text:
    Leroy E. Anderson and Lillie C. Anderson, Appellees, v. W. B. Mitchell, Appellant.
    Gen. No. 33,305.

      Opinion filed June 26, 1929.
    Peden, Kahn & Murphy, for appellant; Gerald Ryan, of counsel.
    Sohnackenberg & Hansen, for appellees; Elmer J. Sohnackenberg, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Plaintiffs, Leroy E. Anderson and Lillie C. Anderson, were the owners of a certain piece of property at 10550 Avenue M., Chicago, Illinois, together with a two-story frame building located upon the premises. The defendant Mitchell was a contractor, engaged in erecting a two-story brick building on the adjoining premises. On the evening of November 17, 1926, between the hours of five and six o ’clock, the north wall of the building which was being erected by the defendant collapsed and part of it fell into the yard of the plaintiffs, breaking windows in the building belonging to the plaintiffs and doing considerable damage. The cause was tried before a jury, resulting in a verdict in favor of the plaintiffs in the sum of $591.60, and judgment was entered upon the verdict, from which judgment an appeal has been perfected to this court.

Upon the hearing plaintiffs introduced in evidence, and it was admitted over objection, a certain itemized statement of damage sustained and the loss incurred by reason thereof. This statement was dated March 28, 1927, four months after the accident, and addressed to the defendant. In support of this document, Leroy E. Anderson testified that he discussed the disputed question between himself and the defendant, for nearly a year, and that defendant stated that he would fix up the building and that, thereupon, he went to the office of the defendant and presented him with the document. He testified that the defendant told him to estimate his damages and that he did so and presented il and was referred by the defendant to his lawyer. The defendant admitted that the plaintiffs had brought the document to him, but had no vouchers with it; that he never admitted liability, and told plaintiffs to take the bill to his lawyer.

It is urged as a ground for reversal tnat the admis-, sion of this document in evidence was prejudicial error, particularly in that it appears from the verdict that, after allowing for an item of $8.40, for wallpaper which was contained in the estimate, the verdict was for the exact amount of the difference between that item and the bill for $600, admitted in evidence. It is a fact that the item for wallpaper was practically eliminated from the consideration of the jury and there is considerable force in the contention that the jury arrived at its verdict from the written statement of the plaintiffs, admitted in evidence. We are of the opinion that the trial court erred in admitting this document. If it was for the purpose of negotiating a compromise settlement and in arbitration of the disputed question between the parties, it was not competent; and, if, on the other hand, the parties were not negotiating for the purpose of a settlement, it was a self-serving document and its admissibility was prejudicial error.

The plaintiffs, at the time of the trial, were alive and fully capable of testifying to the facts. The proper way to prove the damage was by witnesses capable and competent to testify concerning that question, and subject to proper cross-examination. Testimony was introduced on behalf of the plaintiffs as to the damages sustained, but this did not cure the error relied upon.

It is insisted on behalf of counsel for the plaintiffs, that the defendant should have objected to the statement at.the time and that his failure to do so constituted an admission of the correctness of the statement, but with this we do not agree. By referring plaintiffs to his lawyer, it may as well be said that it was an invitation to the plaintiffs to proceed with a lawsuit. It has been held that where oral statements have been made in regard to a claim due by one party to another, that a failure to deny such oral statements may be taken as an admission, but this is only true under certain circumstances and is not equally applicable to written statements.

The court in the case of Clarkson v. Kerber, 84 Ill. App. 658, in its opinion says:

“That letter was offered and admitted in evidence against the objection of plaintiff in error. As stated, it was about two years after the order for stone was placed. It was not written in reply to any letter from plaintiff in error, bio reply thereto was made by plaintiff in error. It does not appear that there was ever any correspondence between these parties. This letter stands alone. It is in effect a statement by the writer that plaintiff in error is indebted to defendants in error for work and material furnished by them, and a recitation by the writer of his version of what had theretofore occurred in relation to such alleged indebtedness.
“A party cannot make evidence for himself in that way. It amounts simply to this: Defendants in error reduced to writing their statement of what had occurred and sent it to plaintiff in error, and then upon the trial offered that statement in evidence to sustain their contention. It cannot be urged that there was any necessity for admitting the letter in evidence. The writer was still living. Indeed, he was upon the witness stand when the letter was offered in evidence.”

To the same effect see City of Chicago v. McKechney, 205 Ill. 372; Cooke Co. v. Miller Brewing Co., 316 Ill. 46.

The jury was permitted to take this document to its juryroom and had before it plaintiffs ’ figures as to the extent of the damage. Consequently, the jury was, no doubt, largely influenced by its contents in arriving at its verdict.

Instruction No. 1, given on behalf of the plaintiffs, told the jury, in effect, that if they believed from the evidence that the defendant was in control and management of the building in the course of construction, at the time it collapsed, “then the plaintiffs have made out a prima facie case against the defendant and this places upon the defendant the burden of rebutting that presumption by proving that the collapse would not have been prevented by the exercise of ordinary care, consistent with the practical construction of said building.”

The cause was tried upon the theory that the falling of the wall raised a presumption of negligence and brought the case within the rule of res ipsa loquitur, and we believe correctly so. Under the rule in such cases, however, after the facts have been established showing an accident under such circumstances as to raise a presumption of negligence on the part of the defendant, the plaintiff has made out a prima facie case and it becomes the duty of the defendant to overcome that prima facie case and the presumption of negligence. The defendant is not required, however, under such circumstances to prove as charged in the instruction in question that the accident could not have been prevented by the use of ordinary care. • The burden is still upon the plaintiff, with a presumption in his favor sufficient to take his case to the jury, but the defendant may overcome this presumption by proof merely sufficient to rebut the inference that he had not used such due care. Garner v. Chicago Consol. Traction Co., 150 Ill. App. 149.

We are referred by counsel for plaintiffs to the case of Union Traction Co. v. Newmiller, 215 Ill. 383, where a similar instruction was given and approved. In that case, however, as in all carrier cases, there was a contractual relation between the parties, as well as a well-recognized rule of public policy. Carriers are held to the highest degree of care consistent with the practicable operation of the road and where an accident happens by reason of instrumentalities within its control, it is evident that the carrier alone would be able to explain the cause of an accident arising, by reason of which a passenger was injured. .No such contractual relation exists in the case at bar and we see no reason for extending the rule in such cases. The giving of the instruction in question was error.

The action of the court in admitting the statement in evidence and in giving the instruction in question constituted such error as in our opinion requires a new trial, and, for that reason, the judgment of the municipal court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remcmded.

Ryner and Holdom, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Marie S. Schmidt, Plaintiff in Error, v. Marguerite Schmidt, also known as Marguerite Schmidt Bartzen, Defendant in Error.
    Gen. No. 33,203.

      Opinion filed June 26, 1929.
    James Peboival Pio, for plaintiff in error.
    A. L. Schaf, for defendant in error. ■
   Mr. Justice Holdom

delivered the opinion of the court.

This action was brought by the plaintiff Marie S. Schmidt against the defendant Marguerite Schmidt, now Bartzen, in an effort to recover the amount due upon a promissory note dated May 26, 1922, payable two years after its date with interest at the rate of six per cent per annum from its date until paid and payable to the order of plaintiff, and signed by defendant and her then husband John 1ST. Schmidt, the son of plaintiff. The case has been twice tried before court and jury, and each trial resulted in a verdict against plaintiff. A new trial was granted on the first trial, but in the second trial, the record of which is before us on plaintiff’s appeal, there was a judgment on the verdict of nib capiat and for costs.

The cause before us was tried under an amended statement of claims, which declared upon the note above recited, and added thereto that “plaintiff further alleges that although she has often requested defendant to pay said promissory note and interest thereon . . . defendant has wholly failed and refused to do so . . .” To this pleading of plaintiff defendant interposed an affidavit of merits which was stricken except paragraphs 1, 7, 8 and 9. In paragraph 1, defendant denied the promise alleged or the indebtedness claimed; by paragraph 7 that the alleged promissory note was without consideration. Paragraph 8 denies that demand was ever made upon her by plaintiff or anyone in her behalf for payment of the alleged promissory note or interest thereon, as set forth in plaintiff’s statement of claim, and by paragraph 9 disclaims any indebtedness to plaintiff.

The main contention of defendant is that there was no consideration moving to her at any time for the signing of the note in suit. After the note had been offered and received in evidence plaintiff rested her case. Defendant testified in her own behalf that at the time of the execution of the note, her husband John 1ST. Schmidt called her into a room in which plaintiff and her daughter Helen were sitting, and that plaintiff said to defendant, “I am going to make an advancement of $2,000 to John. I have done the same with the other members of my family, and I want a record of it that the advancement has 'been made, and I want you to sign this paper as evidence, so that in the event of my death that amount would be deducted from John’s share of my estate.” She testified that she did not read the note, and that she did not know whether her husband ever received any money on the note, but that she did not receive any money for signing the note. On the case as it then stood plaintiff moved to instruct a verdict in her favor which the court denied. Thereupon plaintiff testified, in rebuttal, that her son and defendant asked her to loan them $2,000 to assist them in buying a house in Oak Park, and that she gave them a cashier’s check for $2,000, dated August 27, 1920, which check was received in evidence; that she asked her son for a note about a half dozen' times after she gave him the cheek, and that finally on May 26, 1922, she received the note signed by defendant and her son John. An assistant cashier of the Garfield State Bank testified that the $2,000 check was deposited to the joint account of defendant and John N. Schmidt in the Garfield State Bank, and that it had been checked out with other funds but by whom checked out there was no proof. In contradiction of this statement defendant and her» father testified that on August 27, 1920, defendant was in the Mary Thompson Hospital being attended by plaintiff, who was a surgeon and a doctor. The cashier’s check was indorsed by plaintiff Marie S. Schmidt and John N. Schmidt. Defendant also testified that no demand has ever been made upon her for the payment of the note, either of principal or interest, at any time. While the abstract is barren of evidence of the fact that John N. Schmidt is" dead, it is seemingly assumed that he is, and that defendant has since been married to one Bartzen. At the close of all the proofs plaintiff moved for an instructed verdict in her favor, which was denied.

