text:
    The People of the State of Illinois, Defendant in Error, v. Amante Rongetti, Defendant Below. William Scott Stewart, Plaintiff in Error.
    Gen. No. 32,770.

      Opinion filed December 19, 1928.
    Rehearing denied January 2, 1929.
    William Scott Stewart, pro se.

    Robert E. Crowe, State’s Attorney, for defendant in error; Edward E. Wilson, Henry T. Chace, Jr., and Henry E. Ayers, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This writ of error is sued out by one William Scott Stewart, the plaintiff in error, in an effort to reverse the judgment finding him guilty of a contempt of court in the presence of the court during the trial of the case of People v. Rongetti, charging the said Rongetti with the crime of murder. The sentence imposed against the said Stewart by the court for such contempt was a committal for the term of three months in the common jail of Cook county. Plaintiff in error appears in this court pro se and without the aid of other counsel.

The 'alleged contempt arose regarding a witness for the State in the Rongetti case named Lorraine Irwin.

The prosecution was initiated on March 2, 1928, by the court granting leave to the State’s attorney to file a written motion, which in substance charged that during the trial and in connection with the case, People• v. Rongetti, Lorraine Irwin, a material witness for the State in said case, after such witness had been served with a subpoena to appear as a witness in said cause, was called to the bar of the court and questioned and examined by the court concerning her attendance in said court as a witness and certain alleged threats and intimidations towards said witness, in contempt of that court. William Scott Stewart, attorney for the defendant in said cause, well knowing that said Lorraine Irwin was then and there a material witness of the People in said cause under a subpoena of the court, and that the court was in the act of inquiring of said witness concerning said threats and intimidation and to secure the attendance and safety of said Lorraine Irwin as a witness in said case, in the presence of the court advised the said Lorraine Irwin not to answer the questions propounded to her by the court. That the court then inquired of said Stewart if he was the attorney for said Lorraine Irwin, and thereupon, without being theretofore retained by the said Lorraine Irwin or having been appointed by the court to in any way represent her, and without any authority so to do, said Stewart stated that he represented said Lorraine Irwin in said matter before the court and filed his appearance in writing as the attorney for the said Lorraine Irwin. Thereupon the court ordered and directed that said Lorraine Irwin be taken into custody by an officer of the court, for the purpose of securing the attendance of said Lorraine Irwin as a witness, and for the purpose of protecting her from further threats and intimidations. That said Stewart conspired and confederated with other evilly disposed persons to wrongfully sue out of the superior court of Cook county a writ of habeas corpus directing that said Lorraine Irwin be taken out of the custody of the trial court and before the said superior court, and further charged that while said Lorraine Irwin was in the presence of the superior court said Stewart appeared in said court seeking to release said Lorraine Irwin from the custody of the court, and further while said Lorraine Irwin was in the superior court he, the said Stewart, approached her and made certain threats against her in the event she should testify as a witness for the State in said cause. All of the aforesaid charges tended to embarrass and obstruct the court in the due administration of justice and tended to bring the administration of law and justice into disrepute ; and moved that the court deal with said Stewart for the matters in said motion alleged against him.

After a hearing of the charges against said Stewart, set forth in said motion, the court entered an order with certain findings of fact proven upon the said hearing, among which were, inter alia> the following:

“And thereupon this court finds that on the 21st day of February, A. D. 1928, said William Scott Stewart as attorney for the said Amante Eongetti was present in open court, and that while this court was in session and while one Lorraine Irwin was then and there under the jurisdiction of this court by virtue of a subpoena commanding her to appear and testify on behalf of the People in the case of the People of the State of Illinois v. Amante Rongetti then on trial, he, the said William Scott Stewart, then and there entered his appearance as counsel for said Lorraine Irwin without appointment by the court and without the request or appointment of the said Lorraine Irwin, and the said William Scott Stewart then and there in open court charged the court with coercing the witness, Lorraine Irwin, and advised her, the said Lorraine Irwin, that she did not have to answer the questions of the court and advised her not to answer the questions of the court;
“And the court further finds that in open court on the 23rd day of February, A. D. 1928, the said William Scott Stewart then and there charged the court with trying to induce the witness, Lorraine Irwin, to say something different from what she had already said, that is to say, to commit perjury;
“And the court further finds that on the 23rd day of March, A. D. 1928, said William Scott Stewart in open court under oath charged this court with attempting to decoy the witness, Lorraine Irwin, into a position that would justify the court in attaching her for contempt;
“All of which said conduct of said William Scott Stewart took place while this court was in open session and tended to impede and interrupt the proceedings and lessen the dignity of this court, and was calculated to impede, embarrass and obstruct this court in the due administration of justice.
“The court further finds that the said William Scott Stewart, who is now here present in open court, is, by reason of said conduct of said William Scott Stewart, guilty of a direct contempt of this court in open court.
“It is therefore considered, ordered and adjudged that said William Scott Stewart because of said judgment of guilty, be and he is hereby sentenced to confinement in the county jail of Cook county, Illinois, for the term of three months,” etc.

To all of which said Stewart took an exception and made a motion t.o vacate the order and sentence, which motion was denied.

In pursuance of the aforesaid order and findings a mittimus for contempt was issued, directed to the sheriff of Cook county, commanding him to execute the sentence of the court upon the said Stewart, said mittimus being issued and signed in the name of the clerk of said criminal court.

Stewart assigns error upon the record for reversal and argues “that the order (heretofore recited) is indefensible and void. ’ ’

Stewart urges for reversal that his testimony given under oath in answer to the motion filed by the State’s attorney took the place of a sworn answer,, entitling him to a discharge of the contempt charged under the rule that where an indirect contempt is charged against a person, it must be charged in an information with interrogatories, and rule entered to show cause, and that contempt must be decided on such information and sworn answer bf the respondent. While such is the rule in cases of indirect contempt, it has no application to a case . of direct contempt committed in open court in the presence of the court and while the court is in session for the transaction of judicial business, and we hold from the findings in the record that the contempt for which Stewart was found guilty was a direct contempt committed in the presence of the court, while it was in session for the transaction of its judicial business, and that the acts of said Stewart constituting such contempt tended to impede and obstruct justice in said court, and that the material findings in said order were within the cognizance and personal knowledge of the presiding judge of the criminal court. While it is true many acts set forth in the court’s findings did not occur in the actual presence of the court, yet those acts, which did occur in the presence of the court, which will be hereafter referred to, were all sufficient to justify the court in entering the order adjudging Stewart guilty of a direct contempt of court in the presence of the court.

We shall confine our review to the matters in evidence, to which the court was a witness, and which were given in open court, in arriving at our conclusion of the guilt or innocence of Stewart of the contempt of which he stands convicted. While there is much evidence in the record of matters occurring out of the court room and the hearing of the trial judge, we shall give no heed to them, as they are not pertinent on the question of Stewart’s guilt. His case must be measured and determined on the occurrences which took place in the presence of the trial judge while the court was in session, engaged in transacting the business of the court in a hearing before the court, so far as the same is preserved by the order of court finding Stewart guilty of contempt.

In Stewart’s original brief he makes this statement:

“We (editorial we, we presume) are quite aware that some authorities hold that where an order has been entered by a court of record finding one guilty of direct contempt, the upper court in reviewing that sentence can look only to the order of the court and is bound to take the findings as recorded by the lower court as true, regardless of any objection or difference of opinion as to what the facts actually were. ’ ’

We understand this to be a correct statement of the rule in this jurisdiction whatever the rule may be elsewhere. The findings of the court import verity and they cannot be disturbed by evidence de hors such record. To this rule we are aware of no exception.

It may not be inappropriate at this point to ascertain the state of mind of Stewart towards the trial, judge, whether respectful or belligerent, as evidenced by what he has said in his briefs before us when referring to the trial judge. It may aid in penetrating the atmosphere which Stewart created at the hearing.

On page 33 of his original brief Stewart writes, “When such a finding has been spread of record by a trial court with no evidence upon which to base it, can we not be pardoned if we say that it is downright malicious and a despicable example of the effort of the trial judge to use the power of his office against us. ’ ’ Again on page 77, in referring to a finding in the record he states, “But this finding is in keeping with the rest of the reckless ruthless disregard of the truth manifested by the trial court.” And on page 87, he charges that “the trial judge exceeded the discretion given him and acted maliciously and his order is unjustifiable and indefensible.” On page 92 occurs this observation aimed at the trial judge, “The trial judge was not elected to be a judge, prosecutor and grand jury but he endeavored to so act nevertheless.” Lastly on page 4 of his reply brief, Stewart states, “We do deny the truth of the charge, and we again assert that this order of commitment is nothing more or less than the unlawful usurpation of a power by an arrogant, selfish, tyrannical trial judge for the purpose of venting his spleen and animosity and is indefensible, libelous and void.” It must not be overlooked in judging of contemnor’s frame of mind that he appears as his own counsel, and that the language in his brief is not that of a retained counsel, over which it might be pleaded in extenuation that he had no control and was therefore not responsible. This may likewise be evidence of the folly of appearing “pro se.” The briefs referred to are signed “Wm. Scott Stewart, attorney pro se.”

