text:
    Herbert Letush, Appellee, v. New York Central Railroad Company, Appellant.
    Gen. No. 35,886.

      Opinion filed October 4, 1932.
    Sidney C. Murray, Marvin A. Jersild, and Harold E. Christensen, for appellant.
    Irving Gr. Zazove, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action of trespass on the case to recover damages for personal injuries, received by plaintiff early in the morning of September 1,1929, while a passenger in one of defendant’s eastbound fast trains, at the Village of Lakeview near and west of Buffalo, New York, there was a trial before a jury in January, 1932, resulting in a verdict finding defendant guilty and assessing plaintiff’s damages at $3,000. Judgment was entered upon the verdict and defendant appealed. At the close of plaintiff’s evidence, and again at the close of all the evidence, defendant moved for a directed verdict in its favor, but the motions were denied.

Plaintiff’s declaration consisted of three counts. In the first he averred that on September 1, 1929, defendant was a common carrier of passengers and operated a certain train at or near Buffalo, New York, in which train plaintiff was a passenger; that while he was in the exercise of due care for his own safety, defendant negligently operated its train, in that it “failed and neglected to exercise the highest degree of care consistent with the practical prosecution of its business and operation of its road and mode of conveyance by it adopted”; and that as the proximate result of said negligence the train “was caused to and did . . . collide with great force with, upon and against another vehicle or object,” thereby seriously and permanently injuring plaintiff, etc. In the second count the charge is the negligent failure “to have proper control over said train,” so that it collided with “another vehicle or object.” In the third count the charge is the negligent failure “to have a proper care and lookout,” so that the traih collided with “a certain vehicle or object.” Defendant filed a plea of the general issue.

It was plaintiff’s theory on the trial that, having proved that he was a passenger exercising due care and that an accident had occurred, he was entitled to recover damages for his injuries. It was defendant’s theory that it exercised its full duty in the operation of the train and that the accident was not caused by any negligence on its part. Defendant here so contends, and (a) that the trial court erred in refusing to grant its instructions for a directed verdict in its favor; (b) in refusing to admit certain evidence offered by it as to the distances within which the train could have been stopped at various rates of speed; and (c) in refusing certain instructions tendered by it relative to the speed of the train.

Plaintiff was his only occurrence witness. He testified in substance that, bound for New York City, he boarded the train at Chicago during the forenoon of August 31, 1929; that the train was dne in Buffalo about 1: 30 o ’clock on the following morning; that he was not in a sleeping car but was seated in one of the coaches; that when the accident occurred the train was about 20 miles west of Buffalo and was traveling about “60 or 65 miles an hour”; that he was “snoozing” or “dozing” in his seat; that suddenly he “heard a violent crash and the window panes were broken”; that there was a “sudden jerk” and passengers “were moved from their seats”; that he was “thrown off his seat”; that “first, I fell forward across to the next seat in line and then back to the seat that I was sitting on”; and that he “don’t know what caused the train to make the sudden stop” or “anything about the circumstances causing it to make the stop.” He further testified that he received painful injuries “in the lower part of the back”; that he laid down on a seat and remained there until a relief train came and took him to Buffalo; that being unable to find a doctor he went in a cab to a drng store and had a plaster put on his back and took the next train to New York City, where he received medical treatment; that after his return to Chicago the pains in his back continued and he was treated for several months by another physician; and that he still suffers from pains in his back.

Numerous occurrence witnesses, called by defendant, testified as to the accident. Among these were the engineer, fireman, conductor and head brakeman of train No. 41, westbound from Buffalo, and the engineer (John B. Newman), the conductor and a brakeman of train No. 10, eastbound, on which plaintiff was a passenger. Other witnesses testified for defendant. From all of defendant’s witnesses the following uncontradicted facts in substance appear:

An unpaved road, about 30 feet wide, crossed defendant’s four tracks at grade in the village or hamlet of Lakeview, New York. These tracks from north to south were known as Nos. 3, 1, 2 and 4. Nos. 1 and 2 were highspeed tracks, — No. 1 being used for westbound trains and No. 2 for eastbound trains. On both sides of the tracks there were automatic signal flashlights. Shortly after 1 o’clock on the morning of September 1, 1929, two fast passenger trains were approaching said crossing from opposite directions. Train No. 41, being en route from Buffalo to Cleveland, Ohio, was running westerly on track No. 1, and train No. 10, being en route from Chicago to New York City, was running easterly on track No. 2. Plaintiff was a passenger on train No. 10. Train No. 41 was traveling upgrade, at about 50 miles an hour. The engineer of that train was looking out ahead. The locomotive headlight was burning brightly and all equipment of the train was in good condition. Because of a slight curve in the tracks east of the crossing the headlight did not light up the crossing so as to enable the engineer to see it, or objects upon it and the tracks, until the train was a short distance from the crossing. The view of the approaching train, however, for one on or near the crossing, was unobstructed. The engineer sounded his whistle for the crossing at the whistling post, — about an eighth of a mile away, and the automatic bell on the locomotive at all times was ringing. When about 80 feet from the crossing the engineer first saw an automobile partly on the track on which the train was running. It was not moving, and no one was in it, as was subsequently ascertained. The engineer applied the emergency brakes, reduced the speed of the train, but the automobile was struck and thrown over on to track No. 2, on which train No. 10 then was approaching. Train No. 41 was stopped within 3 or 4 car lengths. Immediately after it had stopped, the fireman, aware that train No. 10 was approaching and that the automobile was on its track, got off the locomotive with a lighted fusee and ran across the tracks to warn the engineer of train No. 10. This signal was not seen by him. At the same time the head brakeman on train No. 41, having seen the collision and being also aware of the approach of train No. 10, and that the automobile had been thrown over on track No. 2, took a red lantern and a white lantern, ran onto track No. 2, and signaled to the oncoming train, which signal was seen by said engineer when the train was about 100 feet away and running at a speed of 65 to 70 miles an hour. Its engineer had sounded his whistle for the crossing at the whistling post and the automatic bell on the locomotive at all times was ringing. The engineer had seen the approach of train No. 41 and had dimmed his headlight, as was customary. The brakes and other equipment on train No. 10 were in good working order. Immediately upon seeing the brakeman’s signal with the red and white lanterns, and also seeing about the same instant “an object on his track,” the engineer of train No. 10 made an emergency application of the air brakes,' but the locomotive struck the automobile and as a result his train was derailed, and track No. 2 so torn up that trains could not be moved thereon for a considerable time thereafter. Train No. 10, after striking the automobile, traveled about “the train’s length before it came to a stop.” On cross-examination of the engineer (Newman) of train No. 10, the abstract shows the following in part:

“Q. Now, going at the rate of 65 or 70 miles an hour, in the condition the track was that night, how long would it take you to stop your train after you had applied the brakes in such a way that it would not jar the train or the passengers? A. Do you mean after I knew I was going to stop ?

“Q. Yes, that is it; in the case of an emergency. A. I stopped that night just as quick as it was possible.

“Q. Yes, but you jarred the train, didn’t you? A. My object was to stop.

“Q. I appreciate that. There is nobody finding fault with you, but that jarred your train pretty much, didn’t it? A. Yes, sir.

“Q. And there was fire under each of the wheels when the brakes were applied? A. Oh, you see that lots of times when you make a service stop.

“If I were stopping my train and I was conscious of the fact that there were passengers in my train and didn’t want to jar them, and if I applied all the mechanism I had on my train that night, under those conditions, to stop the train going at the rate of 65 or 70 miles an hour, I would start to brake under those conditions a whole lot further back than I did, but this thing was handed me on the spur of the moment. If I applied the brakes in the ordinary manner so that no passenger on the train, or the train, would be jarred, it would take me, maybe, a quarter of a mile or less. I knew, prior to that night, that it would take me that long, in my experience. ... I wouldn’t just say how far my bright light shows ahead of me, but, maybe, 500 or 600 feet, or more. I cannot stop, going at the rate of 65 or 70 miles an hour, within 500 or 600 feet, without jarring mg passengers. ... I knew, prior to that time, that Lakeview (crossing) was a public highway, a public crossing, and . . . the main artery, north and south of Lakeview.”

Three contentions here relied upon by plaintiff to sustain the verdict and judgment, as stated in his counsel’s brief, are:

•“ (1) Plaintiff’s evidence brings the case within the purview of the doctrine of res ipsa loquitur, which defendant could have overcome or rebutted by evidence showing it to be free from any negligence.

“ (2) Defendant’s evidence, instead of rebutting or overcoming the prima facie case made out by plaintiff, conclusively shows it to have been guilty of negligence.

“(3) There is evidence in the record sufficient to sustain every material allegation in plaintiff’s declaration, and plaintiff’s case does not depend alone on the theory of res ipsa loquitur.”

In 7 Words & Phrases Judicially Defined, p. 6137, it is said:

“The phrase ‘res ipsa loquitur,’ which literally translated means that ‘the thing speaks for itself,’ is merely a short way of saying that the circumstances attendant upon an accident are, of themselves, of such a character as to justify a jury in inferring negligence as the cause of that accident, ...”