The principle contention is that so far as defendant is concerned, there was no consideration paid to her for her execution of the note. About the only error complained about and argued is error in the admission of evidence that defendant testified, over objection, that no demand was made upon her for payment of the note. A sufficient answer to this is that plaintiff made that an issue by averring a demand in her statement of claim, which was denied in defendant’s amended affidavit of merits.

Two different accounts of the transaction were in evidence before the jury. Therefore it would have been error for the court to have instructed a verdict for either party. These were questions of fact for determination by the jury. As said in Alton Mfg. Co. v. Garrett Biblical Institute, 243 Ill. 298:

“On a motion to direct a verdict the court is not permitted to weigh the evidence. If there is any evidence which, with all reasonable inferences to be drawn therefrom, fairly tends to prove the plaintiff’s case, it should be submitted to the jury.” Chicago City R. Co. v. Nelson, 215 Ill. 436.

Plaintiff contends that on August 27, 1920, John N. Schmidt came to her house with defendant and they both said they were contemplating buying a two-story building in Oak Park, and asked her to loan them $2,000; that thereupon plaintiff gave her son the cashier’s check for $2,000, payable to her own order, of date August 27, 1920, and that the check was indorsed by plaintiff and John N. Schmidt, her son. An assistant cashier of the Garfield State Bank testified that that check was deposited in the joint account of John ‘N. Schmidt and Marguerite Schmidt. The name of the defendant does not appear upon the check and there is no evidence that she ever drew any checks against the account subsequent to the deposit of the cashier’s check, and it is a significant fact that while plaintiff claims that the note in suit was given for that amount, the note was given nearly two years after the date of the cashier’s check and the talk between plaintiff and her son and defendant regarding borrowing $2,000. There is not one scintilla of evidence that there was any consideration passed from plaintiff to defendant for the execution and delivery by her with her husband of the note in suit, and it is in evidence that plaintiff stated to defendant at the time of the execution of the note that it was an acknowledgment of an advancement to be made to her son, to be deducted from her son’s share in plaintiff’s estate at her demise; that at that time nothing was said about the $2,000 cashier’s check of August 27, 1920, in evidence. Even if that was a statement of fact, there was no consideration passing from plaintiff to defendant for the husband is dead and plaintiff is alive, ■ and none of her estate can pass to her son in case of plaintiff’s dying intestate. And in case of intestacy and plaintiff’s death before that of defendant, none of plaintiff’s estate could- pass by the laws of descent to defendant, and while it is the law that a note may be given for the consideration of the precedent debt, yet there is evidence from which the jury might rightfully find that there was no precediilg indebtedness of defendant to plaintiff existing at the date the note in suit was given. These facts were proper to be shown in evidence on the trial. While at common law parol evidence was not permissible to contradict or vary the terms of a written contract, section 16 of the Negotiable Instrument Act, Cahill’s St. ch. 98, ¶ 36, so changed that rule that conditions attending the delivery of a note may be shown by parol, as held in Straus v. Citizens State Bank of Elmhurst, 164 Ill. App. 420, where this court said.

“We are of opinion that the sections of the Negotiable Instruments Law above quoted must be held to change the rule in this State. To require the conditions attaching to the delivery of the note to be shown by documentary evidence would in our judgment entirely defeat the purpose of the sections above quoted. We are of opinion that where the circumstances described in said sections exist, it is the intention of said statute that the actual facts may he shown by oral testimony. It follows that in our opinion the agreement by the cashier of the Elmhurst Bank that Straus should hot be held liable upon this note and should not be required to pay it is binding upon the Elmhurst Bank and it cannot recover thereon in violation of the terms of said agreement.”

The decision of this court in the Straus case was affirmed by the Supreme Court in 254 Ill. 185.

On a review of the proofs in the record we are of the opinion that the verdict of the jury finds ample support in the proofs before us. No objection is taken to any of the instructions given by the court to the jury and as we find no error in procedure the judgment of the municipal court is affirmed.

Affirmed.

Wilson, P. J., and Ryner, J., concur.


text:
    Stanley J. Gottschalk Construction Company, Appellant, v. Victor C. Carlson et al., Appellees.
    Gen. No. 33,215.

      Opinion filed June 26, 1929.
    Frederick C. Jonas and J. J. Cooke, for appellant.
    Deerees, Buckingham, Jones & Hoeeman, for- appellees; Vincent O’Brien, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

On October 11,1927, the petitioner, Stanley J. Gottsehalk Construction Company, filed its petition against the defendants, Victor C. Carlson- et al., for a mechanic’s lien upon certain property known as the Indian Wood Subdivision. The rights of the parties, as contended by petitioner, arose out of two contracts, one in writing and the other by parol. One, referred to as the sidewalk contract, was evidenced in writing, set forth in the petition, and the other resting in parol was called the paving contract. Issues were joined on the petition and there was a reference to a master to hear the .proofs and report his conclusions of fact and law to the court. There was a full hearing before the master, before whom all parties to the cause presented their proofs. The master found both facts and law in favor of defendants and recommended that a decree be entered dismissing petitioner’s petition for want of equity. Objections were filed by petitioner to the master’s report, who on hearing overruled the same, they being afterwards filed before the chancellor as exceptions to the report, which exceptions, after a hearing thereon, were overruled and a decree entered approving and confirming the master’s report dismissing the petition for want of equity, and a judgment entered against petitioner for all taxable costs. There was an interveniner petition and other claims filed by defendants, other than the Carlsons, all of whom were heard before the master and their several claims disposed of adversely to them in the master’s report and in the final decree. Petitioner only brings the record here for our review, which will be confined to the contentions made by petitioner and the Carlson defendants as no one other than petitioner is complaining or making any objection before this court to the decree in this appeal.

The findings of the master material to the issues before us for review are that petitioner is not entitled to a mechanic’s lien, as prayed, for the amount claimed for the reason that the work done and materials furnished were not dpne arid furnished in a good, substantial, workmanlike manner, and were not in accordance with contracts, agreements, specifications or drawings, and that petitioner refused to and did not furnish a contractor’s sworn statement, as required by statute, but that it abandoned and refused to go ahead with the work; that petitioner negligently damaged seventeen trees belonging to defendant Carlson growing on the premises and that bark on three of said trees was damaged and injured, as a result of which said trees have died; that the fair, usual, reasonable and customary value of said trees was the sum of $1,200; that the bark on the remaining fourteen of said trees was damaged, which damage, if not repaired, will" result in the loss and death of said trees; that the fair, usual, reasonable and customary charge made at the time and place of the damage for the repairing thereof was in the sum of $600, and that defendants are entitled to off-set said sums against the said sums, if any, due petitioner; that the sidewalk laid by petitioner was not constructed in accordance with specifications, nor in a-good and workmanlike manner, but was defectively constructed, pointing out specifically such defects, and that by reason thereof defendants will be compelled to remove the same, and that petitioner is not entitled to recover of defendants the amount claimed by it .on account of the laying of said walks or any part thereof; that petitioner did not perform its contracts or either of them, and on September 20, 1926, wrongfully and without good cause suspended operations on said premises under said contracts and insisted that defendant Carlson pay petitioner the amount then claimed by it' before, it would proceed with the work; that on September 10, 1926, Carlson paid on account of the amount claimed by petitioner $2,500, and that petitioner in consideration of said payment and for the purpose of procuring the same represented to Carlson that all workmen and materialmen had been paid in full to that date; that such representations were untrue and that on the 13th of September, 1926, defendant Carlson was informed that Matteson Lumber & Coal Company claimed $2,329.80; and thereupon defendant Carlson refused to make further payments to petitioner unless and until it furnished to him contractor’s statements, and did on the 18th of September thereafter demand of said petitioner that such statement be furnished, which petitioner refused to do, but insisted that payment be made to it without said statement; that defendant Carlson insisted on said statement being given and refused to make payment direct to petitioner unless petitioner would furnish waivers of lien from existing subcontractors. Thereupon petitioner tendered to defendant Carlson its checks purporting to be payable to the said subcontractors and demanded that defendant Carlson take the checks and mail them to the subcontractors and in exchange pay to petitioner the full amount of its claim, which Carlson refused to do; that as a result of which petitioner on September 20, 1926, suspended operations, until such time as such payment should be made to it; that at no time on or prior to September 20, 1926, did petitioner ever tender or furnish to defendant Carlson, or to anyone in his behalf, a contractor’s statement; that on September 23, 1926, as of which time petitioner continued to fail to fur.nish the contractor’s statement, defendant Carlson on account of such suspension of said work declared the contracts breached and notified petitioner to do no further work, but to remove its equipment from the premises.

The master. concludes, as a proposition of law, that defendant Carlson was entitled to such contractor’s statement, as a condition precedent to making payment to petitioner so that he might be informed as to the identity of the subcontractors and the amounts unpaid to them, if any; and that upon being so informed he was entitled as a condition precedent to payment of the money direct to petitioner to insist that there be furnished waivers of liens from the subcontractors, whose money it requested be directly paid to the petitioner ; that under the circumstances petitioner was not justified in suspending operations and that so doing constituted a breach of the contracts.