At the time of the occurrences in question one Lorraine Irwin had been subpoenaed as a witness for the State in the Rongetti case, supra, and the court was proceeding to interrogate her in open court while she was on the witness stand, and the trial judge was engaged in an effort to find out if the rumors which had come to the ears of the court and the State’s attorney, that the witness had been intimidated, were true or not. Stewart was not the attorney for Miss Irwin, nor had he been appointed such by the court. Notwithstanding this, he contended that he was her attorney, in spite of her denials made in his presence while being examined by the court, and interrupted the proceedings without authority so to do, and falsely claiming to be the attorney for Miss Irwin, entered her appearance in writing, now claiming to have done so upon the suggestion of the trial judge. What really occurred was that the trial judge said, “If you are her attorney, enter her appearance in writing,” whereupon the minute clerk handed Stewart a blank form of appearance, which he filled out and signed, and then handed it to the clerk. All these acts were in contempt of the court and its authority and tended to interfere with and impede the course of justice. His contention that he was the attorney of Miss Irwin and that he signed an appearance for her as such at the instance of the court were subterfuges a,nd false, all of which Stewart as an experienced criminal court practitioner knew to be mere subterfuges and false pretenses. In so doing he was unduly impeding the orderly conduct of the proceeding in which he unwarrantedly inter-meddled.

While Lorraine Irwin was on the witness stand being interrogated by the court, Stewart interrupted by making this remark to the court, “Under which your Honor she is entitled to sign her own recognizance under the law.” The court, “Do you represent her?” Mr. Stewart, “Why certainly. I will represent any one that is being coerced.” As Stewart did not represent Miss Irwin his interference was uncalled for, and particularly the remark imputing to the court that the court was coercing Miss Irwin.

And again, “The court: I asked you, do you represent her.” Mr. Stewart, “Yes, I will represent her for that purpose. She is entitled to sign her own recognizance under the law.” The court, “Do you represent her?” Mr. Stewart, “Yes, I do.” The court, “Well, then you file an appearance.” Mr. Stewart, “I will file an appearance. Enter my appearance for Lorraine Irwin. She is a citizen and entitled to have protection. ’ ’

The court put this question to Stewart, “And you filed that (referring to his appearance for Miss Irwin) because you say you understood that was the suggestion of the court?” Answer by Stewart, “That was my understanding. ’ ’

The foregoing demonstrates that Stewart’s claim •that he entered an appearance at the suggestion of the court was simply a subterfuge in an attempt to justify his unlawful and contemptuous interference.

Again Stewart interrupted by saying, “All right. I will represent her here in these high-handed methods; I will enter an appearance, yes.” And again Stewart said to the court, “I will advise her that she does not have to answer, your honor.” As he did not represent Miss Irwin he had no right to advise her as to anything in the matters about which she was being interrogated by the court.

At a further stage of the proceeding, Mr. Ditchburne said, “May I interrupt at this time, if your Honor please?” Q. “Miss Irwin, is Mr. Stewart now your lawyer?” A. “No.” Q. “Have you ever retained him?” A. “No.” Q. “Have you consented to have him act as your attorney.” A. “No.” The court (addressing Stewart), “Did any one ever hire you to act for her?” Mr. Stewart, “I filed my appearance at your suggestion.” The court, “I didn’t suggest that you file your appearance, but I suggested that if you represented her you had better file an appearance. I know of only two ways for a lawyer to file his appearance and that is, one, by a retainer, and the other by appointment. The court has not appointed you, the witness disclaims that she ever retained you, but at any rate the thing that I want to state at this time is to direct counsel that I will not permit counsel to cross-examine this witness, if it is purposed to cloud or attack her character, in regard to the existence of any colored man.’’ To which Mr. Stewart retorted, “Don’t you think that on that subject it would be better to wait until we reached that point, and if the witness is now instructed by the court, she should be given instructions as to all of her rights.”

In spite of the foregoing Stewart in his brief says, “We did not claim to be her lawyer at any time nor is any claim made that she ever retained us.”

We find from the record and findings in the order of commitment that William Scott Stewart was guilty of a contempt of court in the presence of the court, and that Ms actions tended to impede and embarrass the administration of justice, and that the conduct of said Stewart in this regard was wilful and without any lawful excuse or paliation.

It was held in People v. Gard, 259 Ill. 238, that conduct which tends to embarrass or obstruct the court in the admimstration of justice, or which tends to bring the administration of the law into disrespect, constitutes a direct contempt and is punishable as such; and that where acts constituting a direct contempt are committed in the presence of the court an order of commitment may be lawfully made without any preliminary proceeding, and the sufficiency of the complaint in a preliminary proceeding is therefore immaterial.

To a like effect is Ferriman v. People, 128 Ill. App. 230. In People v. Cochrane, 307 Ill. 126, the court held:

“Any act which is calculated to embarrass, hinder or obstruct the court in the administration of justice or to lessen its authority or digMty is a contempt.”

We find that the procedure for contempt against Stewart was according to legal precedent; that the contempt charged was a direct contempt committed in the presence of the court, and that the findings of fact in the record support the conclusions and findings of the court, and that such findings have ample support in the evidence, and constitute a direct contempt of court committed in the presence of the court.

Stewart complains of the severity of the sentence, but his continued attitude of hostility to the presiding judge and bis expressed contempt for the court, as evidenced by his language in his briefs, heretofore set out, do not commend him to clemency. We think the sentence is justified by Stewart’s conduct in court and his attitude of disrespect for the court macLe manifest at the time in the court and continued by his uncalled for slanderous remarks in his briefs before this court, in referring to the presiding judge. He has shown no sort of contrition for his contemptuous conduct and he does no deed meet for repentance. As a matter of fact this court would be justified in striking Stewart’s briefs from the files for the scandalous matter therein found, referring disrespectfully to the trial judge. If such conduct can be condoned in a court of review, then the orderly trial of causes, particularly in criminal courts, would be a thing of the past, and henceforth counsel might feel privileged to treat the trial judge with contempt. It is axiomatic that law and order should not only prevail, but be enforced in courts of justice.

We find no error of fact or procedure justifying a reversal of the order committing William Scott Stewart to the common jail of Cook county for a period of three months for his contempt of court, and therefore that order is affirmed.

Affirmed.

Wilson and Ryner, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Ryner

license: Public Domain

text:
    Leon Roe, Appellant, v. Nels T. Engstrom et al., Appellees.
    Gen. No. 32,612.
    Opinion filed December 19, 1928.

      Frank F. Tollkuehn, for appellant.
    Aaron Soble, for Wm. D. Martin, appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

The complainant filed in the superior court of Cook county his bill of complaint in the usual form, to foreclose a trust deed. The cause was referred to a master in chancery to take proofs. Upon the coming in of his report it was approved and a decree of sale entered. There was a sale of the property described in the trust deed, and the master’s report of sale confirmed by the court.

The only question presented for review by this appeal is whether the court erred in denying complainant an allowance for solicitor’s fees. The master reported that the trust deed provided for the allowance of reasonable solicitor’s fees and that the complainant was compelled to and did employ a solicitor. No objections to the report were filed and it was in all respects confirmed by the decree of sale.

The decree contained, among other things, a finding that there was due complainant the sum of $2,404.67 and two small sums representing items of costs, “and in addition thereto the costs of this court and attorney’s fees to be fixed on the reference in addition to said sum.” There was also a finding that there was due to William D. Martin the sum of $848.84 on a junior trust deed, and the further sum of $899.34 on a third trust deed.

The decree directed that unless the owners of the property, within five days, paid the principal sums so found to be due, together with interest thereon, “and also the costs of this suit including solicitor’s fees” etc., the property should be sold and that, out of the proceeds of sale, the master should first retain a sufficient amount to cover disbursements, commissions and unpaid costs, and then to pay to complainant the amount due him with interest and taxable costs “and also a sum for solicitor’s fees to be determined upon a re-reference for distribution, etc.”

The master reported that he had sold the property for the sum of $3,000 and that, after deducting his fees and commissions, there was in his hands a balance of $2,804.02, held subject to the order of court. The report was confirmed by the court and an order entered re-referring the cause to the master “To take proofs as to solicitor’s fees, and make distribution of the proceeds, including costs, solicitor’s fees, stenographer’s fees, master’s fees, and any other expenses of the complainant.” The master in his report on the re-reference found that it was necessary to a proper presentation of the cause before the court for the complainant to employ a solicitor and that a reasonable fee for the solicitor would be $275.