In referring to the phrase and its meaning, it is said in 1 Thompson on Negligence, sec. 15:

“The meaning was thus expressed by Erie, J., in giving his judgment in a noted case: ‘Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care.’ This definition has met with such general approval at the hands of judges in subsequent cases that it has become, so to speak, a legal classic.”

These definitions of the phrase are quoted with approval by the first division of this court in its opinion in Pennsylvania Co. v. Roberts & Schaefer Co., 250 Ill. App. 330, where the court says (p. 339):

“But in the instant case there is no room to indulge in the presumption of negligence, because the evidence is clear as to how the accident occurred, and where there is specific evidence as to how the accident occurred, no presumption will be indulged.”

In Barnes v. Danville Street Railway & Light Co., 235 Ill. 566, 572-3, our Supreme Court says:

“The maxim res ipsa loquitur has a proper and legitimate application in actions for negligence, including an action against a carrier of passengers for an injury to a passenger, but the maxim does not apply upon mere proof that an accident to the passenger has happened. A carrier of passengers is not an insurer of their safety, and therefore liability does not arise from the mere happening of an accident; but the carrier is held to the exercise of the highest degree of care consistent with the mode of carriage and the practical operation of the business, and is liable for an injury resulting from such want of care.”

In the case of Western & Atlantic Railroad v. Henderson, 279 U. S. 639, 642, 643, the court says:

“The mere fact of collision between a railway train and a vehicle at a highway crossing furnishes no basis for any inference as to whether the accident was caused by negligence of the railway company or of the traveler on the highway or of both or without fault of anyone.”

After stating the doctrine of res ipsa loquitur, in Bollenbach v. Bloomenthal, 341 Ill. 539, our Supreme Court says (pp. 542, 543):

“The presumption or inference of negligence raised by the application of this doctrine is not absolute or conclusive but is rebuttable, and vanishes entirely when any evidence appears to the contrary. As is said by this court in Coal Creek Drainage District v. Sanitary District, 336 Ill. 11, 31: ‘A presumption is not evidence and cannot be treated as evidence. It cannot be weighed in the scale against evidence. Presumptions are never indulged in against established facts. They are indulged in only to supply the place of facts. As soon as evidence is produced which is contrary to the presumption which arose before the contrary proof was offered the presumption vanishes entirely. ’ ”

In view of these definitions and authorities, and the evidence in the present case as above outlined, it is clear that the doctrine of res ipsa loquitur is not here applicable. Plaintiff, not knowing the facts and circumstances that caused the accident, only introduced evidence as to its effect upon him and as to the injuries he received as claimed. Defendant’s evidence disclosed in detail how the accident happened and without negligence on its part or that of its servants, considering the mode of conveyance adopted and the practical operation of its railroad. When that evidence was introduced the presumption of negligence on its part, under said doctrine, “vanished entirely.” And there is another reason why the doctrine is not here applicable and that is because it clearly appears that the automobile, with which train No. 10 collided, causing the train’s derailment, was not under defendant’s control. In Chicago City Ry. Co. v. Rood, 163 Ill. 477, it is held in substance that the fact that a passenger on a street car, while exercising due care, is struck and injured by a passing wagon not under the street car company’s control, does not, of itself, raise a presumption of negligence against the company. (See, also,. Chicago Union Traction Co. v. Mee, 218 Ill. 9, 14, 15.) In Loehner v. North Chicago Street R. Co., 116 Ill. App. 365, where a passenger on a street car was injured when a coal wagon" not under the control of the company skidded and struck the car, the trial court at the close of plaintiff’s evidence directed a verdict against plaintiff and entered a judgment against him. On the appeal he urged in substance that he was entitled to have had a jury pass upon his case because of the doctrine of res ipsa loquitur, but the court held to the contrary and affirmed the judgment, saying (p. 367): “Where the proximate cause of the injury, at least in part, was the act of a third person over whom the carrier had no control, the presumption of negligence from the happening of the accident does not arise, but the duty of proving the negligence of the carrier rests upon the passenger.” In the recent case of Wilson v. Colonial Air Transport, 180 N. E. 212, decided by the Supreme Court of Massachusetts in March, 1932, the court says (p. 214):

“The principal of res ipsa loquitur only applies where the direct cause of the accident and so much of the surrounding circumstances as were essential to its occurrence were within the sole control of the defendants or their servants. . . . It is to be noted that the presumption raised in favor of the plaintiff by the application of the res ipsa loquitur doctrine is one of evidence and not of substance, and that the burden of proof remains during the trial upon the plaintiff.”

As to the contention of plaintiff’s counsel, in substance that defendant’s evidence sufficiently shows that it was guilty of the negligence charged in each and every count of the declaration, and that the judgment appealed from should be affirmed, we are of the contrary opinion, after carefully considering the evidence and the authorities. The negligence charged in the declaration is defendant’s failure (1) “to exercise the highest degree of care consistent with the practical prosecution of its business and operation of its road and mode of conveyance by it adopted”; (2) “to have proper control over said train,” and (3) “to have a proper care and lookout.” It is not specifically charged in the declaration that defendant negligently ran its train, on which plaintiff was a passenger, at an excessive or unlawful rate of speed, but it here is contended that it did. We do not find in the record any evidence that the engineer of train No. 10, Newman, failed to have a “proper control” of the train, or failed to keep a “proper lookout.” He saw train No. 41 approaching on the other track and afterwards the brakeman’s signals with the white and red lanterns, and the “object” on the track, which had been there but for a very short time. He at once applied his emergency brakes and endeavored to stop his train as soon as he could, and stopped it within about the train’s length. In Chicago Union Traction Co. v. Browdy, 206 Ill. 615, 618, it is said: “The law seems to be well settled that where the alleged negligence of a servant consists of an omission of duty suddenly and unexpectedly arising, it is incumbent on the plaintiff to show that the circumstances were such that the servant of defendant had an opportunity to become conscious of the facts giving rise to the duty, and a reasonable opportunity to perform it, before the master can be held liable.” There is no evidence in this record showing that the engineer, Newman, should have seen the signals or object on his track, or should or could have stopped his train, before he did. Furthermore, the law does not require of a common carrier “unreasonable or impracticable vigilance.” (Frink v. Potter, 17 Ill. 406, 412; Grubczak v. Chicago Rys. Co., 242 Ill. App. 384, 388.)

The contention of the excessive speed of the train (65 or 70 miles an hour) may be considered with that of the alleged negligence charged in the first count, viz., the failure “to exercise the highest degree of care consistent with the practical prosecution of its business,” etc. To operate passenger trains so as to travel rapidly is one of the great utilities of the railroad system. There is no evidence in the record showing that a speed of 70 miles an hour of a railroad train in the open country is excessive or unlawful, or of any statutory or municipal regulation limiting the speed of railroad trains in the locality where train No. 10 then was running. (Urban v. Pere Marquette R. Co., 266 Ill. App. 152, 161.) Nor does the evidence show that such speed was the proximate cause of the accident, nor that if the speed had been less the accident would not have occurred. In North Chicago Street R. Co. v. O’Donnell, 115 Ill. App. 110, 114, it is said: “The burden is upon the plaintiff of making good the charge of negligence against appellee. It is said in Pfeiffer v. Chicago City Ry. Co., 96 Ill. App. 10, 12, ‘The extreme precaution of running cars so cautiously as to avoid the unusual or extraordinary, of which there is not notice, would prevent the practical operation of the road and is not required.’ ” In Childs v. Pennsylvania R. Co., 150 Pa. 73, it was held that a rate of speed of 53 miles an hour at a crossing in a rural portion of a city did not give rise to a finding of negligence, the court saying (pp. 76, 77): “The right of a railroad to move its trains at such a rate as the necessities of its business, or the requirements of the public may make necessary, is subject only to such restrictions as may be found necessary in cities and populous towns. . . '. The movement of trains must be regulated by the railroad companies in the exercise of a business discretion, and upon consideration of the competition they have to encounter and the necessities of modern business. We do not think a jury may fix the maximum rate of speed at which a train shall be moved in the open country, or that a high rate of speed is negligence per se.” In Pennsylvania R. Co. v. Stegaman, 22 F. (2d) 69, the U. S. Circuit Court of Appeals for the 6th circuit, quoting from an opinion of the Supreme Court of Ohio, said (pp. 70, 71): “As there are road crossings in the country every few miles, it is inconsistent with proper speed of transportation that trains should slack up for such crossings. Safety is secured to persons at such crossings by the observance of the statutory signals, and, such signals being given, the train is not limited as to speed.” In Graham v. Hagmann, 270 Ill. 252, 258, our Supreme Court said: “Railroads are engaged in the performance of a business of a quasi public nature, and in carrying out the purposes for which they are created must necessarily often operate their trains at such a high rate of speed that they cannot be brought to a sudden stop without endangering the lives and safety of those riding therein.”

Our conclusion is that under the pleadings and the undisputed evidence the trial court erred as a matter of law in not granting defendant’s motion made at the close of all the evidence for a directed verdict in its favor, and, after the verdict for plaintiff was returned, in entering the judgment appealed from against defendant. In view of such holding it is unnecessary for us to consider defendant’s other contentions, (b) and (c), above mentioned. Accordingly, the judgment is reversed and the cause will not be remanded.

Reversed.