The master found that on the 20th and 23rd days of September, 1926, in addition to the claim of the Matteson Lumber & Coal Company of $2,329.80, there was due the following:

Chicago Gravel Co. for sand................$ 207.96

Brownell Improvement Co. for stone........ 1158.39

Advance Oil Co. for gas and oil............. 411.56

Chicago Riverdale Lumber Co. for lumber---- 80.58

Frans en Bros., for hauling................. 137.63

Philip Carey Co. for expansion joints........ 281.31

Kalman Steel Co. for reinforced steel........ 580.57

Making a total sum due and unpaid of......$5187.80

The master further reported that the balance claimed to be due by petitioner could not be recovered in the mechanic’s lien proceeding, and that its lien prayed should be denied and the bill dismissed for want of equity upon a hearing, “in so far as this lien proceeding is concerned and that petitioner’s remedy, if any he has, should be at law for suit to be recovered upon a quantum meruit

The outstanding contentions of the parties relate to the weight of the evidence, petitioner contending that the master’s report and the decree of the court are contrary to the greater weight of the évidence, and the defendants, on the other hand, contending that the master’s report and decree of the court are sustained by a clear, preponderating force of the evidence. The ultimate question therefore is, is the believable testimony found in the record sufficient to support the decree and the master’s findings upon which it is based? The preliminary, and in a large measure the controlling, question is, was the petitioner justified in abandoning its contracts ? In determining this, as well as other questions of fact, which arise upon the record, the province of the master was to determine from the testimony before him the weight and credit to be given the testimony of the several witnesses. These witnesses the master had the opportunity of seeing and of observing their manner and demeanor when testifying, their fairness or lack of fairness as such may have been made apparent by their manner, their interest or lack of interest in the matters about which they testified, and therefrom to judge both of the credibility of the witnesses and the weight to be accorded their testimony. The opportunity of seeing the witnesses is denied this court and. therefore where the credibility of the witness is challenged we have not that opportunity which the master had, and necessarily we must in a large measure depend upon the conclusions upon which the master came, and ordinarily it would not be our function to disagree with the conclusions at which the master arrived, unless it is fairly apparent from a weighing of all the testimony that the master came to his conclusions of fact against the preponderating force of the credible testimony.

In the first place when Carlson demanded of Gottschalk the contractor’s sworn statement, in accordance with the statute, of the claims of subcontractors and others as a condition precedent to making the payments demanded by petitioner, he was clearly within his legal rights, and there is no evidence in this record by anybody to the effect that petitioner furnished such sworn statement. We think from the testimony of Gottschalk he endeavored to shirk his duty in this regard in not furnishing the sworn statements demanded. On September 10, 1926, petitioner was paid $2,500. Shortly thereafter petitioner knew that the Matteson Lumber & Coal Company filed a lien for the amount which they claimed to be due them from petitioner. To the demand for a sworn statement Gottschalk testified he told Carlson that he would not furnish waivers of lien, but that he had checks and envelopes ready to be mailed to the various • subcontractors, if he, Carlson, would give Gottschalk a check for the balance of the estimate due petitioner, which Carlson refused to do. Gottschalk then testified that Carlson said “Well, if you pay the Matteson Lumber & Coal Company, I will give you a check,” to which Gottschalk replied, “Why not give me the check now, then I know that everything is all right.” Carlson said, “No, maybe your check is no good.” Gottschalk testified that he finally said, “Well, Mr. Carlson, you know the estimate is way past due and by me showing my good will by giving you the checks to mail, I felt I was justified in asking for the check.” From that testimony of Gottschalk it clearly appears that he refused to accord Carlson the statutory demand for a sworn statement. Gottschalk insisted that his way was sufficient. When Gottschalk produced the checks for the amounts admitted due to subcontractors, Gottschalk said, “Here, take these and mail them and give me your cheek.” Carlson replied, “I have been in business too long to accept anything like that.” At that interview Gottschalk contended that the contractor’s statement called for was not necessary, Gottschalk saying, “Here are the checks for the material people. Take them and mail them, and give me your cheek.” Petitioner never tendered a contractor’s statement at any time. Carlson had a perfect right to call for a sworn statement, and it was the duty of petitioner, under the statute, to furnish it. Carlson was justified in assuming from Gottschalk’s attitude that the offer of checks, not certified, payable to admitted unpaid subcontractors, was but a subterfuge on Gottschalk’s part to get money .from Carlson on the pretense that such checks might be paid. Under the circumstances Carlson was well within his rights in refusing to comply with the unlawful demand of petitioner (made through Gottschalk), and Carlson had a right to rely for his own protection on compliance with the statutory provision regarding contractor’s sworn statements of amounts due and payable to subcontractors. ■

The testimony of both Gottschalk and Carlson indubitably proved that a demand for the contractor’s sworn statement was made by Carlson and that Gottschalk, acting for petitioner, unequivocally refused to furnish the same, and that none was ever furnished.

The believable evidence found in the record fully supports every finding of the master and is sufficient to support the decree dismissing the petition. As between the evidence of Gottschalk and Carlson, the master was fully justified in weighing the evidence to give credence to that of Carlson as against that of Gottschalk. Carlson’s evidence is straightforward and to the point. Gottschalk was evasive and showed an intention not to accord Carlson the statutory right to a sworn statement. Furthermore the environing circumstances corroborated the testimony of Carlson and discredited that of Gottschalk. Gottschalk set up his own way as being sufficient and all that he would accord Carlson, and thus ignored Carlson’s statutory right to a sworn statement of petitioner, and in an attempt to enforce his own way against Carlson, breached the contract, by abandoning the work. Two statements were proffered by petitioner on September 28,1926, and October 15,1926, after petitioner had breached the contract and after it had abandoned the work under the contract, and after it had been terminated by an appropriate notice from defendant.

The evidence supports the finding of the master that the work done was done in an unworkmanlike manner and that the trees upon the property were damaged in the manner found by the master. The contract provided for the installation of a complete system of sidewalks, the work upon which was to be done not only in a workmanlike manner but to the satisfaction of the owner. Petitioner did not satisfy either of these provisions of the contract. There was no substantial performance of the contract by petitioner, for when the work was only partially done petitioner abandoned the further prosecution of the work. However, if petitioner is entitled to compensation for the actual work done, the decree does not preclude an action at law on a quantum meruit, but such an action would not lie on the theory of substantial compliance with the contract.

The decree is in accord with the law. Petitioner’s contract was to construct a system of sidewalks and pavement. He did not do so, but before completion abandoned the work and refused to continue. The contract is the basis of the lien and to maintain a mechanic’s lien suit, petitioner must show either performance or excuse for nonperformance, which must result from the owner’s breach of the contract.

In Kinney v. Sherman, 28 Ill. 520, it is said:

“The statute gives the petitioner security by lien, if he goes on and completes' the contract, and to avail of it, he must complete it, unless prevented by the other party. Having shown then, that he neither completed the contract nor was prevented by the defendants from so doing, he is not in a position to claim the benefit of the statute.”

In Klaub v. Vokoun, 169 Ill. App. 434, this court reversed the decree allowing a lien and remanded the cause with directions to dismiss the bill, it appearing that the contractor, who had undertaken to make all plumbing connections from sewer to roof, had •omitted a connection from the boiler to the kitchen stove, the cost of which was $37.50, and refused to supply the omission, notwithstanding all the other work had been done, and the court observed “if he were right in this position he was entitled to a mechanic’s lien. If the connections were included in the contract, the appellee, failing and refusing to put them in without fault on the part of appellants, was not entitled to a lien.”

Before the enactment of section 4, ch. 82, Rev. St., Cahill’s St. ch. 82, ¶ 4, the Mechanics’ Liens Act now in force, there was decided Geary v. Bangs, 33 Ill. App. 582, in which the court said:

“In order to obtain a lien the contractor must show that he has performed his contract, or that he has been prevented from so doing by the act of the other party. Defendant showed by his petition, as well as by the evidence introduced at the hearing, that he had abandoned his contract and refused to complete, and he has not shown what amounts in law to an act of prevention by the other party to it. ’ ’

Section 4, supra, in effect, modifies this decision by permitting abandonment where the owner wrongfully withholds payments of money justly due. Abhau v. Grassie, 262 Ill. 636, does not apply to the facts of this case, because in that case the work was stopped by agreement, and therefore section 4 did not apply, as the abandonment • there was not within the meaning of the act. Petitioner relied upon section 4 under the contention that the work was abandoned rightfully because Carlson wrongfully withheld payment of moneys justly due. The master found contrary to this contention, and we agree with that conclusion that payment of moneys was not wrongfully withheld from petitioner, and that it therefore was not justified in breaching the contract by abandoning the work. Section 5, ch. 82, supra, puts the burden upon the owner to require, and of the contractor to give, sworn statements in the names of all parties furnishing all material and labor and the amounts due or to become due each, and in section 21 of the Act, Cahill’s St. ch. 82, ¶ 21, it is provided that:

“In no case, except as hereinafter provided, shall the owner be compelled to pay a greater sum for or on account of the completion of . . . such improvement than the price or sum stipulated in said original contract . . . unless payment be made to the contractor ... in violation of the rights and interests of the persons intended to be benefited by this Act.”

And section 32, Cahill’s St. ch. 82, ¶ 32, provides:

“No payments to the contractor or to his order of any money or other considerations due or to become due to the contractor shall be regarded as rightfully made, as against the subcontractor ... if made by the owner without exercising and enforcing the rights and powers conferred upon him- in section 5 . . .”

If Carlson had paid petitioner without requiring the statement provided for in- section 5, subcontractors who had complied with the act on their part would, notwithstanding such payment, have a claim against Carlson and a right to a mechanic’s lien. Such payment, if made, would have been at Carlson’s risk. As held in Liese v. Hentze, 326 Ill. 633, the Mechanics’ Liens Act is to be liberally construed as a remedial act but mechanics ’ liens exist only by virtue of the statute creating them, and the statute must be strictly followed with reference to all requirements on which the right to a lien depends.