At this point in the proceeding, Martin, who was decreed to be entitled to the sum of $1,748.18 due on notes secured by the two junior trust deeds, filed with the clerk of the court his petition in which he asked that the complainant’s application for solicitor’s fees be denied and that the balance of moneys, amounting to approximately $391.80, in the hands of the master be paid to him.

The petition, after setting forth the substance of those parts of the master’s report and the decree of sale pertinent to the question whether complainant should be allowed solicitor’s fees, alleged that two days before the sale petitioner appeared in open court and tendered to the complainant the several amounts of money found to be due him under the decree of sale, but that the tender was refused because it did not include an offer to pay solicitor’s fees!

The complainant interposed a demurrer to the petition, which the court overruled. The court thereupon entered an order confirming the master’s report of distribution, excepting certain items of costs amounting to $52.65, and the item of $275 for solicitor’s fees for complainant. The court denied any allowance to complainant for solicitor’s fees and ordered these sums of money to be paid to the petitioner, Martin, to apply on account of the indebtedness found to be due to him under the decree of sale.

At the outset there arises some doubt as to which party to the cause in the superior court is here opposing complainant’s request that the decree of that court be reversed. Counsel who filed a brief and argument “for appellee” entered a formal written appearance for Neis F. Engstrom alone. Engstrom at one time owned the property in question but died before complainant filed his bill. On the cover of the brief counsel says he is solicitor for “Wm. D. Martin, Appellee.” He signs the brief as “Solicitor for certain defendants.”

We assume from the facts and the context of counsel’s brief that he is the solicitor for Martin. This would be the natural inference to be drawn, because the only question in controversy is whether Martin should get all of the moneys constituting the balance in the master’s hands, or whether out of such moneys there should first be paid a reasonable solicitor’s fee to complainant.

Counsel for Martin urges, in support of the decree or order of the superior court denying fees, that the court was without jurisdiction, at a term subsequent to that at which the decree of sale was entered, to re-refer the cause or to adjudicate the question of fees. This would probably be true if the decree was silent on this issue. But it is not. It finds that complainant is entitled to solicitor’s fees, but instead of fixing the amount, provides that the amount shall be determined upon a re-reference for distribution. While the language of the decree on this issue is not as definite as it might be, we think it is suEcient to reserve jurisdiction in the court to determine the amount of solicitor’s fees at a subsequent term.

Counsel did not object or except to the finding of the master that the complainant was compelled to and did employ a solicitor and that he was accordingly entitled to a reasonable allowance for the services of such solicitor. There was no exception to or appeal from the decree. Both :he and his client apparently were satisfied with the decree, including the provision that fees were to be allowed, the amount to be determined after the report of the master upon a re-reference.

So far as the record discloses, no question was raised about the propriety of allowing solicitor’s fees, or the method of procedure adopted in regard to the fixing of the amount thereof, until two days before the date set for the sale, when Martin, according to his petition, made a tender to the complainant which did not include an offer to pay any fee.

This belated action of Martin on the eve of sale was probably inspired by recently acquired information that the property might not sell for a suEcient amount to satisfy the indebtedness due him. He waited until exactly one day after the term of court at which the decree of sale was entered to make this move. It was then too late to take further testimony or have the decree amended. If he were successful in the contention which he makes here, that he was obliged to tender only the amounts determined and definitely fixed in the decree of sale as being due to the complainant, he would have deprived the complainant of any allowance of the solicitor’s fees to which the court held he was entitled.

Counsel for Martin also lays stress upon the provision of the trust deed that all expenses and disbursements should be taxed as costs and “included in any decree that may be rendered in such foreclosure proceeding.” This provision was undoubtedly made to give full protection to the holders of the notes secured by the trust deed. It does not specify what decree, but says “any” decree. Even if this language be construed to refer to the decree of sale, it would not follow that this deprived the court of the right to reserve jurisdiction to determine at a later date the amount of such costs and disbursements. Particularly is this true where the parties did not make objection in apt time to such procedure.

The practice adopted in this case of reserving jurisdiction in the decree of sale to determine after the sale the amount of solicitor’s fees to be allowed is to be condemned. The proper practice is for the master to hear the evidence in support of such allowance on the first reference and for the court to determine and fix in the decree of sale a specified amount in the event that fees are allowed. This has been the invariable practice in foreclosure suits. Unity Co. v. Equitable Trust Co., 204 Ill. 595.

The court, however, did reserve jurisdiction to fix the amount of solicitor’s fees to be allowed at a subsequent term. This it had the unquestionable power to do. This method of procedure Martin acquiesced in until the term had passed, and it was too late to receive further evidence or order a re-reference and amend the decree. At the time the master’s report of distribution was under consideration the court still had jurisdiction to allow solicitor’s fees and to determine the amount thereof. The testimony taken before the master was sufficient to warrant an allowance, the amount to be allowed to be determined from such evidence and the court’s own knowledge of the reasonable value of such services.

The decree of the superior court of Cook county denying solicitor’s fees to the complainant will be reversed and the cause remanded with directions to proceed in conformity with the views expressed in this opinion.

Reversed and remanded with directions.

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


text:
    J. K. Harris, Trading as J. K. Harris and Company, Appellee, v. Benj. A. Bernfeld, Trading as Central Electrical Sign System, Appellant.
    Gen. No. 32,639.

      Opinion filed December 19, 1928.
    Rehearing denied January 2, 1929,
    Martin M. Gross, for appellant.
    Harold L. Feigenholtz, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

The plaintiff obtained a judgment by confession against the defendant in the municipal court of Chicago. The judgment was entered December 8, 1927, and was for the sum of $1,218.75. This amount represented the aggregate face value of 39 small checks and an attorney’s fee of $125. On December 27, 1927, the defendant filed his verified petition praying that the judgment be vacated and set aside. The prayer of the petition was denied and the defendant has perfected this appeal to have reviewed the action of the court in refusing to vacate the judgment.

Four out of the 39 checks bore the dates November 12, 1927, November 19, 1927, November 26, 1927, and December 3, 1927, respectively. The remaining checks all bore dates subsequent to the date of the entry of the judgment, the last being dated July 30, 1928. The checks were identical in wording except the dates and amounts. The Lawrence Upholstering & Furniture Shop, Inc., was the maker of all the checks, and each was drawn on the Second Citizens State Bank, and made payable to the order of the defendant. On the reverse side of each check appeared the following:

“For value received, the undersigned hereby guarantee the prompt payment of this note at maturity or at any time thereafter waiving demand protest and notice of protest or non-payment and hereby authorize irrevocably any attorney of any court of record to appear for me or us in such court, in term time or vacation, at any time hereafter and confess a judgment for the face amount, of this note or for such amount as may appear to be unpaid thereon, together with costs and reasonable attorney’s fees without process in favor of the holder of this note and to waive and release all errors which may intervene in any such proceedings and consent to immediate execution upon such judgment hereby ratifying and confirming all that my or our attorney may do by virtue hereof. Benj. A. Bernfeld.”

In his petition to vacate the judgment, the defendant says that he had no knowledge prior to December 15,1927, of the entry of the judgment; that he sold the checks to the plaintiff for the sum of $900; that the plaintiff agreed to use all possible diligence in the collection, of the checks from the maker; that he, the defendant, agreed to guarantee the payment of the checks at maturity, but did not know, until after the judgment had been entered, that he had executed a power of attorney to confess judgment; that there was due only the sum of $118.75 from the maker of the checks, and that the guaranty and power of attorney did not warrant the taking of judgment for any larger amount.

The defendant urges as one ground for reversal of the judgment that the transaction was usurious. In his petition to vacate the judgment, however, he wholly failed to apprise the court that he intended to rely upon this as a defense, or partial defense. The defense of usury, under our statute, must be specially pleaded, and it may be waived. The petition charged simply that the defendant sold to the plaintiff checks of the aggregate face value of $1,093.75 for $900, and that the defendant was “not indebted to the plaintiff in the sum of $1,218.75, or any sum thereof.” It cannot be said that these allegations were sufficient to advise the court whether the defense of usury was relied upon or waived.

Some point is made of the fact that the defendant did not indorse the checks. Even if the signing of the guaranty and the power of attorney to confess judgment did not constitute an indorsement in the sense used by counsel for defendant, section 49 of our act on Negotiable Instruments, Cahill’s St. ch. 98, fí 69, provides that “Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transferer vests in the transferee such title as the transferee had therein.”

