text:
    Hannah Johnson, Appellee, v. Abram Lamm et al., Appellants.
    Gen. No. 15,010.
    1. Appeals and errors—how hill of exceptions impeached. Affidavits will not be received to impeach either the recitals of the bill of exceptions or the presumptions arising from such recitals.

      2. Practice—what operates as discontinuance. The granting of leave by the court to discontinue as against one defendant followed by the filing of an amended bill by leave of court against the other defendant, operates as a discontinuance as to the first mentioned defendant.
    3. Assault and battery—what evidence competent upon question of damages. It is proper for the court to allow a detailed examination of the defendant as to his wealth where in answer to a question as to how much he was worth he replied that he did not know.
    4. Verdicts—when not excessive. Held, in an action of assault and battery that a verdict reduced by remittitur to $300 would not be disturbed where it appeared that the defendant was a man of full age and the plaintiff was a girl and that there was evidence justifying the allowance of punitive damages.
    Action in case. Appeal from the Circuit Court of Cook county; the Hon. John A. Gray, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 3, 1910.
    Wheeler, Silber & Isaacs, for appellants; Frederick D. Silber, of counsel.
    Jacob 0. LeBosict, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff, Hannah Johnson, brought this action in case against Abram Lamm and Joseph 0. Lamm for the recovery of damages for an assault made by the Lamms jointly upon the plaintiff about Uovember 25, 1904. The defendants filed a plea of the general issue. Upon these pleadings the case went to trial. At the close of the plaintiff’s evidence, the defendants moved to exclude the evidence of the assault on the ground that it did not support the declaration, because it did not show any joint assault, or any assault by defendant Joseph 0. Lamm. The trial court agreed with defendants’ attorneys and asked plaintiff’s attorney what he desired to do with the declaration, if anything. Plaintiff’s attorney thereupon asked leave to amend the declaration by striking out the name of Joseph 0. Lamm and dismissing the cause as to him. The court permitted the amendment, and thereupon the cause proceeded as against the defendant Abram Lamm. The plaintiff subsequently filed an amended declaration against the defendant Abram Lamm. The trial resulted in a judgment in favor of the plaintiff for three hundred dollars, from which this appeal is prosecuted.

The plaintiff on November 23, 1908, filed a motion in this court to strike the bill of exceptions from the record on the ground that the trial judge signed and sealed the same at Macomb, Illinois, and that he had no power so to do. This motion was reserved and taken with the case. The bill of exceptions shows on its face that it was lawfully and properly signed and sealed, and no affidavits can be received to impeach either the recitals of the bill of exceptions or the presumptions arising from such recitals. Holland v. The People, 132 Ill. App. 449; Linderman v. Thompson, 127 id. 134; Supreme Foresters v. Knowles, 113 id. 641; Rosenbom v. Renk, 121 id. 226; City of Chicago v. South Park Commissioners, 169 Ill. 387. The motion must be overruled.

After the judgment term had expired, and after the record was filed in this court, the record was amended in the Circuit Court on due notice, and an additional and supplemental record was filed in this court showing the amendments. It is urged that the amendments were made without any basis therefor, and that there was unnecessary delay in making application for the amendments. Upon a careful consideration of the amendments and the findings of the court upon which the court acted in making the amendments, we think they were properly made, and are properly in the record before us, and therefore cannot be disregarded by the court in the consideration of the cause. The most serious matter pointed out is that the suit was begun against two defendants and that on the record as originally made up the court proceeded to judgment in the case without any discontinuance of record as to Joseph 0. Lamm. In our opinion, however, the granting of leave by the court to discontinue the cause as against Joseph C. Lamm, one of the defendants, followed by the filing of an amended declaration by leave of court against the other defendant only, worked a discontinuance as to Joseph C. Lamm in legal effect.

We think the demurrer was properly sustained to the plea of the Statute of Limitations filed to the amended declaration.

It is urged that the court committed error in permitting a detailed examination of Abram Lamm by the plaintiff with regard to his wealth and property. We think the court allowed the examination to be carried to the utmost limit of a proper examination on that subject, but, the defendant, when asked, “How much are you worth?” answered, “I haven’t any idea. I am not mad now. I don’t know how much I am worth.” Hnless the court had permitted the examination which followed as to whether the defendant owned his home and where it was, and what he paid for it, and what his interest was in the firm of which he was a member, the jury would not have had any basis of knowledge as to what the defendant was worth. We find no reversible error in the rulings of the court in the examination. The defendant by his answer made the examination necessary, and he can not now complain on that ground.

It is contended that the verdict and judgment are excessive. The plaintiff’s evidence tends to show that plaintiff and two other girls alighted from a street car and were passing the defendant’s place of business on Adams street in Chicago. The defendant rushed out of the building. “He grabbed me by the arm. He grabbed me real tight and gave me a shove and said, ‘God damn you! I will break your God damn neck if I see you here again.’ He threw me out into the street and I went pretty swift. * * * I was about the middle of the sidewalk and I did not stop until I got away out into the street, I guess about a yard from the sidewalk * * * It was a pretty wide sidewalk there, I guess about five or six yards wide.” She stated on cross-examination, “I was not injured any more than I was very much humiliated and my arm was sore.”

The jury returned a verdict for $500. The court on motion for a new trial required the plaintiff to remit $200, which being done, judgment was entered for $300.

As said in Chicago & Alton Ry. Co. v. Tracey, 109 Ill. App. 563, where a verdict of $500 was held not excessive: “It was for the jury to assess the damages, and in so doing they might allow for the pain and suffering undergone by him as a result of the blows inflicted, and for the humiliation, indignity, vexation and disgrace put upon him by the conduct of his assailant. C. & N. W. Ry. Co. v. Williams, 55 Ill. 185.” We do not regard the amount of the judgment as excessive.

We find no material error in the rulings of the court on the instructions given and refused.

The plaintiff’s testimony regarding the assault is supported by the testimony of Cutter and Hilda Lindroth. There is an irreconcilable conflict in the testimony for the respective parties and it was for the jury to determine the issue of fact in the first instance under the instructions of the court. We cannot say from the record that the verdict is manifestly against the weight of the evidence.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    William D. Dreiske, Appellee, v. Davis Colliery Company, Appellant.
    Gen. No. 15,016.
    1. Contracts—effect of construction by parties. If there is anything doubtful or ambiguous about a contract the construction and meaning put thereon by the parties will be accepted as the true construction where it is not inconsistent with the language used by the parties
    , 2. Contracts—when not void for want of mutuality. A particular contract in question in this case is considered and construed and held not void for want of mutuality.

      Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 3, 1910.
    Ullman & Hoag, for appellant.
    Lackner, Butz & Miller, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff had judgment below for $832.35 against the defendant, from which this appeal is taken by the defendant. The cause was submitted to the court without a jury on the following stipulation of facts:

“It is hereby stipulated and agreed by and between the parties hereto that on the 23rd day of January, 1904, the defendant, the Davis Colliery Company, was a corporation organized under the laws of the State of West Virginia for the purpose, among other things, of buying, selling, handling and dealing in coal, and that said company had an office in the City of Chicago, Illinois; that L. W. Ferguson was the western manager for said company, with full power and authority to transact all business for said company; that Wm. D. Dreiske, the plaintiff, was then engaged in the coal business under the name of Wm. D. Dreiske & Co., with a coal yard situated at Iledzie and Chicago avenues, Chicago, Illinois.

“It is further stipulated that on the 23rd day of January, 1904, the plaintiff and the defendant entered into a written instrument in words and figures as follows, viz.:

(Letterhead of Davis Colliery Company.)

‘Chicago, Jan. 23, 1904.

Wm. D. Dreiske & Co.,

377 H. Sawyer Ave.,

Chicago, Ill.

Gentlemen:—

As per our conversation yesterday, it is understood that you are to allow us to store 100 cars of our Smokeless coal in ycra,r yard situated at Kedzie and Chicago Aves., we to pay you 15 cents per ton for the use of your yard and also the weighing out of the coal as we may sell it. It is further understood that we are to remove the coal which we store in your yard, within ninety days from the time the last car is unloaded. Tou are also to give us what assistance you can as regards the teaming, and this Company will attend to the unloading of such coal, as far as getting labor and the paying off of said labor is concerned.