Keener, P. J., and >Scanean, J., concur.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    Kraft-Phenix Cheese Corporation, Appellee, v. H. B. Smith Machine Company, Appellant.
    Gen. No. 35,895.

      Opinion filed October 4, 1932.
    Rehearing denied October 15, 1932.
    Jones & Key, for appellant; Wm. Y. Key, of counsel.
    Nicholson, Crandall & Snyder, for appellee; John T. Chad well and Russell G-reenacre, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action in assumpsit to recover damages for claimed breach of contract for the manufacture and sale of certain special machines, there was a trial before a jury in January, 1932, resulting in a verdict and judgment against defendant for $1,290.16. The present appeal followed.

About two years after the commencement of the action plaintiff, on November 30, 1931, by leave of court; filed an amended declaration consisting of four special counts and the common counts. In the first special count plaintiff avers that on February 16,1929, plaintiff and defendant entered into a contract whereby the former promised to purchase of the latter “three certain machines with overhead arbors that could be used in sawing foraminous malted milk into rectangular bars of the dimensions 3" x IV2" x and defendant promised to manufacture, furnish and deliver to plaintiff such machines within 30 working days from the making of said contract”; that in consideration of defendant’s promises plaintiff promised to pay to defendant the sum of $3,700, — thereof ($1,233.34) at once and the balance within 30 days from the date of shipment of said machines”; that plaintiff paid $1,233.34 at the time of making the contract and has at all times since been ready to pay the balance when the same “should become due according to the terms of said contract”; that after the expiration of said 30 working days defendant tendered to plaintiff three machines as in compliance with said contract, which machines plaintiff accepted, but that the machines were not such as defendant had contracted to deliver, in that they ‘ ‘ did not have overhead arbors as it was provided they should have in. and by said contract”; that prior to the making of the contract plaintiff told defendant that the machines were being purchased by it “in order to conduct a business of manufacturing and selling foraminous malted milk bars of the dimensions set out hereinabove and that plaintiff then had a continuing offer from a customer for the purchase of all such malted milk bars as it might manufacture up to 1,000 pounds of such bars per day, from the filling of which orders it (plaintiff) could make large profits, which was in fact true ’ ’; that due to the failure of the machines furnished by defendant to comply with the contract, “plaintiff was obliged to procure other machines, with which to manufacture such malted milk bars, and pay the cost thereof, and was also prevented from commencing its business of manufacturing said bars for a period of, to wit, seven (7) months”; that the machines delivered could not be used by plaintiff ■ in sawing the malted milk into rectangular bars “because of the aforesaid respects in which they differed from the machines which defendant contracted to deliver to plaintiff”; that the machines from the time of delivery were and are “useless to plaintiff and without value, either for the purpose of its business or for the purpose of re-sale, or for any other purpose ’ ’; that plaintiff also incurred and paid certain costs and charges in connection with the shipping of the machines “in the amount of $56.82”; and that by reason of the aforesaid facts plaintiff has been damaged in the sum of $40,000, etc.

The averments of the second, third and fourth special counts are substantially the same as in the first. The particular breach assigned in the second count is that defendant “did not, within 30 working days from the making of said contract, deliver to plaintiff any machines, but did after said time deliver to plaintiff other machines, which plaintiff accepted but which were not in compliance with said contract, in that said machines could not be used in sawing foraminous malted milk with rectangular bars having the dimensions aforesaid.” The particular breach assigned in the third count is substantially the same as in the second. In the fourth special count the particular breach assigned is that the three machines, as tendered by defendant and accepted by plaintiff, “did not have overhead arbors, and could not be used ... so that all the sawing operations performed by the three machines would be effected as one continuous operation in the manufacture of said malted milk bars, — the second machine taking stock from the first machine and the third machine taking stock from the second machine.”

To this declaration defendant filed a plea of the general issue, and also a notice that upon the trial it would give in evidence, as against plaintiff’s claim, facts showing that it had fully complied with its contract and had delivered to plaintiff such machines as contracted for; that defendant had no knowledge of plaintiff’s alleged contract with a customer relative to the manufacture of 1,000 pounds of malted milk bars per day; that plaintiff was not obliged to and did not secure other machines to manufacturé said milk bars, and was not required to pay anything in expenses or otherwise for claimed improvements made on the machines; and that plaintiff is still indebted to defendant for the unpaid balance, $2,466.66, on the purchase price of the machines, which defendant will urge upon the trial should be set off as against plaintiff’s alleged claim.

On the trial considerable evidence, oral and documentary, was introduced by the parties. Plaintiff’s principal witness was Ernest E. Bellamy, who was in charge of the “malted milk division” of its business at its Chicago office. Its other witnesses were Frederick Beverly, in charge of its “milk plant” at Wausau, Wisconsin, and Edward Kraft, an assistant to the superintendent of said plant at Wausau. Defendant’s principal witness was William A. Whiting, manager of defendant corporation, which for many years had been engaged in Chicago in the manufacture and sale of special machinery. Five other witnesses also testified in defendant’s behalf.

Bellamy, plaintiff’s witness, testified that during January, 1929, he had several conversations with Whiting in Chicago as to defendant manufacturing machines for plaintiff, in which he told Whiting what particular machines were wanted and for what purposes, and that, for Whiting’s better understanding of the character and purpose of the machine, 'the witness and Whiting made a trip to plaintiff’s plant at Wausau, early in February, 1929, where they met Beverly and others, viewed the operation of certain machines and certain equipment and merchandise, and had further conversations. The witness then started to testify as to what Whiting then said as to defendant’s ability to furnish the machines desired and within what time and as to what the machines and equipment would do. Thereupon defendant’s attorney asked if plaintiff was relying upon a written or an oral contract, to which plaintiff’s attorney replied that it was relying upon the written contract embodied in four writings which passed between the parties during February, 1929. Thereupon defendant’s attorney objected to any testimony of the witness to prove a verbal contract at variance with the contract as written, or as tending to modify it. The court sustained the objection and said to plaintiff’s attorney: “Ton will have to rely on the written contract.” Thereupon plaintiff introduced in evidence, without objection, the four writings, as “Plaintiff’s Exhibits 2, 3, 4, 5.” Exhibit 2 is a letter or proposition, dated at Chicago, February 11, 1929, signed by defendant, per Whiting, and addressed to plaintiff at Chicago, as follows:

“As per conversation with your Mr. Bellamy we are pleased to quote you on three special machines for sawing up malted milk stock as per sample that you shipped to this office.

“The first or #1 machine will be for sawing the thick or larger blocks into sheets %" in thickness, and this machine will take 25 saws 28" in diameter. This machine will be operated by the stock being placed on a carriage and pushed underneath the overhead arbor and the table to operate on double roller bearing rolls. The price of this machine is............$1500.

“The second machine will take the stock from the first machine and will have 9 saws and will rip this stock into strips 1%" in width — operate on the same type of carriage. The price of this machine is. .$1100.

“The third machine will cut the stock into lengths of 3" and will use 6 saws; price................$1100. making a total of............................$3700. for the complete equipment. The prices are f.o.b. factory where built.

“We thank you for having the privilege of figuring with you, . . . But if we are to receive your valued order we would want to hear from you at once, . . . ; the only way that we can give you reasonable prompt shipment on this unit of three machines would be to work them in at the present time, and believe we can give you shipment of these three machines in 30 working days.

“Our usual terms for building special machinery are one-third cash; balance 30 days from date of shipment. ...”

Exhibit 3 is an order, filled out on a printed blank in use by plaintiff. It is signed by it per F. G. Huston, purchasing agent, dated Chicago, February 12, 1929, and addressed to defendant at Chicago, as follows:

Purchase Order

#27428

“Please enter our order for the following:
Kraft-Phenix Dairies, Inc., Wausau, Wis.
Quantity Description Price
Special Sawing Equipment for malt milk as per quotation of February 11th, Price complete ...............................$3700.
f.o.b. Minneapolis, Minn.
Delivery guaranteed within 30 working days.
Guarantee — Mfgr. Guarantees Equipment to cut foraminous malted milk into bars as specified in a satisfactory and efficient manner to purchaser.
Terms:............”

Exhibit 4 is defendant’s letter, per Whiting, dated Feb. 13, 1929, written immediately upon the receipt of plaintiff’s said order, and addressed to it at Chicago, as follows:

“We have just received from Mr. Bellamy your purchase order #27428 for special sawing equipment for malt milk as per our quotation of February 11th; price for the complete machines $3,700; delivery guaranteed within 30 working days.

“You also have written into the contract: ‘Manufacturer guarantees equipment to cut foraminous malted milk into bars as specified in a satisfactory and efficient manner to purchaser.’ This is not customary on special machinery. We, the manufacturer, guarantee the equipment to cut foraminous malted milk into bars as specified. This is as far as we go on any guarantee where we manufacture special machinery. ... We can do the work and Will guarantee our machines to do the work, but we cannot accept an order saying, ‘in a satisfactory and efficient manner to purchaser. ’ We do not know what you might expect. Also, our terms are one-third cash with order; balance in 30 days from date of shipment.

“If this will be satisfactory to you we are pleased to go ahead with the order and we need all the time possible to get these machines out in 30 working days from date of receiving confirmation from you of this order.”

