Decision.
    1. Appeal and error, § 1818

      —conclusiveness of decision of Appellate Court. The decision of the Appellate Court on a former writ of error holding that an instrument sued on constituted an evidence of indebtedness in writing within the meaning of section 16, ch. 83, Hurd’s R. S., J. & A. ¶ 7211, held res adjudicata in a subsequent suit involving the same question under the same facts and issues.

      “Sold subject to our inspection only.
    No. 13250. Chicago, September 16, 1899.
    Received from R. A. Wells Lumber Co.,
    S. W. Cor. Clark and 22nd Sts., 2743 Ft.

      1" walnut;”
    that the lumber was unloaded in defendant’s yard; that after same had been unloaded and tallied by defendant’s drayman, either the defendant himself or his talleyman wrote on the ticket the figures “2743”; that thereafter the delivery ticket was returned to the driver Lindgren, by the defendant, with the following written upon it by the defendant: “This lumber is to be $45.00 per M ft.” and below these words the signature “ J. Dunfee;” that the said Lindgren delivered the said ticket to Wells; that the lumber had never been paid for; and that this suit was begun within ten years from date when the cause of action accrued.
    Charles Daniels, for plaintiff in error.
    Fred H. Atwood, Frank B. Pease, Charles O. Loucks and Vernon R. Loucks, for defendant in error; Geary V. Stibgen, of counsel.

      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. Sales, § 329 —sufficiency of evidence to sustain finding. In an action to recover the purchase price of lumber, where the defendant claimed that he had never accepted or received the lumber and that he had never signed the delivery ticket which was offered in evidence, held that the evidence was sufficient to sustain a finding for plaintiff.

3. Interest, § 8 —when allowed on a written instrument. Where the evidence of an indebtedness in writing is, in effect, a written contract, interest is properly allowed thereon since the time it became due, where the contract has been performed and accepted.


text:
    Winfield Scott Dodge, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 19,607.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action by Winfield Scott Dodge against Chicago City Railway Company to recover for personal injuries received by plaintiff in a collision between a wagon which he was driving and one of defendant’s cars. The facts show that the accident occurred at a point about midway between street intersections after plaintiff had driven a heavily loaded wagon onto the street car tracks from premises abutting the street. Plaintiff’s evidence showed that when he attempted to drive from the sidewalk he saw defendant’s car stop at a street intersection about three hundred feet away and that it was slowly starting up, and that he drove his wagon straight ahead for the purpose of passing over the track on which the car was approaching and making a swing so as to drive in the direction from which the car was coming, bnt that before the wagon cleared the track it was struck and plaintiff fell off on his head between the horses. The motorman testified that when he first saw the horses they were about fifteen feet beyond the sidewalk and that his car was about thirty-five or forty feet away. Two other witnesses for defendant also testified that when they first saw the wagon the car was about thirty-five or forty feet away. One of the witnesses placed the heads of the horses at that time about ten or twelve feet from the track and another witness placed them about the same distance from the track. The jury returned a verdict in favor of plaintiff. To reverse the judgment entered on the verdict, defendant prosecutes a writ of error.
    Defendant urged as ground for reversal that plaintiff was guilty of contributory negligence, for two reasons :
    “First, in going upon the tracks after seeing the car three hundred feet away, and second, having seen the car and having proceeded on the tracks he did not look again; arguing that if he had, he would have seen the car approaching and could have urged the horses onward so as to get out of the path of the moving car; that not having done so, he was not exercising ordinary care for his own safety; and that though the defendant was guilty of negligence, this action on the part of plaintiff contributed to the accident.
    Warren D. Bartholomew and A. C. Wild, for plaintiff in error; Leonard A. Busby, of counsel.
    William A. Morrow, for defendant in error.
   Mr. Justice Pam

delivered the opinion of the court.

Abstract of the Decision.