It was necessary for Carlson to protect himself against the claims of subcontractors and others to make a demand on petitioner for a sworn statement. Otherwise, he would not have been protected as against the claims of such subcontractors and others.

As said in Gillespie v. Patrick, 146 Ill. App. 290:

“The provisions of the law requiring the contractor’s statement of payment to subcontractors, or a waiver of lien from them as a prerequisite to a demand for payment, are, it may be admitted, for the benefit of the owner as well as of the subcontractor, but the fact that such statements or waivers are not made will not forbid a lien where no demand is made by the owner for them, nor any claim even made that debts to subcontractors existed.”

It is apparent that if Carlson wanted to protect himself against subcontractors and others, he must, as he did, demand a sworn statement of the claims of such subcontractors, materialmen and others.

The master has found, in which finding we concqr, that a demand for the statement was made by Carlson and refused by Gottsehalk, thereby justifying Carlson in withholding payment without compliance by petitioner with the demand for such statement; that in quitting the work petitioner breached its contract and thereby lost its right to relief by way of the enforcement of a mechanic’s lien.

The controlling questions here are encompassed within those of fact as developed by the record. The duty of the court in determining the rights of the parties is to apply the law to the questions of fact, as found either by a jury, or a master or a judge. In the instant case, questions of law applicable to the facts are not in serious controversy, but the controlling questions of fact are somewhat strenuously in dispute. While we have already in this opinion decided that the facts are as found by the master and decree of the court, we will review briefly the decisions controlling the weight to be given to the findings of fact by a master in chancery.

In Story v. De Armond, 179 Ill. 510, it was held that a referee, while performing the functions of the jury, is the judge of the credibility of the witness and the weight of the evidence, and his findings and conclusions of fact are entitled to the same consideration as the verdict of a jury. The Supreme Court in this case adopted the opinion of Mr. Presiding Justice Adams of this court.

In Stanley v. Stanley, 146 Ill. App. 109, the court said:

“The jury found that the issue as presented by appellant was not sustained t>y her and we see no good reason for disturbing the verdict of the jury and the finding of the chancellor. Where the evidence in a suit in chancery is conflicting and the witnesses have been examined orally in open court, the error in the finding of fact must be clear and palpable to authorize a reversal. Ward v. Ward, 103 Ill. 482; Baker v. Rockabrand, 118 Ill. 370.”

We said in Meyer v. Levy, 249 Ill. App. 408:

“The record discloses that the master heard the testimony of all the witnesses, which the chancellor did not, and therefore the master was better able, than are we or the chancellor, to determine the credibility of the testimony of the several witnesses, and where such testimony was in dispute the master was better able to judge as to which witnesses were moré worthy of credit and to give credit accordingly. The chancellor and this court have but the cold and unresponsive record upon which to come to a conclusion as to the credibility of the several witnesses, and a chancellor as well as a court of review should be slow in disturbing the conclusions of the master upon the facts, unless it can be said that the master’s conclusions were clearly contrary to the probative force of the evidence.”

And in Mallinger v. Shapiro, 329 Ill. 629, the court said:

“In a chancery proceeding the facts are found by the court as a basis of the decree. The master’s report, while prima facie correct, is of an advisory nature, only. All the facts are open for consideration by the chancellor and a court of review. The chancellor in such a case has no better opportunity to judge the credibility of witnesses than has a court of review. (Chechik v. Koletsky, 311 Ill. 433; Corbly v. Corbly, 280 id. 278.) It seems clear, upon an analysis of the testimony herein given, that plaintiff in error did not discharge the burden cast on him to prove his right to a lien by a preponderance of the evidence.”

In Wechsler v. Gidwits, 250 Ill. App. 136, we said:

“The master both heard and saw the witnesses, privileges denied the chancellor, and therefrom was the better enabled to judge of the credibility of the several witnesses than the chancellor or this court. The decision of the master under these circumstances would be disturbed with reluctance and not at all unless we are able to say that the master’s findings of fact are manifestly contrary to the probative force of the proofs found in the record. This we are unable to do after a careful examination of all the proofs. The findings of the master on controverted questions of fact are entitled to the same consideration as accorded to the verdict of a jury. Story v. De Armond, 179 Ill. 510.
“In Hickey v. Barrett, 212 Ill. App. 86, this court promulgated such doctrine in the following words: ‘ The master . . . saw the witnesses and heard them testify and the finding of facts made by him is entitled to consideration. Keuper v. Mette’s Unknown Heirs, 239 Ill. 586; Glos v. Larson, 138 Ill. App. 412.’ And in Chicago Title & Trust Co. v. Central Trust Co. of Illinois, 312 Ill. 396, it was written ‘that the findings of fact by the master are conclusive in such a case unless a clear mistake or fraud is shown.’
“It is the opinion of this court that the master was right in his conclusions of fact and law, and in his recommendations to the chancellor as to the decree properly to be entered, and that the chancellor erred in disagreeing with and in not following the master’s recommendations and in entering a decree contrary to the master’s report.”

It is patent from the foregoing review that the facts of any case, whether arising under the verdict of a jury, or the report of a master in chancery, are always subject in a court of review to determination as to the weight and probative force of the evidence. While the report of the master is not conclusive upon any fact unless it meets with the approval of the court of review before whom the record may be, yet such findings of fact will not be disturbed by a court of review unless such court, upon due examination of all such evidence, is able to say that the findings of the master, and the decree of the court founded thereon, are not supported by the greater weight of the evidence, or are contrary to its probative force.

In the instant case we concur with the findings of the master and the decree entered thereon by the chancellor, and therefore the decree of the circuit court dismissing the petition of petitioner for want of equity is affirmed.

Affirmed.

Wilson, P. J., and Byneb, J., concur.


text:
    J. L. Herman, Plaintiff-Appellee, v. Metropolitan Petroleum Company et al., Defendants-Appellants.
    Gen. No. 33,233.
    Opinion filed June 26, 1929.
    Rehearing denied July 8, 1929.
    Myron E. Wisch, for appellant Nat Hue; Sidney E. Tarkoee and Nathan Einhorn, of counsel.
    Harry Z. and Bernard Perel, for appellee. .
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from an order of the municipal court overruling defendant Nat Bue’s motion to vacate a judgment entered by confession against him and the Metropolitan Petroleum Company and Israel B. Zimmerman for the sum of $556.25. The note on which the judgment was confessed is as follows:

“$500.00 Chicago, April 27, 1928.
“Ninety days after date for value received we promise to Pay to the order of J. L. Herman Five Hundred and no/100................Dollars at Chicago................with interest at 5 per cent per annum after date until paid.”

Then follows a power of attorney to confess judgment, and the note is signed as follows:

“Metropolitan Petroleum Co.
By Israel B. Zimmerman
Nat Rue 1606 W. Roosevelt Road.*’

The defense of Nat Rue is that he signed the note as an officer of the Metropolitan Petroleum Company. It is patent that no such designation follows his signature. The word “by” portends nothing and must be treated as if it was not there. The note is the obligation of the three defendants, the corporation, Zimmerman and Nat Rue. The contract of the parties cannot be contradicted, changed or varied by parol evidence. What Rue tried to do by his motion, and what he is endeavoring to have this court say he may do, is to introduce parol evidence which will show that the intention was to execute the note in a representative capacity and as the secretary of his codefendant, the corporation. This is not permitted by the rules of evidence. The signature upon the note in suit is to be read with the signatures of the parties thereto, just as they appear, and the word “by” having no significance must be treated as a surplus word, which lends no light dehors the signatures of the parties to the note.

The case of Hypes v. Griffin, 89 Ill. 134, is very much in point. The defendant Hypes contended that he signed the note as trustee of the Methodist Episcopal Church in Lebanon, and that it was agreed that he should not be liable individually by reason of having signed the note, and that it was understood at the time that the signers of the note were not to be held personally liable, but that they executed as trustees of the church, and that in legal effect it was the note of the church. A plea setting up these contentions was filed, to which a demurrer was interposed and sustained upon the theory that no evidence by parol could be received to contradict the terms of the note, and the court said:

“On the face of the instrument signed by the defendant his undertaking is absolute; and to permit him to show by oral testimony that in no event was he to incur any personal liability by the writing would be to contradict and vary the terms of his positive written agreement.” And the court further said:
“Whatever may be the decisions elsewhere on analogous questions, the authorities in this State are full to the point that a party will not be permitted to show by oral testimony that his written agreement was not, in fact, to be binding on him. . . .
“The makers of this note chose to bind themselves individually, under their hands and seals, without the use of any apt words in the agreement to bind the corporation of which they were trustees. Had it been the intention'to charge the corporation exclusively, we must understand the agreement would have been expressed in the writing to that effect at the time. 1 Greenleaf Ev. sec. 275; 2 Kent. Com. 746.”

The situation in the instant case is comparable to that in the case supra. Oral testimony cannot be received to vary the legal liability of Rue arising from his having executed the note in his individual capacity. He is personally bound thereby. The case of Scanlan v. Keith, 102 Ill. 634, is quoted by defendant Rue as supporting his contention. The difficulty with this contention of Rue’s counsel is that what is represented to be a quotation from that decision is simply the argument of counsel' and not the dicta of the court. In the Scanlan case the court distinguished between execution bv defendants in a representative capacity following their signatures, as in that case the note was signed “Sam’l L. Keith, Pres’t Chicago Ready Roof’g Co.,” and also “W. H. Kretzinger, Sec’y,” with the seal of the corporation. From the plain signatures on the note it was clearly apparent that the individuals executed the note respectively as president and secretary of The Chicago Ready Roofing Company. We find no words of designation of Rue’s executing the note in a representative capacity, but simply as an individual,'and the court said:

“The principle running through that (referring to Hypes v. Griffin) and other cases ... is that such instruments will be construed as the parties made them, without the aid of extrinsic evidence. That rule of interpretation would seem to be as well settled in this State as any rule can be. But there is. another principle declared in Hypes v. Griffin, that has more immediate application to the case in hand. It is, that where a party signs his name as cashier or agent for a banking, railroad or other corporation, in drawing drafts and bills, or in accepting drafts or other evidences of indebtedness, in its ordinary business, if it appears, or is made to appear, it is the obligation of the corporation, and the cashier or agent or other officer had authority to bind the corporation, he is not personally liable, and the facts may be shown by extrinsic evidence.”