Tours very truly,

L. W. Ferguson,

.Western Manager.

Shipment to be made at the rate of 5 cars per day.

Accepted:

Wm. D. Dreiske & Co.’

“That said instrument was drawn up by the defendant, in typewriting, except the words 'shipment to be made at the rate of 5 cars per day’ were added in the handwriting of L. W. Ferguson, and said instrument was signed by him as western manager for the defendant; and thereupon said instrument was accepted, in writing, by the plaintiff.

“It is further stipulated that on the 25th day of January, 1904, the defendant, pursuant to the terms of said contract, stored five carloads of its smokeless coal at the plaintiff’s yard, situated at Kedzie and Chicago avenues, Chicago, Illinois; and thereafter the defendant stored at said yard of the plaintiff five carloads of its smokeless coal each day until a total of 562 tons of its smokeless coal had been delivered and stored at said yard; that said 562 tons of said coal remained in storage in said yard until the 10th day of April, 1905; that the defendant did not offer to deliver or store any further or additional coal at said yard; that the plaintiff reserved in its said coal yard sufficient space for the storage of 100 cars of smokeless coal of the defendant for a period of 110 days from the 25th day of January, 1904; that 37-§ tons of the defendant’s smokeless coal make one carload; that the plaintiff weighed out the coal stored in his yard by the defendant as the defendant sold same, and that plaintiff maintained, during all the time that said coal of the defendant remained in the plaintiff’s yard, a scale for weighing coal and a man to operate said scale; that the plaintiff gave to the defendant what assistance he could as regards the teaming.

“It is further stipulated that on February 8, 1904, Wm. D. Dreiske & Co. advanced for the Davis Colliery Co., at its special instance and request, for unloading charges, $6.16; that on February 10, 1904, Wm. D. Dreiske & Co. paid car service for Davis Colliery Co., at its special instance and request, $7; that on November 9, 1904, Wm. D. Dreiske & Co. paid cartage charges for the Davis Colliery Co., at its special instance and request, of $3.45; that on April 8, 1905, Wm. D. Dreiske & Co. advanced for the Davis Colliery Co., at its special instance and request, for loading charges, $90.22; that on March 7, 1905, Wm. D. Dreiske & Co. advanced for the Davis Colliery Co., at its special instance and request, for Hiawatha smokeless coal, $9.50; that on April 8, 1905, Wm. Dreiske & Co. purchased of the Davis Colliery Co. $153.38 worth of coal; that no payment has been made by the defendant to the plaintiff.”

No other evidence was offered or received.

Whereupon the defendant submitted certain propositions of law, which it requested the court to hold, but the court refused to hold said propositions of law, and refused, and marked refused, each and all of said propositions of law. Said propositions of law are in words and figures as follows, to wit:

The court holds, as a matter of law, that the paper set out in the stipulation of the facts herein, in words and figures as follows, to wit: (here follows a copy of said contract) is unilateral and void for want of mutuality.

The court holds as a matter of law that the paper set out in the stipulation of facts herein, in words and figures as follows, to-wit: (here follows a copy of said contract) is not a valid and enforceable contract.

The court holds, as a matter of law, that the paper set out in the stipulation of facts herein, in words and figures as follows, to wit: (here follows a copy of said contract) is not enforceable against the defendant because the defendant in and by said paper did not agree to store any specific number of cars of coal in plaintiff’s yard.

The court holds, as a matter of law, that the paper set out in the stipulation of facts herein, in words and figures as follows, to wit: (here follows a copy of said contract) is not a valid and enforceable contract insofar as it has not been executed.

The court holds as a matter of law, that the paper set out in the stipulation of facts herein, in words and figures as follows, to-wit: (here follows a copy of said contract) is unilateral and void for want of mutuality insofar as it has not been executed.

The propositions to be held as law presented to the court, and marked refused, present the question whether or not the contract sued on is unilateral and void for want of mutuality. This is the principal question presented by appellant as a ground of reversal of the judgment, and Higbie v. Rust, 211 Ill. 333, and Railway Co. v. Bagley, 60 Kans. 424, are cited and relied on. In our opinion the contracts involved in these cases were dissimilar in this respect from the contract in this ease. The contention is that while the plaintiff agreed to allow defendant to store one hundred cars of coal in plaintiff’s -yard, the defendant did not agree to store that amount or any coal in the plaintiff’s yard.

By the last clause of the contract the defendant agreed to make shipment of the coal at the rate of five cars per day. The language expressing this agreement is clear and not doubtful. It is so clear that no room for construction is left. It means that the defendant should at once begin to ship coal to the plaintiff’s yard and to continue shipments at the rate of five cars per day. We think the terms of this clause, considered in connection with the preceding part of the contract, mean this and nothing else. This was the meaning and construction put upon the contract contemporaneously with its execution as shown by the stipulated facts. If there was anything doubtful or ambiguous about the contract, the construction, and meaning thus put upon it by the parties would be accepted as the true construction where it is not inconsistent with the language used by the parties. Consolidated Coal Co. v. Jones & Adams Co., 232 Ill. 326. Construed by what the parties did, the defendant was to begin shipping the coal immediately to plaintiff’s yard at the rate of five cars per day, and these shipments were to continue until one hundred cars of coal had been shipped, which the plaintiff agreed to store in his yard for the defendant. Beading and considering the whole contract together, we think the defendant expressly agreed to store in plaintiff’s yard one hundred carloads of coal and to pay therefor fifteen cents per ton for storing it and weighing it out as the defendant might sell it. And the plaintiff agreed to provide space for the storage of tha't amount of coal in his yard for the use of the defendant. We think the agreement to store one hundred cars of coal is implied necessarily in the contract. Minneapolis Mill Co. v. Goodnow, 40 Minn. 497; Minnesota Lumber Co. v. Coal Co., 160 Ill. 85. In the last cited case it is said: “A contract should he construed in such a way as to make the obligations imposed by its terms mutually binding upon the parties, unless such construction is wholly negatived by the language used.” See also Nat. Furnace Co. v. Keystone Manf. Co., 110 Ill. 427; and Purcell Co. v. Sage, 200 id. 342. We think the contract was mutual and valid.

The defendant left its coal in plaintiff’s yard for the full period of four terms of ninety days each. The compensation for storage of the coal by the terms of the contract was to be fifteen cents per ton for three months. Five hundred and sixty-two tons of coal were stored during all that period. The defendant admits that the item in the bill of particulars for storage for the first ninety days, $84.30, is correct, but contends that the trial court erred in allowing the same charge for each of the three periods of three months each following the first. We think the contention cannot he sustained. The items were properly allowed (Eppstein v. Kuhn, 225 Ill. 115), for there was an implied renewal of the contract for each three months, in the absence of any understanding to the contrary. Mears v. O’Donoghue, 58 Ill. App. 345; Moline Plow Co. v. Booth, 17 id. 574.

As we have said above, we think the agreement of the defendant was to store one hundred cars of coal in plaintiff’s yard, and to pay the plaintiff for that service fifteen cents per ton on one hundred carloads of coal. If this be the correct construction of the contract, the plaintiff was entitled to recover compensation according to the contract for the 3,188 tons which the defendant did not ship and store in plaintiff’s yard. The'plaintiff furnished the yard and facilities which he agreed to furnish in his contract, and he is entitled to the compensation provided in the contract, although the defendant did not avail itself of the privilege and service which it had contracted for. The court did not err in allowing item six of the account for fifteen cents per ton on 3,188 tons not stored.

Finding no error in the record the judgment is affirmed.

Affirmed.

Mr. Justice Mack took no part in the decision of this case.


text:
    James Samonski, Appellee, v. Chicago City Railway Company et al., Appellants.
    Gen. No. 15,022.
    1. Appeals and errors—effect of error in joint judgment. A joint judgment is a unit as to all the defendants and if erroneous as to one it is erroneous as to all.
    2. Pleading—what essential to establish joint liability in action for negligence. Where a joint tort or cause of action is alleged in the declaration the same rule of pleading obtains, and the facts from which the law raises the joint duty and the joint failure to perform that duty and the injury resulting from such failure must be averred and proved.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 3, 1910.