Exhibit 5 is plaintiff’s letter to defendant at Chicago, dated February 16, 1929, as follows:

“Referring to your letter of the 13th in regard to our purchase order #27428.

“Exceptions taken to our order as indicated in your letter of the 13th are O. K.

“Please arrange to go ahead with this order and speed through to completion as we will either send check for $1,233.34 with this letter or under separate cover today.”

After plaintiff’s witness, Bellamy, had further testified that on February 17, 1929, he caused plaintiff’s check for $1,233.34 to be mailed to defendant at Chicago, plaintiff, without objection, introduced still another letter which it received from defendant, dated Chicago, February 18, 1929, in which the receipt of said check was acknowledged “to apply on your order #27428 for special machines,” etc., and in which it is stated that said machines are to be shipped “in 30 working days from to-day, February 18th. ’ ’ The witness was then asked to “give the conversation at Wausau” before defendant’s written proposition (exhibit 2) was made. Defendant objected to this testimony as an attempt to vary the terms of the written contract, but the objection was overruled by the court. And the witness testified in substance that the conversation was concerning the nature of the product plaintiff had to deal with; that he told Whiting of the use of similar machines in a certain “Thompson” plant, and that plaintiff “wanted equipment that would cut a greater percentage of bars than in said Thompson plant”; that what was desired was equipment described “briefly as overhead arbor saws, conveying food by one saw to the other without the necessity of handling and delivering the finished bars”; that Whiting said that defendant “would have no difficulty in building machines of that description, and that it would cut at least eighty. (80) per cent, into finished bars.” Defendant’s motion to strike out this testimony was denied by the court.

Bellamy further testified in substance that the machines were built at Minneapolis, Minnesota, by the Mereen-Johnson Co., for defendant, and under its directions; that he (Bellamy) was informed of these facts and that the completion of the machines was expected about the end of February, 1929; that during February he went to Minneapolis and viewed the machines as they were being built and gave instructions as to certain changes to be made in the saws, which changes were made; that the machines were built with underslung rather than overhead arbors, which change was not made at his request; that during April, 1929, he again viewed the machines in Minneapolis and was present when certain tests were made; that the machines were shipped from Minneapolis to Wausau on April 20, 1929, and arrived at Wausau about 5 days later; that plaintiff paid the freight from Minneapolis amounting to $53.34, and thereafter during the making of further tests of the working of the machines expended the additional sum of $3.48 for “slow motors”; that the tests at Wausau were not satisfactory; that they would not properly “cut the food”; that the “food flew all over the room”; that the “breakage was over 80 per cent”; that the machines had “under-slung” arbors; that it was “impossible to secure continuous operation from one machine to the other”; that the machines “were not connected”; and that thereafter plaintiff ceased using the machines.

Defendant’s witness, Whiting, because of the court’s ruling allowing Bellamy to testify to conversations had before the making of the written contract as above outlined, testified that in one of his earlier conversations with Bellamy he (Bellamy) “asked about automatic machines; I told him they would cost $10,000 to $12,000, that is, machines that would automatically take the contents from one machine to another; he said that was too expensive; . . . nothing was said during my negotiations for the order about building and delivering machines that would automatically take the stock from one machine to the other without hand operation, after I told him the price of automatic machines.” Whiting further testified that when he placed the order with Mereen-Johnson Co.,, that order directed that the machines be made with overhead arbors; that he never knew anything about the change to underslung arbors until advised by Mereen-Johns on Co. that the change had been made; that he was not at Wausau when the machines were first tested; that he never received a complaint from Bellamy or plaintiff that the machines “were not cutting the materials as they were presumed to do”; that in May or June, 1929, he received word from Bellamy that the motors were running too fast; that thereafter by his direction the Mereen-Johnson Co. shipped lower speed motors; that these were installed July 2, 1929, when he was present at plaintiff’s plant; that during August, 1929, defendant received a letter, dated August 7,1929, from plaintiff, per Bellamy (introduced in evidence as Defendant’s Exhibit 4), that the machines were “unsatisfactory”; that thereafter defendant notified plaintiff that unless it received the balance due on the purchase price of the machines, $2,466.66, it would commence suit therefor. Plaintiff’s letter (defendant’s exhibit 4) is in part as follows:

“May we call your attention to the fact that this equipment does not comply with your own specifications, which we accepted, inasmuch as none of the machines are made with overhead arbors, which are absolutely essential for this type of work, neither does the second machine take the stock from the first as specified. . . . We must insist upon the machines being taken off our hands or made to comply with the specifications of your quotation. Upon return to us of our deposit of $1,233.34, we stand ready to deliver and load machines on board freight car for such destination as you see fit to give us. You can take this as our refusal to accept said machines and our demand for return of the payment made.”

Defendant’s witness, R. E. Johnson, vice president of Mereen-Johnson Co., testified in part that the machines were built “as per orders received from defendant with some exceptions; we received no change from defendant; we received instructions to change the construction from Bellamy personally at different times; the first time was March 7th”; that defendant’s signed order called for an overhead arbor machine, but that we recommended to Bellamy on March 7th that it “was not the proper construction to do their work, and suggested to him that the machines would be better if they were made with underneath arbors ’ ’; that Bellamy said “to go ahead and build the machines that way”; that there was also the question about the first machine cutting bars in %" thickness; that we recommended to him that “the first machine should cut it the thickest, so as to avoid breakage”; that he said to “go ahead and build the machine that way”; that we “did so according to the instructions received from him.”

Much other and conflicting testimony as to the working of the machines was introduced, but, inasmuch as we have reached the conclusion that because of the errors of the trial court in admitting the improper and prejudicial testimony of plaintiff’s witness, Bellamy, as above set forth and in giving erroneous and misleading instructions to the jury the judgment should be reversed and another trial had, we refrain from outlining such other testimony.

As above shown there was a written contract between the parties, embodied in plaintiff’s exhibits 2, 3, 4 and 5, yet the court, over defendant’s objection, allowed the witness, Bellamy, to testify in effect that in the conversations he had with defendant’s manager, Whiting, prior to the making of the written contract, Whiting verbally agreed that the proposed three machines when built would together act automatically, and that of the material used “would cut eighty (80) per cent into finished bars.” No such proposals are made in defendant’s written proposition or “quotation” of February 11, 1927 (exhibit 2), which was accepted by plaintiff and became a binding written contract. This testimony, which varied the terms of the contract, should not have been admitted. (See Fuchs & Lang Mfg. Co. v. Kittredge & Co., 242 Ill. 88, 94; Davis v. Fidelity Fire Ins. Co., 208 Ill. 375, 382; Mem ory v. Niepert, 131 Ill. 623, 630.) We find no ambiguity in the contract as written, and we think, in view of all the facts and circumstances in evidence, that the admission of this testimony was prejudicial to defendant. Furthermore, this testimony was the basis of certain instructions offered by plaintiff and given to the jury by the court. For instance, in plaintiff’s given instruction No. 6, the jury were instructed that “if you believe from the evidence that defendant undertook and agreed, at the time plaintiff ordered the three machines in question, to deliver machines that would in one continuous operation cut foraminous malted milk chunks taken from the vacuum pan into small bars, approximately 3" x %" x 1%" in size, and that in such operation at least eighty per cent of such chunks run through said machines would be cut into perfect bars, if such facts are shown by the evidence, and if you further believe from the evidence that the machines delivered by defendant to plaintiff did not conform to said undertakings, if such facts are shown by the evidence, then the court instructs the jury that you should find for the plaintiff both on plaintiff’s claim and on defendant’s set-off.” We are of the opinion that this instruction was erroneous and prejudicial. It virtually tells the jury that they are to construe the contract between the parties, whereas the court alone should construe the contract. (Telluride Power Commission Co. v. Crane Co., 208 Ill. 218, 226.) Furthermore, the instruction's taken as a series were misleading to the jury: For instance, in one the jury are instructed that “plaintiff’s exhibits 2, 3, 4 and 5 constitute the entire contract between the parties to this suit,” yet in another instruction they are instructed that “if you find the issues for the plaintiff on its claim, and against the defendant on its set-off, then you should assess the plaintiff’s damages at the sum of $1,290.16. ’ ’ This sum is arrived at by adding together the sum of $1,233.34, plaintiff’s down payment on the contract, and the sums of $53.34 and $3.48, which Bellamy testified plaintiff expended respectively for “freight from Minneapolis” and for “slow motors.” And we are of the opinion that this instruction as to the measure of plaintiff’s damages is inconsistent with its theory of recovery as stated in its declaration. As we read the declaration, it is based upon an affirmance of the contract and seeks to recover damages (i. e. loss of profits and monies paid) because of certain claimed breaches óf warranties contained in the contract. The declaration states in substance that plaintiff “accepted” the machines, but that they did not work as it was warranted they would. The instruction is based upon the inconsistent theory of plaintiff, also adopted by it, that it had rescinded the contract and sought to recover back the portion of the purchase price, which it had paid, and also certain expenses incurred. The law does not allow the prosecution of inconsistent remedies at the same time. (Howe v. Fulton, 225 Ill. App. 589, 600; Park v. Richardson & Boynton Co., 81 Wis. 399, 402; Abraham v. Browder, 114 Ala. 287, 290; Impervious Products Co. v. Gray, 127 Md. 64, 69; Houser & Haines Mfg. Co. v. McKay. 53 Wash. 337, 339, 340.)