It is argued that the address on the foot of the note, 1606 W. Roosevelt Road, being the offices of the defendant corporation, indicated that the obligation was to be that of the corporation, but we hold that the address of the corporation had no significance regarding the capacity in which defendant Rue executed the note different from that of an individual.

The contention that no consideration moved to Rue for his execution of the note is abortive as a defense. Even if the debt was a corporation debt, and Rue’s execution thereof was merely as surety, it was not necessary that a consideration move to him for his executioü of the note. A consideration to the corporation was sufficient in itself to sustain the liability of Rue as surety, if it can be said that he was such. If the contention was that no consideration moved to the corporation, then a different question would arise.

There is no reversible error in the record, and therefore the judgment of the municipal court is affirmed.

Affirmed.

Wilson, P. J., and Ryner, J., concur.


text:
    Arthur W. Smallen, Appellee, v. Charles Aronson, Appellant.
    Gen. No. 33,320.
    Opinion filed June 26, 1929.
    Rehearing denied July 8, 1929.
    Wolf & Love, for appellant; Stephen Love, of counsel.
    John A. Bloomingston, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action on the case for personal injuries. There was a trial before court and jury, which resulted in a verdict in favor of plaintiff with an assessment of damages at $1,500. Motions for a new trial and in arrest of judgment being made and overruled, judgment for the amount of the verdict, $1,500, was entered, from which defendant prayed, perfected and prosecutes this appeal.

No questions arise on the pleadings or as to the amount of the judgment or challenge of any instruction given by the court to the jury. However, it is assigned for error and argued that the trial court committed reversible error in failing to sustain defendant’s objections to certain testimony of one Harold Rosenwald, a witness for plaintiff, and in not allowing defendant to withdraw a juror and continue the hearing of the cause. The following is an account of the proceedings objected to by defendant, and which he argues constitute reversible error:

“Mr. Bloomingston (to witness): Did you scratch out these various scratch-outs, this scratch-out that is done here?
“A. A man from the insurance company wrote that out.
“Mr. Roemer: Now if your Honor please, I object.
“Mr. Bloomingston: What is the matter?
‘‘ Mr. Roemer: I have to make a motion to withdraw a juror.
“The Court: That motion is overruled.
“Mr. Roemer: Exception.
“The witness continuing: The man sat at a desk in my office and kept on writing and asking me questions whether I recalled such and such, and he kept on writing, and when he got all through, he stated, ‘Now will you read it over?’ I signed the pages for him.
“Mr. Bloomingston: What did he say to you about what his interest was in this matter; did he tell you that?
“Mr. Roemer: I object.
“A. He said he was from the insurance company.
“The Court: Objection sustained and that is stricken out.
“Mr. Roemer: I want to renew my motion now if the court please, to withdraw a juror; it is quite palpable, your Honor.
“Mr. Bloomingston: May I show you the decisions, any number of them?
‘ ‘ The Court: Yes, you may go ahead, I will overrule the motion for the present.
“Mr. Roemer: Exception.”
Again on redirect examination of the plaintiff by Mr. Bloomingston, with reference to a prior statement which the plaintiff admittedly signed right after the accident, the following occurred:
“Q. Did anyone at any time come to you from the defendant here and ask you to sign a statement? A. Yes, sir.
“Q. Did you sign it? A. I believe — yes, I did.
‘ ‘ Q. And you frankly ' told them everything you knew about this thing? A. I did.
“Q. Did you go to any lawyer’s office, representing them?
“Mr. Roemer:* I object to that.
“Mr. Bloomingston: I just want to show.
“The Court: Is that in reference to this paper?
“Mr. Bloomingston: Yes, that is what I mean, in reference to the paper.
“Q. Did you go to a lawyer’s office with reference to this paper? A. I do not know whether he is a lawyer or not. I imagine they were lawyers.
“Mr. Bloomingston: Where did you see them?
“Mr. Roemer: I object to that, if your.Honor please.
“The Witness: In the Insurance Exchange Building.
“Mr. Roemer: I object to that, and I make the same motion that I did some time ago.
“Mr. Bloomingston: That is all. I am just asking what building it was; what building it was in.
“The Court: He said it was in the Insurance Exchange Building.
“The Witness: In the Insurance Exchange.
“Mr. Bloomingston: In the Insurance Exchange.
“The Witness: Yes, sir.
“Q. Was that where you signed that paper in question? A. It was.
“Q. Did you go there voluntarily, that is of your own account or were you invited up there? A. I was invited up there.
“Renewal of motion by defendant to withdraw a juror and overruling of same by the court.”

The foregoing recitation states everything which defendant claims occurred of an objectionable nature at the trial. Defendant argues that in an action to recover for personal injuries caused by defendant’s negligence, it is reversible error for the plaintiff to inform the jury, directly or indirectly, that the defendant is protected by casualty insurance against liability. The authorities cited by counsel for defendant are all to the effect that “any reference to the fact that a party sued is protected by an insurance policy from the payment of damages is improper” for the jury and that so doing is reversible error. Bishop v. Chicago Junction Ry. Co., 289 Ill. 63, and other cases cited to a like effect.

We think the difficulty with defendant’s contention lies in the fact that the witness did not testify at any time that defendant was protected by accident insurance. Neither was that fact disclosed to the jury by statement of counsel in argument or otherwise. We think it is apparent that what the witness did testify .to was innocuous so far as tending to show the fact, if it was a fact, that the defendant was covered by accident insurance. The witness was simply describing the conditions under which the document before him was in some places “scratched out.” One of the answers was, as above récited, “a man from the insurance company wrote that out.” And another time, referring to the man he answered, “He said he was from the insurance company,” and then he testified that he went to the office in regard to the matter about which he was testifying, which was “in the Insurance Exchange Building.” That is the sum and substance of all that was said by the witness Rosenwald on that subject. From such testimony the jury could not find any foundation for assuring that defendant’s liability in the case on trial was covered by accident insurance. If they did, they must draw on their imagination, which would be entirely unwarranted. We have no right tó assume that from the words used by the witness there was an intimation that defendant was insured against the accident in suit. The answers given by the witness, were pertinent to this testimony, which was not subject to objection. We have no right to assume from the fact that- the verdict itself or the amount assessed as damages not being challenged, .that the references to an insurance company did injuriously affect any of defendant’s rights. In Eldorado Coal & Coke Co. v. Swan, 227 Ill. 586, the court said:

“Appellant asks that the judgment be reversed because appellee’s counsel, after adverse rulings of the court, asked questions which implied that the appellant was insured in a casualty company, and that the judgment, if one should be rendered, would be paid by such company. Error is usually only-assignable on the rulings of the court. The court promptly ruled against appellee’s right to inquire into the irrelevant matter suggested by the questions, but the questions were repeated to other witnesses. The conduct of counsel in thus seeking to place before the jury matters not involved in the issue is censurable in the highest degree, and if the amount of the verdict were such as to raise a suspicion in our minds that the jury had been influenced by this misconduct, or if the case were a close one on the facts, we would not hesitate to reverse the judgment for this reason alone. But since the verdict was rather below the usual amount awarded where the injury has been sustained such as the evidence shows here, and the case is reasonably clear on the facts, there is no reason to suspect that the jury were actuated by prejudice or passion.”

These remarks are very apropos to the instant case, for in that case plaintiff was guilty of bringing before the jury the fact that defendant was covered by insurance,' and yet the court refused for that error alone to reverse the judgment. In this case there was no such suggestion, and as the amount of the verdict is not challenged, it is apparent that the jury were not influenced in their assessment of damages by the witness Rosenwald’s using the words “Insurance Company” without any other details.

In Wrisley Co. v. Burke, 203 Ill. 250, it was held not to be reversible error where from the testimony of a physician for plaintiff it incidentally appeared that such physician was paid by "the accident insurance company. There was an affirmance on this point on the same ruling in the same case in the Appellate Court, 106 Ill. App. 30. Chicago City R. Co. v. Carroll, 206 Ill. 318, is to a like effect. Defendant’s objections to the testimony of Rosenwald, hereinabove recited, were properly overruled, and the overruling of defendant’s motion to withdraw a juror and continue the case was without error.

The judgment of the superior court being right is affirmed.

Affirmed,

Wiesoh, P, J., and Ryher, J., concur,


text:
    N. Kahn, Appellant, v. Henry Rasof et al., Appellees.
    Gen. No. 33,339.
    Opinion filed June 26, 1929.
    Irving G-. Zazove, for appellant.
    Harry Gr. Hershenson, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a decree dismissing complainant’s bill for want of equity, and complainant brings the record to this court for review.

The purpose of the bill was an attempt to vacate and set aside a judgment by confession in the municipal court of Chicago enjoining defendants from collecting the amount of the judgment. A temporary restraining order was issued enjoining defendants from taking any action to enforce the judgment or issuing an execution thereon, or making any levy under the execution until the further order of the court.

The bill charged, inter alia, that the notes for which the judgment was confessed were procured by fraud; that complainant, when he signed the notes, believed he was signing receipts for insurance policies, and did not know that he was executing notes for insurance premiums.

