text:
    Phineas L. Underwood et al. v. Frederick W. Wolf.

      Sales—Refrigerating Apparatus— Guaranty —Acceptance — Delay— Damages—Evidence.

    1. In an action to recover the contract price for refrigerating machines and apparatus furnished and set up, the fact being that defendants kept and used the same after the date upon which, by the terms of the contract, they were to be accepted if the guaranties were then fulfilled, and the contention being as to whether, if so accepted, they were entitled to deduct from the contract price damages for the failure of the machines to meet such guaranties, this court holds that their intention as to acceptance was a question of fact for the jury, to be determined from their acts and words; that it was their duty, when the time came for acceptance, either to accept or reject; and that in the latter case they were bound to do nothing with such ma- , chines which was inconsistent with plaintiff's ownership or right to remove them.

      2. A vendee can not receive property under a contract, retain it after an opportunity for testing it and ascertaining its quality, and recover damages if it differs in performance or description from what is called for by y le contract, without offering to return the. same.
    I 3. In the case presented, this court holds that the refusal to allow plaintiff I to remove the machines in question nnl- ss he left the packing house in the same condition in which it was when they were set up, the use of the machines for months after a fair test had been made and the time for election had passed, and the insurance of the machines in their own name, were acts of acceptance, which mere words refusing to accept in terms would have but little tendency to qualify, and that the conclusion of the jury that there was an acceptance was fully sustained. •
    4. An erroneous instruction can not be complained of by the party at whose request it was given.
    [Opinion filed April 3, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    This action was brought to recover the contract price for refrigerating machines and apparatus furnished and set up by appellee for appellants in their packing house under the following contract:
    “ This agreement made and entered into at Chicago, this eighth day of February, 1886, by and between Fred W. Wolf, of the city of Chicago, county of Cook, State of Illinois, party of the first part, and Phineas L. Underwood, James Viles, Jr., and Thomas M. Jordan, being and composing the firm of Underwood & Co., of the city of Chicago, county of Cook, State of Illinois, party of the second part:
    Witnesseih—That said party of the first part'has agreed to furnish and erect on the packing house premises of the party of the second part, of the best material and workmanship, and in complete working order and condition, two forty-ton each, Linde refrigerating machines, on coupled frame, with two iron condensing tanks and coils, and two iron refrigerating or brine tanks, of two hundred fifty barrels each, and coils, and necessary connections.
    One automatic cut-off Corliss engine of 20x42 cylinder size, which shall be capable to run the packing house machinery in addition to the compressors.
    All the iron piping necessary to carry and convey the brine required for the proper cooling of the rooms hereinafter mentioned to be cooled, together with feed and discharge pipes, hangers, manifolds, cocks, bends, etc., and one steam pump, of approved make, and of sufficient size to circulate all the brine to do the cooling mentioned to be done.
    That said party of the first part furthermore agrees and guarantees that the machine shall be of sufficient size to produce and maintain a temperature of 38 Fahrenheit in the following rooms, with the usual work of taking care of meats in cellars, going on: Two storage rooms, each 64x 118; one
    storage room for market, 22x42; two storage rooms, 22 x 42; one lard room, 29x27; one storage room under office, 29 x 96; one room on wholesale floor, 25,-2/,x 9/-9,/; and a temperature of 30 Fahrenheit in one room, 27 x 57; and the machines shall also cool daily to 32 Fahrenheit eight hundred hogs of average weight of two hundred pounds each, in two chilling rooms, each 32x103, in the following manner:
    To cool each room to 34 Fahrenheit in fourteen hours from time hanging in freshly killed hogs, and in ten hours more to cool the hogs in said room to 32 Fahrenheit temperature, inside of ham and next to bone, and to hold hogs at this temperature for twenty-four hours longer.
    It is understood that each hog or chilling room (32 x 103) is hung with hogs every alternate day, making a total of 1,600 hogs in both rooms hanging at one time.
    And the party of the first part furthermore agrees and guarantees that the power required to drive the machines while doing the above work shall not exceed twenty effective horse-power for each compressor.
    i And the consumption of fuel necessary to produce steam to do the work of the engines shall not exceed three and one-half (3-¡-) pounds of coal per horse-power per hour, with seventy to eighty pounds boiler pressure and eight pounds of water evaporated per pound of coal burnt.
    It is understood that water used on condensing coils shall be from the Chicago river.

      And the loss of ammonia while doing the above work shall not exceed two hundred pounds per season’s work for each compressor.
    The whole plant to be in complete working order and condition within ninety days from signing this agreement.
    And party of the first part to furnish all material and labor except as hereinafter provided.
    And said party of the second part agrees to furnish a suitable room in which to erect said machinery; also all necessary foundations, masonry and carpenter work, according to the plans furnished by said party of the first part, free of charge.
    Said party of second part furthermore agrees to furnish all steam and all feed and discharge water connections, and to properly insulate all the rooms according to plans furnished by party of first part
    Specifications hereby attached to this instrument.
    In consideration of the foregoing agreement said party of the second part furthermore agree to well and truly pay, or cause to be paid to said party of first part, the full sum of eighteen thousand dollars ($18,000) lawful money of the United States, in the following manner:
    Five thousand dollars ($5,000) one week from time machines are in complete running order and condition.
    Two thousand dollars ($2,000) on July 1, 1886.
    Two thousand dollars ($2,000) on November 1, 1886.
    Two thousand dollars ($2,000) on March 1, 1887.
    Two thousand dollars ($2,000) on July 1, 1887.
    Two thousand dollars ($2,000) September 1, 1887, and the balance of three thousand ($3,000) January 1, 1888.
    And it is further agreed between the parties to this contract, that if the machines have fulfilled the guarantees made for them in this agreement, by 1st of September, 1886, then said party of second part • shall accept the same; and all payments to be made after the payment to be made on July 1, 1886, shall be promissory notes, dated on the day of acceptance of the plant, with interest after maturity.
    And said party of first part further, agrees and guarantees to make all necessary repairs on said machinery for the term of three years, except such repairs as may be caused by the negligence or mismanagement of the employes of the party of the second part.
    In witness whereof, the parties of this agreement have hereunto set their hands and seals this day and year first above written.
    Fred W. Wolf, [seal.] per Metzger.
    Underwood & Co.”
    The declaration averred the performance of the said contract, avei’s that the machines fulfilled the guarantees made for them in said agreement, by September 1, 1886, and that defendants accepted the same on said day, and that they were not paid the sum of money agreed, nor have they made and-delivered to plaintiff their notes dated on the day of acceptance of said plant, but have wholly failed, etc.
    Defendants filed the general issue and special pleas denying that the machines fulfilled the guarantees made in respect to them by the 1st of September, 1886, and denied .that the defendants accepted said machine or articles as complying with or fulfilling the conditions or guarantees of the agreement, and also setting up a claim for damages for delay in completion of the machine by plaintiff, and the consequent loss of the use of their packing house to the defendants.
    Messrs. C. H. & C. B. Wood and Thomas Dent, for appellants.
    Messrs. Hamline & Scott, for appellee.
    Under the contract in evidence the title to machinery did not vest in the appellants until the expiration of the time limited by the contract for test and acceptance. Having elected to retain the machines as their own after the expiration of that period, and in the absence of fraud or latent defects, they can not recover compensation for defects which existed in the machines. Eureka Cast Steel Company v. Morden Frog and Crossing Works, 33 Ill. App. 591; The Prairie Farmer Co. v. Taylor, 69 Ill. 440; Mantón v. Gammon, 7 Ill. App, 207; Gaylord Manufacturing Co. v. Allen, 53 N. Y. 515; Brown v. Foster, 15 N. E. Rep. 608 (N. Y. Ct. of App.); Delamater v. Chappell, 48 Md. 246; Norton v. Hummel, 22 Ill. App. 194; Nye et al. v. Iowa City Alcohol Works, 51 la. 129; Benjamin on Sales, 4 Am. Ed., Sec. 911; Fairfield v. Madison Mfg. Co., 31 Wis. 346; MeParlin v. Boynton, 8 Hun, 449; Neaffle v. Hart, 4 N. Y. (S. C.) 4; Sanders on Warranties, 26; Quinn v. Stout, .31 Mo. 166; Nicholas v. Wayman (Ia.), 32 N. W. Rep. 258; King et al. v. Towsley (Ia.), 19 N. W. 359; Delafield v. DeGraw, 3 Keyes, 467; Gurney v. A. & G. W. Ry. Co., 58 N. Y. 358, 364.
    The fact that the property might have been difficult of removal, does not excuse return or offer to'return. Neaffle v. Hart, 4 N. Y. (S. C.) 4.
    Provisions in the contract for partial payments in advance of date fixed for acceptance, did not operate to make the contract an executed contract, and to vest any present title in the defendants. Wollensack v. Briggs, (Ill.) 10 N. E. Rep. 23; Connell v. Clark, N. Y. Ct. Appeals, 10 N. E. Rep. 888.
    The evidence as to every cause of set-off claimed by defendants being sharply conflicting, unless it appears that there was serious error in the instructions or rulings of the court, or misconduct or prejudice on the part of the jury, this court will not interfere with the verdict. Conrad Seipp Brewing Company v. Doody, 25 Ill. App. Ct. 305; Dewitt Co. Nat; Bank v. Nixon, Id. 158; McDermott v. Gubbing, Id. 541 Mitchell v. Hughes, 24 Id. 308.
    Delay having been caused by appellants, appellee can not be charged with damages arising therefrom. Taylor v. Renn et al., 79 Ill. 181; Kipp v. Massin, 15 Ill. App. 300; Vermont M.E. Church v. Brose, 104 Ill. 206; Austin v. Steamboat Co., 43 N. Y. 75; Matthews v. Coe, 49 N. Y. 57.
    Measure .of damages for failure to complete in time, is not probable profits. Frazer v. Smith, 60 Ill. 145; Benton v. Fay, 64 Ill. 417; C., B. & Q. R. R. v. Hale, 83 Ill. 360; Ill. Cent. R. R. Co. v. Cobb, Christy & Co., 64 Ill. 128; M. W. P. Co. v. Waters, 10 Ill. App. 159.
    The contract having been under seal, appellants can no • be aided in their endeavor to recoup by the alleged variation of its terms by parol, by agreeriient with appellee’s bookkeeper. Equitable Life Ass. Soc. v. Smith, 25 Ill. App. 471.
    There having been one seal annexed to the contract, it will be presumed that both signers adopted it. Davis v. Burton, 3 Scam. 41; McLean v. Wilson, Id. 50; Eames v. Preston, 20 Ill. 389.
    The court properly overruled the motion to suppress the depositions of Pilsbury and Green, both because of the rule of court, referred to in the bill of exceptions, and because the returns as appearing in the record itself show them to have been taken by proper persons under the commissions. Ill. Cent. R. R. Co. v. Haskins, 115 Ill. 300; Brown v. Luehrs, 79 Ill. 575.
    In any event the testimony of these two witnesses did not at all affect tjie issue of delay or that of acceptance. Admission of testimony which could not have seriously affected the merits of the case, is no ground for reversal. Felix v. Scharnweber, 119 Ill. 446.
    There is no ground for reversal on account of the instructions of the court. Maltman v. Williamson, 69 Ill. 423; Laird v. Warren, 92 Ill. 204; Manton v. Gammon, 7 Ill. App. 207; East v. Crow, 70 Ill. 91; Messmore v. Larson, 86 Ill. 268; Young v. McConnell, 110 Ill. 83; Logg v. the People, 92 Ill. 598; Chicago, M. & St. P. v. Dowd, 115 Ill. 659; Village of Sheridan v. Hibbard, 119 Ill. 307; P. & P. U. Ry. Co. v. Clayberg, 107 Ill. 644.
   Moran, J.

