author: Mr. Presiding Justice Scanlan

text:
    Olive E. Balch, Appellant, v. Edmund J. English and Mary Ann English, Appellees.
    Gen. No. 34,558.

      Opinion filed March 24, 1931.
    Grossberg, Lyon & Brill, for appellant.
    Dent, Dobyns & Freeman, for appellees.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Olive E. Baleh, administratrix de bonis non of the estate of Edwin Cupit, deceased, sued Edmund J. English and Mary Ann English in assumpsit. The case was tried by the court, without a jury; there was a finding for defendants, and judgment was entered against plaintiff for costs. This appeal followed.

In a former case Olive E. Baleh, individually, sued the instant defendants and obtained a judgment for $2,832.27. She there sued to recover on the bonds that are here involved. We reversed that judgment (247 Ill. App. 429, 433) upon the ground that the evidence showed that the bonds (as between plaintiff and her father, Edwin Cupit) were the property of the latter. Olive E. Baleh then sued out letters of administration, etc., of the estate of her father and the present proceedings were brought. Plaintiff declares on five principal promissory notes or bonds, each for $500, and coupon notes, executed by defendants, bearing date May 6, 1920, and maturing May 6, 1925. Defendants’ affidavit of merits avers that the bonds were the property of Mayanlake Candy Company; that the latter company purchased them from Reliance State Bank of Chicago; that the premises of the candy company were burglarized and the bonds stolen; that at the time of the maturity of the bonds the bank, acting for defendants, paid the candy company the total amount of the bonds and interest; that the bonds were not presented for payment by plaintiff until a year after they matured; that they are not negotiable instruments; “that plaintiff’s testator did not take the notes in good faith, or for value and was not and is not the holder in due e course thereof; that the plaintiff’s testator had notice of defects in the title of the person negotiating the bonds,” and that “plaintiff and her testator acquired no title thereto. ’ ’

The court held, as a matter of law, that the bonds were negotiable instruments. Defendants have assigned cross error as to this holding and they contend that the instruments show on their face: “(1) That they are incomplete and that they are part of another contract referred to therein; (2) That the promise to pay is conditional; (3) That the amount payable is uncertain,” and that “the instruments are therefore nonnegotiable” and that therefore “the plaintiff, as assignee thereof, cannot recover thereon without allegation and proof of facts showing that plaintiff’s predecessor in title acquired the instrument as the bona fide owner thereof, and showing how and when she acquired title thereto.” We are satisfied that there is no merit in the contention that the bonds are not negotiable instruments. Section 1 of the Negotiable Instruments Act, Cahill’s St. ch. 98, if 21, provides: “An instrument payable in money, to be negotiated, must conform to the following requirements: 1. It must be in writing and signed by the maker or drawer. 2. Must contain an unconditional promise or order to pay a sum certain in money. 3. Must be payable on demand or at a fixed or determinable future time. 4. Must be payable to the order of a specified person or to bearer; . . . ” Section 3 provides: “An unqualified order or promise to pay is unconditional within the meaning of this Act, though coupled with ... a statement of the transaction which gives rise to the instrument. ...” (Cahill’s St. ch. 98, ii 23.) Plaintiff and defendants agree that “negotiability must be determined from the language on the face of the instruments.” The following is the promissory part of the bonds:

“No. 33 United States op America $500

State of Illinois

Six Per Cent First'Mortgage Gold Bond

Secured by First Mortgage on The Grand Building

Located at the Northwest Corner Grand

Avenue and Ada Street, Chicago, Illinois.

“The undersigned Edmund J. English and Mary Ann English, his wife, of Chicago, Cook County, Illinois, for value received hereby promise to pay to bearer (or the registered owner hereof) on the 6th day of May 1925, the sum of Five Hundred Dollars ($500.00) together with interest thereon from the date hereof at the rate of Six (6) per cent per annum, payable semi-annually on the 6th days of November and May in each year, on the presentation and surrender of the attached interest coupons as they severally become due. Both said principal and interest are payable in gold coin of the United States of America, of the present standard of weight and fineness, at the office' of Beliance State Bank, in the City of Chicago, State of Illinois. The undersigned are held and firmly bound unto the bearer (or the registered owner hereof) for the payment of said principal and interest as herein specified, and do bind themselves and their heirs, executors and administrators for the said sums to said bearer (or the registered owner hereof.)” In our judgment this promise lacks none of the requirements of section 1. Defendants rely upon the following provisions on the face of the bonds:

“This bond is one of a series of Forty (40) bonds of like date and tenor (except as to the date of maturity and number), numbered consecutively from One (1) to Forty (40), both inclusive, amounting in the aggregate to the sum of Twenty Thousand and no/100 Dollars ($20,000.00) and secured by a Trust Deed of even date herewith, executed by the undersigned Edmund J. English and Mary Ann English, his wife, to the Chicago Title and Trust Company, of Chicago, Illinois, as Trustee. . . . It is further expressly agreed that if default be made in the payment of any one of said bonds or coupons at the time and place when and where the same becomes due and such default shall continue for thirty days, then the said entire principal sum of this bond shall, at the election of the legal holder hereof, at once become due and payable, such election to be made at any time after the expiration of said thirty days, without notice; and the entire principal sum secured by said Trust Deed may thereupon become due and payable at the election of the legal holder or holders of one or more of said bonds, upon the terms and under the conditions prescribed in the Trust Deed. . . . Said Trust Deed and this bond are parts of the same contract, and are to be construed together.”

In Zollman v. Jackson Trust & Savings Bank, 238 Ill. 290, 293, the court said:

“The appellant contends that since the notes in question showed upon their face that they were secured by a trust deed appellee cannot be regarded as an innocent holder of such notes, and that the purchaser should be held to have notice of all facts that inquiry would have disclosed. This is a misapprehension of the effect of such recital. A recital upon a promissory note, to destroy its negotiability, must be of a kind that in some respects qualifies or makes uncertain or conditional the promise. (Siegel, Cooper & Co. v. Chicago Trust and Savings Bank, 131 Ill. 569; Biegler v. Merchants’ Loan and Trust Co., 164 id. 197.) In the case last above cited it was held that a note which recited- that ‘this note is secured by a lien upon my interest in certain horses described in agreement this day made between Gr. W. Leihy ánd myself,’ was nevertheless a negotiable instrument, and that a purchaser for value before maturity held such note free from any latent defenses that the maker might have against the payee.” In Hunter v. Clarke, 184 Ill. 158, the promissory note contained the words, “according to the tenor of a certain mortgage deed, bearing even date herewith,” and in passing upon the question as to whether or not these words destroyed the negotiability of the note, the court said :

“By our statute all promissory notes made by any person, whereby such person promises or agrees to pay any sum of money or article of personal property, or any sum of money in personal property, or acknowledges any sum of money or article of personal property to be due to any other person, are negotiable.. If a note is for the payment of money it must be for a fixed sum, payable at all events and at a time specified therein or at a time which must certainly arrive. The objections made to this note are, that when read with the mortgage therein referred to it may become payable before the time specified in the note, and by virtue of the provisions of the mortgage it secures an uncertain sum for taxes and insurance and secures the holder against acts constituting waste.

“Assuming that the note and, mortgage are to be construed as one instrument so far as the stipulations of the mortgage may affect the note, the first question is whether a provision that upon a certain contingency the holder shall have the option to declare a note due before the time fixed for its maturity will destroy its negotiability. It is true that the money must be certainly payable, and if it is uncertain whether the money will ever become due the instrument is not a promissory note. Here it is certain that the time would arrive when the note would be payable. It would be due absolutely on March 1, 1894, but upon a certain contingency it might become due earlier. Notes payable at or before a given date are negotiable. (4 Am. & Eng. Ency. of Law, — 2d ed. — 92.) An option of the maker to pay before the date fixed does not affect the negotiability of the note, and it is payable absolutely notwithstanding the option. (Dorsey v. Wolff, 142 Ill. 589.) A note payable by installments is negotiable, although the whole is to become due upon a failure in the payment of an installment or the non-payment of interest. (Chicago. Railway Equipment Co. v. Merchants’ Nat. Bank, 136 U. S. 268.) So a note payable at a date certain, or sooner, upon the happening of some specified event, is held to be due at such date and is negotiable; as, for example, a note due at a fixed day, or before, if made out of the sale of certain property or upon making a collection, or in case of the death of the maker before such day. (Harlow v. Boswell, 15 Ill. 56; McCarty v. Howell, 24 id. 342; Cisne v. Chidester, 85 id. 523; Beatty v. Western College, 177 id. 280.) There can be no difference, in principle, between the exercise of an option by the maker to pay before a certain day, or a provision that the notes shall be due upon the happening of some event prior to the date fixed and an option of the holder to declare it due upon the occurrence of some event. The provision for declaring the note due did not affect its negotiability.

“The other proposition, that the stipulations of the mortgage render the amount promised to be paid by the note uncertain, is not correct. The amount is not increased in any event, but the note is to be satisfied by the sum certain therein named. The provisions of the mortgage for the allowance of costs, taxes, assessments, insurance and attorney’s fees apply only in case of foreclosure and do not add to the amount of the note.” (Italics ours.)