      James G. Condon and C. Le Boy Brown, for appellant; John B. Harrington, of counsel.
    George E. Gorman and Biohard J. Finn, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This appeal is from a judgment against the defendants, appellants, in an action on the case for personal injuries. The action was commenced September 30,1903. A declaration of three counts was filed February 19, 1904. On the trial the court instructed the jury that there could be no recovery on the second and third counts. Ho cross-errors have been assigned by the plaintiff, appellee, on the giving of these instructions, and appellee himself requested instructions basing recovery on the first count alone. The case therefore, so far as the pleadings are concerned, must be determined upon the first count alone.

That count alleged that on June 5, 1903, the Chicago City Bailway Company was conducting a street railway in Chicago, and was in possession of certain barns wherein its cars were stored; that the Chicago Street Car Advertising Company was on that date engaged in the business of posting and displaying advertisements within the cars of the railway company; that plaintiff was in the employ of the defendant advertising company, and in the performance of his work and duties he was required and directed by the advertising company to enter the barns of the railway company and go into the cars and remove certain advertisements; that the railway company derived certain gains and- profits from posting advertisements in its cars, and that the entering of said barns and cars was done by plaintiff at the request and invitation of the railway company; that it became and was the duty of defendants to keep and maintain the ears in the barns in a reasonably safe condition, and the floors of the cars free from dangerous holes and obstructions so that plaintiff might not be exposed to unnecessary danger while performing his work ;• that each of the defendants carelessly and negligently permitted a certain car of the railway company in its Archer avenue barn to be and remain in a dangerous and unsafe condition in that a certain door in the floor of the car was negligently and improperly allowed to be and remain out of place, open and removed from its proper position in the floor of the car, thereby leaving a deep and dangerous hole in the floor of the car uncovered, unguarded and without barriers, danger signals or lights; that by means thereof, while the plaintiff was- engaged in his duty in posting advertisements in the car, and while exercising due care and caution for his own. safety, he necessarily and unavoidably fell into and through the hole in the car and against and upon the door so removed from its proper place, and thereby then and there sustained severe injuries.

The defendants separately pleaded not guilty.

It appears from the record that the plaintiff, Samonski, had been in the employ of the advertising company over six months prior to June 5, 1903. The business of the advertising company was the displaying and posting of advertising in the cars of various street railway companies operating in Chicago. The plaintiff, during the time he was employed by the advertising company, posted advertisements in the cars of all the railway companies. Plaintiff’s foreman was John Altman. Plaintiff did what work Altman - ordered him to do. He worked in the day time sometimes, but most of the time at night. Altman gave him cards or other devices to post, and directed him where to post them. On June 5, 1903, about four or five o’clock in the afternoon, Altman directed him to post some advertisements in cars at the Chicago Electric Traction Co.’s car barn at Eighty-eighth street. Samonski went to that barn and, as he says, finished his work there about seven o’clock in the evening; that while he was on his way home, he received instructions to go to the Archer avenue barn of the defendant railway company, to take out and change some cards. He wont into the barn, saw the foreman of the barn and some other men, but did not speak to them. He walked across the barn to the second track from the east side of the barn and entered a car, in which he claims he was injured. Immediately west of this car stood an open car upon which the trolley had not been disconnected, and the electric lights in the car were brightly lighted up. The lights in this car reflected into the car which Samonski entered and was walking through, so that he could read the advertisements in the upper part of the car. Plaintiff testifies he was looking for a certain advertising sign and he did not cast his eyes toward the floor. As he neared the north end of the car his left foot went into an open trap-door in the floor and was injured.

Altman, plaintiff’s foreman, testified that he did not direct the plaintiff to go to the Archer avenue barn on the night of June 5, 1903, for any purpose whatever.

The judgment is a joint judgment. It is elementary that such a “judgment is a unit as to all the defendants, and, if erroneous as to one, it is erroneous as to all.” Claflin et al. v. Dunne, 129 Ill. 241.

The first question is, does the declaration state a joint cause of action against the defendants with averments sufficient to sustain a joint judgment.

The familiar rule of pleading is again comprehensively and finally stated in McAndrews v. Chicago, Lake Shore & Eastern Ry. Co., 222 Ill. 232, as follows: “In actions of the character of this it is necessary to aver and prove three elements to make out a cause of action: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury todhe plaintiff resulting from such failure. When these three elements concur they unitedly constitute actionable negligence, and the absence of any of these elements, either in the declaration or proof, renders the declaration insufficient to sustain a judg-' ment for negligence, even after verdict or the proof to establish a cause of action involving actionable negligence (Schueler v. Mueller, 193 Ill. 402; Mackey v. Northern Milling Co., 210 id. 115; Faris v. Hoberg, 134 Ind. 269, 33 N. E. Rep. 1028); and it is not sufficient in the declaration to allege that it is the duty of the defendant to do certain things, as that would be but the averment of a conclusion, but the decíaration must state facts from which the law will raise the duty. Ayers v. City of Chicago, 111 Ill. 406; Chicago & Alton Railroad Co. v. Clausen, 173 id. 100; Schueler v. Mueller, supra.

Where a joint tort or cause of action is alleged in the declaration the same rule of pleading obtains, and the facts from which the law raises the joint duty, and the joint failure to perform that duty and the injury resulting from such failure must be averred and proved.

The following quotations from well known authorities contain, we think, a sufficient statement, for the purposes of this decision, of the law of joint wrongs and the liability of joint tort-feasors:

“All who actively participate in any manner in the commission of a tort, or who command, direct, advise, encourage, aid or abet its commission, are jointly and severally liable therefor. All who aid, advise, command or countenance the commission of a tort by another, or who approve of it after it is done, are liable, if done for their benefit, in the same manner as if they had done the act with their own hands.” Cooley on Torts (3d. Ed.) Vol. 1, page 244.

In Swain v. Tenn. Copper Co., 111 Tenn. 430, the court says: “When a tort is committed by two or more jointly, by force directly applied or in pursuit of a common purpose or design, or by concert, or in the advancement of a common interest, or as the result and effect of joint concurrent negligence, there is no doubt but that all the tort-feasors are jointly and severally liable for all the damages done the injured party, and that these damages may be recoverd in joint or several actions, although the wrongful conduct or negligence of some may have contributed less than that of others to the injury done. * * * *

“The parties in all these cases are joint tort-feasors. The reason for holding them liable for all the damages inflicted by any of them is that they are all present, in person or by representation, and join in the wrongful act, or in some way knowingly aid in doing it, thereby consenting to and approving the entire wrong and injury done. The whole injury is committed by each and all of the trespassers, and it is but just and right that each of them should be held responsible for all the damages inflicted and, the liability being several and joint, they may be sued separately or jointly. * * *”

In Cooley on Torts (3d. Ed.) Vol. 1, p. 246, the learned author says: “The authorities are, perhaps, not agreed beyond this, that where two or more owe to another a common duty and by a common neglect of that duty such other person is injured, then there is a joint tort with joint and several liability. The weight of authority will, we think support the more general proposition, that, where the negligence of two or more persons concur in producing a single indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design or concert of action.”

The question then is, under the substantive law and the rules of pleading, as stated in the foregoing authorites, are the averments of the first count of the declaration sufficient to sustain a joint judgment for negligence.

The only averment of duty which we find in the count is that the defendant, Chicago City Railway Company, derived certain gains and profits from the posting of the advertisements in the cars as alleged, and that the entering of the barns and the cars in the barns was done by the plaintiff at the request and invitation of the defendant, Chicago City Railway Company. There is no allegation that the plaintiff’s duties necessarily required him to be in the particular car at the time he entered it, or that the defendants or either of them had any reason to believe or suspect that the plaintiff would be in that particular car at the time of the injury. It does not appear from the facts averred that the defendants knew or were bound to know that the plaintiff was in the car at the time of the injury, or that he was likely to be injured by the trap-door being left open and unguarded at that place and time. Eo notice to the railway company is alleged. Eor, do the relations between the defendants, Chicago City Railway Company and Chicago Street Car Advertising Company, appear from the averments of the first count. The declaration therefore fails to show any duty on the part of the railway coinpany to the plaintiff, or any other person not in its employ, at the place and time of the injury, or that it sustained any partnership relations to the advertising company, or relations in the nature of a copartnership, or that there was any joint enterprise or business so that one of the defendants was responsible for the act or default of the other in any manner or to any extent. From the facts averred the law does not raise any duty from the railway company to the plaintiff and, therefore, there was no joint duty with the advertising company to the plaintiff. In our opinion the first count of the declaration is so defective in its averments of facts from which a duty results that it does not support the joint judgment which was entered. Cowen v. Kirby, 180 Mass. 504; Gaffney v. Brown, 150 Mass. 479; Sweeney v. Barrett, 151 Pa. St. 600. As stated in Schueler v. Mueller, 193 Ill. on p. 404, “Nothing will be presumed after verdict but what must have been necessarily proved under the averments of the declaration.” The proofs, the presumptions and the intendments in favor of a declaration after verdict are still to be limited and controlled by the averments of the declaration.

The judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    John Ryznar, Appellee, v. Illinois Steel Company, Appellant.
    Gen. No. 15,027.
    Master and servant—when doctrine of assumed rislc will tar recovery. If an experienced servant is in the position of knowing best with respect to a danger and he knows the risk and appreciates or should appreciate the danger arising therefrom and continues at his work without complaint and is injured, he cannot recover.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George W. Ration, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed June 3, 1910.
    Knapp & Campbell and William Beye, for appellant.
    Pease, Smietanica & Policey, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court in an action on the case for personal injuries sustained by the plaintiff September 29, 1906, at the plant of the defendant.

The plaintiff at the time was working for the defendant as an extra driller. He had been so employed since the previous April. He was engaged in drilling rails with a drilling machine. A rail would be placed under the drills. By means of a large wheel the drills of the machine were lowered until they touched the rail, the drills revolving in the meantime, and so were the cog wheels of the machine. The automatic feed, by means of which the drills as they revolved were lowered automatically as the cutting away of the steel took place, was set in motion by means of a lever on the machine just a little higher than the operator’s head. When the automatic feed was not in operation this lever was about four inches from the cog wheel which caught plaintiff’s hand. When the feed was in operation the lever was pulled down and came somewhat nearer to the cog wheel. Just how close it was is not stated in the evidence. The cog wheels and the lever were in plain view. When the operator wished to start the automatic feed he "pulled the lever down. It took about three minutes to drill a rail. Each time a new rail was drilled, the lever controlling the automatic feed had to be raised and lowered.

On the evening of the accident the plaintiff had worked on the machine about a half hour, or an hour at most. At the time of his injury he was lowering the lever. The hand pad or mitten he was wearing, furnished by the defendant, was caught in the cogs of the machine and his hand was injured. The plaintiff says that when he put his hand up to take hold of the lever‘he was looking at the lever.

While operating the machine plaintiff stood in front of the machine, the cog wheels and lever being about two inches above his head. There was an arc light which furnished good light upon the machine so that the cog wheels could be seen revolving at a distance of fifteen feet from the machine. When plaintiff worked on this machine two weeks prior to the accident there was a cover over the gearing. When, how, or by whom the cover was removed does not appear in the evidence.

The material facts in the record are uncontroverted. The cog wheels in which plaintiff was injured were uncovered and in plain view of the plaintiff while operating the machine. The place where the machine stood was well lighted. The revolving cogs could be plainly seen fifteen feet from the machine. They were just above the level of plaintiff’s head and in front of him. It was impossible that he did not see them the number of times he was required to move the lever while at work on the machine before the accident. Plaintiff swears that when he reached up to move the lever at the time he was injured he was looking at the lever. If he was looking at the lever at that moment it is impossible to believe he did not see the uncovered revolving cogs which were only about four inches from the lever. The danger of getting his hand in contact with the revolving cog wheels was obvious and apparent. There was nothing between him and the cog wheels to intercept or to interfere with his vision. The inference and conclusion are irresistible that the plaintiff had full and complete knowledge of the situation and the danger of putting his hand in contact with the revolving machinery. He was an experienced servant of mature years, and must be held chargeable with the knowledge of the fact that there was no cover over the cog wheels; and that he assumed the risk of this defect in the machine. Republic Iron Co. v. Lee, 227 Ill. 246. Certainly no one had a better opportunity than plaintiff to know of this defect. It ivas not hidden or latent. Knowledge of the conditions confronting him for a half hour or an hour while he was at the machine was, to a man of plaintiff’s age and experience, knowledge of the dangers arising therefrom. Chicago & Eastern Ill. R. Co. v. Heerey, 203 Ill. 492. “In Browne v. Siegel, Cooper & Co., 191 Ill. 226, it is said that even if the master' fails in his duty to furnish the servant a place ordinarily safe in which to work, and there are to the knowledge of the servant defects which- render the place unsafe, the servant is held to have assumed the hazard, for he cannot go on, with knowledge of the danger, without complaint until he is injured, and then hold the master liable.” See also McCormick Machine Co. v. Zakzewski, 220 Ill. 522.

In Armour v. Brazeau, 191 Ill. 117-127, it was said: “If a defect in an appliance is open and obvious so that by the exercise of ordinary care in the use of the appliance the employe will have knowledge of the' defect,, he is bound to take notice of the defect. He cannot presume a fact against his own knowledge, and assume that a defect, open to his observation, does not exist.” To the same effect are Lake Erie & Western R. R. Co. v. Wilson, 189 Ill. 89; and E. St. L. I. etc. Co. v. Crow, 155 id. 74.

We are of the opinion that the plaintiff assumed the risks of his employment and waived all claims against the defendant for damages in case personal injury resulted from such danger. Browne v. Siegel, Cooper & Co., supra; Cichowicz v. International Packing Co., 206 Ill. 346.

The peremptory instruction offered at the close of all the evidence should have been given. The judgment of the Suprior Court is reversed with a finding of facts.

Reversed with finding of facts. .


text:
    Ella Varnum, Appellee, v. American Bonding & Trust Company et al., Appellants.
    Gen. No. 15,034.
    1. Judgments—wliat essential to entitle defendant to have default set aside. To entitle defendants to have a default set aside it is not only necessary that they should show that they have a good defense on the merits but also that they have exercised diligence in presenting their defense by plea, and unless they show such diligence the court does not abuse its discretion in refusing to set aside the default.
    2. Judgments—what not showing of diligence upon motion to set aside default. The fact that the attorney for the defendant gave pleas to his assistants to file, unconnected with a showing that such pleas were filed or what was done with them, does not show diligence which will require the setting aside of a default.
    3. Divorce—what not essential to validity of order allowing temporary alimony. The fact that in a proceeding in which temporary alimony is adjudged the court subsequently adjudicates that the complainant to whom the allowance was made was not the wife of the defendant, does not affect the validity of such order.
    4. Practice—right of defendant to notice of inquest of damages. If a defendant has appeared in an action he is entitled to notice of a motion for an inquest of damages and has the right to contest the question of damages notwithstanding he is in default upon the merits.
    Action in debt. Appeal from the Superior Court Cook county; the Hon. Willard M. McEwbn, Judge, presiding.'
    Heard in the Branch Appellate Court at the October, 1908.
    Affirmed.
    Opinion filed June 3, 1910.
    Rehearing denied June 17, 1910.
    Clark Varnum, for appellants.
    Wells & Kelly, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appeal in this case is prosecuted by appellants from an order of the Superior Court denying their motion to set aside a default and a judgment thereon for want of a plea.

In Hitchcock v. Herzer, 90 Ill. 543, it is said: “It is the settled and long established rule in this State, that a motion to set- aside a default is addressed to the sound legal discretion of the court in which it is made, and unless there has been a palpable abuse of such discretion appellate courts will not interfere.”

The question presented by the record is whether the trial court abused its discretion in refusing to vacate the judgment. To entitle the defendants to have the default set aside, it was not only necessary to show that they had a defense on the merits, hut also that they had exercised diligence in presenting their defense by plea, and unless they showed such diligence the court did not abuse its discretion in refusing to set aside the default. Farber v. Bolotnikoff, 131 Ill. App. 345. A default will not be set aside, although the defendant may show that he had a good defense, when it does not appear that he exercised proper diligence. Mendell v. Kimball, 85 Ill. 582.