The judgment appealed from should be reversed and the cause remanded, and it is so ordered.

Reversed and remanded.

Keener, P. J., and S canean, J., concur.


author: Mr. Justice Scanlan

text:
    Union Bank of Chicago, Administrator of the Estate of Raffaele Rosengolno, Deceased, Appellee, v. Chicago and North Western Railway Company, Appellant.
    Gen. No. 35,703.
    Opinion filed October 4, 1932.
    Nelson J. Wilcox and I. C. Belden, for appellant.

      Irving Gr. Zazove and Eocco De Steeano, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

This was a suit by the administrator of the estate of Eaffaele Bosengolno, deceased, brought under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, 321 et seq., to recover damages for the death of the deceased, alleged to have been caused, while he was in the employ of the defendant, by the negligence of certain employees of the defendant. A verdict was returned in favor of the plaintiff and damages were assessed at the sum of $10,000. Judgment was entered on the verdict.

The amended declaration consisted of six counts, but counts three, four, five and six were stricken during the trial. Count one alleges, in substance, that the deceased was in the employ of the defendant as a track walker and that while he was engaged in tightening bolts on a switch track the defendant negligently operated and ran a train against him and thereby killed him. Count two alleges that defendant negligently failed to ring a bell or blow a whistle or give some other warning to the deceased of the approach of the train.

The accident happened in the “passenger terminal yard” of the defendant, north of its main passenger station in Chicago. This yard is elevated above the streets of the city and is used for passenger trains only. No one but employees of the company has a right to be in it. It contains many tracks and an elaborate signal system. The deceased, whose customary work in the yard was that of a section laborer, was substituting for a regular track walker at the time he was killed. He had done all kinds of track work, “including the work of inspecting and walking track.” ‘ ‘ The duties of a track walker are inspecting the track, tightening bolts, cleaning coal or anything he might find along the track, gauging tracks. Besides that he does work oiling switches. At the time of the accident he had two track wrenches, a spike maul and a monkey wrench. A track inspector uses a monkey wrench if the bolt is turning, to hold the bolt. . . . If he finds anything wrong he had to report it to his foreman, but the work that he himself would do was these little simple jobs . . . tapping down the spikes and the tightening of the bolts. . . . The track walker’s job is not much different, so far as those simple things are concerned than that of an ordinary section laborer.” On October 23, 1930, the deceased started to work from the tool shop with a section crew, consisting of ten men, at 8 a. m. The foreman and two of the men then went some distance away on a particular errand, six of the men went to another place to do gang work on a track, while the deceased started to perform the work of a track walker, i. e., walking along the various tracks in the section, tapping down loose spikes, tightening loose bolts, etc. He had been at work for two hours and a half, walking from one place to another, when he was struck and killed by a ‘ ‘ regular daily northbound passenger train of the defendant known as -the Viking, ’ ’ which had just left the passenger station. The deceased had been working steadily in the yard for the six months prior to the accident, and he had also worked there for six months in the previous year doing the same kind of work and under the same foreman. He had also worked for the defendant as a section hand at Desplaines. Together with other employees, he had been often instructed to watch out for trains and to be careful not to be hit by them. There was a brass bell on the engine in question, which was rung by automatic air. It had been set in motion in the train shed at the depot and was ringing at the time of the accident and as the train approached the place in question. There are 16 parallel tracks in the train shed at the depot, but at the place of the accident these tracks are reduced, by means of crossovers, to eight tracks. There were 612 regular passenger train movements in the yard daily. “In this yard, it is a fact that a train or train movement might be expected over any one of these tracks at any time.” Every five to ten minutes of the day, “some kind of a train, that is, an engine with some coaches, ’ ’ would pass over the crossover upon which or near which the deceased was at the time that he was struck. This crossover is 300 feet long and, from its south end, where the train entered it, to its north end, it curves to the left.

Saska, the fireman of the Viking, appears to have been the only eyewitness of the accident. Tie was called by the plaintiff as a witness. He testified that the Viking left the terminal at 10:30 a. m., its schedule time; that he was on the left side of the cab, firing the engine, etc.; that there was a cord over his head by which he could manipulate the engine whistle; that after leaving the terminal he put in several scoops of coal and then got up on his seat box “to ride over the interlocking plant”; that he first observed the deceased when the latter was about 100 -feet in front of the engine; that the engine was just then crossing over from track three to track one in a northwesterly direction and the train was going about 15 miles an hour; that “when I first saw him the man was stooping over. He had his right arm extended towards the train; that is, his right side was towards the train, towards our engine, as we approached him. ... It seems to me that the man was working about that position (indicating), about four feet from the edge of the fourth tie, to the left of the tie. As near as I can tell he was about four feet away from the track. When I first saw him, he was absolutely clear and out of danger ; he was not on the track at all or near it; that is . right. When I first observed him was about 100 feet, and I looked at the man and when we got about 75 feet he turned with his face towards us. We were still on the crossover, and I saw him turn his face towards me; he was still stooping over; in a stooping position, away from the track, with his head towards the track, and he turned to the right; turned to the right in that stooping position. He was bent over like this (illustrating) with his back in a horizontal position, the top of his back. His head was towards the track, the crossover. From the first I saw him, when he was 100 feet away, up to the time that I saw him when we were 75 feet áway, I don’t know whether he had changed his position in any other way than change his body. I did not see this man have any tools in his hand. I watched him, and when he turned his head towards— his face towards us, I presumed that this man saw us coming. Then he moved over towards the track when we were about 30 feet from him. I don’t know whether he at any time got on that tie No. 4. When we were 30 feet away from him I grabbed for the whistle cord and hollered at the engineer at the same time. Q. Was it 30 feet from where you were sitting, or 30 feet from the cow catcher of the engine? Q. (By the Court): How far was it from where you were sitting? A. About 30 feet. From the cow catcher to where I was sitting I would say is about 18 feet. Q. (By the Court): When you saw him as you were sitting in that position, the front of the engine was about 12 feet from him, is that right? A. Yes, sir. That is the time I grabbed for the cord and missed it. I missed it. When you pull the cord it opens the whistle, the valve to the whistle, and steam rushes through and blows. • The whistle didn’t blow. They struck the man right away. Q. (By the Court): Then lie struck him, that is all there is to it. Before you could reach again to blow the whistle, you" struck him? A. Yes. I did not see the man when he was struck. . . . The view was cut oft when I reached for the whistle cord.” The witness further testified that after the man was hit the train traveled, before it came to a stop, the length of the engine and about half the length of the combination car, the nearest car to the engine; that the length of the engine from the cow catcher to the rear of the tender is about 45 feet and the length of the combination car about 45 feet; that immediately after the witness. hollered the engineer applied the brakes; that the train was then about 30 feet away from the deceased; that just before the accident the engine was curving to the left and because of that fact the engineer, whose place is on the right side of the locomotive was unable to see the place where the deceased stood. Upon cross-examination the witness stated that when he first saw the deceased “he was about four feet away from the nearest rail of the track on which our engine was operating. If he had stayed in that position our train could not have hit him; he would not be hit. So that, to use what a railroad man would call it, he was in the clear at that time. When we then had approached so that our train was, or our engine was, 30 feet from the man, he took a step forward toward the track we were on, and then was not in the clear for the first time. Then I grabbed for the whistle cord.”

It is undisputed that at the point where the deceased was struck there is a space of 10 feet or more between the crossover track and the next track, and that there was nothing to obstruct the view of the approaching train. After the accident tools were found near the ties upon which the crossover rested and in the clearance space between the crossover and the next track. The Viking left the depot on time and reached the place of the accident at the same time that it passed that point daily. Plaintiff’s witness Capparelli, who was the section foreman, testified that it was the custom of enginemen, in the yard, “to blow a whistle in an emergency, what I mean is, if the man on the engine thinks that the man working on the track does not know that the train is coming, and the engine is pretty close to him, he will then blow his whistle; in those circumstances he will blow his whistle to warn the men, and that is when the engine is very close to the men. Men who are not working in a gang, a signalman that is working all over the yard at different places, and doing little jobs and then moving to another, a track walker doing what I described yesterday, they keep working until the train is right close to them and then step off and let the train go by. And it is only when the engineman thinks that he doesn’t know the train is coming, and the train is very close to him, that he will blow his whistle.”

As stated in Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 474: “The rights and obligations of the petitioner depend upon that Act (the Federal Employers’ Liability Act) and applicable principles of common law as interpreted by the federal courts.’’