The main and controlling question on this appeal is whether the fact that appellants kept and used the machines furnished by appellee after the date when, by the terms of the contract, they were to accept them if the guarantees were then fulfilled, warranted the jury in finding that the said machines were accepted as fulfilling the contract, and whether, if they were so accepted, appellants were prevented from recouping from the contract price, damages for a failure of the machine to meet the guarantees contained in the contract. Appellee’s evidence tended to show that the machines were completed, and were operated by appellants before the 1st of September, and appellants admitted that they continued to use them for the purpose for which they were intended, up to the date of the trial. The court below instructed, in substance, that if appellants accepted the machines, in full discharge of the contract, then they could not recover or set off against the contract price, damages resulting from the failure of the machine to meet the guarantees, and that continued use of the machines, with the knowledge of the defects or imperfections, might constitute an act of acceptance, to be determined by the jury, from all the evidence.

. This is not like a case where work is done and materials furnished in the erection or improvement, of a building, or where the machinery is so affixed to the building as to become part thereof, and irremovable. Both parties here treat these machines as removable, and while appellants say that they told appellee to remove them, they also said they would not allow him tp do so unless he would put their packing-house in the same condition in which it was before the machines were put in.

It is not seriously contended by appellants that they ever rejected the machines, indeed, their contention is, that they were not, in law, required to do so, but they could retain the machines and. operate them in their business,,and by showing that the machines did not fill the guarantees, might recoup from the contract price their damages. We are of opinion that the guarantees contained in the contract between the parties are not to be construed as continuing warranties of the machines* The machines and apparatus were sold and placed in appellant’s house under the stipulated guarantees, it is true, but it is apparent that the parties contemplated that appellants should have an opportunity to test the machines, and the contract fixes a date when, after such opportunity to test, they should accept the machines, if they fulfilled the guarantees, and pay the contract price. While there was some delay in completing the contract, the evidence shows that appellant had abundant opportunity to try the machines, and that, while they refused to pay for the machines when requested to do so, they continued to use them, and after a time canceled the insurance on them, which had been in the name of appellee, and took policies on them in their own names. When appellants had made a test of the machines, it was their duty to either accept or reject them. When they refused, in words, to accept them, but continued to use them in the prosecution of their business, without permission, though they complained that they did not come up to the guarantee, it can not be said that the machines were rejected, but it was a question of fact for the jury, to be determined from a consideration of appellants’ acts, as well as their words, whether the intent was to accept, and it can not be said, as a matter of law, that those acts do not afford substantial proof of acceptance. The contract in this case is exceptional; it requires an acceptance after time given for a test. If, when the time came for acceptance, appellants were not willing to accept the machines, as complying with the contract, then the alternative they had was to reject them, and if they sought to reject them, they were bound to do nothing with the machines which was inconsistent with appellee’s ownership and right to remove them. The refusal to allow appellee to remove them unless he left the packing-house in the same condition in which it was before they were set up, the use of the machines for months after a fair test had been made and the time for election had passed, and the insurance of the machines in their own names, were, in our opinion, acts of acceptance, which mere words refusing to accept in terms would have but little tendency to qualify. The conclusion of the jury that there was an acceptance of the machines, then, is fully sustained.

The guarantees of the agreement being guarantees as to the capacity or performance of the machines, were not, as we have before said, continuing warranties, and whether they were fulfilled was to be determined by the test. The rights of the parties and their duties, after a fair test, were governed by the rule that is applied in executory contracts for the sale and delivery of personal property, which is that the right of the vendee to .recover damages on the ground that the article furnished does not fulfill the undertakings of the contract, does not survive the acceptance of the property of the vendee after the opportunity to ascertain the defect, unless the vendee offers to return the property. He can not receive the property under the contract, retain it after an opportunity of testing it and ascertaining its quality, and recover damages if it differs in performance or description from that called for by the contract. Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Reed v. Randall, 29 N. Y. 358; McCormick v. Sarson, 45 N. Y. 265; Brown v. Foster, 108 N. Y. 387; Eureka Cast Steel Company v. Morden Frog and Crossing Works, 23 Ill. App. 591.

This case is not like Crabtree v. Kile, 21 Ill. 180, or Mears v. Nichols, 41 Ill. 207. In' each of th 'se cases there was a purchase of an article upon an express warranty that it would answer a specific purpose, and not, as here, a sale upon a guarrantee, with a right of test till a specified date, and a requirement of acceptance then, if the warranty or guarantee should be fulfilled. In those cases the title passed to the purchaser by the sale, and was accompanied by a warranty, for the breach of which he might sue; here the title to the machines was not intended to pass until a test had been made, and an acceptance, after test, is an express election to take the title to the machines, and have the benefit of the contract, though the performance or capacity was inferior to that promised and expected. Brown v. Foster, supra. The right to accept after a test was not a right to take title to the machine after a test, and hold the vendor for a failure to furnish the machines contracted for, as upon a sale with express warranty.

The instructions given by the court for the plaintiff were correct, and the fact that the court, at the request of appellants, gave to the jury instructions containing a contrary rule, will not avail appellants. The jury in this case followed the correct instructions, and appellants can not assign for error the giving of instructions, whether right or wrong in point of law, which they requested the court to give. It is unnecessary for us to consider the alleged error of the court in refusing to suppress certain depositions. They contain no testimony which could have affected the issues on which the case was determined. •

We are of opinion there is no material error in the record, and the judgment will therefore be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Garnett, P. J.

license: Public Domain

text:
    Joseph O. Rutter v. William E. Hall et al.

      Administration—Principal and Surety—Secret Agreement—Discharge of Surety.

    1. The doctrine that the judgment of the county or probate courts^ against an administrator is conclusive on the sureties on his bond, has no application where they have' been discharged through some secret arrangement between such officer and the parties in interest.
    2. A secret agreement between the distributees of an estate and the administrator thereof, that the latter may use its funds in his private business, will operate to discharge the sureties upon his bond.
    [Opinion filed April 3, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Hurray F. Tuley, Judge, presiding.
    Mr. C. Beckwith, for appellant.
    Messrs. Gartside & Leffingwell, for appellees.
   Garnett, P. J.

Henry S. Austin having been on January 8, 1877, appointed by the Probate Court of Cook County administrator of the estate of Henry L. Hall, deceased, Joseph O. Butter and Hatthew S. Baldwin became sureties on his bond.