The cause was referred to a master to take the proofs and report his conclusions of law and fact thereon. All the parties to the cause appeared before the master and proffered their proofs. The master found that the complainant executed, the notes, upon which the judgment was confessed in the municipal court, knowing all the circumstances; that he was in nowise deceived in any manner regarding the situation at the time he executed the notes; that the judgment was legal and should be enforced according to its terms. The master recommended that the temporary restraining order, above recited, be dissolved and the bill dismissed for want of equity.

Complainant filed objections before the master to his report, which were afterwards refiled as exceptions before the chancellor. The objections were overruled by the master and the exceptions by the chancellor, and the decree appealed from entered.

The record does not disclose that any motion was ever made in the municipal court to vacate the judgment entered and sought to be restrained by complainant’s bill for fraud or for any reason upon which complainant by his bill seeks to have the collection of that judgment perpetually enjoined,

-It was incumbent upon complainant to apply by an appropriate motion to the municipal court to vacate the judgment for the reasons set forth in the bill, and having failed so to do, a court of equity is without power to grant complainant relief against said judgment. The municipal court had plenary power to grant complainant relief against the judgment as would a court of equity upon sufficient cause shown, and in dealing with the integrity of such judgment would have full equitable powers. The case of Hollister v. Sobra, 264 Ill. 535, is a cogent, sustaining authority on this point, where the court said:

‘ ‘ There is no allegation of fraud in connection with the assumpsit suit which resulted in the judgment. The rule is well established that the fraud for which a judgment may be enjoined in equity must be in the procurement of the judgment. If there be fraud entering into the cause of action which vitiates it, that is a defense which must be interposed in the action at law unless the party has been prevented from interposing the defense by fraud. (Freeman on Judgments, sec. 489.) While equity will relieve from a judgment obtained through fraud, accident or mistake, still the party invoking the interposition of equity must be free from negligence. Appellant has no standing in a court of equity for relief against this judgment, first, because, if the facts existed as stated in his bill, it was his duty to present them as a defense to the action at law unless he was prevented from doing so by some accident, fraud or mistake for which he was in no way responsible; and second, the allegations of fraud do not seek to impeach the law proceeding which resulted in the judgment. These general principles are sustained by Kretschmar v. Ruprecht, 230 Ill. 492, and cases there cited. There was no error in dismissing appellant’s bill.”

Complainant seems to ground his right of action upon the fact that he was illiterate and did not understand the English language. However, it is in evidence that complainant was in the second mortgage business,' and that he gave the notes in question as premiums upon life insurance policies, and that the transaction was not fraught with much intricacy, but was a plain every-day transaction of giving notes instead of money for the payment of insurance premiums. The policies were the consideration for the premium notes and whether in fact, which seems doubtful, complainant was illiterate, he certainly was not overreached in any way in the transaction when he gave notes for insurance premiums due upon policies. Furthermore complainant had possession of the receipt originally given, which was returned' when the policies were delivered.

The damages allowed upon the dissolution of the injunction were proper to be allowed in force of paragraph 8, chapter 69, Cahill’s Rev. St. Illinois, and as said in Hollister v. Sobra, supra:

“In the revision of 1827 that part of said section 17 relating to injunctions to stay judgments at law was enacted as section 11 of the chapter on ne exeat and injunctions, and provided: ‘If the injunction be dissolved in whole or in part, the complainant shall pay, exclusive of legal interest and costs, such damages as the court shall award, not exceeding ten per centum on such part as may be released from the injunction.’ It will be noted that that part of the section just quoted is identical with the conclusion of said section 8 of the present act on injunction.” The award in the instant case was within the limit of the statute.

The case was heard before the master who saw the witnesses and Was able from their appearance and manner of testifying to determine as to the credit to be given to them, and as the chancellor evidenced his agreement with the master’s conclusions, we are not privileged to change the facts, unless we are able to say from a reading of the whole of the evidence, which we are not, that the master’s findings of fact are against the greater weight of the, evidence.

Some comment is made by defendants’ counsel adversely to the comments made by the master on overruling complainant’s objections to his report attached thereto, viz.:

“In consideration of the foregoing objections and of the entire record in the case, the Master is moved to observe that the testimony on neither side possesses that convincing reliability and preponderating quality which would enable the Master to find the facts from such testimony alone. The incontestable facts are that the notes were in existence and the Master believes them to have been signed as part of a well understood commercial transaction.”

We can readily understand the difficulties which confronted the master in weighing the evidence of what is claimed to be an illiterate complainant, and that under the circumstances the master arrived at the correct solution of the facts in these words: “The incontestable facts are that the notes were in existence and the Master believes them to have been signed as part of a well understood commercial transaction.”

In our opinion the findings of the master are not only sustained by the proofs, but do justice to the several parties concerned.

Finding no reversible error in the record, the decree of the circuit court is affirmed.

Affirmed.

Wilson, P. J., and Byner, J., concur.


author: Mr. Justice Ryner

text:
    Interocean Mercantile Corporation, Appellant, v. Sawyer Biscuit Company, Appellee.
    Gen. No. 33,048.

      Opinion filed June 26, 1929.
    Rehearing denied July 8, 1929.
    Cutting, Moore & Sidley and Amos C. Miller, for appellant; Amos C. Miller, Edwin C. Austin and John Paulding Brown, of counsel.
    Cooke, Sullivan & Ricks, for appellee; Edwin Hedrick and Edward H. Fiedler, of counsel.
   Mr. Justice Ryner

delivered the opinion of the court.

On May 21, 1920, a written contract was entered into between the parties to this litigation by the terms of which the plaintiff agreed to sell and the defendant agreed to buy 100 tons of sugar. The provisions of the contract pertinent to the issues raised on this appeal are as follows:

“Minford Lueder & Co.
106 Wall St.
New York May 21,1920.
Sold To: Sawyer Biscuit Co.,
Chicago, Ill.
Through Meinrath Brokerage Co.,
Chicago, Ill.
By Interocean Mercantile Corporation
About one hundred (100) long tons, (10% more or less) of Java white granulated sugar, at 23%c per pound, net, duty paid, ex dock New York, landed weights less actual tare.
This sugar is sold on the basis of No. 25 Dutch Standard polarizing not less than 99 degrees, but in the event of it testing less, a corresponding allowance shall be made in accordance with New York rulings.
This sugar shall be shipped by steamer and/or steamers from Java between July 1st and August 31st, inclusive, and the relative bill of lading shall constitute proof thereof.
This sugar shall be taken delivery of by the buyer immediately on being unloaded.”

On October 18, 1920, the plaintiff wrote the defendant:

“Messrs. Sawyer Biscuit Company,
Chicago, Illinois.
Dear Sirs:
With reference to your contract with us for 100 tons of sugar, we beg to inform you that all our August Java shipments were made on two steamers. The first boat is due to arrive early in November, say about Nov. 10th, whereas the second steamer we have been advised has been delayed en route and will probably arrive some three weeks later. Will you kindly let us know whether you would prefer to receive the whole or part of your purchase out of the first steamer, or whether it would suit you best to get delivery out of the later boat, so that we can make all our arrangements accordingly, if possible. If for any reason you should prefer an immediate delivery we suggest that you take up with us the matter of giving you like sugars from spot stocks.
Kindly reply promptly, and oblige,
Tours faithfully,
Interocean Mercantile Corporation
Gen. Manager.”

The steamers referred to in the letter were the Alloway and the Honolulu Maru.

Receiving no reply to its letter, the plaintiff on October 25, 1920, sent a telegram to the defendant stating:

“Please reply immediately to our letter of eighteenth October as' we are now making allocations.”

There was no response by the defendant to either the letter or the telegram until November 22, 1920, when it telegraphed the plaintiff as follows:

“Replying your telegram received eighteenth instant we are under no obligation to accept sugar shipped on Alloway and you may take this as our refusal to do so.”

The next communication between the parties was a telegram, dated December 10, 1920, from the plaintiff to the defendant stating:

“Referring our letter Eighteenth October and your telegram Twenty-second November your hundred tons sugar will be delivered from Steamer Honolulu Maru due here next Wednesday December Fifteenth. Please arrange for payment Equitable Trust Company accordingly.”

Two days later the defendant replied by telegraph saying:

“Replying your telegram tenth instant we are under no obligation to accept sugar shipped on Honolulu Maru and you may take this as our refusal to do so.”

On December 16, 1920, the Equitable Trust Company, to whom payment for the sugar was to be made, wrote to the defendant asking for the latter’s reasons for refusing to accept the sugar from either" steamer. The reply received, six days later, was:

“We refer you to our counsel in this matter, Messrs. Putnam, Bell, Dutch & Santry of Boston.”

The steamer Alio way arrived in New York on November 12, 1920. The Honolulu Maru arrived December 15 of the same year. The defendant refused to accept the sugar or pay for it. It gave no reason for its refusal. On October 6,1922, the plaintiff instituted suit in the circuit court of Cook county to recover damages for breach of the contract. A jury trial was had resulting in a verdict, and judgment upon the verdict, in favor of the defendant. The plaintiff appealed.

The pleadings are voluminous but they present but two simple issues. The principal defense was that the sugar tendered was not of the kind or quality called for by the contract. The qther was that there was a default as to the time of shipment.

In connection with the conduct of the defendant the history of the sugar market in the Hnited States for the year 1920 is decidedly enlightening.

It is conceded, that in the early months of the year there was an acute shortage of sugar. A witness for the defendant, on cross-examination, said:

“There was a war shortage and the price went up to — wherever you could find any sugar, would bring most any old price, as far as that is concerned.”