It appears from the affidavit of appellant Varnum, filed and read in support of the motion, that appellants’ attorney, Schaefer, gave to Ellingson, his assistant, the pleas of the defendants, and directed him to file them in this cause on March 6, 1906; that Ellingson left the office of Schaefer and returned in about a half an hour and stated he had filed the pleas.

The affidavit of Ellingson says that the pleas were prepared and that he was directed to file them, but he can not remember and has no independent recollection as to the filing of the pleas.

These two affidavits are the only evidence offered on the hearing of the motion to show diligence in filing the pleas. The evidence fails to show that the pleas were filed. The affidavits fail to show the exercise of proper diligence on the part of the defendants in presenting their defense. This failure to show diligence justified the trial court in denying the motion, even though there had been a showing of a meritorious defense to the action. Schultz v. Meiselbar, 144 Ill. 26.

In our opinion, the pleas attached to the affidavits and the affidavits themselves do not show a meritorious defense to the cause of action set forth in the declaration filed in the cause. It appears from the declaration that the action was upon an appeal bond given on an appeal to this court from an order entered in the Circuit Court of Cook county on January 5, 1901, directing appellant Varnum to pay Ella Varnum the sum of $50 on account of her solicitor’s fees, and the further sum of ten dollars per week as temporary alimony pending the final disposition of her bill for separate maintenance. It is also averred in the declaration that the order was affirmed on said appeal by this court; and that appellant Varnum has not paid the plaintiff in that action the amount of the judgment in the bond mentioned, or any part thereof, but has refused so to do.

In the first place, the affidavits say that the defendants have a meritorious defense to the whole of the plaintiff’s claim as shown by the pleas which the affiant believes were filed, and that the defense is shown by the pleas of the defendants, but, the facts constituting the defense are not set forth in the affidavit so that the court could determine whether or not the defendants had any defense to the bond sued on. The affidavit sets out a conclusion only and not the facts. An affidavit should state the facts showing a meritorious defense, rather than a verification of the pleadings.

In the second place, we do not think that if the averment of the pleas be true, that by the final decree in the case the Circuit Court adjudged and decreed that appellant Varnum was not the husband of the complainant Ella Varnum, and dismissed her bill and denied her the relief prayed for, that the decree as set out in the pleas was a defense to the action on the bond. The decree is not set forth in the pleas. The pleader’s opinion or conclusion as to its legal effect is averred. The pleas are plainly susceptible to the construction which must be given to them, that the order for temporary alimony and solicitor’s fees was by the decree annulled, abrogated and set aside, from and after the date of the decree. It does not follow that because the Circuit Court decided that the complainant in that case was not" the wife of appellant Varnum the order for temporary alimony and solicitor’s fees was improperly entered, or that the amount thereof was not due to the plaintiff when the final decree was entered. In Jenkins v. Jenkins, 91 Ill. 167, the court said: “We are not aware that it has ever been regarded as a prerequisite to obtaining a decree for alimony and solicitor’s fees, pending a divorce suit, that the complainant should establish to the satisfaction of the court that she was entitled to decree for divorce. Where a bill is pending for divorce it has always been regarded proper for the court to enter an order requiring the defendant to pay the solicitor’s feets. * * * It has, however, been suggested by counsel, in argument, that the decree for divorce was reversed by this court, which necessi-' tates a reversal of this order. The mere fact that the decree of divorce was reversed does not require a reversal of this order; in other words, the reversal of the decree is not a ground of reversal here. Appellee no doubt obtained the services of counsel to present her case in this court on the faith of the order that was entered requiring the payment of solicitor’s fees, and it would now be manifestly unjust, after the services have been rendered, to vacate the order on the ground that appellee was not successful in her action.” See also Brown v. Brown, 18 Ill. App. 445.

It is urged, however, that the principal object is to do justice between the parties and not to permit one party to obtain and retain an unjust advantage, (Mason v. McNamara, 57 Ill. 274), and as the application to set aside the default and judgment was made at the same term of court at which the judgment was entered, that the meritorious defense of appellants was more important than the question of diligence. Waugh v. Suter, 3 Brad. 271; Allen v. Hoffman, 12 Brad. 573.

In Sharon v. Sharon, 84 Calif. 424, cited by appellant, on the mandate of the Supreme Court on an appeal from an order granting alimony being filed, the plaintiff moved the trial court for judgment against the executor of the original defendant who had been substituted as defendant, for alimony under the original order, as the same was modified by the Supreme Court. The defendant opposed the motion, and introduced evidence showing that the original order or judgment against the defendant’s testate was based on a certain written declaration or contract of marriage signed by the plaintiff and original defendant, on which the court found that the parties had been married; that before the application for alimony was made, the original defendant had instituted an action in the Circuit Court of the United States against the plaintiff By the name of Sarah Althea Hill for the purpose of obtaining a decree canceling the identical contract upon which the court based its order for alimony, on the ground that it was fabricated, false and forged; and the defendant introduced the record showing that the proceedings had culminated in a decree as of September 9, 1885, that the instrument was “false, counterfeited, fabricated, forged and fraudulent, and is therefore utterly null and void,” and perpetually enjoined Sarah Althea Hill, her heirs, etc., from claiming any interest thereunder, and from making any use of said instrument in evidence or otherwise.

The court held that the United States Court had jurisdiction of the parties and subject-matter and that its judgment was binding and conclusive; that under that decree there was no marriage, and without a marriage there could be no divorce, and there could be no judgment for alimony.

It is apparent, we think, from a mere statement of the Sharon case, that the facts and the principles applicable thereto are clearly distinguishable from the case at bar. When the question of alimony in that case was finally presented to the court, there had been an adjudication by a court having jurisdiction of the subject-matter and the parties that there had been no marriage between the parties, and this adjudication was properly set up and offered in evidence presenting a complete bar to the application. In the case at bar no such showing was made, on the application for alimony, so far as this record shows, and an allowance was made which, on appeal to this court, was affirmed. An appeal bond was given, conditioned as usual, to the effect that if the appellant Varnum duly prosecuted his appeal with effect and paid the amount of the judgment or decree with costs, interest, etc., in cáse the judgment should be affirmed by this court, then the obligation should be void, otherwise it was to remain in full force and virtue. The judgment was affirmed. This action is on the bond. The alimony and solicitor’s fees decreed had all matured and were due and payable at the time the final decree was entered dismissing the bill on final hearing. The allowance was made to enable Ella Varnum to litigate the issues under her bill, and for her support during the litigation, and it was properly made under the Jenkins case, supra, and the decision of this court on appeal. We think,' therefore, the subsequent decree, set out in the pleas, was and is no bar to this action on the appeal bond.

The case of Wright v. Wright, 6 Texas, 29, and O’Haley v. O’Haley, 31 Texas, 502, cited by appellant, are contrary to the holding in the Jenkins case, supra, and cannot be followed in this State.

We fully agree with the contention of appellants that having appeared in the case they were entitled to notice of the motion for the inquest of damages, for they had the undoubted right to contest the damages at such inquest (Kalkaska Mfg. Co. v. Thomas, 17 Ill. App. 235) but, if no meritorious defense was shown, there was no reversible error in refusing to set aside the default and judgment.

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

'Affirmed.


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    Oil, Paint & Drug Publishing Company, Appellee, v. Edmund H. Stroud, Appellant.
    Gen. No. 15,040.
    1. Pobpobations—when foreign doing business in this state contrary to statute. Held,, upon the facts alleged in the defendant’s plea admitted by the plaintiff’s demurrer that the plaintiff corporation could not legally begin or maintain this action whether the contract sued on was made in this State or elsewhere, because such plaintiff, a foreign corporation, was doing business in this State without having complied with the statute.
    2. Corporations—effect of a,ct of 1905 upon status of foreign corporations doing business in this state contrary to provisions of previous act. If under the statutes in force when the action is commenced the plaintiff could not legally institute or maintain the same, the subsequent repeal of such statute without a saving clause does not improve or change the status of such plaintiff.

      Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Marcus ICavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 3, 1910.
    Statement by the Court. This action in assumpsit to recover a balance claimed to be due for advertising ordered by appellant and inserted by appellee in its publication, known as The Oil, Paint & Drug ¡Reporter, comes to this court on appeal from a judgment of the Superior Court. Appellee, Oil, Paint & Drug Publishing Company, snes as a corporation, organized and existing under the laws of the State of ¡New Jersey. Appellant is in the machinery business in Chicago, Illinois.
    The declaration consists of the common counts. The pleas filed by the defendant were the general issue, and two amended special pleas, the first of which alleging, that the plaintiff is a foreign corporation, organized for pecuniary profit; that it is not a telegraph company, nor an insurance, banking or loan company; that at the time of entering into the contract sued on, and ever since then, it was and has been transacting business in Illinois; that the plaintiff had not, at the time of the commencement of this suit, nor has it since, filed in the office of the Secretary of State of the State of Illinois a copy of its charter or articles of incorporation, nor a statement of the capital stock represented in the State of Illinois nor a statement showing the name and address of its agent in this State, nor has it paid into the office of said Secretary of State upon the portion of its capital represented in this State taxes equal to those required of similar corporations formed within this State, or .any fees; that plaintiff had and maintained an office or place of business in the city of Chicago, State of Illinois, and had an agent to act on its behalf thereabouts, and that plaintiff was so transacting business in the State of Illinois without complying with the provisions of the statute of Illinois.
    The second special plea is more general in character, but it avers that the plaintiff did business in this State at the time of the making of the contract with the defendant, and that it wholly failed and neglected to comply with the statute of this State in relation to foreign corporations doing business in this State. It avers failure- of the plaintiff to designate some person as agent or representative in this State on whom legal service of process might be had, and its failure and neglect to file in the office of the Secretary of State of Illinois a copy of its charter or articles of incorporation, or a copy of its certificate of incorporation, or a statement, duly sworn to, of the portion of its capital stock which was represented in Illinois, and its failure to pay to the Secretary of State the fees required by law.
    To these special pleas a general and special demurrer was sustained by the court, and the defendant elected to stand by his amended pleas. On the .trial a judgment was entered against the defendant.
    Cratty Bros. & Jarvis, for appellant.
    Ferguson & Goodnow, for appellee.
   Mr. Justice Smith

delivered the opinion of the court..

The error relied upon by the appellant for reversal is the sustaining of the demurrer to the special pleas.

In our opinion the pleas allege facts which, if true, constitute a complete bar to the action. The action was commenced March 10, 1904. - The pleas allege the facts existing at that time in relation to the non-compliance by the plaintiff with the provisions of the statute then in force. The demurrer admitted the facts to be true. Upon the facts so alleged and admitted the plaintiff could not legally begin or maintain the. action, whether the contract sued on was made in this State or elsewhere, because the plaintiff, a foreign corporation, was doing business in this State without having complied with " the statute. United Lead Co. v. Reedy Elevator Co., 124 Ill. App. 174, and authorities there cited; Same v. Same, 222 Ill. 199; Tenn. Packing & P. Co. v. Fitzgerald, 140 Ill. App. 430; J. Walter Thompson Co. v. Whitehed, 185 Ill. 454; Supreme Order Iron Hall v. Grigsby, 178 id. 57; Swing v. Thomas, 120 Ill. App. 235; Buell, Receiver, v. Breese Mill & Grain Co., 65 Ill. App. 271; Pope v. Hanke, 155 Ill. 617.

The only ground urged in argument in support of the demurrer is that the act upon which the pleas are based was repealed by the act in force July 1, 1905, without any saving clause, and that this took from the pleas all their legal foundation.

This contention is without merit, in our opinion. Under the statutes in force when this action was commenced, the plaintiff could not legally institute or maintain the action under the facts admitted by the demurrer. The subsequent repeal of the statute by the act of 1905 (if that act repealed it) did not affect this action.

For the error indicated in sustaining the demurrer to the amended special pleas the judgment is reversed and the cause is remanded.

Reversed and remanded.


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    Eldorado Jewelry Company, Appellee, v. Christian J. Werner et al., Appellants.
    Gen. No. 15,048.

      Contracts—when fraud defense to action upon, at law. A contract for the purchase of merchandise will not be enforced against the purchaser if he has been induced to enter into such contract by fraud and misrepresentation.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed June 3, 1910.
    Statement by the Court. This is a suit brought by the Elgin Jewelry Company against Christian J. Werner and Julius M. Ranney, retail merchants in Chicago, for damages for breach of an alleged contract for the sale of jewelry. A trial was had before the court without a jury, and the plaintiff had judgment for $167.20.
    It appears from the record that on December 3, 1903, an agent of the plaintiff, by the name of McCarthy, called upon the defendants in Chicago, and represented himself as a salesman for the Elgin Jewelry Company, but that he was really doing business for the Elgin National Watch Co. Defendant, Werner, informed him he did not wish to buy any goods. McCarthy then said, “Won’t you buy goods when you can deal with such a concern as the Elgin National Watch Co. ?” In the same conversation McCarthy, in response to a query on the part of the defendant, how he could sell the goods, samples of which he exhibited, so cheaply, said that “formerly we threw away the scraps after making the movements of the watches; now we utilize them in making jewelry of them. What formerly went to waste, we now use, and that is why we can make and sell jewelry at less than half price.” McCarthy further said that the president of the Elgin National Watch Co. was president of the Elgin Jewelry Co. and that the latter company was under the same management as the Elgin National Watch Co. The defendant, .Werner, then responded that if that was the case and everything was as he represented, and he was dealing with the Elgin National Watch Co., as McCarthy represented, he would give an order. McCarthy asked defendant, “Have you ever been through the Elgin National Watch Company’s plant?” To this defendant said, “No.” McCarthy .then said, “I would invite you to come out to our plant and examine it, and I will introduce you to the president of the company, who is a very pleasant man and you will have the finest reception you ever had in your life.” The defendant then asked, “Would that be the president of the Elgin Watch Company?” and McCarthy said, “Tes, the finest man you ever met.”
    This conversation was overheard by Frank Newman, a clerk in the employ of the defendants who testified, “I was standing at the show case at the time McCarthy came. He said, T am from the Elgin Jewelry Co., which is the same as the Elgin National Watch Co. and has the same president and run under the same firm name, the Elgin National Watch Company. They are manufacturing jewelry from the scraps they used to throw away from the works of the watches.’ That is about all that I heard. I went away, he was showing samples of jewelry.”
    The defendant then gave an order in substance as follows:
    Elgin Jewelry Company, Manufacturing Jewelers, Elgin, HI.
    Free with this order; gold filled guaranteed watch; trade certificates representing face value of $2,500; 1000 circulars; cash $500 to merchant showing best business. Total amount of order $197.60.
    Provision that if vendee will sell no goods at less profit than is usually charged on jewelry then vendor guarantees he will malee 33*| per cent, per annum provided he uses ordinary diligence.
    Succeeding 4 pages specifications of order, etc.
    Warranty to replace in 5 years goods wearing unsatisfactorily.
    Statement that vendee has read all foregoing 6 pages and it is satisfactory to be delivered via American Express Co.
    On December 8, 1903, the plaintiff delivered the jewelry and watch to the H. S. Express Co. at Iowa City, Iowa, and the showcase to the Chicago, Milwaukee & St. Paul E. E. Co. at Elgin, December 5, 1903. The jewelry arrived in Chicago December 19, 1903, or shortly before that date. On December 19, 1903, the defendants wrote the plaintiff as follows: “We regret to have to return the jewelry sent us as neither the case nor the advertising matter has come, and even should they now come, we would, at this late hour before Christmas, not have time to properly attend to the matter,” etc.
    On January 11, 1904, defendants wrote the plaintiff that they had just received notice from the Chicago, Milwaukee & St. Paul Eailroad that they had a case for them shipped by the plaintiff, and notified the plaintiff that they would not accept the case.