Street railroads, § 131*—sufficiency of evidence. In an action against a street railway company to recover for personal injuries received by plaintiff in a collision between a wagon which plaintiff was driving and one of defendant’s cars, held that a verdict for plaintiff was sustained by the evidence.


text:
    W. A. Fraser Company, Appellant, v. Chicago, Burlington & Quincy Railroad Company, Appellee.
    Gen. No. 19,650.
    1. Carriers, § 45

      —when bill of lading is receipt or contract. A bill of lading may be a receipt or a contract or both depending upon the terms thereof.
    2. Carriers, § 50

      —when bill of lading creates implied contract. Where a bill of lading merely takes the form of a receipt it carries with it an agreement to safely carry the property mentioned therein, but such duty arises not by reason of any express terms in the bill of lading, but by the implied contract created by' the common law.
    3. Limitation of actions, § 11

      —when bills of lading not evidences of indebtedness in writing. Bills of lading as shown by the record held to be in the form of receipts, and not express contracts for the transportation and delivery of grain, so that they could be regarded as evidences of indebtedness in writing within the meaning of section 16 of the Limitation Act, J. & A. ¶ 7211.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement by the Court. This is an action brought in the Municipal Court of Chicago by W. A. Fraser Company, appellant and hereinafter called the plaintiff, against the Chicago, Burlington & Quincy Bail-road Company, appellee, hereinafter called the defendant, for money damages incurred in the payment of money by said plaintiff to said defendant, namely, two dollars per car for 2,307 cars; the said sum of two dollars being an extra charge over and above and in addition to the regular freight charge by said defendant for shipments between the initial point and destination.
    Plaintiff was a dealer in grain in the city of Chicago, and in the course of its business it had made carload shipments of grain from certain points in the State of Illinois to Chicago on the defendant’s line of railways. For such service plaintiff claims to have paid defendant the regular rate of freight charged by defendant for said shipments. Plaintiff contends that bills of lading “or written contracts,” as plaintiff designates them in its amended statement of facts, were issued by the defendant, wherein W. A. Fraser Company, Chicago, Illinois, were the consignees. It is insisted by plaintiff that a custom prevailed in Chicago for many years that when shipments were consigned to a firm or elevator or warehouse in Chicago, that after notice of such arrival was sent by railroad to consignee, the cars would be permitted to remain forty-eight hours without additional charge, awaiting directions from consignee; that the grain inspectors would then inspect the shipments of grain, and after the inspection had been made, consignee would sell the grain on the board of trade or elsewhere, and after such sales had been made, bills of lading would be turned over to defendant, a receipt taken therefore, and at the same time written orders were given to defendant, giving directions where the grain should be delivered.
    Plaintiff contends that not only was that the custom, but that the statutes of our State permit such course of action; that under the statutes the railroads were compelled to deliver to any elevator or warehouse along their lines or any connecting lines within the State; and further, that after the grain arrived at the original destination the consignor had the right to designate a change of shipping directions within the State, and if written notice of said change was served on the railroad at the place where such grain was delivered, before the grain was removed from the cars, such re-consignment should be made without any additional charge. • -
    Plaintiff contends that in the case at bar it had shipped 2,307 cars during the period beginning May 17, 1902, and ending March 28, 1906, from various places in Illinois, to themselves as consignee, Chicago, Illinois; that after receipt of notice of the arrival of said cars, and after inspection of the grain, it went on the board of trade and made sales of the grain; that it then issued written orders upon defendant to deliver the cars to the purchaser, or in accordance with the direction of the purchaser; that it had paid the regular published tariff rate of freight for the shipments to Chicago; that it had also paid certain charges to the grain inspection department which had been collected by defendant for the State; and in addition, was compelled to pay two dollars per car for delivering them to the various persons to whom they sold the cars; and for the payment of this extra charge of two dollars per car it is seeking recovery in this action.
    Defendant contends that the said sum of two dollars per car mentioned in plaintiff’s amended statement of claim was not an extra charge over and above and in addition to the regular rate of freight charged by defendant for the shipment mentioned in plaintiff’s amended statement of claim, but was part of the regular tariff and rate charged by defendant for such shipments; that said sum of two dollars per,car was not demanded and collected by. defendant for delivering said cars from and on the tracks of defendant, but was part of the regular tariff or rate charged by defendant for making such shipments; that said cars were not “consigned to, to wit; elevators and public warehouses at, to wit, New York City, New York”; that the plaintiff’s supposed cause of action did not accrue at any time within five years next before the beginning of this suit and is barred by the statute of limitations; that the said payments mentioned in plaintiff’s amended statement of claim were freely and voluntarily made by plaintiff with full knowledge of all the facts and circumstances connected therewith and in accordance with the contracts under which said cars were transported and in accordance with the regular tariffs.
    This suit was brought on June 8, 1912, which was within ten years of May 17, 1902, when the shipments commenced, and more than five years after March 28, 1906, the date of the last shipment. The case was tried before a court and jury, and at the conclusion of plaintiff’s case, upon motion made by defendant, the court instructed the jury to find the issues for the defendant; upon such finding judgment was entered and an appeal was prosecuted to this court.
    Charles A. Butler and Brown & Ewen, for appellant; Franklin Raber, of counsel.
    J. A. Connell and W. D. Barge, for appellee; Chester M. Dawes, of counsel.