In Doyle v. Considine, 195 Ill. App. 311, where the note contained the following words: “This note is given in accordance with a land contract of even date herewith between E. H. Bauch and J. P. Considine,” it was held that these words did not destroy the negotiability of the instrument. As to the Illinois cases cited by defendants: In Equitable Trust Co. v. Harger, 258 Ill. 615, it was held that the alleged negotiable instrument was merely, a letter in regard to the extension of time of payment of premiums upon certain policies and that it was not a promise to pay the alleged payee any money. National Bond & Investment Co. v. Lanners, 253 Ill. App. 262, is against defendants’ contention. In Chicago Trust & Savings Bank v. Chicago Title & Trust Co., 190 Ill. 404, the note was made payable “on or before one year after the date of the completion of the piling and filling of the premises described in a certain trust deed of even date herewith, which trust deed is executed by the undersigned payor to E. Huntington Pratt, trustee, said completion of piling and filling to be according to the requirements of a certain agreement of even date herewith made by Minna Allmendinger, the payee herein, with Samuel E. Bradt, . . . the date of said completion of piling and filling to be determined by the board of commissioners of Lincoln park,” etc., and the court held that the payment of the note depended upon a contingency which might never happen and that therefore the instrument was not payable on demand nor at a fixed or determinable future time, as required by the Negotiable Instruments Act, Cahill’s St. ch. 98, ¶ 21 et seq. In First Nat. Bank of Cass Lake v. Lamoreaux, 255 Ill. App. 15, the notes bore upon their.face the following: “This note is issued pursuant to an agreement dated April 4, 1921, between Kenfield-Lamoreaux Company and others, and this note and the indebtedness represented thereby is subject to all the provisions of said agreement,” and the agreement provided that while the notes were given for a definite amount they were to be payable out of the assets of the corporation executing the notes and that each of the notes should be paid in proportion to the amount realized after the liquidation of the company. In our opinion the instant contention is decided by the Illinois cases which we have cited in support of our conclusion and therefore we do not deem it necessary to refer to several decisions of sister states which have been cited by defendants. In the instant case the promissory part of the bonds is an unconditional, absolute promise to pay, and in the trust deed defendants acknowledge that they are “justly indebted to the legal holder or holders of the indebtedness hereinafter described in the principal sum of Twenty Thousand and no/100 Dollars ($20,000.00) secured to be paid by Forty (40) bonds, bearing even date herewith, made payable to the order of the bearer (or the registered owner thereof), for Five Hundred and no/100 Dollars ($500.00) each numbered consecutively from One (1) to Forty (40) both inclusive,” and none of the provisions in the deed changes or modifies the promissory part of the bonds. The fact that fore-, closure proceedings might be necessary to secure the payment of the bonds does not destroy the negotiability of the bonds. (See Hunter v. Clarke, supra.) In our judgment, the references on the face of the bonds to the trust deed amount to no more than a declaration and agreement by defendants that the bonds are secured by a first mortgage on certain real estate. To hold that these references made the bonds nonnegotiable instruments would be to permit gross frauds to be perpetrated upon the public. As stated in Utah Lake Irr. Co. v. Allen, 64 Utah 511, 231 Pac. 818, “if a negotiable instrument is in fact made subject to the provisions of some other contract or agreement, and such agreement modifies the unconditional promise to pay, it is an easy matter to so state, and unless it is so stated courts should not modify an unconditional promise to pay by mere implication, or forced construction, and thus destroy the negotiable character of an instrument which has been transferred to an innocent party for value and in due course.”

In several propositions of law the trial court held, in effect, that under the facts of the case the burden was upon plaintiff to prove that the deceased, Edwin Cupit, had acquired title to the bonds or notes as a holder in due course and plaintiff contends that the trial court erred in so holding. At the instance of defendants, the court found that plaintiff “had failed to prove that she was a bona fide holder of said bonds in good faith for value without notice of the theft thereof from Mayanlake Candy Company.” Section 59 of the negotiable Instruments Act, Cahill’s Ill. Rev. St. ch. 98, ¶ 79 (1929) p. 1807, reads as follows:

“Every holder is deemed prima facie to be a holder in due course; but when it (is) shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. But the last mentioned ride does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.” (Italics ours.)

To determine the instant contention we are required to interpret the last sentence of this section, which, apparently, has never been construed by the appellate courts of this State. It is conceded that defendants executed and sold the bonds to Beliance State Bank, and that the latter sold them to the candy company and that they were stolen from that company. As plaintiff was the holder of the bonds at the time of the trial, under section 59 she is ‘1 deemed prima facie to be a holder in due course” of them. Plaintiff contends that under the conceded facts the burden was not on her to prove that Cupit acquired the title to them as a holder in due course. Defendants admitted during the trial that they could not question the good faith or honesty of the administratrix in her holding of the bonds.

The so-called Uniform Negotiable Instruments Laws were drafted by John J. Crawford of the New York bar and were subsequently enacted, as so drafted, by Illinois and practically all of the other states of the Union. In his work entitled “Crawford’s Annotated Negotiable Instruments” (4th ed.), in referring to section 59, the author says (p. 117):

“Where fraud is subsequent to liability. — The last sentence is necessary to qualify the general statement. If A issues his note to B, and C gets possession of it and fraudulently negotiates it to D, the fraud of C in nowise affects A, and is no defense to him when sued on the instrument by D. Thus, it has been held that the fact that one who held possession of a note for the payee puts it in circulation in fraud of his rights is no defense in a suit by the holder against the maker; nor does it change the burden of proof, so as to require the plaintiff to show in the first instance that he is a bona fide holder for value. Kinney v. Kruse, 28 Wis. 183.”

In Brannan’s Negotiable Instruments Law, 4th ed., the author, in referring to section 59, states (pp. 540-1):

“In Parsons v. Utica Cement Co., 80 Conn. 58, 66 Atl. 1024, the court appears to have overlooked the last sentence of sec. 59 and held that where the plaintiff acquired the instrument from a prior holder, who had obtained it fraudulently and without consideration from the rightful owner, the burden was on the plaintiff to prove that he was a holder in dne course, although defendant, the maker, had no defense of its own to the instrument. The last clause of sec. 59 was intended to codify the contrary case of Kinney v. Kruse, 28 Wis. 183. See Crawford Negotiable Instruments Law, 3d Ed. 79 n. (c), 4th Ed. 117.

“After the second trial of Parsons v. Utica Cement Co., 82 Conn. 333, 73 Atl. 785, the court discovered that the instrument had been made and delivered prior to the taking effect of the Negotiable Instruments Law,' and deciding the case according to the pre-existing law, the court declined to follow Kinney v. Kruse, saying that it is opposed to the strong current of authority. . . _.

“In Kinney v. Kruse, A, who held possession of a note for the payee, fraudulently transferred it. This was held to be no defense in a suit by the holder against the maker and not to change the burden of proof so as to require the plaintiff to show that he was a bona fide holder for value. The fraud in putting the note in circulation which will operate as a defense or change the burden of proof, mu,st be a fraud against the defendant.” (Italics ours.)

In the late case of Farmers’ State Bank of Dickinson v. Koffler (N. D.), 232 N. W. 307, 70 A. L. R. 1223, the North Dakota Supreme Court was called upon to interpret section 59 of the Negotiable Instruments Law of that State (sec. 6944, Comp. Laws 1913), which is the same as our section 59. In that case the defendant contended that the presumption that the plaintiff was a holder in due course arising from the fact of possession of the instrument was destroyed by the showing that the title of the bearer who negotiated the instrument to the plaintiff was defective and that therefore the burden shifted and was cast upon the plaintiff to show affirmatively that it took the instrument in good. faith and without notice of any defect in the title. The court held that this contention wholly disregarded the final sentence of the section and that “the cases cited are cases where the fraud rendering the title defective was in the inception of the instrument. Here there is no defect in the title so far as the maker is concerned. The action is not brought against Davis to charge him as indorsee. It is brought against the defendant as maker. The defendant became bound on the instrument at the time he delivered it to Davis. Davis indorsed the instrument and made it payable to bearer. As against Davis, defendant had no defense. Defendant is now seeking to interpose a defense which might have been available to Davis only.” After quoting from a number of authorities in support of its position, the court further said: “The last sentence of section 6944, supra, was apparently intended to codify the rule of Kinney v. Kruse to the extent, at least, of continuing the burden of proof on the defendant in such a case as the one at bar. See Brannan, Negotiable Instruments Law, p. 551; Crawford, Negotiable Instruments Law (4th ed.) p. 117. Unless this last sentence is so interpreted, it is difficult, if not impossible", to give it any reasonable meaning. We conclude, then, that section 6944, supra, considered as a whole, does not have the effect of shifting to the plaintiff the burden of proving that he is the holder in due course of the note on which he sues merely by a showing on the part of the defendant that the title to the instrument was defective as against some intermediate indorsee. See Voss v. Chamberlain, 139 Iowa 569, 117 N. W. 269, 19 L. R. A. (N. S.) 106, 130 Am. St. Rep. 331; Unaka National Bank v. Butler, 113 Tenn. 574, 83 S. W. 655; Ladd & Tilton Bank v. Small, 126 Wash. 8, 216 Pac. 862; Baird v. Lorenz, supra. It follows, then, that in the instant case the presumption that plaintiff had received the instrument in due course operated in his favor and was sufficient,to make his case and entitle him to a recovery, unless the stipulated facts had the effect of affirmatively establishing notice of the defect in the title or lack of good faith.” Voss v. Chamberlain, supra (p. 578), holds contra to Parsons v. Utica Cement Mfg. Co., supra, and regards the last sentence of section 59 as intended to settle the conflict of authority between Kinney v. Kruse, supra, and Parsons v. Utica Cement Mfg. Co., supra, and in favor of the rule laid down in the former case. In Ladd & Tilton Bank v. Small, supra (p. 12), the court held that the last sentence threw the burden of proof on a drawer who delivered blank checks to an agent to be used for a certain purpose, which were filled in and transferred by the agent to the plaintiff payee for the agent’s own benefit. It will be noted that the annotator (A. L. R., supra, p. 1229) also thinks that the court in Parsons v. Utica Cement Mfg. Co., supra, overlooked the last sentence, of section 59 in reaching its conclusion. Defendants, in support of their argument against the instant contention of plaintiff, rely upon this last case. The Connecticut statute is like our own, and yet the court, in quoting it (82 Conn. 333, 336), omitted that part of it which was all-important to a correct decision of the question before it. We hold that under the admitted facts of the case at bar section 59 cast the burden of proof upon defendants to show that plaintiff was not a holder in due course. We agree with the North Dakota court (Farmers’ State Bank of Dickinson v. Koffler, supra) that “unless this last sentence is so interpreted, it is difficult, if not impossible, to give it any reasonable meaning.”