He might well have added that parties requiring sugar were willing to pay almost any price for any “old” kind of sugar. The condition of the market and the causes of the condition were stated, by a witness for the plaintiff, to be as follows:

“Well, after the signing of the armistice, in the latter part of 1918, the restrictions on sugar throughout the world began to ease up, and the people whose sweet tooth had been denied them for three to four years previous began using sugar in large quantities, and prices gradually advanced during 1919, until the beginning of 1920, when the United States Equalization Board, which had charge of all the distribution of sugar in this country, ceased to function, and after that period there was an open market and prices advanced for granulated from about 9 cents a pound to as high as 28 to 30 cents a pound between the 1st of January and the middle of July, 1920, due to a tremendous buying move of manufacturers and consumers and grocers and distributors of sugar. Due to these high prices Europe started to sell sugar here. When I say Europe I mean all parts of the Old World, and as a consequence of this, by the middle of July we had sugars pouring in here from all sections of the world — Java, Mauritius, Belgium, France, Czecho-Slovakia, Hong Kong, Natal, India — and we had too.much sugar. We could not consume it, and we could not take care of it. The result was that beginning about the middle of July, the market broke and granulated receded down to under 5 cents a' pound by the 1st of November of the same year.”

The facts with reference to market conditions in the year in question were presented before the United States District Court for the Northern District of California in the case of Mathieu v. George A. Moore (& Co., 4 Fed. (2d) 251. The case involved a contract for the sale of 200 tons of Indo-Chinese sugar. The buyer refused to make payment and defended a suit brought by the seller upon the grounds that the sugar was not of the quality contracted for and that it was shipped in single instead of double bags. Neither defense prevailed. The court said:

“The record, and the correspondence are full of expressions by defendant showing that it had really contracted for a quality of sugar of which it had no knowledge whatsoever. The record, also, is full of evidence to the effect that the year 1920 was a time of frenzied speculation in sugar (as well as other commodities), and that there was a mad scramble for sugar everywhere.”

And also made the further comment that:

“It (the sugar) arrived upon a glutted and falling market, and it was contracted for at a time when American buyers were feverishly contending with one another for any kind of sugar.”

The conclusion of the court was that:

“The evidence fairly justified the conclusion that the defendant contracted for an article not readily salable in this market, and the rejection was due to‘the discovery of this fact, coupled with a falling market.”

Among the numerous pleas filed by the defendant were several charging the plaintiff with fraud and misrepresentation as to the quality of the sugar contracted for and that it was known to the plaintiff that the sugar was unfitted for the uses of the defendant. No evidence, however, was presented to support any of these charges. Not a single representative of the defendant company testified. It relied solely upon the testimony of experts, who testified that the word “granulated,” when used in connection with the description of sugar in the United States, and particularly in the vicinity of Chicago and New York, had acquired a fixed and definite meaning among dealers in sugar. According to their testimony the word signifies a sugar that has been refined by a method known as the bone char process or filtering through burned or charred animal bones for the purpose of removing impurities.

It is conceded that at the time in question, and prior thereto, no sugar made in Java was purified by this process. If is likewise undisputed that, with two exceptions, the bone char process was universally used in the manufacture of sugar in the United States. The two exceptions were beet and plantation sugars. These were purified by the same processes used in Java. These were known as the carbonation and sulphitation processes. It is deemed unnecessary to describe these processes in detail or to discuss their relative merits. It suffices to say that the experts for the respective parties disagreed on the question as to whether a high grade granulated' sugar could be manufactured without using bone char.

It is undisputed that the sugar in question graded better than No. 25 Dutch Standard, a standard of whiteness. It also polarized in excess of 99 degrees. It averaged about 99-8/10. The degree of polarization indicates the sucrose content. It came from Java. But the experts for the defendant say that the words “Java” and “This sugar is sold on the basis of No. 25 Dutch Standard polarizing 99 degrees, but in the event of it testing less, a corresponding allowance shall be made in accordance with New York rulings,” are without purpose or effect because of the use of the word “granulated.” They say this despite the fact that there was a dearth of sugar when the contract was entered into. They insist that the defendant was entitled to sugar of the same quality as American Standard granulated, refined by the bone char process, notwithstanding their testimony that this kind of sugar never polarizes less than 99-5/10 and is whiter than No. 25 Dutch Standard. If the defendant expected to receive sugar equal in quality to American Standard granulated, why did it sign a contract containing specific provisions for minimum requirements as to quality below that of American Standard granulated, and that, in the event the sugar did not meet these requirements, allowances as to price should be made?

The experts, testifying for the plaintiff, testified that the sugar shipped on the steamers Alloway and Honolulu Maru was granulated. They said it was put through a machine known as a granulator and that this process converted the wet mass of sugar into grains or granules which made it granulated sugar. They distinguished this process from that of molding the sugar into the form of cubes or dominoes.

The experts for the defendant contended that the word “granulator” was a misnomer and that the machine was nothing but a dryer and should be so designated. But whatever the name, the result is the same. Sugar in a wet cohesive mass has the moisture removed and comes out of the granulator or dryer in the form of grains or granules. It becomes granulated regardless of the particular process used to remove the impurities. Some of the witnesses, however, testified that in the process of manufacture the sugar forms into grains or crystals before it is put into the granulator. In other words, it is granulated before it is put through the granulator. But whether it is granulated before or after going through the granulator the undisputed facts in the record show that the sugar in question was “granulated” sugar.

One of the defendant’s experts admitted, on cross-examination, that Webster’s International Dictionary defines “granulated” as meaning “Consisting of or resembling grains”; “granulated in grains; granular; as granulated sugar.” Finally, he said, “I wouldn’t disagree with Webster on anything.” Another one when asked about the definition of “granulated” given by the Century Dictionary, to like effect, said he did not conduct his business according to any dictionary. These answers are typical of those given by other of the defendant’s experts.

It developed upon the trial that beet and plantation sugars manufactured and sold in the United States are designated in contracts and containers as “granulated” sugars. Some of the witnesses for the defendant said that this was a false description hut that the trade was not deceived because buyers could tell from the name of the plantation or place of origin that the sugar had not been subjected to the bone char process. Others said that it was improper to use the word “granulated” as applied to these sugars without adding the words “beet” or “plantation.”.

In the instant case there is no evidence that the defendant was deceived. It knew that the sugar contracted for was made in Java and not in America. It therefore knew that it was not to receive Standard American granulated sugar. There was not an iota of evidence showing or tending to show that the plaintiff made a single representation, false or otherwise, as to the quality of the sugar or the processes used in its manufacture. There was no competent evidence of any usage or custom with reference to the meaning to be given the word “granulated” when used as part of the description of Java sugars when sold in this country. In fact there could not have been any custom or usage because no Java sugars‘were imported into the "United States until about the time the contract in question was entered into.

We are of the opinion that the undisputed facts in the record show that the sugar tendered <fully complied with all of the conditions and requirements of the contract and that the trial court erred in not so advising the jury.

Another defense sought to be established by the defendant was that the sugar was not shipped within the time specified in the contract. It was conceded that the clause in the contract that “the relative bill of lading shall constitute proof” of the date of shipment is binding upon the parties, in the absence of fraud. An attempt was, therefore, made to show fraud and that, although the bills of lading showed the date of shipment as the latter part of August, the loading of the steamers was actually begun on September 2. Evidence was also received for the purpose of showing that the bills of lading were executed at a port other than that from which shipment was made.

There was some evidence of the irregularities complained of, but we do not regard them as being of such a nature as to constitute fraud. Even if the acts complained of constituted fraud, the plaintiff was in nowise a party to it. The plaintiff bought the sugar through a brokerage concern. The seller and shipper of the sugar was a company in Java. Neither the plaintiff nór the defendant had any representative in that country. If there was any falsification of the shipping papers the plaintiff was no more responsible for it than the defendant. The plaintiff should not be chargeable with fraud which it did not commit. Almost the identical situation was presented in the case of Erie Food Products Co. v. Interocean Mercantile Corp. (evidently the plaintiff in the case at bar), 5 Fed. (2d) 1015, where the court said:

“We find that the plaintiff bought from brokers in Java a large quantity of sugar, to be shipped in July and/or August. In their purchase contract it was provided that the bill of lading should be proof of the shipment date. When plaintiff sold part of this same sugar to defendant, limited to the same shipment date, and since plaintiff would have no control over or knowledge of the facts as to shipment, it protected itself by a similar provision that the relative bills of lading should be proof of the date of shipment. If there was any falsity in these bills, plaintiff did not know it, and had nothing to do with it; and in these circumstances and in the absence of any fraud by plaintiff, the agreed proof must be taken as conclusive.”

In the case of Second Nat. Bank of Hoboken v. Columbia Trust Co. 288 Fed. 17, the court said:

“In a shipment of sugar from Java it would be difficult and troublesome to prove the date of shipment, in. case of dispute, and the inclusion of this provision in the contract was doubtless done to prevent just such a contingency as has arisen by making the date of shipment in the bill of lading ‘proof’ conclusive, and in the absence of fraud, which was disavowed by the defendant, the date in the bill of lading must be construed as absolute proof of the actual date of shipment.”

.In the case of Colonial Ice Cream Co. v. Interoeean Mercantile Corp., 296 Fed. 316, the United States Circuit Court of Appeals, Third Circuit, affirmed a judgment of the District Court of the United States for the Eastern District of Pennsylvania in favor of the plaintiff iñ the present case. The judgment was for $89,374.98, and was based upon a directed verdict. The contract sued upon bore the same date as the contract, here involved and was for the sale of. 200 tons of Java white sugar at the same price, i. e., 23% cents per pound; The contract is not set out in the opinion and no details are given with reference to the description of the sugar or what tests the contract provided for determining its quality. No question about its quality was raised by the defendant.