The distributees of Hall’s estate, without the knowledge or consent of Butter, agreed with Austin that he might use the funds of the estate to carry.on some of his private business, which he did, and the funds were thereby lost. All of the distributees were of age when the agreement was made, except William and Albert H. Kammerling-. In a statement of account with Austin, as administrator, on October 22, 1886, the Probate Court fixed the amount due from him to the estate at $6,500, ordered him to pay the same, removed him from office, appointed William E. Hall, one of the distributees, administrator de bonis-non, and the latter then commenced an action on the bond against Austin, Rutter and Baldwin for $10,000. Baldwin, being insolvent, and Rutter having fully settled with William L. Kammorling, tiled his bill against the administrator and the distributees, setting up the facts here recited, and therein oti'ered to pay Albert Kammerling such sum as the court should find due to him. A temporary injunction having been granted on the prayer of the bill the administrator debonis non tiled his general demurrer, which was sustained by the court for want of equity in the bill, the bill was dismissed and damages assessed on dissolution of the injunction. Rutter appealed, and having since died, his executrix has been substituted as appellant in this court.

The case involves only .the respective rights of the estate of Rutter, and the distributees who were capable of binding themselves by the arrangement' made with Austin. The decree of the court below rests on the authority of Ammons v. People, 11 Ill. 6; Ralston v. Wood, 15 Ill. 168; Housh v. People, 66 Ill. 179, and Brooks v. People, 15 Ill. App. 570 ; those cases holding that the judgment of the county or probate courts against a guardian or administrator was conclusive on the sureties on the bond. The binding force of these authorities is not denied, but they all proceed upon the supposition that there is in law a surety, and none of them decide that the liability of a surety, who has once been discharged, is revived by the judgment. Whether there is a surety or not is not a question the Probate Court considered when stating an account with the administrator. If,-for any reason, there was no surety, the duty of that court would be to proceed to judgment against its delinquent officer alone. But its judgment in such case does not create a surety, or if the surety has been discharged the judgment can not revive his liability.

The question here, between the estate of the surety and the adult distributees, is whether Rutter was, in law, a surety on Austin’s bond, after the secret arrangement by which the money of the estate was lost. With that question neither the judgment of the Probate Court nor the statute (Sec. 115, Chap. 3) pretends to deal.

It is familiar law that a secret agreement between the creditor and principal debtor, which is prejudicial to the surety, operates to discharge the latter from his contract. Brandt on Suretyship and Guaranty, Sec. 345.

The decree is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Gary, J.

text:
    Ann Fitzpatrick et al. v. The Chicago and Western Indiana Railroad Company.

      Master and Servant—Relation—Existence of—T-jury to Employe of Sleeping Car Company—Sub-Contractors—Reservation of Control—-Vice-Principal.

    The reservation to the architect of a railroad company of the right of superintendence and direction of a given contract with the power to reject-imperfect work or materials, does not make him the foreman as to the details of doing the work, or the workmen of a sub-contractor the servants of the company.
    [Opinion filed April 3, 1889.]
    In error to the Circuit Court of Cook County; the Hon. A. N. Waterman, Judge, presiding.
    Messrs. William Hoynes and John Gibbons,' for plaintiffs in error.
    Messrs. Osborn & Lynde, for defendant in error.
   Gary, J.

The railroad company, defendants in error, own railway tracks ending at a large station in the city of Chicago and called the Dearborn station. They let a contract for erecting a train shed ” which, although no plans or specifications are shown in the record, must have been on a large scale, as the price was $67,000. The contractors sub-let the .construction of the roof. The deceased, John Fitzpatrick was employed by the Pullman Palace Car Company in cleaning their cars which went in and out of that station.

As Fitzpatrick was passing under a part of the roof in process of construction a tool fell, perhaps by some negligence of some workman employed by the sub-contractors, and struck him on his head, and from the effects of the blow he died. The plaintiffs in'error aré executors of his estate and this suit is under the statute for the pecuniary loss resulting to his next of kin from his death.

On these facts, the negligence, if any there was, of the servants of the sub-contractors, is not chargeable to the railroad com pany. Fitzpatrick was rightfully upon their premises, and if by any negligence of the servants of the company he had been injured, the company would have been responsible. But the ordinary reservation to the architect of the company, of the superintendence and direction of the work, with the power to reject any imperfect work or materials, did not make the workmen employed by the sub-contractors, the servants of the company. This reservation did not, as a matter of law, make him the foreman as to the details of doing the work, and the testimony for the plaintiffs showed that the sub-contractors had their own foreman on the work, who was superintending it.

The only ground upon which a claim against the company could be based, would be, that as the company had contracted to have work done under such circumstances that unless duly guarded by the contractors probably it might cause injury to others, the company was under a duty to see that sufficient precaution was exercised. But this ground, though supported by Chicago v. Robbins, 2 Black, 418, and 4 Wallace, 667, is opposed to the decisions of the Supreme Court of this State in many cases. Scammon v. Chicago, 25 Ill. 424; Pfau v. Williamson, 63 Ill. 16; Kepperly v. Ramsden, 83 Ill. 354. On a question of local law, this court is bound by the rule established in the latter court, arid followed it in C. C. C. R. W v. Hennessy, 16 Ill. App. 153, which is in point in this case.

Judgment affirmed.


text:
    George Byrne v. Byron W. S. Clark.

      Practice—Bill of Exceptions—Attachment of Documents to by Stipulation.

    1. The omission to incorporate in a bill of exceptions certain papers can not be repaired by a stipulation that the clerk shall attach them thereto; for the determination of what shall be a part of the bill is a judicial act and can not be delegated.
    2. This court can only consider in a given controversy, matters incorporated in a bill of exceptions duly authenticated by the signature and seal of the trial judge.;
    [Opinion filed April 3, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding. '
    Mr. E. W. Adkinson, for appellant.
    Mr. E. F. Thompson, for appellee.
   Gary, J.

There is nothing in this record from which this court can see what was done in the case in the Superior Court. There is a declaration in assumpsit with special and common counts and amended declaration of like character, each of which are followed in the transcript by what purport to be exhibits or copies of instruments sued upon. But such copies are no part of the pleading either on demurrer in the Superior Court—Hart v. Tolman, 1 Grilm. 1, Harlow v. Boswell, 15 Ill. 56—or on appeal to this: Sims v. Hugsby, Bre. 413; Franey v. True, 26 Ill. 184; though they may become so for both courts by being set out on oyer, or for this, by bill of exceptions. Smith v. Wilson, 26 Ill. 186, is one of the numerous cases as to what, to be seen on error, must be on a bill of exceptions. These exhibits or copies are probably copied again in the transcript, after the bill of exceptions, with instructions and motions, but they are there invisible to the judicial eye. The parties seem to have stipulated that the clerk should repair the omission of the appellant, to incorporate all these papers in the bill of exceptions by attaching them to it, but the determination of what shall be a part of the bill of exceptions is a judicial act, and can not be delegated even by the court to the clerk. Emerson v. Clark, 2 Scam. 489.

Since the statute permitting original bills of exceptions to be used on appeal for writ of error, many decisions have been made that the court of review can not look beyond what is authenticated by the signature and seal of the judge, to ascertain what happened in the course of the case below.

Here is a verdict and judgment upon the common counts. Without the documentary evidence, which this court can not see, it is not possible to judge, even as to the relevancy or competency of the testimony that is in a shape to be seen here.

The presumption, unless the contrary appears, is that the judgment is right. Schmidt v. Braley, 112 Ill. 48.

Judgment affirmed.


author: Moran, J.

text:
    W. C. Goudy v. The City of Lake View.

      Municipal Corporations—Streets—Condemnation of Private Property for—Freeholds—Jurisdiction.

    This court has no jurisdiction of a controversy involving a freehold estate.

      [Opinion filed April 3, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. A. W. Green, for appellant.
    Mr. H. H. Anderson, for appellee.
   Moran, J.

The appeal in this 'case is prosecuted from a judgment rendered in a condemnation proceeding in which a portion of appellant’s lot was taken for a public highway.

The right sought by the condemnation was that of perpetual easement in favor of the public upon the appellant’s land. The case involves a freehold, and this court has no jurisdiction to investigate the merits or determine the controversy. Chaplin v. Commissioners of Highways, 18 H. E. Hep. 965. The appeal will be dismissed for want of jurisdiction.

Appeal dismissed.

Gary, J., takes no part in this case.


text:
    Anglo-American Packing and Provision Company v. John Baier.

      Master and Servant—Personal Injury—Unguarded Machinery—Action for Damages—Fraudulent Conveyances—Judge's Demeanor—Attachment —Evidence—Instructions.

    1. In an action by an employe to recover for a personal injury alleged to hav.e been occasioned by his employer’s negligence, a former judgment having been reversed, and after the order remanding the cause the plaintiff having sued out an attachment in aid of the action, on the alleged ground that defendants had, within two years, fraudulently disposed of their property, the same being denied by them, this court holds that the answer of defendant company and its president to a creditor’s bill against them, founded on plaintiff’s judgment and execution, was properly admissible as explaining certain conveyances and transactions, alleged to have been fraudulent, and that the execution issued on the first judgment, together with the return, which was nulla bona, was likewise admissible.
    2. Where, in such action, the president of a defendant corporation testifies upon cross-examination that a transfer of, its property was not made to defeat the plaintiff’s claim, it is competent to show that he had testified previous to the transfer, but subsequent to the injury, that the business belonged to the defendant corporation. If such person does not remember his testimony, an authentic report thereof may be introduced.
    3. In examining a shorthand reporter as to the testimony of a witness at a former trial, he should first be asked if a certain question was put, and if he answers in the affirmative, he should then give the witness’ reply.
    4. It seems that notice to a master by a servant of a claim for damages arising from personal injuries suffered in the course of his employment before the transfer of the property of the former, is competent evidence upon an issue involving I he motive with which it was made.
    5. The expression of a natural impatience by a judge, touching waste of time in the examination of a witness, can not be complained of.
    6. Damages in the sum of $8,0C0 is held not to be excessive for loss of left arm and deafness in one ear.
    [Opinion filed April 3, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Page & Booth, for appellant.
    Messrs. Kraus, Meyer & Stein, for appellee.
   Gary, J.