      This action was commenced by the plaintiff against the defendants March 14, 1904.
    It was not until this time that the defendants discovered that they had not been dealing with the Elgin National Watch Company, as they supposed, and some time thereafter they learned the following facts shown by the record.
    The Elgin Jewelry Co. and the Elgin National Watch Co. are not and have never been the same companies or in any way connected, with each other, or affiliated with each other. The Elgin Jewelry Co. never had a factory at Elgin, Illinois. It occupied a small back room in an office building in Elgin, in charge of a young lady. No stock was kept there and no business was done there except of a routine and unimportant character. The presidents of the companies were never the same man. The Elgin Jewelry. Co. was organized in 1903, by Theodore 0. Loveland, James L. Records and Charles W. Harrison as commissioners.
    A bill of complaint was filed in Circuit Court of Kane county, Illinois, by the Elgin National Watch Company against the Elgin Jewelry Company setting forth the incorporation of complainant, change of name from National Watch Co. to Elgin National Watch Co., location at Elgin in 1865 and the continuous manufacture by complainant at Elgin of watch movements; the use thereon of the name “Elgin” as a trade mark; favorable reputation acquired by the product of the Elgin National Watch Co., under the name “Elgin” and the identification of its product and business by that name so that the name “Elgin” as applied to watches, jewelry or similar articles has acquired in the trade and with the public a well defined meaning indicative of the Elgin National Watch Co., its product and business. That Williard F. Main and Milbert F. Price, co-partners as Williard F. Main & Co., prior to 1902, manufactured jewelry at Iowa City, la., and under the name of Puritan Manufacturing Co. and Equitable Manufacturing Co. until December, 1902, sold at wholesale jewelry, watches, watch movements, clocks, time pieces, silverware and similar articles, with jobbing and wholesale offices at Iowa City, la., and Chicago, Ill.; that about Decernher, 1902, said Main & Price sold the wholesale business conducted by them under the name Equitable Manufacturing Co. to Theodore O. Loveland and James L. Records; that soon thereafter Charles W. Harrison became interested in the business and that these three persons conducted the business so purchased until some time in February, 1903, under the name Equitable Manufacturing Co.; that at that time these persons conceived the fraudulent scheme of using the name Elgin Jewelry Co., for the purpose of selling jewelry, clocks, watches, watch movements and similar articles and thereupon began the use of that name; that the word “Elgin” in the said name was selected solely because of the high reputation and standing of the Elgin Rational Watch Co. and its product, arid because of the close association and identification of the word “Elgin” with the Elgin Rational Watch Co. and the use of the word “Elgin” by the public to designate the Elgin Rational Watch Co. and its product and the fact that the association of the word “Elgin” had become in the minds of buyers and the public extended from watch movements to watches, clocks, time pieces and jewelry in.general; that thereupon traveling salesmen and representatives of the said Loveland, Records and Harrison were instructed and advised by them to use and employ the said name Elgin J ewelry Company in the exploitation and sale of watch movements, watches, clocks, time pieces, jewelry and similar articles, and to state to and assure buyers that the Elgin Jewelry Company and the Elgin Rational Watch Co. uere the same establishment and were identical and in order to give apparent color and justification of said fraudulent scheme and plan and to further deceive both retailers who should purchase, and the public and buyers generally, the said Loveland, Records and Harrison on the 25th day of February, 1903, applied to the Secretary of State of Illinois for a license to form a corporation under the name Elgin Jewelry Co.; that thereupon the said persons proceeded to open alleged books of subscription; that after talcing stock subscriptions and filing a report, the Secretary of State issued a certificate of incorporation under the name Elgin J ewelry Co., which certificate, however, was not recorded with the Recorder of Deeds of Kane county, where the principal office of the company was stated to be located, but that the said articles of incorporation were not recorded with the Recorder of Deeds of Kane county, Illinois, until September 6, 1904, and that said Records, Loveland and Harrison refrained from filing said certificate deliberately and purposely; and that until the said certificate was filed the Elgin Jewelry Co. was not a corporation suable in the courts of the State of Illinois by the Elgin National Watch Co.
    The bill avers that Loveland, Records and Harrison were each and all residents of the city of Iowa City, Iowa, and did not and never have transacted any business in the city of Elgin; that neither they nor the said pretended corporation, Elgin Jewelry Co., ever had any factory, works or business in Elgin; that a sham place of business was maintained consisting of two small rooms in an office building in charge of a young woman who received mail and transmitted it without attention to Iowa City, and that all business obtained under the name Elgin Jewelry Co. was and is transacted and attended to at or from the city of Iowa City, la., or Chicago, Ill., and that said pretended corporation, the assumption of the name Elgin Jewelry Co. and the establishment and maintenance of the pretended offices at Elgin are all merely shams devised, executed and maintained for the purpose of obtaining and maintaining alleged colorable right to the use of the name “Elgin” in the said corporate style and in this way to deceive the public and profit and trade upon the reputation and business of the Elgin National Watch Co.
    That the business of Loveland, Records and Harrison consisted in selling watches, watch movements, jewelry, clocks and similar articles, and was and now is conducted actively by the said Loveland, Records and Harrison at Iowa City, Iowa, 'and Chicago, Illinois, and is carried on by means of traveling salesmen who visit storekeepers throughout the United States and who were and now are by the said Love-land, Records and Harrison instructed to represent themselves as the agents of the Elgin National Watch Co. as selling Elgin watches, as being authorized and empowered by the Elgin National Watch Co. to grant exclusive agencies for the sale of Elgin watches and that the Elgin National Watch Co. has lately gone into the manufacturing of jewelry, watches, clocks, time pieces as well as watch movements, and that the Elgin Jewelry Co. is one and the same institution as the Elgin National Watch Co.; and that the product of the Elgin Jewelry Co., which is in reality made in the city of Iowa City, Iowa, or Chicago, Illinois, or elsewhere outside of the city of Elgin, is the product of the Elgin National Watch Co. and is entitled to all the faith and credit which attaches to that company’s manufacture; that in furtherance of said fraudulent scheme said Loveland, '¡Records and Harrison prepared letter heads containing representations of a watch bearing conspicuously the name “Elgin” on the dial. Said letter heads also exhibit the words “Elgin Jewelry Co., incorporated, Elgin, Illinois; wholesale jewelers and jobbers in watches, jewelry, clocks, etc., importers of diamonds, 1010 Atwood Building, Chicago.” And said salesmen, agents and representatives of the said Loveland, ¡Records and Harrison were and are enabled to and do represent themselves as the agents and representatives of the Elgin National Watch Co., and that said pretended corporation Elgin Jewelry Co. is the Elgin National Watch Co. and are enabled to do so by reason of the use of the name “Elgin” and the false and pretended address and place of business as at Elgin, Illinois, all of which representations are untrue. Said entire scheme in its adoption, development and actual employment was and is with full knowledge on the part of the said Loveland, Records' and Harrison and each of them, of the aforesaid well established reputation of the Elgin National Watch Co. and the identification of its business and product by and with, the name “Elgin” and the identification in the mind of the public of watch movements, watches, clocks, time pieces and jewelry offered for sale or sold under or with the name “Elgin” in any way as the product of the Elgin National Watch Co., and the universal association in the mind of the public of the word “Elgin” with the Elgin National Watch Co., and was devised by the said Loveland, Records and Harrison, and each of them for the purpose of deceiving and gulling the public and passing off watches, watch movements, clocks, time pieces and jewelry not manufactured by the Elgin Rational Watch Co., as and for its product, and to enable the said Elgin Jewelry Co. to personate the Elgin Rational Watch Co., and as a result of this scheme and these methods and the use of the word “Elgin” they were and now are enabled to and do deceive buyers, customers and the public, and are enabled to and do sell and now are selling large quantities of watches, watch movements, clocks, time pieces and jewelry not made by the Elgin Rational Watch Co. as and for the manufacture of that company whereby its reputation and trade are injured, and the said Loveland, Records and Harrison are enabled to profit greatly at the expense of the Elgin Rational' Watch Co.’s reputation, and are enabled to and do sell large quantities of watches, watch movements, clocks, time pieces, and jewelry which but for the false and fraudulent use of the word “Elgin” as aforesaid, would not be sold or disposed of and that the products so sold by the said Loveland, Records and Harrison are of low grade and quality.
    The bill avers the filing of a bill in equity in the United States Circuit Court for the Cedar Rapids Division of the Rorthern District of Iowa on the 23rd day of February, 1904, by the Elgin Rational Watch Co., against Theodore O. Loveland, James L. Records and Charles W.' Harrison, in which the Elgin Rational Watch Mo. set out the facts and' circumstances herein alleged and i.ie fraudulent method of said Loveland, Records and Harrison, and their false and deceptive use of the name “Elgintheir sham office at Elgin, and their systematic and fraudulent personation of the Elgin Rational Watch Co. and in said bill prayed for an injunction enjoining and restraining the defendants from the use of the word “Elgin” or any like word in connection with the manufacture or exploitation of watches, watch movements, time pieces, clocks or jewelry or any name containing the word. “Elgin” as a business name or style and from persona-ting the Elgin National Watch Company.
    That thereafter on April 4, 1904, the defendants entered appearance; that on May 9, 1904, a motion for preliminary injunction was made by the Elgin National Watch Co. based upon verified bill of complaint, affidavits and exhibits. Said motion was argued and that thereafter a general and special demurrer was filed which was also argued, and that after due consideration on August, 25, 1904, the court overruled the demurrer and granted an injunction in substantially the terms prayed, and enjoining the defendants from using or employing the word “Elgin” or any like word in connection with the manufacture, exploitation or sale of watches, watch movements, clocks, time pieces or jewelry, or in any way, unless upon and in connection with the genuine products and manufacture of complainant, and from using the name “Elgin Jewelry Company,” or any name of which the word “Elgin,” is a part, as the business name or style under which to sell such goods, and from representing or stating in any way that said defendants or said Elgin Jewelry Company are complainant, the same as complainant, or connected with or authorized in any way by complainant. The court refused to enjoin the completion of the pretended corporate organization of the Elgin Jewelry Co. by the filing of its charter in the office of the Recorder of Deeds of Kane county, and thereafter on the 6th day of September, 1904, the said Love-land, Records and Harrison filed, or caused to be filed in the office of the Recorder of Deeds of Kane county, the certificate of incorporation of said pretended Elgin Jewelry Co., and thereupon and not until then, the Elgin Jewelry Co. became a corporation which could be sued by the Elgin National Watch Co.
    The Elgin Jewelry Co. is continuing the business and since the date of filing the charter has continued the business of said Loveland, Records and Harrison, who are also its officers, directors and agents and who own all but one share of its capital stock and who are actually conducting its business and are using the name “Elgin” as a sham and means of stealing the trade and good will of the Elgin National Watch Co. and of selling their products and articles as of the manufacture of the Elgin National Watch Co. and deceiving and defrauding the public. That the Elgin Jewelry Co. is collecting money on contracts obtained by said Love-land, Records and Harrison through their fraudulent personation of the Elgin National Watch Co. before the filing of the articles of incorporation of the Elgin Jewelry Co., and since the filing of the said articles, the Elgin Jewelry Co., by agents and salesmen, has been and now is with full knowledge of the rights of the Elgin National Watch Co., and with the deliberate fraudulent purpose and intention of personating that company and selling the product of the Elgin Jewelry Co., as and for the product of the Elgin National Watch Co.,' represented and now are representing themselves as the agents of the Elgin National Watch Co., as selling Elgin watches and being authorized and empowered by the Elgin National Watch Co. to grant exclusive agencies for the sale of Elgin watches; that the Elgin National Watch. Co. has recently gone into the manufacture of jewelry, watches, clocks and time pieces as well as watch movements; that the Elgin Jewelry Co. is one and the same institution as the Elgin National Watch Co., and that the product of the Elgin Jewelry Co., which is made in reality at Iowa City, la., or elsewhere outside of the city of Elgin, is the product of the Elgin National Watch Co. and is entitled to all the faith and credit which attaches to that company’s manufacture, and that said salesmen and representatives are enabled to and do represent themselves as the agents and representatives of the Elgin National Watch Co., and that the Elgin Jewelry Co. is the Elgin National Watch Co., and are enabled to do so by reason of the name “Elgin” and the false and pretended address and place of business at Elgin, all of which representations are untrue. As the result large quantities of watches, watch movements, time pieces and jewelry, not manufactured by the Elgin National Watch Co. or in any way authorized by it, are by the Elgin Jewelry Co. sold and palmed off on the public as of the Elgin National Watch Company’s manufacture; and that all of the fraudulent practices of the said Loveland, Records and Harrison have been continued and carried on by the Elgin Jewelry Co. without change.
    On Hovember 21, 1904, the bill of complaint was taken as confessed and the following decree was entered thereon:
    “This cause coming on to be heard upon the verified bill of complaint herein, due service of process having been had on the defendant, and the defendant in open court having confessed eách and all of the allegations of said bill of complaint, the court finds:
    That it has jurisdiction both of the subject matter of this cause and of the parties hereto; that the allegations of the bill of complaint are true; that defendant by its conduct as set out in said bill of complaint has been guilty of unfair competition with complainant, and that complainant is entitled to the relief prayed.
    It is thereupon ordered, adjudged and decreed that said defendant Elgin Jewelry Company, its officers, agents, servants, salesmen, clerks and employes be, and they each and all hereby are perpetually enjoined and restrained from using or employing the word ‘Elgin’ or any like word in connection with the manufacture, exploitation or sale of watches, watch movements, clocks, time pieces or jewelry or in any way unless upon and in connection with the genuine product and manufacture of complainant, and from using the name ‘Elgin Jewelry Company,’ or any name of which the word ‘Elgin’ is a part, as a business name or style, and from representing or stating in any way that said Elgin Jewelry Co. is complainant, the same as complainant, or connected with or authorized in any way by complainant; that the Elgin Jewelry Company or any other than complainant, is the manufacturer of the Elgin watch; that said Elgin Jewelry Company under said name or otherwise, has a business establishment or manufacture or does business at Elgin; and further, from doing any act or thing, or using any name or names whatsoever calculated to induce the belief that said Elgin Jewelry Co. is complainant, or that any product offered for sale or sold by it is authorized or manufactured by or in any way connected with complainant, or its factory; and that writs of injunction issue to this effect; that complainant is entitled to recover of and from said defendant the profits realized by it by reason of its wrongful conduct complained of in the bill of complainant, and also all damages which have resulted to complainant by reason of defendant’s unfair competition. Complainant having elected to waive an accounting of damages and profits, the court finds the sum of one dollar in lieu thereof.”
    In the latter part of 1904, the name of the Elgin Jewelry Company was changed to Eldorado Jewelry Company, and in 1908 the proceedings and papers in this case were amended accordingly.
    Charles A. Williams, for appellants.
    Flynn & Lyon, for appellee. •
   Mr. Justice Smith