Defendants contend that even if the instruments were negotiable, “the payment, on demand to Mayan-lake, without notice of plaintiff’s possession of the instruments sued upon in this action, after taking security from Mayanlake, subrogated the defendants to the right of Mayanlake against plaintiff and this right can be set off in this action,” We find no merit in this contention. In their argument defendants seek to interpose a defense which might, in certain proceedings wherein the Mayanlake Candy Company was a party, be available to that company but which cannot be relied upon by the defendants in the instant case. We may add that at the time defendants paid the candy company the latter did not have possession of the bonds and therefore defendants paid them at their peril. Defendants recognized this principle of law and they demanded, and were furnished, an indemnity bond before they would make payment.

Plaintiff contends that there should be a judgment in this court for plaintiff for the amount of her claim. After a careful consideration of this contention we have reached the conclusion that justice will be best served by a retrial of this cause.

The judgment of the superior court of Cook county is reversed and the cause is remanded.

jReversed and remanded.

Gridley and Keener, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    John A. Eck Company for the use of Commerce Trust & Savings Bank, Appellant, v. The Pennsylvania Railroad Company, Appellee.
    Gen. No. 34,567.

      Opinion filed March 24, 1931.
    Loucks, Eckert & Peterson, for appellant; Chilton P. Wilson, of counsel.
    Loesch, Scofield, Loesch & Richards, for appellee; Edward M. Burke, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

John A. Eck Company, a corporation, for the use of Commerce Trust & Savings Bank, a corporation, sued The Pennsylvania Railroad Company, a corporation. Defendant filed a plea of non assumpsit and notice of set-off. A jury was waived and the cause was submitted to the trial court on agreed facts. There was a finding in favor of defendant and judgment was entered against plaintiff for costs.' Plaintiff has appealed.

The case was tried upon the following stipulation of facts:

“It is hereby stipulated by and between the parties hereto that on August 15,1928, John A. Eck Company, a corporation, assigned to Commerce Trust & Savings Bank, a corporation, the causes of action set out in the statement of claim herein and that The Pennsylvania Railroad Company received notice of such assignment August 17, 1928.

“That on said days there was due from The Pennsylvania Railroad Company, a corporation, to said John A. Eck Company on said causes of action, the same being actions to recover damage for loss, damage and delay to freight moving in interstate commerce the total sum of $1,063.99.

“That on said date there was due from said John A. Bek Company, a corporation, to The Pennsylvania Railroad Company, a corporation, as and for freight charges on freight moving in interstate commerce the sum of $1,127.38 as shown by itemized statement hereto attached and made a part hereof, which gives the date of hauling each shipment listed thereon and the completion of which hauling was not later than fifteen (15) days thereafter. None of said shipments are the same as any of the shipments out of which any of plaintiff’s claims arise.

“That more than four months after the assignment aforesaid and previous to the commencement of this suit, said John A. Bek Company was adjudicated and discharged as bankrupt in the District Court of the United States, for the Northern District of Illinois, Eastern Division; that said Pennsylvania Railroad Company filed its claim for the aforesaid freight charges in said bankruptcy proceedings but that no dividend was ever paid on aforesaid outstanding freight charges and its cause of action thereon against said John A. Bek Company is now barred by the discharge in bankruptcy aforesaid. ’ ’

Plaintiff contends that while the present action is, in form, assumpsit, nevertheless, its real character must be determined from the allegations of the declaration; that no breach of contract is alleged in the declaration, and that the right of action, as alleged in the declaration, is based upon the negligence of the defendant as a common carrier, and that therefore it must be held that the action is in case, and plaintiff further contends that set-off cannot be interposed in an action sounding in tort. Defendant contends that a suit against a common carrier of interstate freight for loss, damage or delay to such freight is an action brought on a contract or agreement, for the reason that such suit is based on the bill of lading, which is prescribed by Congress and which must be approved by the Interstate Commerce Commission and the provisions of which may not be waived. In determining this appeal we do not deem it necbssary to pass upon this contention of defendant. Plaintiff filed a praecipe that directed the clerk of the court to issue a summons to defendant “in a plea of trespass on the case upon promises.” The summons calls upon defendant to be and appear before the court to answer unto plaintiff “in a plea of trespass on the case upon promises.” The commencement of the declaration is as follows:

“John A. Eck Company, a corporation, for the use of Commerce Trust & Savings Bank, a corporation, by Loucks, Eckert & Peterson, its attorneys, complains of The Pennsylvania Railroad Company, a corporation, defendant, of a plea of trespass on the case upon promises.”

Count one is as follows:

“For That, Whereas, the defendant, The Pennsylvania Railroad Company, was before and at the time of the, making of the promises hereinafter next mentioned, and still is, a common carrier of goods and chattels for hire, both interstate and intrastate, as its various lines may run, and the plaintiff, by its agent, delivered to the G-reat Northern Railway Company, another common carrier of goods and chattels for hire, at to-wit, Princeton, in the State of Minnesota, on, to-wit, May 10, 1928, certain goods and chattels of the plaintiff, to-wit, 240 sacks of potatoes, to be taken care of and safely and securely transported by the said G-reat Northern Railway Company and its connecting carriers in and by car FG-E 18632, which said equipment was furnished by the said G-reat Northern Railway Company from Princeton in the State of Minnesota, to, to-wit, Pittsburgh, in the State of Pennsylvania, and at the last named place to be safely and securely delivered for the plaintiff, and in pursuance thereof the said Great Northern Railway Company and its connecting carriers delivered said goods and chattels to this defendant in the course of said transportation, and while en route as aforesaid and in one of the states of the United States, for safe and secure carriage to Pittsburgh, in the State of Pennsylvania, and in consideration thereof and a certain reward to the defendant in that behalf, it, the defendant accepted said goods and chattels aforesaid for the purposes aforesaid and promised the plaintiff to take care of said goods and chattels and to safely and securely carry the same from the point aforesaid where said defendant received the same, to Pittsburgh, Pennsylvania, aforesaid, and at the last named place to safely and securely deliver the same for the plaintiff, and thereby this defendant became the final or destination carrier, and such a carrier is by Federal statute made liable for all the acts, defaults or omissions of all carriers participating in the said transportation ; but although said carrier, the defendant, received said goods and chattels aforesaid for the purposes aforesaid, it, and all other carriers for which it is responsible, have not taken care of said goods and chattels nor carried the same safely and securely for the plaintiff as aforesaid, nor at Pittsburgh, in the State of Pennsylvania, safely and securely delivered the same for the plaintiff, but on the contrary thereof the defendant and said carriers so negligently behaved themselves with respect to said goods and chattels that they were decayed, mashed and deteriorated when delivered by the said defendant, whereby said goods were greatly damaged and lessened in value in the amount of Sixty-two Dollars and twenty-six cents ($62.26), said sum being the difference in value of the said goods and chattels had they been delivered safely and securely, and the value thereof in the condition in which said defendant delivered said goods and chattels.

“Plaintiff further avers that its claim for the damages aforesaid is now wholly due, owing and unpaid; that plaintiff filed its claim for said damages in writing with defendant within six months after said delivery to-wit, July 16, 1928, and as provided by law.