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

   Mr. Justice Pam

In our view of the case, but one issue presents, itself, namely: Was the action barred by section 15, chapter 83 of our statutes, which provides that “actions on unwritten contracts, express or implied, etc. * * * shall be commenced within five years next after the cause of action accrued.” (J. & A. ¶ 7210.)

As set forth in the statement of facts, the plaintiff contends that written contracts or bills of lading were issued by the defendant to the plaintiff for the grain shipped over its road; that under these contracts plaintiff consigned the grain to itself at Chicago, Illinois, at a certain tariff. Plaintiff offered evidence to the effect that there were bills of lading issued covering ship-meat of the various cars, as set forth in its amended statement of claim. At the trial counsel for plaintiff stated that it had given notice to the -defendant to produce these bills of lading; this was admitted by defendant, and it was stated by counsel for defendant that “they do not produce the bills of lading.” Thereupon the only witness for the plaintiff, a Mr. Brunswick, testified that the name of the consignor in the bills of lading was W. A.. Fraser Company; that the name of the consignee was W. A. Fraser Company, Chicago, Illinois, and that there was mentioned therein a regular freight rate according to defendant’s published tariff. It was also stated by the witness that in some instances the "bills of lading had named some elevator at Chicago, Illinois, as consignee, but he was not certain of a single definite instance. On cross-examination of this witness by counsel for the defendant, he stated that various elevators may have been named in some of the bills of lading, but he could not state so definitely, nor could he say how many; in fact, counsel for defendant mentioned a few, and the witness could not in a single instance say whether or not they had ever received shipments from plaintiff. However, on cross-examination, several of the bills of lading were presented, to the witness, and they were repeatedly the subject-of questions and answers. On redirect examination the following questions were .asked:

“Q. In these bills of lading was there any reference at all to the published tariffs, the tariffs and classifications of the Burlington?
Mr. Barge: That is objected to, the bill speaks for itself.
Mr, Butler: I have asked counsel to produce all the bills.
The Court: It is agreed that this is a sample of all of them; he has testified to bills that are not here. Objection overruled.”

Plaintiff seeks to take this action out of the statute of limitations, claiming that it was based upon a written contract and therefore is subject to section 16 of the Statute of Limitations, which provides that “actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within ten years next after the cause of action accrued.” (J. & A. ¶ 7211.)

We have carefully read the record and fail to find the slightest testimony which shows any express contract of carriage entered into by defendant. Evidently those bills of lading were before the court; at least the one to which the court below referred as being a sample of all the others, must have been. It was not introduced in evidence, nor is it attached to the record.

Counsel for plaintiff contends that these bills of lading are written contracts. The law of our State is clear in this, that while a bill of lading may be a written contract, yet it is not necessarily so; but it may take the form of a receipt passing from the carrier to the shipper for property taken by the carrier for. shipment; and it is true that when it takes the form of a receipt it also carries with it an agreement to safely carry the property mentioned in that receipt to the consignee at the point of destination. This duty upon the carrier where the bill of lading simply takes the form of a receipt arises, however, not by reason of any express terms in the bill of lading, but by the implied contract created by the common law. This principle finds illustration in the case of Chicago & N. W. Ry. Co. v. Simon, 160 Ill. 648, wherein it was held:

“Bills of lading may be both receipts and contracts. So far as they acknowledge the delivery and acceptance of the goods they are mere receipts. As to the rest they may become express contracts.”

The evidence in the case at bar relative to these bills of lading merely sets forth the delivery of the goods to the carrier, the names of the consignor and consignee, and the point of destination, and a published tariff; the record is barren of any further evidence as to the remainder of the contents of the bills of lading.