The great mass of testimony in this case, which it is impossible to condense into any reasonable compass, makes a case for a jury to decide, whether the appellee was injured as the result of negligence by the appellants, while himself not guilty of such negligence as would prevent a recovery. The verdict in his favor is the second one in the case, the former judgment having been reversed here. 20 Ill. App. 376. Then the verdict was §7,500, and now it is §10,000, of which §2,000 was remitted and judgment entered for §8,000.

Prom the evidence it seems to appear .that his ability to earn wages is diminished about $300 per annum, and from that appellants argue that the damages are excessive. At the time of the injury he was twenty-eight years old, and by it lost his left arm and has since been deaf in his left ear. If pecuniary loss were the measure of damages, they are excessive; but how can the compensation for pain and for the inconvenience and mortification of going maimed through life be measured? In truth, money is no equivalent for such injuries, but it is the only reparation the law'can give and the amount must be left to the jury to fix, subject to corrections in case of abuse. The instructions fill eleven closely printed pages of the abstract; of them, as a whole, it may be justly said that they fairly stated the law, and left the facts, to be found by the jury, from the evidence.

The counsel for the appellants complain that the judge on the trial expressed some impatience at the time taken in the examination by them of one of their witnesses. When that incident occurred they had examined the witness through a dozen foolscap pages of typewriting, and followed it with another dozen. Not unfrequently a question was a mere paraphrase of the answer to the question before it, and had no other effect than to call for a repetition of the first answer ; and to a large extent the questions were verbose, like “Now you may state whether or not,” instead of directly asking for the information wanted. It is true that by a strange departure from common law procedure, apparently having its origin in the construction and application of a statute requiring the court to instruct the jury only in writing, and as to the law of the case, the position of the judge on the trial of a cause before a jury, has been, in this State, so shorn of influence, that he has ceased to be fairly responsible for the orderly conduct of the case, or that justice shall be done in it. Looking at this record, there appears to have been good cause for a very natural impatience, and the ineffectual effort, of the judge to expedite the proceedings was no error. On the merits and the general conduct of the case relating to the issue upon the merits, there is no error.

There is another issue. The first trial and judgment were at the March term, 1886. That judgment being here reversed, the order remanding the case was filed in January, 1887, and May 6, 1887, the appellee sued out an attachment in aid of the action, cm the alleged ground that the appellants had, within the last preceding two years, fraudulently disposed of their property. The appellants traversed the affidavit for the attachment. On that issue the appellee put in evidence the return upon an execution issued April 5, 1886, on the first judgment. The return was nulla bona May 6, 1886. The appellee put in also the answer of the appellants and Robert D. Fowler, to what, though not stated in the abstract, must have been a creditor’s bill against them, founded on the appellee’s judgment and execution. Deeds from Anderson Fowler to the appellants stating a consideration of $150,000 in 1879, and from them back again, stating a consideration of . $5 in 1835, were also'put in, and Robert D. Fowler, president of appellants, as a witness for appellee, called to testify as to the actual considerations of the respective deeds. He testified that the company substantially ceased to do business in 1884, and wound up its affairs, and it appeared that with the same plant, a new corporation, with the same name, except “packing and” omitted, and substantially the whole stock held by the same family in each corporation, commenced in 1885. How, as to all these mutations, the real facts as to how they occurred, were admissible. They did happen, and the question being whether fraudulent or not, the fact that they did happen must be proved, in order that any inquiry as to their character can be made. For that inquiry the answer in chancery of the appellants containing their explanation of the transactions, was competent evidence for the appellee. Though the appellee put in only the return on the execution, yet doubtless the jury saw the execution also, and it was right that they should. The issue to be tried was whether the conveyances were fraudulent. One material circumstance, that the appellants were left insolvent by the conveyance, was proved prima faoie by the return nulla bona. Cowles v. Litchfield, 2 Scam. 356; Raplee v. Morgan, Id. 561.

The return itself meant nothing;- only by looking at the writ, had the return any significance. The return speaks of .“this writ.” Only the writ itself showed whether it was a writ calling for money or not. On cross-examination by appellants’ counsel, Fowler testified that at the time the business of the appellants was closed up, the officers and persons connected with the appellants had no knowledge of the appellee’s claim, and did not know about his suit; that they certainly did not close up the business and transfer the property for the purpose of defeating his supposed claim. The appellee was injured October 6, 1883. On re-direct examination Fowler was asked whether, in November, 1884, in a suit by appellee against himself and others personally, for the same accident, he had not testified that the whole business belonged to appellants. He admitted testifying in the same suit, that the business was not conducted by the defendants, but remembered no more of his testimony on that occasion. The appellee’s counsel put many questions reciting his supposed testimony on that trial, to which his reply was that he did not remember the testimony. The appellee then called a shorthand writer who took the testimony of Fowler on that trial, and proved by him that testimony, the effect of which was that the business and property in and upon which the appellee was injured, belonged to appellants. As original evidence, it would seem that notice to appellants of the appellee’s claim, before the transfer of all their property, would be competent evidence upon an issue whether that transfer was fraudulent. A conveyance for the purpose of avoiding the collection of damages in a pending action for a tort is fraudulent. Bougard v. Black, 81 Ill. 186; Walradt v. Brown, 1 Gilm. 397.

And when the appellants, as new matter had from their president, put into the case that the transfer was not for the purpose of defeating the appellee’s claim, it was competent on cross-examination to show by him, and if he did not remember, then by an authentic report of his testimony, that months before the transfer, he, as a witness, had relieved himself from personal responsibility, if any there was, by imposing it upon the corporation of which he was president. The manner of examining the shorthand writer was irregular. He should have been asked whether a question, repeating it, was asked, this being merely introductory, and when he said that it was, then he should have been asked what reply was made, instead of repeating the reply in the question. 1 Greenl. on Ev., Sec. 434; 2 Taylor on Ev., Sec. 1404.

But it is obvious from the record that the manner did no harm, as the appellants made no question upon the truth of the report. There is no error in the record, and the judgment is affirmed.

Judgment affirmed.


text:
    W. Beach Taylor v. Alice M. Kirby.

      Injunctions—Order Denying Motion to Dissolve—Act of June, 1887— Proceedings Involving Validity of Statutes—Legislative Acts—Subject-matter—Title—Sec 13, Art. 4, Constitution of 1870.

    1. This court will not consider an appeal from an order denying a motion to dissolve an injunction brought under the provisions of an act entitled, “An Act to provide for appeals from interlocutory orders granting injunctions or appointing receivers,” although the body of such act provides in addition that appeals may be taken from orders refusing to dissolve or enlarge the scope of an injunction, or give further powers to a receiver already appointed.
    2. It seems that if an act embracing more than one subject expresses them all in the title, the whole act is void, and that if the title expressed one only, so much is valid, and the residue void. If the subject is but one, and the title is so narrow as to express only part of it, so much as thenarrowness of the title excludes is void.
    [Opinion filed April 3, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. A. S. Bradley and H. H. Thomas, for appellant.

      Mr. M. P. Brady, for appellee.
   Gary, J.

This is an appeal from an order of the Circuit Court denying a motion to dissolve an injunction.

It is brought here under the provisions of an Act entitled “An Act to provide for appeals from interlocutory orders granting injunctions or appointing receivers,” approved June 14, 1887. In the body of the act it is provided that appeals may be taken, not only from orders granting injunctions or appointing receivers, but-also from those refusing to dissolve or enlarge the scope of an injunction, or giving further powers to a receiver already appointed: These provisions, beyond what is expressed in the title of the act, are void.

In Sec. 13, Art. 4, of the Constitution of 1870, it is provided that “Ho act hereafter passed, shall embrace more than one subject, and' that shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.”

A provision like the first sentence of the one quoted, except that it related only to private or local laws, in Sec. 23, Art. 3, of the Constitution of 1848, has been the subject of frequent consideration by the Supreme Court. The question has usually been, whether general words and phrases in the title of an act were sufficiently definite, and by fair construction should be held to include the subject of the act; and generally in such cases a very comprehensive meaning has been given to the titles of the acts in question.

The digests and the notes in Starr & Curtis’ edition of the Statutes furnish easy references to the numerous cases. _ In some cases, as in N. C. C. Ry. Co. v. Lake View, 105 Ill. 207, and People v. Mellen, 32 Ill. 181, however, the question has been whether the title did not, by the specific subject expressed in the title, exclude other subjects, so germane to that expressed in the title, that if the title had been more general they might have been considered, collectively with the subject expressed in the title, all parts of one general subject, properly embraced in one act.