“Plaintiff further avers that after said delivery and the accrual of said claim and cause of action and after the aforesaid filing of the claim for damages, and prior to the institution of this action and on, to-wit, August 1,1928, and for a good and valuable consideration, the plaintiff assigned said claim and cause of action to the Commerce Trust & Savings Bank, a corporation, and said bank is now the owner and holder thereof; and this action is brought by the plaintiff for the use of said Commerce Trust & Savings Bank, a corporation, to whom the aforesaid damages are owing.” The declaration contains additional counts that cover thirty-two other shipments, but it is conceded that all of these counts are similar to count one save as to amount and kind of property, place of origin, place of destination, name of initial carrier and amount of damage. Defendant filed only one plea, non assumpsit. It also filed a notice of set-off under the plea, in which it is alleged (inter alia) that prior to the time the cause of action was assigned to the Commerce Trust & Savings Bank “there was due from the John A. Eck Company to The Pennsylvania Railroad Company as and for freight charges on freight moving in interstate commerce the sum of $1127.38, and defendant herein desires to set-off said freight charges against the amount due from it for the loss, damage and delay to freight moving in interstate commerce as set forth in plaintiff’s declaration.” ‘

In Hinchcliffe v. Wenig Teaming Co., 274 Ill. 417, 423-4, it is said: “As in the case of common carriers of passengers, a common carrier of goods and merchandise may be sued for an injury to merchandise damaged by his negligence, either in assumpsit for breach of the contract, express or implied, to carry the goods safely, or he may be sued in an action on the case for the wrong. (3 Hutchinson on Carriers, —3d ed. — sec. 1403; Chudnovski v. Eckels, 232 Ill. 312.) Manifestly, the allegations in the declaration in either form of action, in a case of this kind, would be substantially the same, the only difference in the form of the declaration being a technical one as to stating the form of the action.” The count in question is substantially in accord with the one ordinarily used where the carrier is sued in assumpsit. (See Puterbaugh’s Common Law Pleading & Practice, 10th ed., p. 222.) It is conceded that the form of the present action is assumpsit. The count in question is entirely consistent with a count in assumpsit. Defendant was called upon to plead in assumpsit and its plea of non assumpsit was not challenged by plaintiff. Under our liberal statute of amendments plaintiff had the right, before judgment, to change the form of the action, but it did not do so. Its contention that count one should be treated as a count in case is born of a desire to prevent defendant from interposing its set-off, and it cannot prevail under the pleadings and record in the case. If count one were not consistent with a count in assumpsit a different question would be presented.

Chap. 110, sec. 47, Cahill’s Ill. Rev. St. 1929, 47, reads as follows:

‘ ‘ The defendant in any action . . . brought upon any contract or agreement, either express or implied, having claims or demands against the plaintiff in such action, may plead the same, or give notice thereof, under the general issue or under the plea of payment, and the same, or such part thereof as the defendant shall prove on trial, shall be set-off and allowed against the plaintiff’s demand, and a verdict' shall be given for the balance due. ... No such claim or demand shall, be allowed under a notice under the general issue or under a plea of payment, unless the nature of such claim or demand is clearly and explicitly described in such notice or plea. If it shall appear that the plaintiff is indebted to the defendant, the jury shall find a verdict for the defendant and certify to the court the amount so found, and the court shall give judgment in favor of such defendant, with the costs of his defense. If the cause is tried by the court, the finding and judgment shall be in like manner.”

Plaintiff’s only other contention is that as “the plaintiff sues as for unliquidated damages the defendant cannot maintain set-off for liquidated damages, arising out of transactions different from, those upon which plaintiff seeks to recover.” Plaintiff concedes that it is unable to find an Illinois decision that sustains its contention. Several decisions of sister states are cited, but it is unnecessary to consider these, as set-off and counterclaim are entirely the subject of statutory regulations. In the late case of Duncan Lumber Co. v. Leonard Lumber Co., 332 Ill. 104, 106-7, the court says: “Our statute (Cahill’s Stat. 1927, chap. 110, sec. 47, p. 1948) authorizes a defendant ‘having claims or demands against the plaintiff in such action, ’ to plead the same, etc. That statute has been construed in numerous cases by this court to not authorize unliquidated damages arising out of a contract, not connected with the subject matter of the plaintiff’s suit, to be set off against the plaintiff’s claim. (Hawks v. Lands, 3 Gilm. 227; Sargeant v. Kellogg, 5 id. 273; DeForrest v. Oder, 42 Ill. 500; Robison v. Hibbs, 48 id. 408; Clark v. Dutton, 69 id. 521; Clause v. Bullock Printing Press Co., 118 id. 612; Higbie v. Rust, 211 id. 333.)” (Italics ours.) It has never been held in this State, so far as we are aware, that liquidated damages arising out of a contract not connected with the subject matter of the plaintiff’s suit could not be set off against the plaintiff’s claim. By inference, at least, the contrary has frequently been held. Plaintiff’s construction of section 47, in our opinion, does violence to the plain intent of the act, and in practice would emasculate what was intended to be a useful remedy for a defendant sued in assumpsit. We hold that the instant contention of plaintiff is without merit.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Gridley and Kerher, JJ., concur.


text:
    Elsie M. Schultz, Appellee, v. Andrew Charleston, Appellant.
    Gen. No. 34,676.

      Opinion filed March 24, 1931.
    MoElroy, Ehrhardt & Quigley, for appellant; Hymen S. Gratch, of counsel.
    Francis J. Sullivan, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Elsie M. Schultz, plaintiff, sued Andrew Charleston, defendant, in the municipal court of Chicago in a fourth class contract action. The case was tried by the court and there.was a finding against defendant, and plaintiff’s damages were assessed at the sum of $270. Judgment was entered on the finding and defendant has appealed.

Plaintiff sued to recover for rent alleged to be due her for certain premises, under a written lease dated April 16,19'28, and for $20 attorney’s fees, as provided in the lease. Defendant, in his affidavit of merits, denies “that there is any money due plaintiff as lessor from defendant as lessee for the premises mentioned in the plaintiff’s statement of claim under a lease dated April 16, 1928,” and further denies “that there is any lease dated April 16, 1928, or any other date to said premises in which plaintiff is named as lessor and defendant as lessee.” Plaintiff offered in evidence a lease dated April 16, 1928, “between Andrew Charleston party of the first part, lessor and Elsie M. Schultz party of the second part, lessee,” for the premises: “Flat number second flat on the second floor of building known as 1739-41 Gregory Str. including one car private stall in garage,” which was signed by plaintiff, by “Richard A. Schultz, Mgr., ’ ’ and defendant. The undisputed evidence shows that plaintiff owned the premises in question and that from May 1, 1928, to the latter part of October, 1928, defendant occupied them as tenant and during that entire period paid $90 a month rent to Richard A. Schultz, the father of plaintiff and her agent, and that in the latter part of October, 1928, defendant moved from the premises, whereupon plaintiff put a “For Rent” sign on the premises and tried to rent the same. Defendant admitted signing the lease and that from May 1, 1928, until the latter part of October, 1928, he lived in the premises described in the lease and that “the rent for the flat was $90.00 a month. From May, 1928 up to and including October, 1928, I paid the rent to Richard A. Schultz for Elsie M. Schultz. I did not pay after October, 1928.” When plaintiff offered the lease in evidence defendant objected to its admission upon the following grounds: “The lease offered here in evidence is not the lease sued upon; there is a variance, and parol or extrinsic evidence is not admissible to show that Elsie M. Schultz is the lessor and Andrew Charleston is the lessee, as that would be varying the terms of a written instrument. That is our only contention in this case.” The lease was admitted in evidence.

Defendant contends that before plaintiff can sue him for rent, under the lease, it is necessary for plaintiff to have a court of chancery reform the lease, and that therefore the trial court erred in admitting it in evidence over the objection of defendant.