A case that was cited by counsel for both sides appears to this court to determine the issues here in favor of the defendant,—the case of Illinois Cent. R. Co. v. Miller, 32 Ill. App. 259; and in that case, what the defendant was pleased to. call a receipt and the plaintiff a written contract, contained language much stronger than the instrument which is the basis of the ease at bar; but even with that situation, the Court said:

“It is clear, we think, from these authorities and others which might be cited, that a written instrument, to be a contract in writing, must set forth the undertakings of the parties to it so plainly as to require neither parol testimony nor the promises or duties which the law would imply from the facts stated, to ascertain the extent and force of the contract.
Many cases have been cited by counsel upon the question of what are and what are not contracts in writing, but it would serve no good purpose to review them; for it is not a question of what a writing must contain to be a contract, but, does this instrument, by a fair interpretation of its language, contain an express promise to forward and deliver the goods? If it does it is a written contract, and the present action is not barred. If not it is but a receipt for the goods, and an action would be barred in five years. ’ ’

And the Court continues to say:

“It is true the acceptance of the goods, evidenced by these instruments, imposed a duty to carry them to their marked destination, and when the law imposes a duty it will raise an. implied promise to perform that duty, and upon a failure to perform it, suit may be maintained for the non-performance of the duty, or in assumpsit on the implied promise.”

Then the Court goes on to state what a bill of lading is, and the language of the Court in that regard is cited by counsel for plaintiff in its brief, and it is as follows:

“A bill of lading, as defined by Daniel on Negotiable Instruments, sec. 1728, ‘is a written acknowledgment by the master of a ship, or the representative of any common carriers, that he has received the goods therein described, for the voyage or journey stated, to be carried upon the terms, and delivered to the persons therein specified. It is at once a receipt for the goods, which renders the carrier responsible as their custodian, and an express written contract for their transportation and delivery. ’ ”

But the Court, continuing on directly after this definition, says:

“Keeping in view this definition of a bill of lading, together with the rule above stated, that to be a written contract all its terms and undertakings must be in writing, we are unable to find in these shipping receipts any express promise on the part of appellant to forward the goods to the consignees at Cairo. Such a promise can not be said to be in the first part of the instrument, for that is but a receipt of the goods, with the rate of freight and name of consignee.”

And what the Court has said as to the contents of the first part of the instrument under consideration in that case, is particularly applicable to the case at bar, because the sum total of the evidence in the case (and we have searched the record diligently) but shows the receipt of the goods, the rate of freight and the name of the consignee. The principle of law that a bill of lading may be a receipt, or a contract, or both, depending upon the terms thereof, has been announced in later decisions in our State. We refer to the cases of Illinois Match Co. v. Chicago, R. I. & P. Ry. Co., 250 Ill. 402, and Ricks Sheep Co. v. Oregon Short Line R. Co., 180 Ill. App. 220.

We can pass only upon the facts presented to us in the record. All we can say that the record shows is that the instruments, which the plaintiff designates bills of lading, were issued.

We are of the opinion that the bills of lading in this case, or what purport by the evidence to be bills of lading, can only be regarded as forms of receipts, which show an acceptance of the grain by defendant from, plaintiff, and not an express contract for its transportation and delivery. Nor can such instruments be regarded as such evidences of indebtedness in writing as to bring an action based thereon within section 16, .chapter 83 of our statutes regarding limitations. These instruments will not support an action in themselves. To so hold would make them take the form of written contracts, and we have held directly to the contrary. Whatever duty devolved upon defendant by reason of such instruments was a duty imposed by law, and the contract for the transportation and delivery of the grain created thereby was one implied by law.

Section 15, chapter 83 of our statutes, (J. & A. ¶ 7210) expressly states that suits on such contracts must be brought within five years from the time the action accrued. The last transaction for which recovery is asked in plaintiff’s amended statement of claim took place on March 28, 1906; and we being of the opinion, in view of the record in the case, that any right of action arising from such transaction was the result of an implied contract rather than an express written contract, the action was barred by the statute of limitations.

Having found that there were no express written contracts for the transportation and delivery of the grain, between plaintiff and defendant, we cannot therefore pass upon the plaintiff’s contention that the terms of the contract were such that if we applied thereto sections 120 and 121 of chapter 114, R. S. of Illinois (J. & A. ¶¶ 8923, 8924), it can be said that defendant agreed to reconsign the shipments of grain to elevators on its lines or on connecting lines, upon written orders given to it by consignee after the cars had reached Chicago, Illinois, the point of destination, without an additional charge.