In the first case above cited, it was held that a charter of a street railway company, silent as to the motive power to be used, did not authorize the use of steam, as the title of the charter expressed “horse railways” as the subject of the act. And in the other the incorporation of certain territory as a town, was held void, the title of the act being “ An act to repeal certain acts therein named.” The acts repealed were those incorporating the city of Warsaw with the same boundaries as the proposed town.

The first section of the act repealed the several acts of the city incorporation, and said Catón, J., “We see in this first section the subject embraced in the title of the act exhausted.” And so here;, the subject expressed in the title is, by providing for appeals from the orders named in the title, exhausted. If the title were “ relating to ” instead of “ granting, ” and omitting the word “ appointing, ” the question now in the case could not have arisen, as the act would have embraced but one subject. The result would seem to be that if an act embracing more than one subject, expresses them all in the title, the whole act is void. If the title expresses one only, so much is valid, and the residue void. If the subject is but one, but the title is so narrow as to express but a part of it, so much as the narrowness of the title excluded, is void. See Dolese v. Pierce, 124 Ill. 140, and cases there cited.

This court, by the statute, has no jurisdiction of appeals or writs of error from judgment, orders or decrees involving the validity of a statute. And it is argued by the appellee that no decision of the case other than to dismiss the appeal because the validity of a statute is involved, can be made. But the order appealed from, does not involve the validity of the statute.

If the jurisdiction of this court could be ousted by the argument of counsel, that somewhere in the various statutory . enactments under which this court is organized, and by which its jurisdiction is conferred and its practice regulated, there was something repugnant to the constitution, laws or treaties of the United States, or the constitution of this State, the ingenuity of litigants, unwilling to submit to the judgment of an appellate court, would soon make those courts useless excrescences on the judiciary of the State.

If the judgment, order or decree appealed from involves no question of which the court has not jurisdiction, the court has authority to decide all questions affecting the proceedings here. That portion of the act under which this appeal was taken, which gives an appeal from an order denying the motion to dissolve an injunction, being void, the appeal is dismissed.

Appeal (dismissed.


author: Mr. Justice Burke

text:
    Jansen Noyes et al., Trading as Hemphill, Noyes and Company, Appellants, v. Ben Gold, Individually and as Trustee, in Bankruptcy for George C. Hupka, Trading as George C. Hupka and Company, Appellee.
    Gen. No. 41,402.

      Original opinion filed February 26, 1941;
    rehearing opinion filed May 6, 1941.
    Barrett, Barrett, Costello & Barrett, of Chicago, for appellants; Edward Wolfe and Robert E. Wright, both of Chicago, of counsel.
    Adams, Nelson & Williamson, of Chicago, for appellee ; E. Douglas Schwantes and Ralph Choisser, both of Chicago, of counsel.
   On Rehearing.

Mr. Justice Burke

delivered the opinion of the court.

In their complaint filed October 23, 1939, in the circuit court of Cook county, plaintiffs, who are brokers, averred that on October 17, 1938, Ben Gold was the trustee in bankruptcy for George C. Hupka, doing business as George C. Hupka & Company (not Inc.) having* been duly appointed and having qualified as such trustee in the District Court of the United States for the Northern District of Illinois, Eastern Division; that on October 17, 1938, he represented to the plaintiffs that as such trustee, or otherwise, he was the owner and possessed of certain securities; that he then gave to the plaintiffs, as brokers, open orders, good until countermanded, to sell said securities on the open market at not less than certain indicated prices; that plaintiffs accepted the open orders and duly entered the same as open orders to sell the securities for the account of the defendant, Ben Gold, as trustee for George C. Hupka, doing business as George C. Hupka (not Inc.); that plaintiffs acknowledged the open orders by mailing to the defendant a confirmation; that in October and November, 1938, certain stocks covered by the open orders were sold at the prices specified by the defendant, on which transactions the securities were in due course delivered by defendant and the proceeds remitted to him by plaintiffs; that at various times thereafter plaintiffs notified and confirmed to the defendant that plaintiffs had on file for the account and risk of the defendant open orders good until canceled to sell the remaining securities ; that open orders to sell the securities listed were at no time prior to September 5, 1939, countermanded or canceled by defendant; that plaintiffs diligently sought to sell the securities at the prices specified by defendant; that on September 5-, 1939, in accordance with the open orders, plaintiffs did sell on the open-market the following of said securities at the prices indicated:

100 shares Butte Copper & Zinc at 5%

85 shares Butte Copper & Zinc at 5%

600 shares Granby Consolidated Mines at 9 10 shares Granby Consolidated Mines at 9

that plaintiffs immediately notified defendant of such sales and made due demand for the securities for the purpose of delivery thereof to the respective purchasers ; that defendant failed or refused to deliver the securities; that plaintiffs were then successful in canceling the sales of 85 shares of Butte Copper & Zinc and 10 shares of Granby Consolidated Mines; that plaintiffs sought to obtain cancellations of the sales of 100 shares of Butte Copper at 5% and the 600 shares of Granby Consolidated at 9, but were unsuccessful; that plaintiffs, being obliged to deliver such shares to the purchasers thereof, purchased on the open market 100 shares of Butte Copper at 6 and 600 shares Granby Consolidated at 10, and that the difference amounted to $816.03, for which sum plaintiffs asked judgment. Defendant Ben Gold, as an individual and as trustee, answered that in all his dealings with plaintiffs he • acted only in his capacity as trustee and not as an individual ; he admitted receiving from plaintiffs certain confirmations of his orders to sell until countermanded ; stated that the last confirmation he received from plaintiffs was on or about March 29, 1939; denied the allegation that the open orders to sell were at no time prior to September 5, 1939, countermanded or canceled by him and asserted the fact to be that on or about April 1, 1939, he canceled all his outstanding orders with the plaintiffs and advised plaintiffs that he no longer wished to do business with them. He further denied that there was any duty on him to deliver any securities to the plaintiffs after he so canceled all outstanding orders. The case was tried before the court without a jury and resulted in a finding and judgment for the defendant and against the plaintiffs. This appeal followed.

The first point urged by plaintiffs is that the finding and judgment are against the manifest weight of the evidence. Under this point plaintiffs assert that the court erred in finding that they failed to prove their case by a preponderance of the evidence. The position of defendant is that the finding and judgment of the trial judge, who saw and heard the witnesses, is entitled to the same weight as the verdict of a jury, and is supported by the evidence and the law and should be affirmed, and that the court correctly ruled that the burden was on the plaintiffs to prove their case by a preponderance of the evidence, which they failed to do. The general rule that the burden of proof rests on the party having the affirmative of the issue is applicable to actions on contracts and the usual test employed to determine on which side the burden of proof lies is to ascertain which party would be entitled to a verdict if no evidence were offered on either side of the issue. "Where, however, a party having the affirmative of the issue has made out a prima facie case the burden of evidence as distinguished from the burden of proof may shift to the adverse party, but the burden of proof properly so-called, does not shift, and the party having the affirmative when the issues are made up must make out a case by a preponderance of the evidence. One who asserts that a contract has been abrogated or canceled by agreement has the burden of proof. The burden of proving a case by a preponderance of the evidence rests upon the party asserting the affirmative of the issue, and this never shifts during the course of the trial but remains with him to the end. The burden of proof is determined by the pleadings, and at the end of the case the pleader upon whom the burden rests must have sustained his position by a preponderance of the evidence. Plaintiffs cite cases in support of their proposition that the burden of proof to establish the countermanding of the orders to sell was upon the defendant. An examination of these cases discloses that the rulings are based on factual situations where the defendant asserted that the contract on which plaintiff based his action was canceled or abrogated by a subsequent agreement. In the instant case, plaintiffs by the allegations of their complaint, undertook to prove a contract. This contract, according to the complaint, arose when the defendant “gave to plaintiffs, as brokers, open orders, good until countermanded, to sell said securities on the open market at not less than certain indicated prices,” and when the plaintiffs “accepted said open orders and duly entered same as open orders to sell said securities for the account of the defendant, Ben Gold, as trustee for George C. Hupka, doing business as George C. Hupka •& Company (not Inc.).” This contract empowered and obligated the plaintiffs to endeavor to sell the securities until the orders should be countermanded. It also obligated the defendant to deliver the securities when sold. The provision that the open orders were “good until countermanded” was an integral part of the contract. The burden of proof ivas on the plaintiffs to prove the contract and the breach thereof by a preponderance of the evidence. One of the elements of proof required of the plaintiffs was that at the time the orders to sell were executed, such orders had not been countermanded. The plaintiffs recognized the logic of this position in their pleadings and also in the order in which the proofs were submitted. Under the provisions of par. 4, sec. 43 of the Civil Practice Act it is contemplated that facts constituting an affirmative defense must be plainly set forth in the answer. As a general rule this defense is first raised by the defendant. If the plaintiff is convinced that the facts set up do constitute an affirmative defense, he then files a reply in order to arrive at an issue as to such facts. Otherwise, he moves to strike such alleged defense on the basis that in law it does not constitute a defense. In the case at bar plaintiffs did not file a reply, which is a further indication that they considered that the burden was on them to show by a preponderance of the evidence that the orders had not been canceled at the time they were executed. It is manifest therefore, that the court did not commit error in holding that the harden of proving that the open orders were not countermanded was on the plaintiffs.