That defendant owes rent under the lease, if the lease can be enforced in the present proceeding in law, is not disputed. In his argument defendant does not question that plaintiff, as a matter of fact, was the lessor and defendant the lessee of the premises and that the scrivener made a mistake of fact in naming defendant as the lessor and plaintiff as the lessee, but he takes the bold position that before plaintiff can obtain a judgment against Mm under the lease, she must go into a court of chancery and have the lease reformed; that the instant mistake, however obvious it may be from the evidence in the case, cannot be disregarded by a court of law, “unless from other parts of the instrument, there can be no doubt of the intention of the parties.” The second clause of the lease states “that he has examined and knows the condition of said premises and has received the same in good order and repair,” etc. The fourth clause states “that he will not allow said premises to be used for any purpose that will increase the rate of insurance thereon,” etc. The tenth clause'states “that he will not permit anything to be thrown out of the windows, or down the courts or light shafts in said building,” etc. The lease was signed for Elsie M. Schultz by “Richard A. Schultz, Mgr.” and it provides that the rent shall be payable in monthly instalments of $90 each in advance, upon the first day of each and every month of said term, “at the office of Richard A. Schulte, Manager.” On the back of the lease plaintiff appears as the lessor and defendant as the lessee. We do not hesitate to hold, especially in view of the admissions of defendant in this case, that the lease is ambiguous on its face as to who was the lessor and the lessee and that therefore parol evidence was admissible to clear up the uncertainty. It will be noted that the parol evidence introduced as to which one of the subscribing parties to the lease was, in fact, the lessor and which one was the lessee, did not involve a disputed question of fact, and that defendant’s admissions, alone, made clear the uncertainty in the lease. “The object in construing a lease is to ascertain and give effect to the intention of the parties, without regard to the refinements of technical distinctions, in so far as'that may be done without contravention of legal principles. The intention of the parties is to be gathered from the words which have been employed in connection with the subject matter, the object and purpose of the lease, and the surrounding circumstances.” (35 C. J. 1175.) “In giving effect to the intention of the parties as indicated by the instrument, particular words may sometimes be supplied, substituted, or transposed.” (Ib. 1179. Italics ours. See also Ayers v. Heustess, 94 Ark. 493, 127 S. W. 957; Union Water Power Co. v. Lewiston, 95 Me. 171.) “Where the language of a lease is ambiguous, the intention of the parties may be ascertained by a consideration of the' surrounding circumstances existing at the time of its execution. For this purpose the court will place itself as nearly as possible in the position of the parties when the instrument was executed. Where the language of the deed is ambiguous, the court may consider the situation of, and the relations between, the parties; the situation, character and surroundings, and the condition, of the property ; also the object of the lease, or the purpose which the parties sought to accomplish. . . . Where there is uncertainly or ambiguity as to the meaning of any provisions of the lease, the practical construction put upon such provision by the parties to the lease should be given due weight by the court in construing the lease.” (35 C. J. 1180, and cases cited. See also Rector v. Hartford Deposit Co., 190 Ill. 380, 384.) “Where, by an obvious error, the parties (to a contract) are misdescribed, although the true sense of the contract is apparent, it will be given the effect intended, as, for example, where, by an evident transposition, the words ‘parties of the first part’ are used for ‘parties of the second part.’ ” (13 C. J. 573, and cases cited. See also Castelli v. Burns, 140 N. Y. S. 1057.) In Union Water Power Co. v. Lewiston, supra, the court, in holding that in interpreting the lease in question certain words in it should be transposed, said (p. 178): “To effectuate the intentions of the parties, the contract should be read as ‘pumping and distributing the said water from the said river or from Wilson Pond.’ Such transposition of the words of the lease will effectuate the evident intention of both parties, at the time the lease was executed, and is in harmony with the general scope, spirit and purpose of the lease. An opposite construction would defeat the object for which Lewiston paid $200,000, and allow an unconscionable advantage to the plaintiff. ” “ ‘ The intention of the parties may be ascertained by evidence of extrinsic circumstances which surround the transaction; the court thereby placing itself in the situation of the contracting parties whose language it is called upon to construe. The circumstances and situation of the parties thus become a medium through which their intentions may be discovered.’ Corbett v. Berryhill, 29 Iowa, 160.” (Rapp v. Linebarger, 149 Iowa 429, 434.) “It is not the policy of courts to give such a construction to contracts as will defeat the ends of justice upon a technical question, but rather enforce contracts according to the intention of the makers thereof, when, as in this case, the intent is so apparent.” (Massie v. Belford, 68 Ill. 290, 292.) “Inaccuracy of language which results from inserting a word not meant, or using the wrong word, will not be permitted to defeat the intention, when it can be distinctly ascertained. (Bishop on Cont. sec. 383.)” (Packer v. Roberts, 140 Ill. 9, 16.)

There is another strong reason why the contention of defendant is without merit. The evidence of both parties shows that plaintiff was the landlord and defendant the tenant, that there was a mistake made in the lease, and that it was intended that plaintiff should be named therein as lessor and defendant as lessee. Under such a state of the proof it would be a serious reflection upon the law if it should compel plaintiff to have the lease reformed by a court of chancery before it would give a judgment against defendant for the amount of the rent that defendant admits will be due plaintiff when the lease is reformed.

The judgment of the municipal court of Chicago will be affirmed.

Affirmed.

Gt.idlby and Kerwer, JJ., concur.


author: Mr. Justice Gridlet

text:
    Dr. A. L. Stapler, Defendant in Error, v. Max Brownstein, Plaintiff in Error.
    Gen. No. 34,511.

      Opinion filed March 24, 1931.
    H. A. Earnhardt, for plaintiff in error.
    Meter H. Weinstein and James F. Wright, for defendant in error; Edward W. Rawlins and George A. Schneider, of counsel.
   Mr. Justice Gridlet

delivered the opinion of the court.

By this writ of error defendant seeks to reverse a judgment against him for $250, rendered after a trial without a jury in October, 1929.

Plaintiff’s claim of $250 was for medical services in the treatment of defendant’s fractured leg from August 21, 1927, to September 26, 1927, at the Lake-view Hospital, Chicago. On the trial plaintiff was the only witness in his behalf and defendant testified, as did his brother, Sidney Brownstein, and Dr. Robert O. Ritter, for him. Certain X-ray pictures were introduced.

From plaintiff’s testimony the following facts appear in substance: Plaintiff was a practicing physician and surgeon of over 17 years’ experience with office in Chicago, and was also an attending surgeon at the hospital for “bone cases.” He had no control over the management of the hospital. He was acquainted with defendant and when the latter was brought to the hospital, on the afternoon of August 21, 1927, immediately following his accident, he requested that plaintiff “take care of him.” Upon examination then made, and the taking of X-ray pictures, plaintiff found that each of the bones — the tibia and fibula— of defendant’s right leg was broken. On the following day plaintiff, with the assistance of two internes (employees of the hospital), Doctors Zeller and Walsh, attempted to reduce the fractures by weights and manipulation, but without success because “a piece of muscle had gotten attached between the two bones.” Defendant was informed of this and that in plaintiff’s opinion the bones could not be put into place without a surgical operation, which defendant consented to. The usual preparation for the operation was made by Doctor Reichman (another interne and employee of the hospital), but not in plaintiff’s presence. Reich-man shaved defendant’s leg, applied a solution of iodine, washed it off with alcohol and bandaged the leg. On the afternoon of August 23rd, plaintiff visited defendant, and, upon removing the bandage, found blisters on the leg, caused by the iodine. He dressed the leg with salve, wrapped it up again, and, because of its then condition, postponed the operation. During several following days he personally applied healing solutions, etc. Early on Saturday morning, August 27th, he examined the leg, found that the blisters had “flattened out” and that the leg was in such condition that he could safely operate, and, with the assistance of the three internes, performed the operation, during which he “reduced the fracture of the tibia,” “applied a plate over the anterior surface,” “sewed up the wound” and “applied antiseptic dressings and put on a splint and bandages,” etc. Thereafter defendant remained in the hospital, receiving almost daily treatments from plaintiff, until September 26, at which time the wound had not fully healed and required further treatments. On that day, upon the insistence of defendant’s brother and against plaintiff’s advice, defendant was removed from the hospital, taken to another one and put under the care of Dr. Ritter. Plaintiff further testified that a fair and reasonable charge for the services he had rendered to defendant was $250, and this testimony was undisputed. Plaintiff further testified that when defendant was about to leave the hospital he stated to him (plaintiff) that “he was thoroughly satisfied with the treatment I gave him but that he was neglected by the internes.” When defendant was on the stand he did not deny making the statement. Plaintiff further testified that the application of iodine was usual and customary, that ordinarily such application would not cause blisters, but that “it just happened that he (defendant) had an idiosyncrasy or susceptibility to antiseptics.” This testimony also was undisputed.

The gist of defendant’s defense, as shown by his testimony, was (1) negligence in using a too strong iodine solution, causing the blisters,, and (2) malpractice in performing the operation before the blisters had fully healed, causing infection. He contended that because of this negligence and malpractice plaintiff should not be allowed to recover anything for his services.

Dr. Bitter testified in substance that immediately after defendant’s removal to said other hospital, he for the first time examined the leg; that there was “a raw, sloughing skin on the calf of the leg,” which he “cleaned as best he could” and put on fresh dressings; that he found “ulcers — sort of sloughing ulcers” on the calf of the leg, also “two very small discharging sinuses on the front part of the leg, over the shin bone”; that an X-ray picture, then taken, showed a screw plate across the line of the fracture of the tibia; that he removed the plate and applied an antiseptic dressing; that “apparently” there was then no bony union of the bones of the tibia,- — “that is, solid enough to be demonstrable by examination”; that there was at the time “some serous discharge through those small sinuses,” which “was not pus, but a thin serous fluid that oozes out from tissue”; that thereafter he applied various dressings “as the case seemed to indicate from time to time”; that at two different times he “put on small pinches of skin over two of the areas that had sloughed”; that defendant remained in said other hospital for about seven weeks, during which period he (Bitter) from time to time continued to treat the leg; that when defendant was discharged from the hospital the skin ulcers had all practically healed; and that on the day before the trial, upon an examination of the leg, he found it “covered with scars, wherever these sloughing areas of the skin had been.” A long hypothetical question, based largely upon the testimony given by defendant (not skilled in the science of medicine or surgery) and much at variance with the testimony given by plaintiff, was put to the witness, and he was asked if he had “an opinion as to whether the treatment given at the Lakeview Hospital to the hypothetical man, and to his leg, was done with reasonable skill and diligence.” Over the objection of plaintiff’s attorney the witness was allowed to answer that he had an opinion, and that his opinion was that “it (evidently meaning the leg) was not healed as completely as they thought it was, when it was operated upon.” The motion of plaintiff’s attorney to strike out the answer was denied. The witness was further asked: “Was it commensurate with reasonable skill to operate or to make an incision in that leg if it was raw from the blisters?” and the witness was allowed over objection to answer: “No; I wouldn’t operate through a raw, infected surface.” The court allowed the answer to stand. Subsequently the witness qualified his answer by stating that he would operate under such conditions “only if there was some occasion of emergency that made it necessary to go through an infected surface.”