For the reasons hereinabove assigned, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    E. M. Bent, Appellee, v. Samuel Slade, Appellant.
    Gen. No. 19,667.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action brought in the Municipal Court by E. M. Bent against Samuel Slade to recover a balance claimed to be due on a contract for the construction of a house for defendant. Plaintiff’s statement of claim began as follows:
    “Plaintiff’s claim is for the amount due upon a certain contract between the plaintiff and the defendant, providing for the erection by the plaintiff of a certain house for the defendant, said house being situated in Highland Park, Lake County, Illinois.”
    The contract was then set out in full". This statement also set forth the contract price, the payments made thereon, the claim for extras; making a total of $1,117.19, which plaintiff claims there was due him from defendant. The statement of claim ended as follows:
    “And the plaintiff further says that on the 18th day of June, 1909, an account was had between the plaintiff and the defendant, and that it was agreed that there was due to the plaintiff from the defendant the sum of $831.50, which said amount defendant then and there agreed to pay.”
    The affidavit of the plaintiff attached to the statement of claim sets forth the amount as $933.09.
    Defendant filed an affidavit of merits and set-off, denying that there was any sum whatsoever due plaintiff, and stating that he had performed his part of the contract, but that plaintiff had failed in his duty as provided by the contract, in that-he had constructed the house negligently and in an improper, inefficient, unsafe, unworkmanlike and insanitary manner, furnishing poor, low-grade, improper and second-class material, without regard to the plans and specifications, to the damage of the defendant of $2,957.68. Defendant also denied that he had struck an account with plaintiff on June 18, 1909, and had agreed that there was due. to plaintiff the sum of $831.50 or any sum whatsoever.
    During the progress of the work some differences arose between plaintiff and defendant, and in April, 1909, an arbitration agreement was prepared between plaintiff, defendant and J. L. Silsbee, the architect, but was not signed at that time. This agreement, after setting forth the parties thereto, was as follows:
    “Witnesseth: Whereas disputes and differences-have arisen and are still subsisting or that may arise prior to the completion, as evidenced by the house being occupied, between the said parties relative to certain matters in connection with the said contract; written copies of which matters in controversy said parties to this agreement severally and mutually agree to submit on completion of work; now, therefore, it is hereby agreed that the said disputes and differences shall be referred and the same are hereby referred to the arbitration and determination of three arbitrators.”
    The agreement provided further for the appointment by each of the parties, of an arbitrator, and also for the production of papers, plans, etc., the right to examine the parties; and the closing paragraph was as follows:
    “Parties hereto agree with each other that he will not bring or prosecute any action in court against the other or against the arbitrators concerning matters in difference or any one of them, except by award of the arbitrators.”
    This original agreement bore date of April 5, 1909, and provided “that-the award of the arbitrators shall. be made on. the 15th of May,” but this was stricken out and there was substituted therefor the 25th of June.. The agreement was not signed, however, until the 5th day of June, 1909, and in.the agreement that was signed, the words ‘ ‘ except by award of the arbitrators,” were erased.
    On the 18th of June the arbitrators made their award in writing; said award set forth that they had heard the testimony of the parties on the 17th day of June, and found a balance due from defendant to plaintiff of $831.50.
    Upon the trial, after the original contract, plans and specifications had been introduced in evidence, plaintiff offered the arbitration agreement, dated June 5, 1909, in evidence. Objection was made to the introduction of this arbitration agreement on the ground that it was at variance with the plaintiff’s statement of claim, that this suit was based upon the contract and not on the award; that there had been a previous suit instituted in the Municipal Court wherein plaintiff in his statement of claim based his right of action under the arbitration agreement; and in that case the plaintiff had taken a nonsuit. The objection was overruled. Counsel for defendant then asked for a continuance, on the ground of surprise; that the statement of claim indicated a reliance on the original contract; that he had prepared to defend against such a claim and to prove this claim of set-off previously" filed; that he was not prepared to defend against a statement of claim that relied on the award under the arbitration agreement. This motion was overruled.
    At the conclusion of plaintiff’s case counsel filed a written motion for a continuance supported by an affidavit made by himself, wherein he set forth in detail the facts upon which he relied for a continuance and which had been urged at the time the motion was originally made, and the motion was overruled. Defendant then put in his evidence, as outlined in his affidavit of merits and claim of set-off, which included evidence of damages which the defendant had sustained by reason of defective construction and improper material used in the building of the house.
    At the close of all the evidence plaintiff moved to strike out all the evidence offered by defendant with reference to the.damages sustained by reason of the failure on the part of the plaintiff to comply with the provisions of the building contract; which motion was granted. Plaintiff also moved for an instructed verdict upon the award under the arbitration agreement, which motion was also granted. Under the instructions of the court the jury returned a verdict for $985.50 in favor of the plaintiff. Upon this verdict judgment was entered by the court. From the judgment, defendant appeals.
    Abstract of the Decision.
    ■ 1. Building and construction contracts, § 73