In order to determine whether the judgment is contrary to the manifest weight of the evidence, it has been necessary for us to carefully read the abstract and the exhibits, having in mind while doing so that the burden of proof was upon the plaintiffs. In 1937 Hupka & Company went into bankruptcy, owing the plaintiffs $50,000 or $60,000, for which plaintiffs held security. When the defendant was appointed trustee of the bankrupt estate in May, 1937, he caused certain of the securities held by the plaintiffs to be sold to pay the debt owing to plaintiffs. After this was done, the balance of the securities held by plaintiffs were turned over to the defendant. In October, 1938, defendant, as trustee of the bankrupt estate, had in his possession certain certificates representing unsold shares of stock which the defendant authorized the plaintiffs to sell under orders “good until countermanded.” Defendant fixed the prices at which the stocks were to be sold. Afterwards, some of the stocks so listed were sold, including North American Aviation. There was considerable delay in transferring the latter stock on the books of that company. Defendant denied he knew the reason for the delay. This incident is only important as a collateral matter in determining the credence to be given to defendant’s testimony. Kelly B. Gilio, an employee of plaintiffs who was in charge of their mailing department, testified that the confirmations dated November 14, 1938, December 12, 1938, January 16, 1939, February 23, 1939, March 28, 1939, May 31, 1939 and July 19, 1939, were regularly mailed by him to the defendant in stamped envelopes from addressograph plates run off by bim and deposited in the United States Postoffice. George C. Gordon, office manager of plaintiffs, testified that he first met the defendant in October, 1938; that he made a-list of the stocks defendant had for liquidation; that he entered all of the stocks as open orders; that between the date of listing the stocks as open orders on October 17, 1938, and the subsequent final sale thereof on September 5, 1939, some of the stocks were sold; that on September 5, 1939, he received the report of the sale of certain of the stocks in the defendant’s account and called defendant on the telephone to give him (defendant) a report of these sales; that the defendant told him he had sold these securities six months before; that when the witness (Gordon) asked defendant why he had not canceled the open orders he had with the plaintiffs, defendant said he did not know anything about “that business”; that defendant wanted to know how long an open order was good and that witness told him an open order was good until canceled. The witness further testified that up to September 5, 1939, plaintiffs had received no cancellation of any of the open orders from the defendant, nor any letters or telephone communications pertaining to the cancellations; that on September 5,1939, he had a second telephone conversation with the defendant; that a few minutes after the conclusion of this conversation he dictated to his stenographer his recollection of the conversation; that she transcribed the same; that in the second conversation he told the defendant he was able to cancel two lots of the stock that were filled, but was unable to cancel the larger ones; that he (Gordon) tallied to defendant on the telephone twice on the next day, September 6, 1939, and had one of his secretaries who could write shorthand listen in on the conversations on an extension; that she afterwards gave him (witness) a correct transcription of the telephone conversations; that the first conversation on September 6, 1939, was in the morning; that the witness told defendant that one of the smaller securities had been canceled and that plaintiffs’ New York office had been able to buy 100 shares of Butte Copper at only % loss, and that on the others he would find out about it and that he would advise defendant later in the day; that defendant said, “O.K., that will be swell”; that later 'in the day witness talked with defendant <?n the telephone and told him that the 600 shares of Granby Consolidated had been bought at $10; that defendant wanted to know for how much this stock had been sold the day previous, and that he was advised it had been sold for $9 per share, and that there was a $600 loss on that transaction; that defendant told the witness that he did not know what he could do about it; that he (defendant) should have given cancellations on the open orders. Witness further testified that it was the custom of defendant after the sale of stock to deliver the certificates to plaintiffs’ office; that defendant did not deliver the 100 shares of Butte Copper or the 600 shares of Granby Consolidated, and that from October 17, 1938, to September 5, 1939, Granby Consolidated had not reached the price of $9 in the open market, and Butte Copper during the same period had not reached 5% per share; that the first time such stocks reached these prices was on September 5, 1939, when they were sold. Hilda M. Johnson, private secretary to the resident manager of plaintiffs, and a stenographer of 25 years’ experience, testified that she heard the telephone conversations between Gordon and defendant, which she took down in shorthand and correctly transcribed. The transcript was received in evidence and corroborates the testimony of Gordon. Charles Hofer, a former employee of plaintiffs, testified that certain records were made in the ordinary course of business and that defendant’s orders were listed as open orders, and that he prepared and turned over to the mailing department confirmations of orders about which Gilio testified. Jack C. Sturtevant, resident manager for plaintiffs, testified as to the meaning of the term, “open order.” Testimony in behalf of defendant showed that the original order of October, 1938, was telephoned by defendant. Defendant admitted the employment of plaintiffs. He also admitted the receipt of the confirmation dated November 14, 1938, and also the confirmation dated March 28, 1939. He testified that on or about April 1, 1939, when he received from plaintiffs a statement of account dated March 31, 1939, he called plaintiffs on the telephone ; that his brother Harry Gold and an attorney who had an office in the same suite, were present when he called plaintiffs; that he talked to either Gordon or Moerschbaecher; that he told the person to whom he talked that he had been waiting so long for his money on the North American Aviation stock that the plaintiffs had a “lot of nerve to send this confirmation,” and that he said “I told him to cancel the order” and hung up; that defendant stated he sold the stock through another broker in August, 1939. He admitted the telephone conversation of September 5, 1939, but could not recollect talking to Gordon on the following day. He denied the telephone conversation of September 6, 1939, to which Gordon and Miss Johnson testified. Defendant testified that when he called plaintiffs on the telephone on April 1, 1939, he invited his brother, who worked for him, and an attorney who occupied a separate room in the same office, to listen to the conversation; that they did not listen on an extension telephone and made no memorandum of the conversation; that he did not notify plaintiffs in writing of the cancellation; that after the conversation of April 1, 1939, he did not receive any statements, but did receive other mail from plaintiffs; that in August, 1939, he sold the stocks in question through Schilling-law, Crowder & Company, brokers. Defendant also introduced testimony that in October, 1938, plaintiff sold 60 shares of North American Aviation; that defendant delivered a certificate therefor to plaintiffs; that plaintiffs thereupon credited his account with the purchase price; that by April 1, 1939, he had not received the purchase price, and because of his trust responsibility he had become anxious about this collection; that he had gone to the Securities and Exchange Commission about it; that he telephoned plaintiffs a great many times about it; that he discussed the matter with the attorney who had offices in his suite; that his brother, who was employed by him, likewise had many conversations with employees of plaintiffs concerning payment of this item; that defendant’s brother Harry Gfold and the attorney, possessed of full knowledge of defendant’s dissatisfaction over the delay in .remitting on this stock, were present at the telephone conversation wherein defendant alleges he canceled the open orders. From May through September, 1939, defendant was not away from his office, except for the - period from August 11th to August 18th. Defendant was positive that he did not receive either of the confirmations dated May 31, 1939 or July 19, 1939, claimed to have been mailed to him by plaintiffs. Defendant’s brother Harry Gold acted as office manager and opened all the mail received at the office. He was the only one in the office who opened mail during the period from March through September, 1939. He testified that he did not receive the confirmation dated May 31, 1939 or the one dated July 19, 1939.