The transcript further discloses that plaintiff offered testimony of several witnesses in rebuttal to that of defendant and Dr. Bitter, but that the court refused to allow them to testify, saying that he had determined to make a finding for plaintiff for the full amount of his claim, which. was then entered, followed by the judgment in question.

The main contention of counsel for defendant is that the court’s finding is so contrary to the weight of the evidence that a new trial should be awarded. We cannot agree with the contention. On the contrary we think that -the finding is sustained by a clear preponderance of the evidence.

And we do not think that the finding and judgment are against the law. It is not disputed that plaintiff was a skilful physician and surgeon, having had much experience in the treatment of, and in the operating upon, fractured legs and limbs. In Sims v. Parker, 41 Ill. App. 284, an action for damages against a physician for claimed malpractice, it is said (p. 286): “Proof of a bad result or of a mishap is of itself no evidence of negligence or lack of skill. . . . Before a recovery could be had against him, it must be shown that his treatment was improper or negligent, not merely that he was mistaken, or that his treatment resulted injuriously to plaintiff. A physician or surgeon, or one who holds himself out as such, is only bound to exercise ordinary skill and care in the treatment of a given case, and in order to hold him liable, it must be shown that he failed to exercise such skill or care. (McNevins v. Lowe, 40 Ill. 209.)” These principles are applicable, we think, where one is defending an action by a physician or surgeon for his fees because of claimed negligence or malpractice. In the present case there is no evidence that plaintiff did not exercise ordinary skill and care in his treatment of, or in the operation upon, defendant’s leg, and there is not sufficient evidence that plaintiff’s said treatments were improper or negligent under the circumstances. The fact that the application of the iodine solution by the interne and employee of the hospital caused blisters to appear is no evidence of negligence or malpractice on the part of plaintiff, especially as it appears that it was the usual practice and usage, in the hospital where defendant then was, for an interne to apply such a solution prior to a contemplatéd operation by a surgeon. Even if it could be said that the solution was too strong or was negligently applied by the interne (of which there was no evidence except that blisters appeared) plaintiff should not be held responsible for such negligence of the interne (if any there was) under the circumstances disclosed. (Harris v. Fall, 177 Fed. 79, 85; Hunner v. Stevenson, 122 Md. 40, 62; Guell v. Tenney, 262 Mass. 54, 55-6; Olander v. Johnson, 258 Ill. App. 89, 98.)

For the reasons indicated the judgment of the municipal court is affirmed.

Affirmed.

Scanlan, P. J., and Kerher/ J., concur.


author: Mr. Justice Gridley

text:
    Arvle Sowers, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 34,604.
    Opinion filed March 24, 1931.

      Vernon IV. Foster, Feed H. Montgomery and Herbert J. Deany, for appellant; Edward C. Craig, of counsel.
    George S. Foster and Edward J. Green, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

By this appeal defendant seeks to reverse a judgment for $3,500, rendered against it after verdict on April 26, 1930, in an action for damages for personal injuries received by plaintiff on the morning of February 7, 1928, as the result of his automobile (which he was driving) being struck by the engine of defendant’s southbound freight train at the Foster Street grade crossing in the Village of Ullin, Illinois.

The original declaration, filed August 6, 1928, consisted of four counts. The first charged general negligence in the operation of the train; the second negligence in failing to keep a proper lookout on the engine; the third negligence in failing to give to plaintiff any warning of the train’s approach; and the fourth negligence in failing to cause the bell and the steam whistle on the engine to be rung and sounded as the train approached the crossing. On January 30, 1930, plaintiff by leave of court filed eight additional counts. In all twelve counts he averred that at and prior to the time of accident he was in the exercise of due care for his own safety. To all counts defendant pleaded the general issue.

In the first additional count plaintiff alleged in substance that about in the center of the Village of Ullin defendant used and maintained for its right of way four (4) railroad tracks, running north and south and crossing Foster Street, an east and west public highway; that the most westerly track is the “house” track, and next to the east the “passing” track, and next the “southbound” main track, and next the “northbound” main track; that north of Foster Street and immediately east of the tracks is defendant’s depot, and immediately west of the tracks are certain buildings; that on February 7, 1928, about 7 o’clock in the morning, the crossing “was shrouded in darkness in a heavy mist and fog”; that plaintiff was driving his automobile easterly in Foster Street and attempting to cross the tracks; that besides the mist and fog his view to the north was obstructed by the buildings immediately west of the tracks and by “a loaded coal car and a number of box cars,” then standing on the “house” or “passing” tracks and north of and near to Foster Street; that just before reaching the tracks, and while slowly crossing said two tracks he “at all times kept a constant lookout and listened for the approach of a train,” but neither saw nor heard one; that as he was about to cross the third or ‘ ‘ southbound” track, defendant so negligently operated its engine and freight train southerly on said track, and at such a high and dangerous rate of speed, that a part of the engine struck the left front wheel of plaintiff’s automobile, hurling it backwards and to the southwest with great force; and that thereby plaintiff suffered serious injuries and his automobile was damaged.

In the 2nd, 3rd, 4th and 5th additional counts similar allegations are made, except that the negligence severally charged is operating the train without warning to plaintiff, through mist and fog, without having it under proper control, and without ringing a bell or sounding a whistle. The 6th and 7th counts are based upon claimed violations of General Order No. 119 of the Illinois Commerce Commission in connection with certain municipal ordinances of the Village of Ullin. The 8th is based upon a claimed violation of General Order No. 123 of said Commission in connection with a certain statute.

On the trial plaintiff was the only witness called in his behalf as to the happening of the accident. He was taken to a hospital in an unconscious condition and did not recover consciousness for three days. He testified that at first he did not remember anything about the accident and that it was “perhaps six months before my memory came back as to how the accident happened.” The present action was begun on July 23, 1928, less than six months after the accident. The only other eyewitnesses to the accident were the engineer of the locomotive, Jensen, and a young boy named Taube, called by defendant. Many other witnessés testified. Their testimony related largely to physical conditions at the time, the speed of the train, and whether or not a whistle was sounded and the bell kept ringing as the train approached the crossing. A map or plat, drawn' to a scale, of the tracks, buildings, surroundings, etc., as well as" several photographs of the scene of the accident taken shortly thereafter, were introduced in evidence. At the close of plaintiff’s evidence and again at the close of all the evidence defendant’s motions for a directed verdict in its favor were severally denied. After the verdict defendant’s motion for a new trial was denied and the judgment entered. At the time of the hearing of the motion defendant contended, and here contends, that the verdict is manifestly against the weight of the evidence and particularly on the question of plaintiff’s contributory negligence.

As to the physical conditions it appears that the four tracks and crossing were located as alleged in the first additional count; that one freight car for carrying coal was standing on the “house” track (most westerly) about 50 feet north of Foster Street; that there were no cars on the “passing” track; that of the buildings west of the “house” track and north of Foster Street, the most southerly was about 100 feet north of Foster Street;'that defendant’s depot, just east of the tracks, was about 450 feet north of Foster Street; that it was daylight; that in daylight and under ordinary weather conditions a person, standing about in the center of Foster Street at a point 100 feet west of the “southbound” main track, could see an approaching train on that track 250 feet north of Foster Street, even though a coal car was standing on the “house” track in the position as above stated; that at a point 50 feet west of the “southbound” track he could see an approaching train about 570 feet away, north of Foster Street; and that at points 20 and 10 feet west of the “southbound” track he could see a train approaching on that track about 2,000 feet away, north of Foster Street. The distance from the west rail of the “house” track to the west rail of the “southbound” track is 26 feet, and the distance from the west rail of the “passing” track to the west rail of the “southbound” track is 14 feet.

It appears from plaintiff’s testimony that Ullin is a village of about 650 inhabitants and he had resided there for about 39 years. His home was on Foster Street about one block west of the tracks. He was employed as a printer in the town of Mounds, a few miles distant from Ullin, to which place he usually went in his automobile early each morning, crossing the tracks at Foster Street, and returned each evening by the same route. He was thoroughly familiar with the crossing and with the passing and switching of trains, was an experienced driver of automobiles and his hearing and eyesight were good. On the morning in question he started from his home in his Ford touring car. There were old curtains on the left side of the car, which did not come together, and he could easily see to the north, in front, and also to the south. He had recently had the brakes on the car repaired and they were in good condition. He further testified in substance that the morning "was cloudy and foggy and it had been raining; that he “could hardly see more than two blocks”; that as he approached the tracks, about in the center of Foster Street, he was moving east at a speed not in excess of 10 miles per hour; that when about 50 feet from the tracks he stopped his car, and listened and looked both to the north and to the south and could neither hear nor see an approaching train, and he started again; that when he was about over the “house” track, and before he had reached the “passing” track, he again stopped his car and again listened and looked to the north and to the south, but neither heard nor saw any approaching train; that he then could see defendant’s depot east of the tracks, which he estimated was about 500 feet away from where he then was; that he again started his car and slowly proceeded to cross the “passing” track, and continued to listen and look both to north and south; that suddenly, when he had about crossed the “passing’’ track, and was about six to eight feet from the “southbound” track, he heard a “rumbling noise from the north,” looked and saw defendant’s train, then about even with the depot, rapidly approaching on the “southbound” track from the north; that his car then was moving at the rate of about four or five miles per hour; that he applied his brakes and “used the reverse clutch,” stopped the car, unsuccessfully tried to back it, and stood up and tried to get out of the car; that as he was doing so the head of the right cylinder of the locomotive struck the left front wheel of his car and it was thrown backwards and towards the southwest and he was violently thrown out and upon the ground; and that then he lost consciousness.