      —when award of arbitration no bar to right of set-off for damages. In an a-ction to recover an amount claimed to be due under a building contract where plaintiff relied on an award of arbitration to establish the amount due, held that the defendant under his claim of set-off was entitled to show the damages suffered by him on account of plaintiff’s failure to comply with the contract, where it was shown that such damages resulted from defects in the work and" materials which did not come to his knowledge until after the time fixed for disputes to arise which were to be settled by the award under the arbitration agreement, and that the court erred in striking such evidence and directing a verdict for plaintiff.
    2. Municipal Court of Chicago, § 13b

      —when defendant entitled to a continuance on ground of surprise. Where plaintiff’s statement of claim purported to be based on a written contract and alleged that there was an account stated between the parties on a certain date, and it was nowhere apparent in the statement of claim, that said account stated, referred to the award of arbitration, and defendant filed an affidavit of merits apparently on the theory that the suit was based on the contract and plaintiff upon the trial offered in evidence an award of arbitration which was admitted on the theory that defendant had agreed to abide thereby and that it constituted the account stated, held that defendant was entitled to a continuance on the ground that the statement of claim did not apprise him that plaintiff’s claim was. based on the award, and that it was error for the court to refuse defendant’s motion for 'a continuance on that ground.
    Alden, Latham & Young, for appellant.
    Montgomery, Hart, Smith & Steere, for appellee.

      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:
    John J. O’Heron, Appellee, v. Universal Portland Cement Company, Appellant.
    Gen. No. 19,734.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Dismissed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Motion filed in the Appellate Court by John J. O’Heron, appellee, to dismiss an appeal taken by Universal Portland Cement Company from a decree entered on a bill of review filed to set aside a decree declaring a mechanic’s lien in favor of appellant on appellee’s property and all proceedings thereunder.
    The facts showed that appellant had filed a bill against appellee and a certain company, which was the original contractor, to enforce a mechanic’s lien on appellee’s building, and that a decree was entered declaring a lien and ordering a sale of the premises on default in payment of the lien; that there had been a sale and that appellant purchased the property.
    Some time after such sale, appellee filed a bill of review against appellant to set aside the mechanic’s lien decree and all proceedings thereunder, asking that the entire cause be reopened and reconsidered by the court for certain errors alleged to appear on the face of the decree. A general and special demurrer was filed to the bill which was overruled, and appellant electing to stand by its demurrer, a decree was entered ordering that the original decree be reopened and that the original suit be reheard; that the sale of the property be set aside and the certificate of sale of the master •to the appellant be delivered up and cancelled; and that appellant amend its original bill, etc. From the decree appellant took an appeal and appellee’s motion was filed to dismiss the appeal, as before stated.

      Abstract of the Decision.
    Appeal and error, § 301

      —when decree entered on hill for review not final. A decree entered on a bill of review ordering a mechanic’s lien decree to be reopened and that the original cause be reheard, etc., and that the certificate of -sale under the original decree be delivered up and cancelled, held to be an interlocutory decree and not a final one for the purpose of review.
    Knapp & Campbell, for appellant; John R. Cochran, of counsel.
    O’Donnell & O’Donnell, for appellee.