The principal contention of the defendant is that the guaranty and power of attorney to confess judgment did not authorize the entry of judgment for more than the sum of $118.75, being the amount due on all checks that had matured, together with a reasonable attorney’s fee. Whether this contention is sound depends upon the construction to be given to the guaranty and power of attorney to confess judgment. No authority, directly in point, is cited in the briefs. Cases are cited Avhich hold that a maker of commercial paper can make a valid agreement that the holder of the paper, at his election, may enforce payment prior to the date of maturity by confessing judgment. Such a stipulation does not, however, change the character df the obligation of the maker of the paper. He remains primarily liable. The only effect of the stipulation is to give to the holder of the paper the option to accelerate its maturity.

Under the express terms of the instrument in question the defendant obligated himself only as guarantor. He was to pay at or after maturity, and then only in' the event of the failure of the maker of the checks to make prompt payment. If the construction contended for by the plaintiff be adopted, then the liability of the defendant would become absolute at any time at the mere whim of the plaintiff. We think that, in view of the fact that all of the checks, but one, were post dated, that they were sold at a substantial discount, and that the obligation of the defendant was expressly stated to be that of guarantor, the power of attorney did not authorize the confession of judgment, on any of the-checks prior to their respective maturities.

The order of the municipal court of Chicago overruling the motion to vacate the judgment will be reversed and the cause remanded with directions to that court to proceed in conformity with the views expressed in this opinion.

Reversed and remanded with directions.

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


text:
    Joseph Warput, by Cali Warput, Appellee, v. Reading Coal Company, Appellant.
    Gen. No. 32,680.

      Opinion filed December 19, 1928.
    Heth, Lister & Collins, Kirkland, Fleming, Green & Martin and Roy O. Nutt, for appellant.
    Dodd, Matheny & Edmunds and Earl J. Walker, for appellee.
   Mr. Justice Ryner

delivered the opinion of the Court.

Joseph Warput, a minor, by his next friend, brought suit in the superior court of Cook county against the Beading Coal Company, a corporation, and Anton Vichunas, to recover damages for personal injuries sustained by him. There was a verdict and judgment upon the verdict in the sum of $18,000 against both defendants. This appeal was perfected by the defendant Beading Coal Company, the other defendant not appealing.

The accident happened at about nine o’clock in the evening of June 17, 1926, on One Hundred and Third Street, in the city of Chicago. The plaintiff was sitting at the rear end of an automobile truck, owned by the defendant, Beading Coal Company, with his legs hanging down over the tail gate, when his left leg was struck by the automobile of the defendant Anton Vichunas, and severely injured.

The first reason urged for a reversal of the judgment is that the truck owned by the Beading Coal Company, together with the driver, had been loaned to All Saints Church school and for a purpose foreign to the business and objects of business of the company, and that at the time of the accident the truck and its driver were under the control of the sisters of the school. There is little dispute, if any, about the facts pertinent to this issue.

The Beading Coal Company, a corporation, was engaged in the coal business, and in the conduct of its business used automobile trucks. A few days before the accident two sisters from All Saints Church school advised the president of the company that they wished to give a picnic for the children of the school and asked him if he would loan them two trucks with drivers for the occasion. They asked him to send the trucks to the school at One hundred and Eighth Street on the morning of the day of the picnic. Nothing was said by any of the parties as to what the driver should do, or under whose control or direction he should be. The president complied with the request. The truck on which the plaintiff was riding when he was injured was operated by a driver named Stanley Brzostowski. He wás given no instructions by his general employer except to report at the school, which he did. He was paid by the week by the Beading Coal Company whether he worked or not, and it was the understanding that the sisters of the school were to have the use of the trucks and drivers without charge. Shortly after the truck in question arrived at the school some of the school boys placed some temporary seats, consisting of boxes and boards in it, and decorated it with American flags. The driver then took some of the boys of the school to Palos Park, following the direction of the driver of another truck to follow him to that destination. A sister of the school, in the dress of her order, accompanied them. The driver waited at the park until evening, and then brought some of the boys, including the plaintiff, back to the school. The accident happened at about nine o’clock in the evening. The regular working hours of the driver were from seven o’clock a. m. to six o’clock p. m. He had been in the employ of the company about seven years, and his sole duty was the operation of a truck in the transportation of coal.

It is insisted that the trial court, with the foregoing uncontroverted facts before it, should have directed a verdict in favor of the Beading Goal Company. That the plaintiff established a prima facie case of control and operation of the truck by the company at the time of the accident, by proof of its ownership of the truck and its general employment of the driver, is not disputed. But it is urged that the presumption arising from such proof was fully overcome by uncontradicted testimony for the company showing that the president gave no instructions to the driver except to report at the school, and that no charge was made, or to be made, for the use of the truck or the services of the driver. The further point is made that the company was engaged in the coal business and never acted as a carrier of persons; that the sole duty of the driver was to haul coal, and that, therefore, there could not be any liability upon the part of the company, because the truck was not being used in the conduct of its business and the driver was not engaged in the discharge of any duty within the scope of his regular employment.

Many authorities from this and other jurisdictions are cited and discussed in the briefs. While they present conflicting views as to the law governing the liability of a master for the acts of his servant, most of them are in accord as to the general test to be applied in determining the liability of the master where he has hired or loaned his servant to another. The test is whether the general master in loaning or hiring his servant has for the time being released control of the servant to the person to whom he has been loaned or hired. In the case of Densby v. Bartlett, 318 Ill. 616, the court said:

“Where the servant of the general master is temporarily loaned or hired to another for some special service and becomes for the time wholly subject to the control of the person to whom he is loaned or hired and wholly freed from the control and direction of the general master, he becomes the servant, for the time being, of the person to whom he is loaned or hired and during such time becomes the servant of the latter.”

The difficulty lies in the application of the test. In this the authorities cannot be reconciled.

The Supreme Court of this State has uniformly held that “the most universal and unfailing test in determining the relation of master and servant is whether the control of the servant includes the power to discharge” and that “the relation of master and servant does not exist unless it includes the right to discharge.’’ Shannon v. Nightingale, 321 Ill. 168; Densby v. Bartlett, supra, and cases cited. The same authorities also hold that the person to whom a servant and vehicle are loaned does not become the master because he has the power to direct the servant when and where to go and whom to haul. In the instant case, the president of the company gave express instructions to take the truck to the school. It is clear that at this time the general master had complete control over the servant, including the right to discharge him. There was no understanding, express or implied, that the company was turning over complete control of the truck and driver to the sisters of the school. The sisters were given no right to control the driver except to tell him when and where to go and whom to haul. This right was implied and was the only one exercised or attempted to be exercised by them.

It is further argued that the school boys exercised control over the truck upon its arrival at the school. What the placing of temporary seats in the truck and decorating it with American flags had to do with the control of the driver, we are unable to see. Mention is also made of the fact that one of the sisters of the school clothed in the dress of her order, rode in the truck with the boys. It is not claimed that she gave the driver any instructions or attempted, in any way, to control his actions in the driving of the truck. Furthermore, it is not the exercise of power of control, but the right to exercise the power which furnishes the true test in determining who is the master of the servant. Hamill v. Territilli, 195 Ill. App. 174. It is hardly conceivable that the president of the company and the sisters of the school, under their verbal arrangement, contemplated that the company was turning over control of the truck and driver to a truckload of school boys of tender age, even though accompanied by a sister of the school, with the power to discharge the driver, operate the truck themselves, or to direct the driver to take them to some place other than that where the picnic was to be held.

Great stress is laid upon the fact that the company’s business was that of a dealer in coal and it had never engaged in the business of carrying persons; that the driver’s sole duty was to haul coal, and that no charge was made for the service. So far as the case of the driver is concerned, he was engaged in doing the very thing his general employer had expressly ordered him to do. He was not engaged in a frolic of his own and was not acting outside the scope of his then employment. As to the point that the undertaking was foreign to the business and objects of business of the company, counsel do not claim in their briefs that the doctrine of ultra vires is applicable, nor do they say that the president of the company was without authority in the premises. If they considered that the question of his authority was important or controlling, they should have introduced evidence to establish lack of authority in him if that were the fact. By so doing they would have avoided the inference to be drawn from their failure to produce material evidence peculiarly within their control. Wall v. Chesapeake & O. Ry. Co., 210 Ill. App. 136.

There are some general statements in the books to the effect that the master is not liable where the instrumentality causing the accident is not being used at the time in his business. For the most part, these are cases where a servant has wrongfully devoted his master’s vehicle to his own use, or where the master has consented to such use. In the few cases where the courts have applied the rule to a state of facts similar to those in the present case the ruling must have been the result of a misconception of the principle of the rule or a misapplication of it to the facts. At the time of the accident, it was part of the company’s business to see to it that the children riding in the truck were carried safely home.