Defendant’s witness, Taube, testified in substance that he saw the accident from a second floor window of the house where he lived, about 250 feet away; that he heard the whistle of the locomotive, saw a portion of the approaching train and saw “Mr. Sower’s automobile” approach the tracks and attempt to cross them; and that while doing so the automobile “did not stop,” and the locomotive hit it.

Defendant’s witness, Jensen, the engineer on the locomotive and of 28 years’ experience, testified in substance that the locomotive was of the largest and latest improved type, equipped with a bell weighing about 100 pounds and which could be set to ring continuously, a standard whistle and automatic air brakes; that it was pulling 100 empty freight cars; that at the time of the accident the train was moving south at. the rate of about 20 miles per hour; that before the locomotive had reached defendant’s depot at Ullin the bell had been set to ring and did ring continuously up to the time of the accident and after; that just north of the depot there was a whistle post for the Foster Street crossing; that as he reached the post .he sounded the whistle, two long and two short blasts, which were completed as he was passing the depot; that he first saw plaintiff’s automobile just after he had passed the depot; that it was then moving slowly and crossing over the “house” track — the most westerly; that he thought it was going to stop, but it did not and continued to move slowly on to the “passing” track; that he “put his hand on the whistle” and, seeing that the automobile was still moving and getting too close to the “southbound” track, he “commenced blowing short blasts of the whistle” and applied the brakes; that the pilot of the locomotive hit the automobile and “pitched it clear over the ‘passing’ track on to the ‘house’ track,” and plaintiff was thrown out and “his head hit the rail of the ‘house’ track”; that the train was stopped after about 20 or 25 of the cars were south of the crossing; that he (the witness) went back to the crossing, leaving the fireman (who had not witnessed the accident, being on the other side of the cab) in charge of the engine; that afterwards he (the witness) gave hand signals to the fireman to move forward and “cut the crossing” and the fireman obeyed the signals. Defendant’s witness, Kelly, the fireman, testified that from where the locomotive then stood (over 1,200 feet south of the crossing) he “plainly saw” the engineer’s signals and acted accordingly, and that the bell on the engine was still ringing. Other evidence of defendant clearly showed that when plaintiff had driven his automobile as far east as upon the “house” track, and before he had reached the “passing” track, he had an unobstructed view of the “southbound” track to the north for a distance of over 1,500 feet from the crossing.

From all the evidence we are of the opinion that the jury’s verdict, particularly on the question of plaintiff’s contributory negligence, is manifestly against the weight of the evidence, that defendant’s motion for a new trial should have been granted, and that the judgment appealed from should not be allowed to stand. In Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627, 631-2, it is said: “It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence. . . . One who has an unobstructed view of an approaching train is not justified in closing his eyes or failing to look, or in crossing a railroad track in reliance upon the assumption that a bell will be rung or a whistle sounded. . . . The law will not tolerate the absurdity of allowing a person to testify that he looked but did not see the train when the view was not obstructed, and where, if he had properly exercised his sight, he must have seen it.” (See, also, Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154, 159; Chicago, P. & St. L. Ry. Co. v. DeFreitas, 109 Ill. App. 104, 106; DeBow v. Cleveland, C., C. & St. L. Ry. Co., 245 Ill. App. 158, 164; Goodman v. Chicago & E. I. Ry. Co., 248 Ill. App. 128, 135.)

For the reasons indicated the judgment of the superior court is reversed and the cause remanded.

Beversed and remanded.

Scanlan, P. J., and Keener, J., concur.


text:
    Josephine Kostlan, Appellee, v. Joseph Pavelka, Appellant.
    Gen. No. 34,622.
    Opinion filed March 24, 1931.
    Rehearing denied April 6, 1931.
    John R. McCabe and Harry Hoffman, for appellant; Clyde C. Fisher, of counsel.
    William C. Greatman, for appellee; Henry A. Steinberg, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On April 4, 1930, plaintiff commenced an action in replevin in the circuit court to recover the possession of a certain described Pierce-Arrow automobile, naming as defendants Joseph Pavelka, Otto Albrecht (a constable), Fred Kostlan (plaintiff’s husband) and the Wesley Garage. On the same day the sheriff took the automobile under the writ and delivered it to plaintiff. Service of the writ was had on Pavelka but the other defendants were not served. At the trial without a jury in May, 1930, plaintiff dismissed the cause as to all defendants except Pavelka, who had pleaded non cepit, non detinet and property in himself. A mass of oral and documentary evidence was introduced on behalf of the parties, which, as appears in defendant’s abstract and plaintiff’s additional abstract, we have reviewed. The court found that the right to the possession of the property was in plaintiff, and adjudged that she have and retain the same, etc. From the judgment defendant has appealed.

Some of the facts disclosed on the trial are in substance as follows: In February, 1929, plaintiff as Mrs. Josephine Hruby, a divorced woman, was living at No. 1802 58th court, in Cicero, Illinois. She and Fred Kostlan had become engaged to be married. She owned a Paige automobile. Kostlan said he wished to give to her a new automobile as a pre-wedding gift. Later in the month they went together to the place of business of the Pierce-Arrow Motor Car Co. in Chicago, and selected the car involved in the present litigation at the price of about $3,600. It was arranged that plaintiff would turn in to the Pierce-Arrow Co. her used Paige automobile at an agreed valuation of $400, to be applied in part payment of the purchase price of the new car, and Kostlan separately agreed with the Pierce-Arrow Co. that he would pay $1,600 in cash and give his note for about $1,600, the balance of the purchase price, payable in future instalments and secured by a chattel mortgage on the car. The Paige automobile was turned in, Kostlan made a cash payment and signed the notes and mortgage which thereafter came into the possession of a finance company, Michigan Federal Motor Co., with which the Pierce-Arrow Co. did business. Plaintiff did not join in signing the notes and mortgage, but she probably had knowledge of the making of the mortgage to secure certain payments that were deferred. The new car, bearing her initials “J. H.” was delivered at her residence and thereafter and until her marriage to Fred Kostlan on June 21, 1929, she exclusively used the car. She then and thereafter claimed that the same was her separate property, having acquired it partly by purchase and partly by gift from Kostlan, who became her husband. On July 23, 1929, he was behind in his payments on the car, and the Pierce-Arrow Co., feeling itself insecure, caused Kostlan to sign other papers, including a conditional sales agreement which was offered in evidence but refused admission by the court. Plaintiff did not join in the execution of any of these- papers and it does not clearly appear that she had any knowledge of their execution at the time. The married life of the Kostlans afterwards was not harmonious. In August, 1929, they separated — he leaving her home in Cicero, where they had lived together after the marriage and about this time divorce proceedings were instituted. About February 1, 1930, owing to Kostlan’s failure to meet payments on the car, some new financing was done through one Milton Wilson, doing business as Reliable Finance Corporation. Without the consent of plaintiff, Kostlan, claiming to be the owner, took possession of the car, and executed and delivered new notes and a new chattel mortgage to Wilson, who advanced sufficient money to pay the balance due to the Pierce-Arrow Co. on the former notes and mortgage, and also additional money to Kostlan, and said former notes were paid, — the Pierce-Arrow Co. thereby receiving full payment of the original contract price of the car. Wilson assigned the new notes and mortgage to defendant, Joseph Pavelka, for a consideration of about $1,400, then paid. During March, 1930, through certain foreclosure proceedings or otherwise, Pavelka got possession of the car, and on April 4,1930, it was taken by the sheriff under the replevin writ in the present action and given to plaintiff.

The main ground for a reversal of the judgment, as urged by defendant’s counsel, is the refusal of the court to allow Fred Kostlan to testify as a witness when presented as such by defendant. On his taking the stand and stating that plaintiff was his wife, plaintiff’s attorney objected to his testifying at all, arguing that under section 5 of the Evidence Act he was not a competent witness. The court sustained the objection. In this ruling we think the court erred. In said section 5 of the ikct (Cahill’s St. 1929, eh. 51, ¶ 5, p. 1304) it is provided: “ho husband or wife shall, by virtue of section 1 of this Act, be rendered competent to testify for or against each other as to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of the marriage, or after its dissolution, except in cases where the wife would, if unmarried, be plaintiff or defendant, . . .; and except in cases where the litigation shall be concerning the separate property of the wife, and- suits for divorce; ... in all of which cases the husband and wife may testify for or against each other, in the same manner as other parties may, under the provisions of this Act: Providedetc. On the trial, plaintiff, the wife, claimed that the automobile in question was her separate property and that she was entitled to its possession. In McNail v. Ziegler, 68 Ill. 224, 225, it was held in substance that where a defendant in replevin pleaded that the property replevied from him was the separate property of his wife, the wife was a competent witness, under the provisions of the then existing similar statute, to prove the execution of a bill of sale of the property by the plaintiff to her, and to the fact and manner of payment by her. And it was further held in substance that the then existing statute, making the husband and wife witnesses for and against each other in litigation concerning the wife’s separate property, is not restricted to cases where she is plaintiff or defendant, and where her title is admitted, but is general. In Linkemann v. Knepper, 226 Ill. 473, 477, it is said: “The proposition is too well settled in this State to require extended discussion or the citation of authorities, that the husband may testify in all eases where the litigation concerns the separate property of the wife, unless the wife herself is incompetent by reason of the capacity in which the opposite party sues or defends.” In Marks v. Madsen, 261 Ill. 51, 53, it is said: “The husband of plaintiff was called as a witness and was allowed to testify, over the objection of the defendant. Under section 5 of chapter 51 of the Revised Statutes the husband was competent, because the litigation was concerning the separate property of his wife, and the general objection was properly overruled. Under the proviso of the section he was not competent to testify to conversations of his wife.” In Pain v. Farson, 179 Ill. 185, 195-6, it is said: “Under section 5 of the chapter on evidence and depositions, the husband is a competent witness on behalf of the wife in litigation concerning her sole and separate property. He is also a competent witness in reference to transactions where he has acted as the agent of the wife.” In Kolber v. Frankenthal, 159 Ill. App. 382, where an action for malpractice was brought by a married woman against a physician, it is said: (p. 384): “We are of the opinion that this suit is brought by the plaintiff in her own right, and that •the cause of action is her separate property. This being so, the husband was a competent witness, and in refusing to allow him to testify the court below committed error, for which the judgment must be reversed and the cause remanded. . . . Nor do we think that a specific offer as to what the husband would testify to necessary, where, as in this case, he was excluded as being incompetent to testify.” (Citing Haussknecht v. Claypool, 66 U. S. 431, 435; State v. Thomas, 111 Ind. 515, 518.)