delivered the opinion of the court.

The record contains no contradiction of the testimony of Werner and ¡¡STewman as to the representations made by the plaintiff, through McCarthy, at the time the defendants made the order for the goods upon which this action is brought. The evidence shows that the representations made by McCarthy were false; that they were designed to and did deceive the defendants, and through such deception the defendants were led to believe that they were dealing with the Elgin Mational Watch Company. They believed, and had reason to believe, they were offered and were purchasing goods manufactured by the latter company. The evidence convinces us that the plaintiff intended to deceive the defendants as to the character of the goods, and also as to the corporation the defendants were dealing with. The representations made to the defendant were a part of the fraudulent scheme formed by the officers, manager and agents of the plaintiff to deceive the public and the purchasers of its goods, not only as to the character and value of the goods, but as to the institution offering the goods to the trade. The false representations made were material, in our opinion, and the fraud practiced vitiated and renders voidable the alleged contract of purchase. Upon the facts shown by the evidence the law will not afford the plaintiff a remedy. National Bank v. Hall, 101 U. S. 43; Boston Ice Co. v. Potter, 123 Mass. 28; Arkansas Smelting Co. v. Belden Co., 127 U. S. 379; Mueller v. North Western University, 195 Ill. 236; Elgin National Watch Co. v. Loveland et al., 132 Fed. Rep. 41.

The evidence shows that the goods shipped by the plaintiff, and rejected by the defendants, were different from the samples exhibited by McCarthy, and did not correspond with them in any particular. The defendant Werner opened the package, while the express company’s messenger waited, and examined the goods. He testified that they did not correspond with the samples exhibited to him in any particular. His evidence on this point is uncontradicted. The defendants, therefore, rightfully rejected the goods.

It appears without dispute that the goods, by the terms of the contract, were to be shipped by the American Express Company. Delivery to the United States Express Company was, therefore, not a delivery to the defendants, until the goods reached them, and they were then rejected by the defendants as above stated. The title never passed to the defendants.

The judgment is reversed with a finding of fact.

Reversed with finding of fact.