The point that the undertaking was for a charitable purpose possesses little force. In the first place, the mere fact that no immediate monetary consideration passed to the company does not necessarily place an indelible stamp of charity upon the act. It is a matter of almost common knowledge' that many persons and corporations engaged in business make a practice of donating money and services for so-called charitable purposes. They expect no direct consideration. They do expect to create good will in the community in which they do business, and such good will is a valuable commercial asset. The practice is to be commended, but that does not wholly remove from it the element of purpose to stimulate business. We are not disposed to follow the few authorities from other jurisdictions which seem to hold that the master is exempt from liability where the servant is engaged in an act of a charitable nature. There are no cases in this State in point except by way of analogy. This court has several times held that the owner of an automobile is liable to an invited guest for injuries sustained by the guest, due to the negligence of the driver. Lasley V. Crawford, 228 Ill. App. 590, and cases cited. The guest is in a sense in the custody of the owner of the car. Barnett v. Levy, 213 Ill. App. 129. In the case of Jacobs v. Jacobs, 141 La. 272, cited with approval in Lasley v. Crawford, supra, the rule is concisely stated to be as follows:

“One who invites another to ride with him as his guest in an automobile is not absolved from responsibility for negligence or imprudence merely because he is performing a gratuitous service or favor to his guest.”

The underlying principle of these rulings seems to be that if a person rightfully entrusts his person to the care of the owner of a vehicle, without any voice as to how the vehicle shall be operated, the owner owes to him the duty of exercising ordinary care for his safety in the driving of the vehicle. We think the principle is applicable to the facts in this case.

It is finally contended that the court should have directed a verdict in favor of the defendant, Reading Coal Company, because the plaintiff did not show that he was in the exercise of ordinary care for his own safety at the time of the accident. He and three or four other boys were sitting at the rear end of the truck with their legs hanging down over the tailboard. His attention was directed to his passing of a toy to one of the other boys sitting with him. In other words he was acting like a normal boy of his age on such an occasion. The toy is referred to as a “kazook,” consisting of a comb with paper wrapped around it. If we may refer, for information, not to judicial knowledge, but to boyhood experiences, it is a crude musical instrument. The boys sitting with the plaintiff escaped injury. One of the boys testified that all of them, except the plaintiff, lifted their legs out of danger. They were fortunate. The plaintiff was 13 years of age at the time of the accident, and whether he was in the exercise of due care for his own safety was an issue properly submitted to the jury.

There was evidence showing, or tending to show, that the company was responsible for the conduct of the driver of the truck, at the time of the accident; that the plaintiff was free from contributory negligence, and that there was negligence in the operation of the truck which alone, or in conjunction with the negligent operation of the car owned by Vichunas, caused the injuries which were sustained by the plaintiff. The court, therefore, did not err in denying the motion of the defendant for a directed verdict. Shannon v. Nightingale, supra. In that case the court said:

“Therefore the court may not properly take the case from the jury and direct a finding for the defendant when there is some evidence tending to prove every essential allegation of the plaintiff’s declaration, merely because, in the judgment of the court, the weight of the evidence in support of some material allegation is not sufficient to sustain a verdict for the plaintiff. If the evidence in support of the plaintiff’s allegations is sufficient to make a prima facie case, the court is not authorized to direct a verdict for the defendant because of evidence of contrary facts tending to an opposite conclusion. On the motion to direct a verdict only that evidence can be considered which is in favor of the party against whom the motion is directed, and that evidence must be considered in the light most favorable to that party, together with all legitimate inferences which may be drawn from it in his favor. In this case there was the single issue presented by the plea of not guilty, and the question whether Pratt was the servant of the plaintiffs in error was vital to that issue. The defendant in error made a prima facie case. Contrary evidence was introduced by the plaintiffs in error, but that contrary evidence could not be considered on their motion to direct a verdict in their favor. If the condition of the evidence at the close of the plaintiff’s case does not justify an instruction for a verdict in favor of the defendant, no evidence which the defendant may introduce will justify such instruction except uncontradicted evidence of an affirmative defense.”

This is the last pronouncement of the Supreme Court of this State on the subject, and no deviation from it has been called to our attention.

It is finally insisted that the trial court erred in not granting the motion for a new trial for the reasons advanced in support of the motion for a directed verdict, and for the further reason that the manifest weight of the evidence established that the truck was not operated in a negligent manner. There was testimony given to the effect that the truck in which the plaintiff was riding was, while going at a rate of speed of from 15 to 20 miles per hour, stopped so suddenly that the boys were violently thrown forward and back. Some of the witnesses for the plaintiff testified that the truck owned by Yichunas had been following them a few feet behind for some time and that the driver was given no warning by the driver of the truck in which they were riding of his intention to stop or slow up. The verdict of the jury was not against the manifest weight of the evidence on this issue or on any of the other issues of fact which the plaintiff was required to prove to enable him to recover.

Complaint is made of the ruling of the court in sustaining objections to the cross-examination of Brzoslowski, the driver of the truck in question, as to what instructions he received on the day of the accident. He was put on the stand by counsel for the plaintiff and asked by whom he was employed, to whom the truck belonged, and was asked to describe it. He was not asked about instructions or conversations with anyone. In this respect we think the court did not err. Even if the ruling was erroneous it constituted harmless error because the defendant in putting in its defense interrogated the driver about his instructions.

Complaint is also made because the court modified two instructions tendered by the defendant and gave them to the jury as modified. Both instructions were general in character. They were of the stock variety and applicable to any personal injury action. They gave no information to the jury about the law relating to master and servant. Each ended with a direction that if the jury found certain things to be true they should “find the defendant, Beading Coal Company, not guilty.” The court modified them so that they applied to both defendants. It is said that this was reversible error because the instructions, as modified, “tended decidedly to confuse the jury respecting the real situation that existed in this case as to certain material differences on the question of legal liability involving the two defendants.” We think not. The instructions told the jury the law relating to the amount of evidence required to maintain the plaintiff’s case and that, in determining whether the defendant was liable, they were not to take into consideration the fact that the plaintiff was injured and sustained damages. ' If counsel desired the jury to be told the law peculiarly applicable to the case of a general master hiring or loaning his servant to another, they should have tendered instructions stating the law and asked that they be given. This they did not do. The court did not err in modifying the instructions and giving them to the jury, as modified.

In view of the character and extent of the injuries sustained by the plaintiff, we are not inclined to hold that the damages assessed by the jury were excessive.

Finding no error in the rulings and actions of' the trial court, the judgment of the superior court of Cook county is affirmed.

Affirmed.

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


text:
    B. A. Nelson, Appellee, v. Jacob Tunick, Appellant.
    Gen. No. 32,710.

      Opinion filed December 19, 1928.
    Jacob G. Grossberg and Harry Bell, for appellant.
    John Gutknecht and Isadore Kaplan, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.

The plaintiff recovered a judgment for $1,000 against the defendant in the municipal court .of Chicago, in an action of tort, for damages to a stock of merchandise. The goods were stored in the basement of a building owned by the defendant. The plaintiff paid $8 per month for the use of the space. Immediately above the basement were two apartments and between them a toilet for the common use of the occupants of the two apartments. Sometime in February, 1926, the toilet, due to a temporary obstruction, overflowed and water ran through the floor onto the stock of merchandise.

The defendant brings this appeal and assigns as errors that the plaintiff failed to make proof of the amount of damages sustained and that, upon the facts in evidence, the defendant was free from fault and liability. The goods consisted of an assortment of practically everything that can be purchased at auction sales in a large city, from heavy blasting machines down to smaller articles, such as face powder and corset stays. There is no dispute but that they were damaged by the water coming from the toilet. The plaintiff testified that the damages amounted to approximately $1,000, and that the entire stock was of a value in excess of $2,500. There appears to have been no objection interposed to this testimony. A public accountant testified that he examined the goods and that he was of the opinion that the water had damaged the goods to the extent of three-fourths of their value. This testimony was also received without objection. The plaintiff was requested by his counsel to describe the goods and give their values item by item. This the plaintiff undertook to do, but had not proceeded far when counsel for the defendant interrupted him, saying that he would admit there was merchandise there and that he did not care what the plaintiff had. At this point the court advised the plaintiff not to proceed further with this line of testimony. We do not think that the defendant is in a position now to complain that the finding of the court as to the amount of damages was based upon incompetent evidence.

On the issue as to the liability of the landlord, the plaintiff’s testimony was very indefinite and largely hearsay. He saw the water'coming through the ceiling of the basement and the tenants on the floor above told him it came from the toilet. He attempted to communicate by telephone with the defendant, but did not succeed. He further testified that the next day nothing had been done; that he thereupon made a complaint to the board of health; that nothing was done and after 10 days he again went to the office of the board of health, and that a day or so later “the water was fixed. ’ ’ He also testified that the toilet in question had never leaked before. No evidence was offered on behalf of the plaintiff to show that the toilet was in anywise out of order or in need of repair. He did not profess to know, or even to conjecture, what caused it to overflow.