Defendant had the right to cancel the open orders at any time without giving any reason therefor. He did, however, give a reason. That reason is that the delay in receiving payment for the North American Aviation stock which had been sold in October, 1938, caused him to be provoked. That is why he claimed he called plaintiffs’ office'on the telephone on April 1, 1939, and told them to cancel the orders. Defendant contends that he did not know what caused the delay in the transfer of the North American Aviation stock. The court refused to admit a copy of a letter dated January 16,1939, from Chadbourne, Wallace, Parke & Whiteside, attorneys for North American Aviation, Inc., addressed to plaintiffs at their New York office, concerning the transfer of the 60 shares of stock. These shares were registered in the name of “Ben Gold, Trustee for Geo. C. Hupka & Co.” These attorneys had requested and the trustee Ben Gold had furnished an affidavit, which recited that a claim had been filed for the 60 shares of stock by one Robert W. Mason. These attorneys stated in the letter of January 16,1939 that their client was thereby put upon notice of conflicting claims; and they requested an order of court1 for the protection of their client. The court also refused to admit the copy of a letter dated March 21, 1939, addressed to plaintiffs from the same attorneys. This letter acknowledges the receipt of a certified copy of an order of the referee in bankruptcy dated March 3, 1939, directing the trustee to sell the 60 shares of stock. The letter, however, stated that the order did not constitute a complete record after adversary proceedings, as there was nothing therein to indicate that Mason, the claimant, was served with notice, or appeared before the court. Defendant denied he had seen either of these exhibits. Gordon, one of plaintiff’s witnesses, testified he made copies of the letters and discussed the contents thereof with the defendant, and that copies were delivered by messenger to Gold’s office. The court was in error in declining to allow the copies of the letters of January 16, 1939 and March 21, 1939, from Chadbourne, Wallace, Parke & Whiteside to be received in evidence. There was testimony that these copies had been discussed with the defendant. They were collateral, to the main issue and were introduced for the purpose of testing the credibility of defendant’s testimony. During one of the telephone conversations Gordon asserts he had with defendant on September 5, 1939, Sturtevant, plaintiff’s resident manager, came into Gordon’s office, took the telephone and continued the conversation that Gordon had begun. Plaintiffs sought to show what this conversation was. The court refused to allow plaintiffs so to do on the ground that Sturtevant did not know who he was talking to. We are of the opinion that the trial court was in error in declining to admit this testimony as the parties to the conversation were sufficiently identified. The plaintiffs made out a strong case, well supported by documentary evidence and by facts and circumstances. The trial court commented adversely on the action of plaintiffs in having a stenographer take shorthand notes of the telephone conversations between Gordon and defendant while listening on an extension telephone without defendant knowing that she was listening. At the time of this conversation, the defendant' had, through another broker, sold the stock which plaintiffs were calling upon him to deliver, and because of this either plaintiffs or defendant would suffer a loss. We do not wish to be understood as approving of eavesdropping on the telephone. This action is to be judged from surrounding circumstances. Plaintiffs undoubtedly anticipated that a law suit would develop if the defendant refused to make good the probable loss, and they knew that the verbatim report of the conversation would be valuable support for their position. No successful attack was made upon the testimony of Miss Johnson, or on the fact that she did take the stenographic notes of the conversation. From a remark made by the trial judge, it appears that he rejected the testimony of Harry Gold and of the attorney who had offices in defendant’s suite, relating to their remembrance of the alleged conversation of April 1, 1939, wherein defendant asserts that he canceled his orders to sell. It is difficult to understand how the trial judge could believe the testimony of the defendant on the conversation and yet express disbelief that the two witnesses to such conversation, produced by defendant, were present at the time of the conversation. It will be recalled that defendant testified that these two witnesses were in his office and heard the -conversation.

The record also shows that the defendant well knew that the reason why he did not receive a remittance for the 60 shares of North American Aviation stock which had been sold in October, 1938 was because of his failure to secure the information and orders requested by Chadbourne, Wallace, Parke & Whiteside. He knew that this failure to remit for the 60 shares of stock was not due to any neglect by plaintiffs. The copies of the letters and other testimony showing the reason for the delay were admissible, as we have held, for the purpose of showing that on April 1,1939, when defendant maintains he canceled the order, he knew that he had no good reason to charge plaintiffs with the responsibility for the delay in remitting the check for the 60 shares of stock. Another circumstance worthy of note is that on or about April 1, 1939, no controversy had arisen. The relations between the parties were on a friendly basis, and there was no reason why defendant should expect plaintiffs to decline to honor a direction to cancel the open orders. In the normal course of business, it is rather unusual for a businessman to call in witnesses for the purpose of having them listen to a telephone conversation about which no controversy is anticipated. Another phase of the testimony which the trial court should consider is that the defendant admits the receipt of the various confirmations that would not harm his defense, but denied receipt of the confirmations which would strongly support plaintiffs’ case. From a thorough consideration of the record, we are convinced that the judgment is against the manifest weight of the evidence.

Defendant maintains that the “good until canceled' order” remained in effect only so long as it remained uncanceled, and was also supported by the giving of a monthly confirmation. Defendant points out that the record shows that plaintiffs failed to confirm the order at the end of the month of June, 1939, and again at the end of the month of Aiigust, 1939, and cites' a text book as authority for his statement that the order remains in effect only when supported by a monthly confirmation. In our opinion the order which was given in this case remained in effect until canceled, regardless of whether plaintiffs sent a confirmation each month. The relations between the parties are governed by the law of contracts. Furthermore, this point was not made in the trial court and, therefore, cannot be raised on appeal. Defendant also argues that the uncontradicted evidence shows that he never dealt with plaintiffs' in his individual capacity, and that, therefore, he is not personally liable on the contract. Plaintiffs insist that defendant is liable in his individual capacity. In the case of In re Kalb & Berger Mfg. Co., 165 Fed. 895, (896) the court said:

“While ordinarily, a receiver [in bankruptcy] acting within his powers is not personally liable upon his contracts, yet he may so contract as to bind himself; and if he acts beyond his powers he necessarily assumes individual responsibility.” We agree that the record shows that the relations between plaintiffs and defendant proceeded on the basis that defendant was acting as a trustee in bankruptcy and not in his individual capacity. However, when the defendant sold the securities in August, 1939, and permitted the open order to remain uncanceled (if the evidence shows he did so) he acted beyond his powers as a trustee and became individually liable.

•" For the reasons stated the judgment is reversed and the cause remanded to the superior court of Cook county with directions to proceed in a manner not inconsistent with the views expressed.

Reversed and remanded with directions.

Hebel, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Presiding Justice Fulton

text:
    Donkle and Webber Lumber Co. et al., Appellees, v. Mary Cecilia Rehrmann et al., Appellants.
    Gen. No. 9,271.

      Opinion filed April 14, 1941.
    J. Oscar Hall, of Bloomington, for appellants.
    Dean C. Montgomery, of Atlanta, and William S. Ellis, of Lincoln, for appellees.
   Mr. Presiding Justice Fulton

delivered the opinion of the court.

The plaintiffs appellees, Donkle & Webber Lumber Co., a corporation, and Lee Irvin, filed a complaint in the circuit court of Logan county to foreclose two mechanic’s liens against certain real estate owned by Joseph Rehrmann during his lifetime, and Mary Cecilia Rehrmann. There are two tracts of land involved both legally described by long metes and bounds descriptions. For convenience they will be designated as the “Rehrmann” tract and the “Turner” tract.

Catharine Rehrmann, mother of Mary Cecilia and Joseph, was the owner of a piece of land lying southeast of and adjoining the Turner tract. By her will, probated in April 1930, she devised an undivided one-half interest in this tract to Mary Cecilia Rehrmann in fee, and a life estate in the other undivided one-half to Joseph Rehrmann, with the remainder in fee to Mary. This is the piece referred to as the “Rehrmann Tract.” Subsequently, Joseph Rehrmann purchased a strip of ground approximately 40 feet in width south of the railroad right of way of the Alton Railroad Company, and this is the piece referred to as the “Turner Tract.” Later Joseph Rehrmann deeded a strip of land adjoining the railroad right of way to the State of Illinois, and there is now constructed on said strip a paved cement highway known as U. S. Route 66.

In 1934, Joseph Rehrmann, who was also frequently known as Joseph Rayman, and the two names are used interchangeably in this opinion, and in the briefs of counsel, together with his wife, Verna, decided to build a combination gasoline station and tavern building adjacent to U. S. Route 66, just north of the city of Atlanta, in Logan county.

The Turner land which he owned was entirely vacant and he entered into an oral agreement with the appellee, Donkle and Webber Lumber Company, whereby it was to furnish the necessary materials and supplies for the erection of the proposed building. Rehrmann also entered into an oral agreement with the appellee, Lee Irvin, whereby the latter was to furnish plumbing supplies and perform the work of installing the plumbing in the proposed building. The last of the building supplies and materials were furnished to the premises by the Donlde and Webber Lumber Company on June 4, 1934, and the last plumbing supplies and labor was furnished by Irvin on November 6, 1934. Claim for mechanic’s lien was filed by the Donlde and Webber Company on' July 26, 1934, and by Irvin on March 5, 1935.

On June 3, 1936, the appellees filed this suit and in both the claims filed and in the complaint described the premises against which a lien was sought about as follows: “An eight (8) acre tract of land lying South of the Railroad right of way of the Alton Railroad Company in the West half of the Southwest quarter of the Southwest quarter of Section 16, in Township 21 North, Range 1, West of the 3rd P. M. in Logan County, Illinois.”

On November 10, 1936, appellees amended the complaint by substituting the legal description by metes and bounds of the Turner tract. On April 7, 1937, appellees moved for leave'to amend complaint which motion was allowed but no amendment was filed. On August 10, 1937, the appellees filed a written motion asking leave to amend their complaint by striking out former descriptions and substituting the following: “On the second day of April, 1934, Joe Rayman was the owner in fee simple of the following described real estate.” Then followed the legal description of the Turner tract, .and also, “and on the second day of April, 1934, Joe Rayman was a life tenant of an undivided one-half and in possession and control of the following.” Then followed the legal description of the Rehrmann tract. The motion was allowed by the court but the amendment other than the motion was not filed.

The complaint was in the usual form of a petition for mechanic’s lien setting up the making of the oral contracts, the furnishing of the materials and labor, the amounts unpaid, the filing of the claims and in addition alleging the fact that Joseph Eehrmann and his wife Verna both became deceased on April 2, 1935. Also that Mary Cecilia Eehrmann was administratrix of the Joseph Eehrmann estate.

An answer was filed by Mary Cecilia Eehrmann, individually, and as administratrix of her brother’s estate. Outside of some géneral denials, the answer set forth that the appellee Lumber Company agreed to forbear collection by foreclosure in consideration of a promise by Mary Cecilia Eehrmann to pay the claims of appellees, either in whole or in part, dependent upon the solvency of the estates of Joseph and Verna Eehrmann. Also that the appellee Lumber Company accepted the note of Joseph and Verna Eehrmann in payment of its claim and denies that appellees are entitled to any relief.