The sugar was shipped on the steamer Honolulu Maru which arrived in New York on December 15, 1920. This was one of the shipments out of which the plaintiff in the present case, on October 18, 1920, advised the defendant it could have delivery upon arrival, if it so desired. When the sugar arrived the price had fallen from 23% cents to 6% cents per pound. The defendant refused to accept the sugar or to pay for it.

One of the defenses interposed was that the delivery order was insufficient. The court held the defense unavailing because there had been an anticipatory repudiation of the contract by the defendant, saying:

“There is no denial that the sugar, the required quantity and quality, remained on the dock from December 16, to December 22, 1921. Defendant full well knew that the sugar was there and would be delivered on the payment of the purchase price, which it has tried to avoid by raising technical and unsubstantial objections. In fact, it is admitted that, prior to the arrival of the sugar, plaintiff notified defendant that it was about to arrive so that arrangements could be made to pay for it. Defendant replied ‘that it would not accept the sugar and would not pay for the same.’ This anticipatory breach rendered the presentation of the delivery order unnecessary, and the defendant may not now hide behind the alleged insufficiency of the order. Hartley v. James, 50 N. Y. 38; Second National Bank of Hoboken v. Columbia Trust Co. (C. C. A.) 288 Fed. 17, 22; Zuck v. McClure, 98 Pa. 541; Central Trust Co. v. Chicago Auditorium Association, 240 U. S. 581, 588, 36 Sup. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580.”

Objection was made to admission in evidence of the bills of lading and overruled. The court also refused to submit to the jury the question of their truth or falsity. The facts were presented by the deposition of John Engchiaw. He was an agent for the steamship company. He testified by deposition, in the present case, to substantially the same facts. The court in commenting upon the facts and the application of the law to them said:

“This contention is based upon the deposition of John Engchiaw, under whose supervision the bills of lading were prepared at Samarang, which was 175 miles from Sourabaya, the port at which the sugar was loaded on board the steamer. He was the general manager of the Osaka Shosen Kaisha, Limited, at Samarang, Java, hereinafter called the Osaka Company. 1ST. V. Kwik Hoo Tong Handel Mij, hereinafter called the Kwik Company, was the agent and representative of the Osaka Company at Sourabaya. The Kwik Company telephoned Engchiaw that the Honolulu Maru was due to arrive at Sourabaya on August 28, 1920, and he began to make out the bills of lading that day. Four thousand tons of sugar were placed under the control of the Osaka Company at Sourabaya — 1,000 tons on August 27, and 3,000 tons on August 28, 1920. It was in the ‘go-downs’ of the shippers at that place.
“ (1) Engchiaw testified that he being at Samarang, 175 miles from Sourabaya, did not know, of his own knowledge, the date of the shipment of the sugar.”

The court held that, in the absence of fraud, the provision in the contract that the relative bill of lading should constitute proof of the date of shipment was a binding and enforceable agreement, saying:

“For their mutual protection the parties provided in the contract that the relative bill of lading should constitute proof of the date of shipment. The defendant contends that ‘shipment’ means ‘putting the goods on board of a vessel,’ while the plaintiff contends that it means ‘delivery of goods to a carrier for transportation, whether by land or water or both.’ Whichever it means, the contract provided that the relative bill of lading should constitute proof of that fact, and in the absence of fraud, which is neither alleged nor proved, this provision meant proof conclusive. Second National Bank of Hoboken v. Columbia Trust Co. et al. (C. C. A.) 288 Fed. 17. The dates of shipment contained in the bills of lading are within the time specified in the contract. Admittedly this is the real question in the case, and we resolve it against the defendant. ’ ’

The evidence in the present case is that the plaintiff had no knowledge of the acts of the agent of the steamship company or any control over them. The plaintiff was as innocent of any fraud as the defendant. There was no inducement for it to delay the shipment or to cause the bills of lading to be falsified, if they were falsified.

At the instance of the plaintiff the trial court instructed the jury that the hills of lading were conclusive upon the parties as to the shipment date, in the absence of fraud, and that the defendant had the burden of proving fraud. But, at the request of the defendant, the court instructed the jury as follows:

“You are instructed that under the law and the evidence in this case plaintiff was obliged to ship or cause to be shipped as defined in these instructions from Java not later than August 31, 1920, the sugar contracted for. If you believe from the evidence that the sugar in question was not shipped from Java until after August 31, 1920, then the plaintiff cannot recover.”

This instruction was peremptory in form and clearly erroneous. It omitted the element of fraud. It' told the jury that, regardless of any question of fraud, they should bring in a verdict in favor of the defendant if they found as a fact that the sugar was not shipped from Java until after August 31, 1920. It also failed to advise the jury what constitutes shipment, a question of controversy among the authorities. The giving of this instruction was incurable error. Daubach v. Drake Hotel Co., 243 Ill. App. 298. The court in that ease said:

“According to the well-settled rule, since the instruction is a peremptory one, the error in the instruction cannot be cured by any other instruction in the seriés of instructions. Cantwell v. Harding, 249 Ill. 354, 358; Cromer v. Borders Coal Co., 246 Ill. 451, 457; Illinois Iron & Metal Co. v. Weber, supra [196 Ill.] (p. 531).”

The court, at the request of the defendant, further instructed the jury, that:

“If you believe from the evidence that the words ‘Java White Granulated Sugar’ as used in the contract meant a cane sugar that had its acidity content removed as best possible through the bone char process and if you further believe from the evidence that the hone char process is the only process by which the acidity content of such sugar was best removed, and if you further believe from the evidence that the sugar offered or tendered by the plaintiff to the defendant did not have the acidity content removed as herein-before stated through the bone char process, then the defendant was not obligated to accept the sugar offered or tendered.”

This instruction is also erroneous. There was no evidence that there was any acid in the sugar tendered. The instruction submitted to the jury a feigned issue as to whether the bone char method was the best for removing acidity content, if any, from sugar. It concluded with an assumption that the sugar in question contained acid and then advised the jury that if the acid content had not been removed through the bone char'process the defendant was not obligated to accept the sugar. Further, there was no issue about the process used in manufacturing the sugar in question. The plaintiff made no contention that the bone char process was used.

It is not deemed necessary to consider other given and refused instruction discussed' in the briefs. The giving of either one of the instructions above set out constituted reversible error and of such a nature as to require a reversal of the judgment of the trial court.

Some point is made by the defendant that there was no valid tender of the sugar. But, a formal tender would have been a mere idle ceremony. After the plaintiff wrote its letter of October 18, 1920, offering to make delivery from either of the two steamers or immediate delivery from spot stocks, the defendant remained silent for more than a month. In the meantime it had received a telegram urging immediate reply to the letter. It prevailed upon the court to exclude evidence as to the market prices of sugar during this period. Evidently it never intended to accept the sugar or was speculating on changes in the price at the risk of the plaintiff. Then later came the advise that it was not obligated to accept sugar shipped on either of the steamers and finally to see its lawyers, at a time when the price of sugar had dropped to 6% cents per pound. It never replied to the offer of the plaintiff to make immediate delivery from spot stocks, although the plaintiff testified, and without contradiction, that, when the offer was made, he had available more than a sufficient amount of sugar to make full delivery.

The acts of the defendant established all of the elements necessary to constitute an anticipatory repudiation of its contract and thus to excuse the plaintiff from performing the useless act of making a formal tender of delivery. Colonial Ice Cream Co. v. Interocean Mercantile Corp., 296 Fed. 316; Norton Iron Works v. Wilson Steel Products Co., 232 Ill. App. 523. The law on this point" is well stated in the latter case where the court in its opinion stated the law as follows :

“It is further claimed by defendant’s counsel that after plaintiff acquiesced in defendant’s request to withhold shipments until further notice, (although no such further notice was ever given by defendant) plaintiff could not recover without proving a tender of performance on its part; and it is said that no such tender was shown. In making this contention, counsel cite and rely on section 51 of the Uniform Sales Act (Cahill’s Ill. St., ch. 121a, ¶ 54), which provides that ‘When the seller is ready and willing to deliver the goods, and requests the buyer to take delivery, and the .buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery.’ If it be conceded that a tender of any kind was necessary under the facts of this case (which we do not decide), we think such a tender as this section of the statute requires was shown. The letter of October 7, 1920, in which the plaintiff requested permission of the defendant to ‘resume shipments’ was, in effect, a request on the buyer ‘to take delivery’; and the plaintiff was then ‘ready and willing to deliver the goods.’ This is all the statute requires. Even before the Uniform Sales Act was passed, the law did not require a seller to carry around with him such a bulky commodity as 630 tons of steel rods in order to physically tender the same to a purchaser. If the seller had the goods ready to be delivered and offered to deliver them, that was a sufficient tender. (Sanborn v. Benedict, 78 Ill. 309, 313.)”

The facts with reference to a tender or excuse for not tendering delivery of the sugar, being undisputed, presented a question of law for the court and it was error to submit the issue to the jury.

As we view the law in the light of the undisputed facts in the record the court should have granted the motion of the plaintiff to instruct the jury to retain a verdict in its favor.

The plaintiff asks that judgment be entered in this court in its favor for the amount claimed in its affidavit of claim. This we are without authority to do in a case where the right to a trial by jury exists. City of Spring Valley v. Spring Valley Coal Co., 173 Ill. 497; North Side Sash and Door Co. v. Goldstein, 286 Ill. 209; Knight v. Seney, 290 Ill. 11. This court is likewise without power to direct the entry by the trial court of a proper judgment. But, it may direct the trial court to proceed in conformity with the legal principles announced in its opinion. People v. Lord, 315 Ill. 603.

For the foregoing reasons, the judgment of the circuit court of Cook county is reversed and the cause remanded with directions to proceed with a new trial in conformity with the views expressed in this opinion.

Reversed a/t'id cause remanded with directions.

Wilson, P. J., and Holdom, J., concur.