The defendant testified that he owned the building; that he visited the premises every day and besides had a janitor to take care of the building; that he never noticed anything wrong with any of the plumbing fixtures, and that he never received any complaints from the tenants about the particular toilet.

The janitor testified that he lived next door to the premises in question; that he visited the building every day and that none of the tenants ever complained about any fixtures being defective until one of the tenants during the month of February called his attention to the fact that the toilet in question was overflowing. He further testified that he immediately called a plumber but that before the latter arrived, which was about 10 minutes later, he removed the refuse from the toilet with a plunger; that no repairs were necessary and the plumber made none.

The plumber testified that he arrived within 10 or 15 minutes after he was called; that the toilet was then operating properly; that he made no repairs and that all of the fixtures were in perfect condition.

If we correctly interpret the testimony of the plaintiff it was that the water continued to overflow for a period of over 10 days and that finally an inspector gave an order of some kind, and a day or so later “the water was fixed.” He says that the inspector went upstairs and saw where the water was leaking. He asserts this, although admitting that he was not at home at the time- and did not see the inspector. His story in this regard is wholly uncorroborated, highly improbable and directly controverted by the testimony of two witnesses and the facts and circumstances in evidence. It is hardly conceivable that the tenants occupying the two apartments would have tolerated a condition such as the plaintiff testified to without making many and vigorous complaints. Likewise, we can think of no reason why a janitor should be so derelict in the performance of his duties as to permit such a condition to exist without seeing to it that the cause was removed. Finally, there is no testimony whatsoever that the toilet was out of repair or defective in any respect, while the uncontradicted testimony of the janitor and the plumber is that it was in perfect condition. They were in a position to know the facts. The plaintiff was not.

The manifest weight of the evidence supports the contentions of the defendant that the toilet was not defective or in need of repair, and that immediately upon notice of the overflowing of the water, the janitor removed the cause, which was refuse of some kind undoubtedly placed there by ah occupant of one of the two apartments. Under this state of facts, the defendant was not liable and was entitled to a judgment in his favor. Burke v. Hulett, 216 Ill. 545. The Supreme Court there said:

“As stated in the American and English Encyclopedia of Law, (vol. 18, 2d. ed. p. 220): ‘The rule laid down by the weight of authority is, that where the landlord leases separate portions of the same build: ing to different tenants and reserves under his control those parts of the building and premises used in common by all the tenants, he is under an implied obligation to use. reasonable diligence to keep in a safe condition the parts over which he so reserves control. Thus, it is held by the weight of authority that an implied duty is imposed upon the landlord to keep in repair common passageways and approaches retained under his control and used by the several tenants as the means of access to the portions of the premises demised to them, and that the landlord is liable for injuries received by a tenant because of the landlord’s negligence in performing this duty.’ The same principle is announced in Payne v. Irvin, 144 Ill. 482. In such case the landlord, is liable for injury occasioned by his negligence in failing to keep the premises in repair, and,- of course, he can only be charged with negligence for such failure after notice of the existence of the dangerous condition of the same, or after the defect has continued for a sufficient length of time to charge him with constructive notice .thereof.”

The trial judge apparently took the defendant to task because in his affidavit of merits there was a denial of his ownership of the building in question and of the relationship of landlord and tenant, and yet he took the witness stand and unhesitatingly testified that he was the owner and that the plaintiff was his tenant. The affidavit, however, was not signed by the defendant but by some one else representing himself to be his duly authorized agent. It was not shown that the defendant ever saw the affidavit or had any knowledge of its contents. We think it is applying the rule of respondeat superior with a vengeance to enter a judgment, otherwise unwarranted, against a defendant because of the execution of an affidavit of merits by a purported agent, which is contradicted by the testimony of the defendant, without any showing that he had anything to do with the preparation or signing of it. Even if the defendant had signed the affidavit, it could be properly used only for the purpose of impeaching him, or discrediting his testimony.

The judgment of the municipal court is reversed and judgment entered here for the defendant.

Reversed and judgment here for defendant.

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


author: Mr. Justice Wilson

text:
    William A. Beaudry, Trading as Wm. A. Beaudry Landscape Organization, Complainant, Appellee, v. Dillwyn M. Bell et al., Defendants. Dillwyn M. Bell and Levaughn Bell, Appellants.
    Gen. No. 32,661.

      Opinion filed December 19, 1928.
    Loucks, Eckert & Peterson, for appellants; Tom Leeming, of counsel.
    Sass & Hood, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

This case is here upon an appeal from a decree of the circuit court of Cook county. The complainant filed his bill in that court to foreclose a mechanic’s lien against real estate owned by the defendant Levaughn Bell. She and her husband, Dillwyn Bell, were made parties defendant. They filed a joint and several answer in which they admitted that during the time mentioned in the bill of complaint they, as husband and wife, occupied the premises described in the bill as their homestead and place of residence and that Levaughn Bell was the owner of the property. The remainder of the answer consisted of categorical denials of the allegations of the bill. The other parties defendant were defaulted.

The cause was referred to a master in chancery to take proofs and report to the court his findings of fact and conclusions of law. In due course he filed his report, in which he found that the complainant was engaged in the business of landscape gardening; that on October 21,1922, he entered into a written contract with the defendant, Dillwyn M. Bell, wherein the complainant agreed to furnish and plant upon the premises owned by the defendant.Levaughn Bell estimated amounts and kinds of shrubs and trees at designated prices; that the contract further provided for the inspection and care of the shrubs and trees, and the replacement of all dead or unthrifty ones, for a period of two years, and the making of a lawn to cost not exceeding $150; that the complainant substantially complied with the terms of the contract; that the defendant Levaughn Bell knew of the execution of the contract by her husband; that she knew that the materials were being furnished and services performed upon her property, and she made no objection or protest, in writing or otherwise; that there was due to the complainant from the defendants the sum of $1,190.65, and that the complainant was entitled to a mechanic’s lien for that amount.

The court overruled the defendants’ exceptions to the master’s report and entered a decree finding that there was due to the complainant from the defendants the sum of $1,190.65, together with interest and costs, and that he was entitled to a mechanic’s lien for that amount upon the premises in question. The defendant Levaughn Bell was decreed to pay the amount found to be due within three days, and in the event of her failure so to do, the premises were to be sold. There was a personal decree against her husband, Dillwyn M. Bell, for the same amount.

It is first contended on behalf of the defendant that the materials and labor furnished by the complainant are not lienable under the provisions of our Mechanics ’ Liens Statute, Oahill’s St. ch. 82. It is said that the introductory clause of section 3, Cahill’s St. ch. 82, ¶ 3, “If any such services or labor are performed upon or materials are furnished for lands belonging to any married woman,” necessitates reference to the next preceding section to determine what services and materials are lienable under section 3. Section 2, Cahill’s St. ch. 82, ¶ 2, gives a lien to “Any person furnishing services, labor or material for the erection of a building, or structure, or improvement, by mistake upon land owned by another,” etc. It is then argued that,' properly construed, the words, ‘ ‘ erection of a building, or structure, or improvement,” contained in section 2, could not include the planting of shrubs and trees and the making of a lawn.

This contention is unsound. The word “erection” construed in connection with the context is broad enough to include the improvements made by the complainant. While the Mechanics’ Liens Statute is in derogation of the common law, it has been held that its language should be so construed as to give it remedial effect. In the case of Martine v. Nelson, 51 Ill. 422, it was unsuccessfully urged that painting a house was not furnishing labor or materials for the erection of a building. The court said that the position was entitled to little consideration and that “The urging of such arguments is labor lost.”

If, however, the word “erection” is to be given the restricted meaning contended for, it becomes necessary to determine whether the. language .of section 2 determines the character of the improvements that are lienable under section 3. We think it does not. Section 1 of the statute creates the lien, which was not known in the common law, and provides in detail the kinds . of services and materials, the furnishing of which shall confer the right. It constitutes the foundation for all that follows in the statute. Again, section 2 limits the operation of the lien to the improvement, which is to be sold and removed by the purchaser, while section 3 contains no such limitation, but gives a lien upon the lands as well as the improvements. There might be a reason for construing section 2 so as to make it apply only to improvements which could be removed without destroying their value or injuring the lands upon which they were erected, but none exists in favor of such a limited construction of section 3. Section 2 gives the party making the improvement an equitable remedy growing out of his mistake, while under section 3 the liability of the wife is created because'of her conduct. It is, in effect, a statutory estoppel. It places the wife’s liability on a parity with the liability of the owner, under section 1, who, knowingly, permits another to contract for the improvement of his lands. Furthermore, section 3 makes express mention of section 1 in reference to the failure of the wife to protest in writing, and in one place refers to the lien as “the lien given by this act.” Taking the act as a whole, we are of the opinion that the proper construction to be placed upon it is that section 1 of the act governs in determining the kinds of labor and materials which are lienable under section 3.