By reply to this answer, appellees admit an oral promise on the part of Mary Cecilia Eehrmann to pay their claims but deny the promise was contingent on the solvency of said estates, or that they agreed to forbear foreclosure proceedings. The reply admitted receiving the note of Joseph and Verna Eehrmann but denied that it was accepted in payment of its claim.

The cause was referred to a special master in chancery who heard the proofs and made report to the court recommending that a decree be entered awarding a lien and right of foreclosure to appellees upon the Turner tract deeded to Joseph Eehrmann and upon the building but denying any relief as against the Eehrmann tract. On the hearing of exceptions to said report, the court overruled and sustained certain exceptions and entered a decree finding the appellees entitled to a lien on both tracts of land and provided relief by way of foreclosure. Appellants have assigned many errors in prosecuting an appeal to reverse said decree.

The facts, other than those recited above, show that the delivery of materials and the performance of the labor by appellees was stipulated and agreed upon. The amount of the balances severally due appellees was not contested. The enhancement in the value of the real estate due to the erection of the tavern-filling station building was not disputed. Presumably by mistake, although how the mistake occurred is not definitely determined, the building was constructed partly upon the Turner tract and partly on the Eehrmann piece. There was a dwelling house, dairy barn and other improvements on the Eehrmann tract and Joseph and Verna Eehrmann lived there. Mary Cecilia Eehrmann permitted them to use that land for paying the taxes.

The appellants insist that in any event it was error to decree a lien against the Eehrmann tract owned by Mary Cecilia Eehrmann. Section one of the Mechanics’ Lien Act, provides that the lien shall extend to such interest as the owner may have in the tract of land at the time the contract is made. In this case it is conceded that Joseph Eehrmann had only a life estate in one-half of the Eehrmann property, which interest expired with his decease, and that he occupied the premises as a tenant. In Williams v. Vanderbilt, 145 Ill. 238, the'court said, “A tenant for life or years cannot, by contract, create a lien upon the fee. ’ ’" Under these circumstances in order for the lien to attach to the Eehrmann tract it would be necessary to show that Mary Cecilia Eehrmann knowingly permitted the improvement to be made upon her land.

As we view the testimony, it does not show that the said appellant either authorized or knowingly permitted the erection of the building upon her premises. The proof of that fact must depend upon the evidence of Mary Cecilia Eehrmann. She testified that she loaned her brother $200, to start his building project; that she was in Atlanta on either Decoration Day or the Fourth of July in the year 1934; that she knew nothing about the building being erected on her land until the summer of 1935; and that she never granted any permission to her brother to build on her property. We do not believe it is permissible to guess or infer that she knew of such fact without some competent proof to support such conclusion.

The cases relied upon by appellees in support of the character of testimony necessary to show knowledge and consent by the owner present a far different situation than the one in the present case. . In Wertz v. Mulloy, 144 Ill. App. 329, the proof showed that the owner of the interest against which a lien was sought, not only participated in the preparation of the written contract for the construction of the building, but at times took practical charge of directing the work; that she caused many radical changes to be made from the plans and specifications and was present a good deal of the time while the work was in progress. In Friebele v. Schwartz, 164 Ill. App. 504, it was disclosed by the testimony that the tenant told his landlord that he was going to have the building painted and the owner told him to go ahead; that the owner was about the building while the work was being done and directed the painters in how they should do their work. In the other cases cited, there was shown equal knowledge and interest on the part of the owner in the improvements being made. It is our opinion that the lien in this ease should not extend to the Rehrmann tract.

The appellants further contend that no lien should be allowed against the Turner tract because the building in controversy stands only partially on that land, and that where a building is erected by mistake upon the land of another, the persons furnishing labor or material have a lien upon the building alone and not upon the land on which it stands and the building may be sold separately with the right of the purchaser to remove such building from the premises. As authority for the foregoing statement appellants cite section 2 of chapter 82, Ill. Rev. Stat., State Bar Ed. [Jones Ill. Stats. Ann. 74.02]. It is our belief that the section of the statutes referred to has reference to a situation where the building is erected wholly on the wrong tract through mistake, and does not entirely apply to the present case. In the case of Springer v. Kroeschell, 161 Ill. 358, a statement was filed with the clerk claiming a lien for labor and material used in a brick building upon “Lots 10 and 11,” and although the proof showed that the building covered lots 10 and 11, and the south seven and two-twelfths feet of lot 7, the description was held sufficient to sustain a lien on the said lots 10 and 11. In the case of Sorg v. Pfalzgraf, 113 Ill. App. 569, the bill alleged that the house was built on lots 9 and 10. On the trial it developed that the house was built on lots 8 and 9, and not on lot 10. A decree was rendered establishing a lien on lot 9. It was held by that court that the failure to bring in lot 8 and subject it to a lien did not defeat the lien upon lot 9, which was properly subject to the lien. See also Granquist v. Western Tube Co., 240 Ill. 132.

It is next asserted by the appellants that the appellee Lumber Company accepted the note of Joseph, and Verna Rehrmann for the full amount of their claim, and because of their failure to produce the note in court, there was a failure to establish the indebtedness. The record shows that the manager of the Lumber Company testified, without any objection being interposed, as to the full amount of indebtedness due upon their claim, and also that they took a note for same which was on file in their office.

In section one of the Mechanics’ Lien Act, it is provided that the taking of additional security by a contractor shall not be a waiver of any right of lien which he may have, and the proof of indebtedness without objection waived the necessity of producing the note at the hearing.

Appellants complain further that the claim for lien upon which the Lumber Company relies is defective and in fact is a claim for lien by D. J. Webber personally and not by the appellee Company. The admissions of appellant in her answer recognizing the fact that appellee had filed its claim and discussing the amount due thereon acknowledged the claim to have been filed in behalf of the Lumber Company and waived any technical question on the sufficiency of its execution.

Finally the appellants contend that the descriptions in the original complaint and in the notices of lien filed by the appellees are inaccurate and insufficient to create a lien on either of the tracts involved in this suit. It appears that a small portion of the Turner tract was located on section 17, whereas the notice of lien and the original complaint described the property as being in section 16. The larger portion of the tract was in fact located on section 16. However, the designation of the eight-acre tract lying south of the railroad right of way of the Alton Railroad Company • owned by Joe Rayman was information coupled with the inaccurate description by which any person familiar with the neighborhood could identify the land intended to be described. In the case of Springer v. Kroeschell, 161 Ill. 358, it was stated that “A description is sufficient if there is enough in it to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty.” In our judgment the descriptions complained of fulfilled such requirements.

Much has been said by appellants as to lack of power in the court to grant any relief to appellees except that which is specifically prayed for in their complaint. In their amended complaint they ask for a lien against both tracts of land and it is the fiudiug of the court that such relief is denied as to the Rehrmann tract. That finding does not bar the court from adjusting the equities and granting any lesser relief it feels the appellees are entitled to under the facts shown in this record. In the case of Granquist v. Western Tube Co., 240 Ill. 132, at page 138, the court said: “the statute contemplates but one suit, and that all persons who are known to have any interest, either legal or equitable, in the land, or any claim for a lien against it, should be joined, either as complainants or defendants, in such suit, so that the court will be able to adjust all equities and render a decree in relation to the distribution of the proceeds, in case a sale is had, according to the rights of the several claimants.” In Love on Illinois Mechanics’ Liens in par. 96 on page 241, it is stated, “In other words, if the bill of complaint alleges certain facts and then sets forth a conclusion of law which, on the trial of the cause, is found to be an erroneous conclusion, then the court will disregard the allegations of the bill of complaint as surplusage and will enter the decree supported by the facts and the law.”

A bill of complaint where the complainant was alleged to be a subcontractor will sustain a decree in • favor of the complainant as an original contractor, where the facts and law warrant such a decree. City of Salem v. Lane d Bodley Co., 189 Ill. 593, at pages 601 and 602. It is further stated in that case, “A pleader is not concluded by the averment of a legal inference, if such inference is repugnant to the true legal conclusion to be drawn from the state of facts alleged in the same pleadings. ’ ’

It is our opinion that the decree of the circuit court should have denied a lien as against the land known as the “Rehrmann Tract”; that the appellees should have been awarded a lien against the land designated as the “Turner Tract,” and against the oil station-tavern building constructed through error partially on both of said tracts for the amounts found due in the original decree to the respective appellees entitled thereto. That such decree should have provided 30 days to be given the appellants for the payment of the lien claims of said appellees; that in default of such payment, the special master in chancery be authorized to sell said Turner tract and said oil station-tavern building at foreclosure sale to satisfy said liens. Also that the purchaser be allowed a period of 60 days from the date the period of redemption expires from such sale in which to remove said building from the Rehrmann tract. We believe that in all other respects the decree of the circuit court of Logan county should be affirmed.

The judgment of this court, therefore, is that the decree of the circuit court of said county be affirmed in part and reversed in part and that the cause be remanded to said court for the purpose of entering a modified decree of foreclosure in accordance with the views expressed in this opinion.

Affirmed in part and reversed in part and remanded with directions.