• The defendant has assigned and argued a number of points, but in the view that we have taken of this appeal it is necessary for us to consider only one. The defendant contends that “there is no evidence in the record legally tending to prove that negligence on the part of the defendant or any of its other employes was the proximate cause of the death of plaintiff’s intestate,” and that “negligence on the part of plaintiff’s intestate was the sole proximate cause of his injury and death.” In support of its contention, the defendant cites, among other cases, Aerkfetz v. Humphreys, 145 U. S. 418; Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165; Rosney v. Erie R. Co., 135 Fed. 311, 315; Connelley v. Pennsylvania R. Co., 201 Fed. 54. In Aerkfetz v. Humphreys, supra, the “plaintiff was in the employ of the defendants in the yard of the railroad company, . . . working on one of the tracks therein, and, while so engaged, was ran over and injured by a freight car, moved by a switch engine. . . . In it (the yard) were 12 tracks and sidetracks, and the yard was used for the making up of trains. A switch engine was employed therein, and, as might be expected, was constantly moving forwards and backwards, changing cars and making up trains. Plaintiff was a repairer of tracks. He had been employed there about 18 months, and was familiar with the manner in which the work was done. The yard was about a quarter of a mile in length. The tracks were in a direct line east and west, with nothing to obstruct the view in either direction. ’ ’ In its opinion the court said (p. 420): “There could have been no thought or expectation on the part of the engineer, or of any other employe, that he, thus at work in a place of danger, would pay no attention to his own safety. Under such circumstances, what negligence can be attributed to the parties in control of the train or the management of the yard? They could not have moved the cars at any slower rate of speed. They were not bound to assume that any employe, familiar with the manner of doing business, would be wholly indifferent to the going and coming of the cars. There were no strangers whose presence was to be guarded against. The ringing of bells and the sounding of whistles on trains going and coming, and switch engines moving forwards and backwards, would have simply tended to confusion. The person in direct charge had a right to act on the belief that the various employes in the yard, familiar with the continuously recurring movement of the cars, would take reasonable precaution against their approach.” In Toledo, St. L. & W. R. Co. v. Allen, supra, the United States Supreme Court reversed a judgment of the State court because it did not follow the rule laid down in Aerkfetz v. Humphreys, supra. In its opinion the court said (p. 171): “The decision on this point is contrary to the rule followed in the Federal courts. Aerkfetz v. Humphreys, 145 U. S. 418, was a case presenting a situation similar to that here involved. It is there said (p. 420): ‘The ringing of bells and the sounding of whistles on trains going and coming, and switch engines moving forwards and backwards, would have simply tended to confusion.’ And see Rosney v. Erie R. Co., 135 Fed. 311, 315; Connelley v. Pennsylvania R. Co., 201 Fed. 54, 57. . . . The members of the switching crew had a right to believe that he would keep out of the way of the shunted car. Aerkfetz v. Humphreys, supra.In Connelley v. Pennsylvania R. Co., supra, plaintiff’s intestate was a track walker and the plaintiff charged that the man in charge of the engine in question was negligent (1) in the operation of the train and (2) in failing to give proper warning of the approach of'the train, which are the same charges of negligence as are alleged in the two counts in the instant case upon which the case went to the jury. The plaintiff had a verdict and judgment in the Connelley case and the Circuit Court of Appeals, in passing upon the question as to whether the facts indicated the negligence charged, held that they did not. The court said (p. 55): “The proofs showed that there are eight or nine tracks between these two stations, that there are numerous crossovers and frógs, and the system widens into 16 tracks running into Broad Street Station. Over these tracks there is the constant passage of several hundred trains incident to such a station. The employment of the deceased was to continuously walk over and watch these tracks, and repair any small job, such as tightening bolts, etc.” The court quotes with approval from the Aerkfetz case and says (p. 57): “ ‘Indeed, in thus making self-protection the substantial safeguard of track-walkers and sectionmen, the law is reasonable and just, for no other dependable safeguard can be afforded their perilous work in the practical operation of railroads.’ (Citing many federal and state court decisions, and saying that ‘This rule has the uniform support of courts in all sections of the country.’)” The court further says: “Finding, as we do, no lack of care or omission of duty on the part of the railroad, we are constrained to reverse this case,” etc. The defendant also cites the aforesaid cases in support of its argument that the death of the decedent resulted from hazards the risk of which he had assumed as a matter of law.

In support of its contention that it made out a prima facie case the plaintiff cites New York, N. H. & H. R. Co. v. Pascucci, 46 F. (2d) 969. In that case the plaintiff, in the course of his duties as a laborer and repair worker on defendant’s tracks, was passing through a smoke-filled tunnel as dark as midnight when defendant ran a “draft” of cars into the tunnel without any warning whatever and without slackening speed, and plaintiff was injured before he could see the cars or get out of the way of the same. The court said: “To back a train without warning even in a yard into a smoke-filled tunnel at such a rate of speed where workmen passing through might be caught, the jury may have found was a violation of a duty the defendant owed to these men, and that it was not unreasonable to require it either to slacken the speed of a ‘draft’ under such circumstances, or provide the men on the rear platform with some means of giving warning to men who might, without their fault, be caught like‘rats In a trap.’ . . . As the court said in Central R. R. of N. J. v. Sharkey, 259 F. 144, 149: The doctrine stated in Aerkfetz v. Humphreys, supra,' ‘is to be understood in the light of the circumstances of that case. . . . But we do not understand that the court meant to lay down the doctrine that under no circumstances could it be negligence if an engine in a railroad yard failed to blow its whistle or ring its bell.’ ... In other words, circumstances may arise under which a railroad is required to take some precautions to protect workmen in its yards.” The plaintiff also cites Baltimore & O. R. Co. v. Robertson, 300 Fed. 314, wherein a patrolman working on a trestle at night during a labor strike was struck by a train and injured. It appeared that during the period of employment of the plaintiff the defendant/ ‘ knowing of his necessary presence on such bridge in a place of danger from passing trains, had adopted the customary practice of warning him of the approach of trains by causing the locomotives drawing such trains to whistle just before they came into sight from behind a curve (located 450 feet distant from the trestle) which prevented plaintiff from seeing them until they reached that point; that plaintiff knew of such custom, and relied on such whistles as signals to warn him of approaching trains; that on the night in question, while engaged in his duty of patrolling the track of his employer, he approached this trestle (which was 286 feet long) and before going upon it stopped, looked and listened, but neither saw nor heard any train; that he thereupon proceeded across the bridge in the direction of the curve, walking necessarily in the center of the single track thereon, which occupied nearly its entire width; that when he had gone about two-thirds of the way across he suddenly saw a train, whose engine had not whistled, coming around the curve toward him; that he then ran on toward the curve and approaching train in an attempt to escape from his dangerous position, and nearly succeeded in reaching a place of safety, but that as he left the track near the end of "the trestle his foot was caught and became wedged between the outer guard rail and a spike projecting upwardly from the tie, between the guard rail and the steel rail, tó a height greater than necessary or.usual in bridge construction, and before he could extricate himself he was struck by the train and severely injured; that he was unaware of the presence of such spike, whose upward projection was dangerous, and contrary to standard construction practice.” The court held that under the circumstances of that case the question of defendant’s negligence was properly submitted to the jury and that the jury had a right to find as a fact that the defendant was guilty of negligence. The plaintiff also cites Voorhees v. Central R. Co. of New Jersey, 14 F. (2d) 899, which is a decision of the Circuit Court of Appeals, Third Circuit. In its opinion the court said: “Voorhees was employed by the defendant as ‘a section man at Whitehouse Station, N. J., under a foreman, . . . and his duties were to keep the ashes off tracks 3 and 4, provide a dump for them, and clean up around the water plug, and so forth.’ He was working at what is known as No. 1 water column, called a water plug or standpipe. This is about one mile east of the station. At this point the defendant has four tracks, numbered 1, 2, 3 and 4. The east-bound tracks are numbered 1 and 3, and the west-bound tracks 2 and 4. No. 1 is a through east-bound track, and No. 2 is a through west-bound track. The deceased was killed by a wrecking train on track No. 3 on its way from Whitehouse Station to County Line, a mile or two away, ‘to pick up a couple of cars.’ This track is the most southerly one, and the standpipe is located between it and track No. 1, which is the track next to it on the northerly side. The distance between these two tracks at this point is 13 feet 6% inches. The standpipe is located between these tracks, and rises out of a concrete base 8% feet long, 6 feet 2 inches wide, and 2 feet 2 inches high. At the top of the base the standpipe is 3 feet in diameter, but is reduced to 1 foot some distance above the base. The record does not contain a statement of its height, but it is high enough so that water will run from it over the top of the engine tanks, which are about 10 feet above the rails of the track. While the engines are taking in water, engineers remove from them clinkers, and some of them fall on the side of the tracks and behind the base of the standpipe. The deceased had built a fire near tbe standpipe on the day in question, and was ‘cleaning up ’ around it. . . . He stepped out from behind the water plug or standpipe, and ‘had one leg across the rail’ on his way across the tracks to the dump, when he was struck and killed.....Gainey, a witness produced by the defendant company, was the head brakeman of the wrecking train that killed Voorhees. When the train left Whitehouse Station, he went up into the cab of the engine, and instead of sitting down in a vacant seat on the fireman’s side of the cab, or standing at or near the side of the engineer, he seems to have stood directly back of the engineer, who turned around and was looking at him at the time of the accident, or directly in front of him,. thus cutting off his vision, so that he could not see the deceased in front of his engine, and did not know that he had attempted to cross the tracks until Gainey ‘hollered.’ . . . If the engineer had seen him, he said that he would have blown the whistle, and the deceased could have stopped before going on the track; but he did not see him, and did not give any warning of the approach of the train. Whether Gainey was standing in front of the engineer and obstructed his view, or in the rear and the engineer had turned around and was looking at him, and not in the direction in which he was going, are clearly questions of fact for the determination of the jury, on which it might have concluded that the railroad company was negligent. The learned trial judge could not have directed a verdict for the defendant, except upon the hypothesis that he had found the facts and concluded from his findings that the defendant was not guilty of negligence. Under the evidence in this case, he could not thus usurp the function of the jury and determine the facts.” From a reading of the entire opinion it is apparent that the court did not intend to run counter to the rule laid down by the Federal Supreme Court in the Aerkfets case, nor would it have had the right to do so.