It is next urged that the bill of complaint failed to confer jurisdiction upon the court because it contained no allegation as to the date of the completion of the contract, nor did it allege when the labor under the contract was performed, or to be performed. There was attached to the bill of complaint as Exhibit “B” -a copy of the statemént of claim filed by the complainant in the office of the clerk of the circuit court. This exhibit, by appropriate allegation, was incorporated in the bill, and stated when the work and the furnishing of materials were completed. This, it has been held, was sufficient to supply the deficiency in the pleading. Smith v. Adcock, 209 Ill. App. 277. In that case the court held that the bill, which omitted several material allegations but incorporated a copy of the statement of claim filed with the clerk of the court which contained the missing allegations, was not obnoxious to a general demurrer.

Complaint is made on behalf of the defendant, Dillwyn M. Bell, that the court erred in entering a personal decree against him for the amount found to be due to the complainant under the decree and ordering execution to issue on said decree. This contention appears to be supported by the authorities and by the language of the statute. The statute contains no provision for the entry of a personal decree against any party prior to sale. It does provide, section 19, Cahill’s St. ch. 82, 19, that if the proceeds of sale are insufficient to pay all of the claims “the decree shall be credited by the amount of said sale and execution may issue in favor of any creditor whose claims is [are] not .satisfied for the balance due as upon a deficiency decree in the foreclosure of a mortgage in chancery.” Section 16 of the statute on Mortgages, Cahill’s St. ch. 95, ¶ 17, provides for a deficiency decree and that “such decree may be rendered conditionally at the time of decreeing the foreclosure, or it may be rendered after the sale and the ascertainment of the balance due.” A consideration of these provisions of the two statutes makes clear that the circuit court exceeded its jurisdiction in entering a personal decree against the defendant, Dillwyn M. Bell, and ordering execution to issue. The authorities support this view. Stone v. Tyler, 173 Ill. 147, and Bouton v. Cameron, 205 Ill. 50.

Similar complaint is made in reference to the decree entered against the wife. The decree against her was that she “pay to the complainant the sum of $1,944.90, with interest from the date of this decree at 5 per cent per annum, within three (3) days from this date,” and in case she made default in the payment within the time prescribed, the premises should be sold. There was no order that execution should issue. This provision did not make her personally liable, and is, therefore, not subject to the objection to the decree against the husband. Baumgartner v. Hall, 163 Ill. 136; Wilson v. Smart, 324 Ill. 276.

It is finally contended that the finding of the master that the complainant substantially complied with his contract is against the manifest weight of the evidence. Just how seriously this contention is urged is difficult to determine. Counsel for the defendants, in their brief state that over 400 pages of testimony were taken, but that “in the view we take of the case, it is unnecessary to outline the facts which were sought to be proved in anything more than a very general way.” Again, in discussing this point, they say that the other points contended for should dispose of the case, and that they are reluctant to impose upon this court by an unnecessary extension of their brief. ■ In their reply brief they reiterate this statement and say that because counsel for the complainant were not content to allow the case to be decided on the other points, but devoted nearly six pages of their brief to an analysis of the evidence, they were provoked into a further discussion of the point.

We think that if counsel had confidence in this point they should have discussed it in their brief to- the extent of fully apprising this court of its merits. We have, however, read the abstract of the testimony and find no occasion for disturbing the finding of the master and the court that the complainant complied with his contract. The complainant and three of his employees, all shown to be experienced in landscape gardening, gave testimony to the effect that the complainant fully met the requirement of his contract. The principal witnesses of the defendants, with the exception of one, 'were shown to have had very limited experience in landscape gardening. The master saw and heard the witnesses, and found the facts to be in accord with the testimony of the complainant’s witnesses. The court properly adopted the finding of the 'master.

The decree of the circuit court of Cook county will be modified by striking therefrom the provision for a money decree against the defendant Dillwyn M. Bell, and as thus modified is affirmed.

Decree affirmed as modified.

Holdom, P. J., concurs.

Mr. Justice Ryner not participating.


text:
    Marjorie Kaldunski, Appellant, v. Chicago City Railway Company et al., Appellees.
    Gen. No. 32,791.

      Opinion filed December 19, 1928.
    John E. McCoy, for appellant; Herbert Bebb, of counsel.
    Brown, Fox & Blumberg, for appellees; John R. Guilliams, Charles LeRoy Brown, Frank L. Kriete and John E. Kehoe, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The declaration filed in this cause charges in the first count that the plaintiff Marjorie Kaldunski had boarded the car of the defendant companies and was in the act of walking to a seat and that it was the duty of the defendants to operate their cars in a proper manner, but that the defendants so carelessly and negligently operated said car that plaintiff’s feet were knocked from under her and that she thereby fell and sustained severe injuries.

The second count charges that it became the duty of the defendants to keep their passageway in said car free from ice and snow, but failed so to do and, by reason of said slippery passageway, plaintiff was caused to slip and fall and was injured.

The third count charges that the defendant companies, in operating said car, caused it suddenly to start with a jerk and, by reason thereof, plaintiff was thrown and greatly injured.

The trial was had before a jury and, at the end of the plaintiff’s case, the jury was instructed to bring in a verdict in favor of the defendants. A motion for a new trial was overruled and this appeal prayed and allowed.

The facts in the case are meager, but it appears that the plaintiff boarded a westbound Center Street car on or about January 7,1927, and paid her fare and was given a transfer and that she then walked into the car and fell in the aisle and was rendered unconscious and did not remember anything until she woke up in the hospital.

Ellen Neary, a witness called on behalf of the plaintiff, testified that she entered the car in question ahead of the plaintiff and that the aisle was slippery and that as she, the witness, was about to take her seat, the plaintiff slipped and fell backward. She testified further that it was a car that was entered from the front and that there was a motorman, but no conductor; that it was a very wet day, slippery and icy; that the car made an awful jerk. Her own language appears to be as follows: “The car made an awful jerk; that is how it went when she fell.” She testified further that there was quite a bit of snow and that the people going into the car were carrying the slop and snow into the car with them.

It is urged on behalf of the defendants that the court properly instructed the jury to return a verdict in favor of the defendants, on the ground that no presumption of negligence arises from proof that the car moved with a jerk; that the words, “jerk” or “lurch,” have no tendency to prove, in and of themselves, that the car was negligently operated. In this regard it is well to keep in mind that this case is not before us on a question of the weight of the evidence. The only question for our consideration as raised by the record is as to whether or not there is some evidence to support plaintiff’s cause of action. The rule is well settled that if there is any evidence tending to support plaintiff’s declaration it should be submitted to a jury. No matter what the rule may be in other jurisdictions, it is fairly well settled in this State that where there is an unusual or extraordinary lurch or jerk of the car upon which a person is riding as a passenger and, by reason thereof, a person is thrown down, that it becomes a question of fact for the jury as to whether or not the accident was caused by the negligent operation of the car or train. It is also well settled that those persons in charge of and operating a train or street car owe an obligation or duty to a passenger to exercise the highest degree of care consistent with the practical operation of the road.

This court in the case of Chicago City Ry. Co. v. Morse, 98 Ill. App. 662, wherein from the testimony it appeared that when the street car stopped to let a passenger off, it was accompanied by a violent jerk, had occasion to discuss the case of Byron v. Lynn & B. R. Co., 177 Mass. 303, cited by counsel, and distinguished that case from the case then under consideration. This case was affirmed by the Supreme Court in the case of Chicago City Ry. Co. v. Morse, 197 Ill. 327.

This court again had occasion to consider the question in the case of Jones v. Chicago City Ry. Co., 147 Ill. App. 640, in which it appeared from the testimony that the car gave a sudden lurch and that the plaintiff was thrown from the car to the street." The court in this case cited the case of Chicago City Ry. Co. v. Morse, 98 Ill. App. 662, and held that a judgment for the plaintiff could be sustained where his right of action was based on the theory that he was injured by the violent jerking or lurching of an electric street car, upon which he was a passenger. The case of Heineke v. Chicago Rys. Co., 279 Ill. 210, supports the proposition that evidence of the character involved in this case was sufficient evidence for the consideration of the jury. The court in its statement of fact, contained in its opinion, says:

“The evidence shows that as she was walking down the aisle to get a seat the car gave a quick and sudden jerk or made a quick and sudden stop and forward lurch that drove her a few steps forward and against a suitcase in the aisle and caused her to violently fall over and upon the same and on the floor of the car. * * * The jerk or sudden stop and lurch of the car is shown by the evidence in the record to have been the controlling and proximate cause of defendant in error’s injury. The operation of the car was entirely within the control of plaintiff in error’s servants, and a sudden jerk or lurch of the character disclosed by the evidence, being a cause within the control of the carrier, causes to arise a presumption of negligence on the part of the carrier and was sufficient upon which to submit to the jury the question of negligence. Chicago City Railway Co. v. Morse, 197 Ill. 327; West Chicago Street Railroad Co. v. Nash, 166 id. 528.”