And, after examining the entire admitted evidence, we are not satisfied that the finding of the court is sufficiently supported by a preponderance of the evidence.

For the reasons indicated the judgment appealed from is reversed and the cause remanded.

Reversed and remanded.

Soanlan, P. J., and Keener, J., concur.


text:
    M. Kandl, Appellant, v. Norman N. Kandl, Appellee.
    Gen. No. 34,682.

      Opinion filed March 24, 1931.
    Snyder, McGtiiggan & Sweeney, for appellant; David Snyder and Arthur, Y. Goebel, of counsel.
    Pedderson & Andrews, for appellee; John E. Pedderson, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On February 20, 1930, plaintiff caused a judgment by confession for $318 to be entered in the municipal court against defendant upon a written lease for rent claimed to be due to plaintiff, as lessor, for November and December, 1929, and January, 1930, at $90 per month, or $270. The balance of the judgment, $48, is for attorney’s fees. The lease, dated March 22, 1929, is signed by plaintiff, “by Draper and Kramer, Inc., agents,” and by defendant as lessee, and demises for the stated term a certain described residence apartment in a building in Chicago. On June 26, 1930, on defendant’s motion, supported by his verified petition, the judgment was opened and the petition ordered to stand as an affidavit of merits. On the same day the cause was heard without a jury on a verbal stipulation of facts, resulting in the court finding the issues against plaintiff, and ordering that the confessed judgment be vacated and set aside. Plaintiff prosecutes the present appeal from the judgment order vacating the confessed judgment.

One of the paragraphs of the lease is as follows:

“Sixteenth. The obligation of Lessee to pay the rent reserved hereby during the balance of the term hereof, or during any extension hereof, shall not be deemed to be waived, released or terminated (nor shall the right and power to confess judgment given in clause 'fifteenth’ hereof be deemed to be waived or terminated) by the service of any five-day notice, other notice to collect, demand for possession, or notice that the tenancy hereby created will be terminated on the date therein named, the institution of any action of forcible detainer or ejectment or any judgment for possession that may be rendered in such action, or any other act or acts resulting in the termination of Lessee’s right to possession of the demised premises. The Lessor may collect and receive any rent due from Lessee, and the payment or receipt thereof shall not waive or affect any such notice, demand, suit or judgment, or in any manner whatsoever waive, affect, change, modify or alter any rights or remedies which Lessor may have by virtue hereof.”

It is alleged in defendant’s petition that he was made a defendant in a forcible detainer suit, instituted by plaintiff in the municipal court of Chicago on November 5, 1929; that upon the trial of the suit on November 12, 1929', without a jury, the court entered judgment in plaintiff’s favor for possession of the premises in question; and that in the present action judgment by confession was entered on February 20, 1930, on the lease against defendant for rent for November and December, 1929, and January, 1930, etc.

It is further alleged in the petition that the forcible detainer suit was brought after defendant had received a communication, dated October 31, 1929, and signed by Draper and Kramer, plaintiff’s agents, to the effect that in the future they would expect payment of the. monthly rent of the apartment to be made on the first day of each month, beginning November 1, 1929; that four days thereafter, on November 5, plaintiff, without giving any further notice, instituted the forcible detainer suit; that thereafter defendant went to Draper and Kramer’s office and tendered the November, 1929, rent to them, but “they refused to accept the money, ” — informing defendant that they had been so instructed by plaintiff and also instructed “not to accept any rent for said apartment”; that on November 19, 1929, one week after the judgment for possession had been entered in the forcible detainer suit, defendant received another communication from plaintiff’s attorneys to the effect that he (defendant) “would be allowed to remain in possession, provided he pay the November rent together with court costs, amounting to $8”; but that defendant, when he received the communication and by reason of the entry of said forcible detainer judgment, 11 had already vacated and surrendered the apartment in compliance with that judgment.” And defendant prayed that the confessed judgment be set aside, etc.

The present bill of exceptions discloses that during the trial no formal stipulation of facts was signed, but it was stipulated and agreed in open court in substance that all allegations, as contained in defendant’s petition, be considered as true; that prior to November 1, 1929, defendant, as lessee and occupant of the apartment under the lease, had always paid the monthly rent of $90, but not always on the first day of the month; that the sixteenth clause of the lease is as above stated; that in compliance with the forcible detainer judgment (of which he had notice) defendant moved out of the apartment on November 13th or 14th, ■ — one or two days after the entry of that judgment; and that he was not forcibly dispossessed by any writ of restitution. There is nothing in the agreed facts, except the provisions for the payment of rent in the lease, to show that plaintiff suffered any damages by reason of defendant’s vacation of the apartment on November 13th or 14th, in compliance with the forcible detainer judgment, or to show that, if any damages were suffered by plaintiff by reason of the apartment being vacant for the months of December, 1929, and January, 1930, plaintiff made any efforts to mitigate those damages by securing a new tenant for the apartment for those months.

Considering the stipulated facts as well as the provisions of the lease, we are of the opinion that the finding and judgment were right and that the judgment appealed from should be affirmed.

Counsel for plaintiff, in urging a reversal of the judgment, place great reliance upon the provisions of the sixteenth paragraph of the lease when taken in connection with holdings of our Supreme Court in the cases of Grommes v. St. Paul Trust Co., 147 Ill. 634, and Central Investment Co. v. Melick, 267 Ill. 564, where somewhat similar provisions in a lease were involved. In the Melick case (p. 568), quoting from the Grommes case (p. 643) it is said: “There is nothing illegal or improper in an agreement, that the obligation of the tenant to pay all the rent to the: end of the term shall remain notwithstanding there has been a reentry for default, and if the parties choose to make such an agreement we see no reason why it should not be held to be valid as against both the tenant and his sureties. ... It may not be strictly accurate or correct to call the money to be paid after re-entry rent, or to treat the lease as in force after a re-entry. But the parties have a right to fix the amount of the rent to accrue according to the terms of the lease as the amount of damages to be paid by the tenant in case of a breach of his covenants. It can make but little practical difference whether the sum agreed to be paid be called rent or damages.” But in the Grommes case (p. 644) it is also said: “We do not think that the provision in the lease against a forfeiture of the rents to be paid during the full term can be construed as authorizing the lessor to collect the subsequent rent both from the lessee named in the lease, and also from the tenant, to whom the lessor may re-let the premises. The provision does not contemplate the collection of double rent; but the rent due from the original lessee is to be credited with such rent as is realized from the re-letting. The lessor is entitled to such sum, as shall be equal to the rents required by the terms of the lease to be paid during the full term, and not to any greater sum.” There is nothing in the agreed facts of the present case to show but that plaintiff, after defendant had moved out of the premises in compliance with the forcible detainer judgment, procured a new tenant and has received rent for the months of December, 1929, and January, 1930. Furthermore, it appears that defendant had always paid his rent for the months prior to November, 1929; that after he had received notice that plaintiff had commenced the forcible detainer suit, he immediately saw plaintiff’s agents and tendered to them the November rent, but the tender was refused under plaintiff’s instructions, and said suit thereafter was prosecuted to judgment; that in compliance with the judgment defendant moved out of the premises; and that after he had done so plaintiff’s policy seems to have undergone a change. Under the agreed facts we think that plaintiff should be held to have waived the provisions of the sixteenth paragraph of the lease and to be estopped from collecting any further rent from defendant; and that it should also be considered that plaintiff, in November, 1929, terminated the lease by his own acts. (See Dunn v. Natenberg, 208 Ill. App. 300; Jefferys v. Hart, 197 Ill. App. 514; Johannes v. Kielgast, 27 Ill. App. 576.)

The judgment order appealed from should be affirmed and it is so ordered.

Affirmed.

Scanlan, P. J., and Keener, J., concur.