      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:
    Inter Ocean Newspaper Company, Appellant, v. City of West Hammond, Appellee.
    Gen. No. 19,752.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed October 8, 1914.
    Statement of the Case.
    Action in the County Court by Inter Ocean Newspaper Company, a corporation, against City of West Hammond, a municipal corporation, to recover the sum of $129.25 alleged to he due for printing done by plaintiff for defendant.
    Plaintiff filed a declaration containing the common counts. At' the end of the fourth count it used this language: “As will more fully appear from plaintiff’s Exhibit ‘A’ and ‘B’ hereto attached.” The affidavit of amount due stated that the demand of the plaintiff in the above entitled cause was for money due plaintiff for printing, and after allowing all just deductions and set-offs, there was due plaintiff $129.25. The exhibits “A” and “B” were designated city warrants Nos. 476 and 1367, being respectively for the sums of $15.30 and $113.95, both purporting to be signed by the mayor and clerk of the City of West Hammond and directed to the treasurer of the said city.
    To this the defendant filed .a plea of general issue, and filed therewith an affidavit with reference to exhibit “B” which was for $113.95. This affidavit set up the fact that no appropriation had been made by the defendant, out of which payment could legally be made for the services and materials furnished the defendant, and for which plaintiff claims was issued the warrant designated as exhibit “B;" that neither the city council nor any officer or agent of defendant had any authority or power to incur any indebtedness for which no provision had been made in the Appropriation Ordinances of 1909 and 1910, being the period of time in which these services were rendered; and that no such fund as a general fund exists or ever existed. With reference to exhibit “A,” the affidavit set forth that the warrant was regular and was a binding obligation.
    Plaintiff’s evidence showed that its claim was for printing and advertising furnished from December 10, 1909 to December 8, 1910, in connection with certain local improvements and special assessments made in the City of West Hammond under the Local Improvement Act, J. & A. ¶¶ 1388 et seq., that in each instance the requirement of the Local Improvement Act had been complied with and that the president and board of trustees of the village of West Hammond had passed an ordinance duly authorizing said improvements and special assessments, and providing therein for the payment of all advertisements out of the special assessment fund, the ordinances themselves being placed in evidence by plaintiff. It further appeared that the special assessments involved were passed between October, 1908 and May, 1910. The certificates of publication showing that the notice required to be given under the Local Improvement Act was published by plaintiff, were offered in evidence. It appeared that the only other evidence submitted by plaintiff in support of its case was exhibit “B,” which read as follows:
    “No. 1367 State of Illinois, Cook County. ($113.95)
    City of West Hammond..
    City (Seal) City Clerk’s Office, Feb. 15, 1912.
    Warrant.
    Treasurer of said city.
    Pay to the order of the Inter Ocean One Hundred Thirteen and 95/100 Dollars for Printing Advertisements from Dec. 10/09 to Dec. 8/10 out of money in the Treasury not otherwise appropriated from the General Fund.
    (Stamp)
    Central Trust
    Company of Illinois
    Collection
    39571
    _ _ Ignatius F. Mankowski, John ITessler,
    City Clerk. Mayor.”
    The evidence offered by defendant was that the general appropriation ordinances passed as required by statute in the first quarter of each fiscal year by defendant during the years in which the printing was done, made no provision for the payment of the printing for which the suit is brought, and that any contingency fund, if any, provided by said appropriation ordinances had been exhausted prior to the bringing of this suit. The case was tried before a court without a jury. Judgment was entered for the amount admitted by defendant, namely, $15.30, and denied as to the balance. From the judgment, plaintiff appeals.
    H. L. Cavender, for appellant; H. L. Cavender and William E. Kaiser, of counsel.
    Shepard, McCormick & Thomason, for appellee; Perry S. Patterson and Dwight P. Green, 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. Pleading, § 34 —when reference to exhibits ineffective. A count in a declaration merely referring to certain exhibits as "A” and “B” hereto attached, held not to add to the strength of the count, change its character or modify it.

2. Municipal corporations, § 252 —mode of paying expenses of special assessment. It is within the legislative authority of a city or village to fix, in advance, the mode of payment of expenses in connection with special assessments, by ordinance, and while such ordinance remains in force it is binding and excludes every other mode of payment.

3. Municipal corporations, § 404 —proof essential to establish liability for special assessment funds. Where a local improvement ordinance provides that the sum raised by a special assessment shall be applied to the payment of the expenses of advertisements incurred in a special assessment, to entitle a party to recover from the municipal corporation under the ordinance for printing done, in connection with the special assessment, he must show that defendant had collected such fund and actually had the money in its possession, or, if no longer in its possession, that it had wrongfully used the fund contrary to the purpose for which it was collected.

4. Municipal corporations, § 1152 —validity of warrants. A party receiving a warrant issued by a municipal corporation upon its general funds for printing done in connection with special assessment matters is not entitled to recover on it where it appears from the evidence that no appropriation had been previously made to pay either the warrant or the claim for which the warrant was given in payment.