It is also urged on behalf of defendants, in support of the directed verdict, that the fact that there was slop and snow in the car was not accompanied by evidence proving that the defendants had notice of the condition of the aisle nor that it had existed a sufficient length of time so that the defendants by the exercise of ordinary care should have known of the condition. In support of this contention, counsel for the defendants cite several cases including the case of Davis v. South Side El. R. Co., 292 Ill. 378. This last case cited by counsel, as well as many of the others, appears to have been in reference to stations, platforms and depot grounds.

It is clearly set out, however, in the case just referred to, that a different degree of responsibility is cast upon the carrier as to its maintenance of station buildings and approaches than is the case of accidents occurring upon railroad trains or street cars where the accident is caused by reason of the condition or operation of the conveyance. In other words, while the carrier is only required to exercise reasonable diligence in and about the approaches to trains, it is under the responsibility to exercise the highest degree of care consistent with the practical operation of trains or cars as to a passenger upon the same. It may be that if the accident had resulted solely from the slippery condition of the aisle, defendants ’ position would be tenable, namely, that it was necessary to show that the defendants knew or had an opportunity to know of the condition. The testimony, -however, was competent in connection with the accident itself. The sudden jerk of the car, coupled with the slippery condition of the aisle, was evidence sufficient under the circumstances to require its submission to the jury on the question as to whether the defendants were negligent in the operation of the car.

It is urged also that the declaration charged that the plaintiff was thrown to and upon the ground, whereas, the plaintiff was thrown to and upon the floor of the car, and that this constitutes a variance. With this contention we cannot agree. The declaration charges that the plaintiff had entered the car and had paid her fare and had become a passenger and was proceeding down the aisle of the car, when she was caused to fall. We do not see how the plaintiff could be misled by the allegation that she was thrown upon the ground. The declaration certainly was subject to amendment in that regard either before or after verdict, and we do not believe it constitutes such a variance as would authorize a court to direct a verdict. The declaration appears to have been carelessly drawn and prepared and the testimony meager, but, under the rule, the case should be submitted to a jury, if there is any evidence to support plaintiff’s contention. This court has nothing to do with the weight or preponderance of the evidence under such circumstances. Donnelly v. Chicago City R. Co., 235 Ill. 35.

We are of the opinion that, for the reasons stated, the judgment of the superior court should be and the same hereby is reversed and the cause remanded for a new trial.

Reversed and remanded.

Holdom, P. J., and Ryner, J., concur.


text:
    Pearl L. Falls, Appellee, v. Peter Visser and John Decker, Trading as Visser & Company, Appellants.
    Gen. No. 32,833.

      Opinion filed December 19, 1928.
    Harry H. Felgar and Samuel Spitzer, for appellants.
    Marshall & Marshall, for appellee; Frank G. Marshall, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

The action in this case is in assumpsit. The plaintiff Pearl L. Falls made, executed and delivered her certain check for $2,000 to the defendants Peter Visser and John Decker, copartners doing business as Visser & Company. The check was delivered as part of the purchase price of a dwelling house under a contract dated October 1, 1925, which was, in fact, drawn up and prepared, but never signed by the parties and the transfer of the property to the plaintiff never consummated. The check bore on its back the indorsement: “On account to be credited under contract for sale of 543 Jackson Avenue, River Forest, Illinois, as improved. Dated October 1, 1925.” The check was dated and delivered October 10th.

Upon the trial of the cause the trial court instructed the jury to find the issues for the plaintiff and to assess the damages at the sum of $2,241.66, the same being principal and interest, and entered judgment on the verdict and it is from this judgment that this appeal is perfected.

The facts show that Visser and Decker were co-partners engaged in the business of building and selling homes and dwellings and that on or about July 1,1925, they were engaged in building a dwelling house on the premises known as 543 Jackson Avenue, River Forest. The title to the property appears to have been in John Decker, a married man. The evidence shows that the plaintiff in the early part of July, 1925, was desirous of purchasing the premises and the building to be erected thereon, and talked with Visser about the building and examined the blue prints and plans and discussed with him certain changes that were to be made in the plans and specifications. The original intended cost of the building was $34,000, but by reason of the change of the plans, it was agreed that the purchase price was to be $36,000. At this time Visser submitted a contract to the plaintiff and she paid him $200, as earnest money, but the contract was not signed because it did not contain the desired changes requested by her, nor were the terms entirely agreeable.

Plaintiff left for Colorado in the latter part of August and instructed Mr. Visser that any matters in regard to the house could be taken up with her husband. It appears further that the house was to be ready for occupancy on or about November 10th. On October 1st, Mr. Visser appeared at the office of one Marshall who was, at the time, acting for the plaintiff as her attorney and delivered to him a Torrens certificate of title to the premises. On the same day Marshall prepared the contract, dated October 1st, which recited the down payment of $8,000. The contract provided further that $8,000 additional was to be paid upon the completion of the building and the balance of $20,000 to be covered by the giving of a note and trust deed by the plaintiff.

It appears from the record that Decker at this time was in Florida with his wife, and plaintiff insisted that the contract should be signed by Decker and his wife, but this was never done.

On or about November 1st, plaintiff had some of her furniture placed in said building. She states in her examination that she expected the building to be hurried and ready for occupancy shortly thereafter, but that the defendants were slow in the construction and only had one man working on the premises.

On November 3rd, Marshall telephoned Visser to come to his office and sign the contract and Visser did call the next day and brought with him the contract which had been sent to him in October. It appears from the facts, however, that this contract when returned by Visser had an additional clause attached thereto which provided that all payments mentioned in the contract between Visser & Company and Falls should be made before said building was to be occupied. Marshall testified that Visser was never ready to sign the contract dated October 1st.

It is clear from the evidence that there never was a written contract between the parties. It is also clearly apparent from the various drafts of the contract that were prepared that the premises were to be ready for occupancy by November 10th. It is also apparent that the premises were not ready for occupancy November 10th and that no contract was, in fact, ever signed by the parties. At the request of Visser the plaintiff advanced $2,000 in accordance with the indorsement placed on the back of the check dated October 10,1925. From a reading of this indorsement it would appear that the $2,000 was to be applied on the first payment under the contract and to be so credited. There having been no contract signed and entered into between the parties, the purpose of the $2,000 payment was not accomplished. There was no meeting of the minds of the parties and it appears that during the course of negotiations the terms of the agreement were varied and altered from time to time and never definitely decided upon. From a reading of the record it appears that such efforts as were made to procure a contract between the parties were mostly on the part of the plaintiff.

The Supreme Court of this State in the case of Scott v. Fowler, 227 Ill. 104, in its opinion says:

“An acceptance must conform exactly to the offer, and if it contains new conditions there is no contract. (Maclay v. Harvey, 90 Ill. 525; Gradle v. Warner, 140 id. 123).”

The court again in its opinion says:

“The transaction was not a contract so long as anything remained to be done by one of the parties thereto. ‘The rule is necessarily universal that both must be bound or neither will be.’ (Bishop on Contracts, sec. 318.) The contract was only to be considered complete when the formal prepared agreement was signed by both parties. ’ ’

In the case at bar it is clear that the terms of the agreement were never completed and, in fact, it is apparent that the contract of October 1st, when returned by Visser, contained a clause changing the meaning of the original contract in its entirety, by providing that all payments should be made when the premises were ready for occupancy. The statute of frauds is not applicable to this case because there never was a contract to purchase the real estate. The only oral agreement entered into between the parties was to the effect that a written contract was to be prepared and signed by the parties which was, in fact, not done. The payment of the plaintiff on October 10th to Visser was based upon the assumption that the agreement of October 1st would be duly executed. The action of Visser in returning the contract, after the receipt of the money, with an entirely new condition and with different terms of payment, was in our opinion sufficient to vacate the entire transaction and require the return of the money to the plaintiff. The condition under which the check was made and delivered, as contained in the indorsement on its back, clearly indicated that it was under the terms of the contract of October 1st and not under the terms of a subsequent and different agreement.

A jury, under the evidence in this case, could give no verdict other than one in favor of the plaintiff, and, in the event it did otherwise, the verdict should be set aside. Where the evidence, with all reasonable inferences to be drawn therefrom, requires a particular verdict, and any other verdict, if returned, must be set aside, a request for an instructed verdict should be granted and the instruction given. Ferrero v. National Counsel of Knights and Ladies of Security, 309 Ill. 476, 478.

For the reasons stated in this opinion the judgment of the circuit court is affirmed.

Judgment affirmed.

Holdom, P. J., and Ryner, J., concur.