After a very careful consideration of the aforesaid authorities cited by the plaintiff we have reached the conclusion that they do not apply to the facts of the instant case. To sustain its argument that they do apply, the plaintiff is obliged to assume a state of facts entirely unwarranted by the evidence. It argues that the jury were not obliged to believe the testimony of its witness Saska that the deceased saw the approaching train and was in a position of safety until the train was within a few feet of him and that he then unexpectedly stepped into a position of danger, and that the jury were warranted in finding that the deceased, at the time in question, “was stooping over, with his back horizontal, and was at work” on the track, and “that during all the time deceased was observed by the fireman, he was in a place of danger, and that the fireman was negligent in failing to blow the whistle, so as to give him adequate warning of the train’s approach. The train traveled the 100 feet in four and one-half seconds. The facts conclusively show that deceased was oblivious of the approach of the train, and . . . the jury was justified in finding that the fireman was negligent in failing to blow the whistle when he had an opportunity to do so, after observing deceased at work in front of the train.” This theory of fact of the plaintiff is not supported by the testimony of Saska, nor by any other evidence. The plaintiff, in, what seems to us, a desperate attempt to bring its case within the rule laid down in the cases cited by it, is compelled to entirely discredit its own witness upon the main points of his testimony, and while the plaintiff, in the trial, relied upon Saska to make out a prima facie case, it now asks us to eliminate the important and controlling parts of his testimony and to assume a state of facts not warranted by the evidence. We feel impelled to say that we do not concur in the present position of the plaintiff that the witness Saska testified falsely as to the main points of his testimony. We find nothing in his testimony that would warrant a reasonable belief that he was not telling the truth, nor is there anything in the record that impeaches him upon any material matter. Saska was the only person who saw the accident, and had he been trying to aid the defendant, as the plaintiff argues, he could have testified that he blew the whistle as he approached the place in question. According to Saska the deceased moved towards the track, and to a point of danger, when the train was practically upon him, and had Saska at that moment blowm the whistle it would not have prevented the accident. After giving very careful consideration to the important question involved in the instant contention, we have reached the conclusion that under the undisputed evidence in the case and the federal law that governs our decision, the record is barren of evidence tending to prove negligence on the part of the defendant, and that therefore the plaintiff failed to make out a prima facie case. Under such a state of the record, it was the duty of the trial court to grant defendant’s motions, duly made, to direct a verdict in its favor. See Gulf, M. & N. R. Co. v. Wells, 275 U. S. 455, wherein the court said (p. 457): “ . . . the case is controlled by the Federal Employers ’ Liability Act. Hence, if it appears from the record that under the applicable principles of law as interpreted by the Federal courts, the evidence was not sufficient, in kind or amount, to warrant a finding that the negligence of the engineer was the cause of the injury, the judgment must be reversed.”

Holding, as we do, that under the undisputed evidence the defendant was not guilty of negligence as charged in the first or second count of the declaration, the judgment of the superior court of Cook county must be reversed and it is so ordered.

Reversed.

Kerner, P. J., and Gridley, J., concur.


text:
    S. J. Gould, Appellant, v. A. A. Lewis, Appellee.
    Gen. No. 35,892.
    Opinion filed October 4, 1932.
    Jacobson, Merrick, Nierman & Gilbert, for appellant.
    McKenna & Harris, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

The plaintiff sued the defendant in the municipal court of Chicago in an action of the first class. There was a trial before the court, without a jury, and a finding for the defendant, upon which judgment was entered. Plaintiff has appealed.

In his statement of claim the plaintiff alleged:

“ . . . that on, to-wit, November 20, 1927, for good and valuable consideration, the defendant entered into an agreement with the plaintiff in words and figures following, to-wit:

“ ‘ A. A. Lewis and Company

Real Estate-Bonds-Investments

Third Floor

208 W. Washington St.

Chicago,

November 20, 1927

“Mr. S. J. Gould,

77 West Washington Street, >

Chicago, Illinois.

“Dear Sir:

“This is to advise you that with reference to your ' services rendered in connection with the purchase of the Stielow property, I agree to pay you, on or before three years from date, out of the proceeds of sale of said property, the sum of Eighty Five Hundred Dollars ($8,500.00).

“It is understood that this in no way shall be ieflected as a lien, or a lien on the property, and does not create any partnership or specific agreement to pay, except from the proceeds of sale of said property.

“This agreement shall not be recorded, with either the Trustee of said property or the Recorder’s Office of Cook County, Illinois, and if recorded shall be void.

Tour very truly,

A. A. Lewis. ’

“That although three (3) years have elapsed since the making of said agreement and the proceeds of the sale of said Stielow property exceeded the sum of Eighty Five Hundred Dollars ($8500.00) the defendant, although often requested, has not paid said sum of Eighty Five Hundred Dollars ($8500.00), or any part thereof.

“Wherefore plaintiff sues for said sum, together with interest at the rate of five per cent (5%) per annum from November 20, 1930, to the date of judgment herein.”

In his second amended affidavit of merits the defendant denies that the plaintiff had rendered any services in comiection with the purchase of the Stielow property ; avers that the said written agreement was without consideration and that it was obtained by fraud and misrepresentation; denies that he, “the defendant, ever received Eighty-five Hundred dollars or any other proceeds of the sale of the Stielow property and denies that he ever at any time possessed any sum from the sale of the Stielow property with which he could have paid said Eighty-five Hundred Dollars or any other amount to this plaintiff.”

The major contention of the plaintiff is that “the finding of the court is clearly and manifestly against the weight of the evidence.” After a careful consideration of all the evidence we have reached the conclusion that this contention is a meritorious one. As the case may be tried again we refrain from analyzing and commenting upon the facts and circumstances in evidence.

We deem it necessary to pass upon several controverted questions of law. Upon the trial the defendant contended that the written agreement of November 20, 1927, was obtained by fraud and misrepresentation, and that in the instant proceeding, a civil action, he was required to establish the allegation of fraud by only a preponderance of the evidence. Upon the other hand, the plaintiff insisted that “when fraud is relied on as a defense, the burden is upon the party charging the fraud to prove it as a fact, by such clear and convincing evidence as leaves the mind well satisfied that the allegations of fraud are true.” The law on the subject is not open to doubt, as the Supreme Court has many times stated the rule. It is only necessary to cite a very late case bearing upon that subject. In Jaworski v. Sujewicz, 334 Ill. 19, 22, the court said: “Fraud will not be presumed, but must be proved by such clear and convincing evidence that the mind is well satisfied that the charge is true. (Carter v. Carter, 283 Ill. 324; Mosbarger v. Brown, 313 id. 238.)”

The plaintiff contends that the term “proceeds” in the letter of November 20, 1927, “means anything that was realized out of the sale of the property, whether money or any other thing of value, and . . . that the term ‘proceeds’ cannot be limited to the construction that the defendant would have placed on the term, namely, only profits received by the defendant.” The plaintiff cites several cases which the defendant concedes seem to support the contention of the former. While the defendant cites several cases which hold that the term “proceeds” as used in those cases means net profits, nevertheless, he frankly states in his brief that it is difficult to reconcile the authorities bearing upon the question and that the following statement, from 50 Corpus Juris 427, expresses “a broad middle ground” in the interpretation of the term: “Proceeds. Not a word of any fixed or definite meaning, but of varying and loose significance, employed with different meanings, of equivocal import and great generality. . . . Its meaning in each case depends on its context, depends very much on the connection in which it is employed and the subject matter to which it is applied.” The same authority also states (pp. 429, 430): “In contracts and written instruments, the word ‘proceeds’ has many meanings and varied usages and is in many instances of doubtful meaning. The subject matter and purpose of a contract must be considered in order to determine the meaning of the word as used by the parties. As used, the word has been variously defined, and held to mean ‘money;’ to include the increase in value of stock or produce; not to mean actual money recovered or money only or ‘invoice;’ it has been held to mean gross proceeds and net proceeds.” From a review of the many authorities cited in Corpus Juris it is clear that the statement therein contained that “the word ‘proceeds’ has many meanings and varied usages and is in many instances of doubtful meaning,” is fully justified. In 23 Am. & Eng. Ency. of Law, 159, it is stated that “the term (proceeds) is one of equivocal import. Its construction depends much upon the context and the subject matter to which it is applied.” The plaintiff cites People v. City of Chicago, 216 Ill. 537, 542, as an authority in support of his interpretation of the term “proceeds.” In our judgment the Supreme Court in that case did not intend to state a fixed definition of the term “proceeds” that would apply in the interpretation of all contracts. The general rule that where the terms of a contract are ambiguous and uncertain their meaning may be determined from extrinsic evidence, also applies to the instant contract.

While the plaintiff strenuously insists that we should enter a judgment in his favor in the sum of $8,500, we have reached the conclusion that justice will be best served by a retrial of this cause.

The judgment of the municipal court of Chicago is reversed and the cause is remanded.

Reversed and remanded.

Keeker, P. J., and Gridley, J., concur.


author: Mr. Presiding Justice Barry

text:
    The People of the State of Illinois ex rel. Anna Lee Linton, Appellee, v. Leo Barth, Appellant.
    Opinion filed September 19, 1932.
    Rehearing denied October 22, 1932.
    Meyer & Meyer, for appellant.
    J. H. Allio, State’s Attorney, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

This is a bastardy proceeding in which appellant was found to be the father of the child of the relatrix. At the time of the trial relatrix was 16 years of age and appellant was 29. Appellant contends that the court erred in overruling his motion for a continuance which was based on the absence of a certain witness. It was incumbent upon appellant to show that he had a meritorious defense and the materiality of the facts which he expected to prove by the absent witness. People v. Trimble, 345 Ill. 82; City of Elgin v. Nofs, 212 Ill. 20, 23. That rule was applied in a bastardy case. Fish v. People, 86 Ill. App. 408. By this affidavit in support of his motion, appellant did not attempt to show a meritorious defense. He stated that he expected to prove that the absent witness had sexual intercourse with the relatrix during November and December, 1930, and January, 1931, but he failed to show the materiality of the alleged facts. There was no showing as to whether a child had been born and the date of its birth. At the time the motion was filed and passed upon, there was nothing in the record or the affidavit to inform the court that the dates mentioned were in any way material to the issue.

Appellant insists that the court erred in excluding three letters which were written to relatrix by the witness Hubbard. The court did not err in its ruling in that regard as will be seen from Razor v. Razor, 149 Ill. 621. There was a conflict in the evidence and for that reason the court did not err in refusing to direct a verdict in favor of appellant.

It is argued that the verdict is not supported by the evidence. We have carefully considered the evidence and we are satisfied we would not be warranted in disturbing the verdict. Appellant insists that the second and third instructions given for appellee are erroneous because they require the jury to believe from the evidence, instead of from a preponderance of the evidence. The objection is without merit. Donk Brothers Coal & Coke Co. v. Thil, 228 Ill. 233. It is also argued that the court erred in refusing certain instructions asked by appellant. Most of those objections failed to point out any reason why the instructions should have been given. We have carefully considered the rulings thereon and the instructions given on behalf of appellant. Our conclusion is that the jury was fully and fairly instructed.

In support of the motion for a new trial appellant filed his own affidavit in which he averred that upon another trial of the case three named persons would contradict certain portions of the testimony of the relatrix. That matter cannot be considered for the-reason stated in Janeway v. Burton, 201 Ill. 78; People v. Weisman, 296 Ill. 156. No reversible error having been brought to our attention the judgment is affirmed.

Affirmed.


text:
    W. E. Jones, Appellee, v. St. Louis Structural Steel Company, Appellant.

      Opinion filed September 19, 1932.
    Rehearing denied October 24, 1932.
    Lewis & Bice and Kramer, Campbell, Costello & Wiechert, for appellant.

      Josiah Whitnel, Whitnel & Browning, Paul S. Schmid and Fordyoe, White, Mayne & Williams, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee’s declaration is, in substance, that he owned 15 shares of the preferred stock of St. Louis Structural Steel Company, a Delaware corporation; that he had a contract with said corporation that no merger thereof with another corporation should in any way impair the rights of the preferred stock; that said corporation, without his consent, merged with another Delaware corporation, and that appellant is the corporation formed by that merger; that after the merger, appellant, well knowing of appellee’s rights as a preferred stockholder, took unto itself all of the assets of the first mentioned corporation, including appellee’s pro rata share thereof, and wrongfully converted to its own use appellee’s stock and his pro rata share of the assets aforesaid; that appellant has failed and refused to pay to appellee the value thereof to his damage in the sum of $2,500.

There is no averment in the declaration that there was a failure to comply with any of the provisions of the Delaware statute pertaining to the consolidation, or merger of corporations. That statute provides that a merger may be effected if approved and adopted by two-thirds of the total number of shares of the capital stock of each corporation. When appellee became a stockholder, he did so with a knowledge that the statute was a part of his contract, and that if, at any future time, representatives of two-thirds of the stock of his company should, in compliance with the law, vote to consolidate with another company, he would be bound by their action. Mayfield v. Alton Railway, Gas & Electric Co., 198 Ill. 528. The charter of a corporation is a contract between the stockholder and the corporation and between the stockholders themselves, into which is impliedly written every pertinent provision of the State law pertaining thereto. Morris v. American Public Utilities Co., 14 Del. Ch. 136, 122 Atl. 696.”

The lawful consolidation of a private corporation, with another, does not give a dissenting stockholder in the first corporation the lawful right to demand of the consolidated company payment in cash for his shares of stock. Mayfield v. Alton Railway, Gas & Electric Co., supra. The declaration in that case is fully set out in the opinion in 100 Ill. App. 614. A demurrer was interposed to the declaration in that case and sustained, and the decision was affirmed by the Supreme Court. There is no material difference between that declaration and the one in the case at bar, except that appellee made a further averment in his declaration to the effect that he had a contract with his corporation that no merger with another corporation should in any way impair the rights of. the preferred stock.

Under the Delaware statute, incorporators desiring to form a corporation execute a certificate of incorporation and file the same with the secretary of state, who issues a certified copy thereof and the same is filed for record. Section 13 of the statute specifies in a general way what may be inserted therein. It states, among other things, that if the corporation shall be authorized to issue more than one class of stock, the designations, preferences and relative, participating, optional or other special rights of each class shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class of stock.

Section 5, clause 8 of the statute, provides that the certificate of incorporation may contain any provision which the incorporators may choose to insert, provided such provisions are not contrary to the laws of this State. The certificate of incorporation of the old St. Louis Structural Steel Company and the certificates of preferred stock contained the following provision: “The consolidation or merger of- such company at any time, or from time to time with any other company or. companies shall not be regarded or construed to be dissolution of said corporation within.the meaning ¡hereof but no such merger shall in any way impair the rights of the preferred stock.”

The latter part of that provision is in direct conflict with section 59.of the Delaware statute which authorizes the merger of corporations by entering into' a written agreement prescribing the terms and conditions of the merger, etc., as well as the manner of converting the shares of each of the constituent corporations into shares of the consolidated corporation. It is evident that the legislature never intended that preferred stock of a corporation should not be impaired in any way by a merger. The provision of the certificate of incorporation to the effect that a merger should in no way impair the rights of the preferred stock was contrary to the law. of Delaware expressed in said section 59. That provision is invalid. National Union v. Keefe, 263 Ill. 453.

Section 61 of the Delaware statute provides a method whereby a stockholder who does not desire to take stock in the consolidated corporation may have the value of his stock in the old corporation determined by appraisers and paid for by the consolidated corporation. Appellee made no attempt to have the value of his stock determined in the statutory method and is not claiming any rights under that statute. So far as we are advised, the Supreme Court of Delaware has never determined whether a dissenting stockholder, upon a merger of his corporation, may recover the value of his stock from the consolidated corporation. The record shows that the consolidation in question was made in accordance with the provisions of the Delaware law. That being true, appellee was not entitled to recover the value of his stock from the consolidated corporation. Mayfield v. Alton Railway, Gas & Electric Co., supra. In advance of any decision by the court of last resort in a foreign State, courts of Illinois will not assume that the foreign court will declare the common law in that State to be different from the common law as construed by Illinois courts. Royal League v. Kavanagh, 233 Ill. 175. If appellee had averred and proved an illegal merger, or fraud, a different question would be presented. The declaration in this case does not state a cause of action and the judgment is reversed.

Reversed.


text:
    Kuhnen-Siegrist Hardware Company, Appellant, v. John Papista, Appellee.

      Opinion filed September 19, 1932.
    Rehearing denied October 19, 1932.
    G. R. Moser and Hill, Burlington & Wilson, for appellant.
    F. M. Guinn and Meter & Meter, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On October 3, 1928, appellee executed and delivered to appellant two notes for $1,612.86 and $300, falling due in two years with interest at seven per cent. He secured the notes by a chattel mortgage on his crops, livestock and farm implements, in which he agreed to pay $50 per month on the notes and that if he failed to do so appellant would be at liberty to foreclose. About a year later, no payments having been made, appellant brought a replevin suit by which to secure possession of the mortgaged property. Appellant then dismissed the suit and appellee moved for a writ of retorno habendo and for an assessment of damages. The motions were overruled and he sued out a writ of error. We reversed the cause with directions to award the writ and assess damages for the use of the property from the time it was taken until it should he returned to appellee under section 22 of the Replevin Act, Cahill’s St. ch. 119, ¶ 22. Papista v. Kuhnen S Siegrist Hdw. Co., 262 Ill. App. 510.

When the cause was redocketed in the trial court and the orders made, a stipulation was entered into whereby the issues were very much extended. Upon a hearing before a jury the evidence, without objection, took a still wider range. After the dismissal of the replevin suit appellant proceeded to foreclose the chattel mortgage and realized therefrom the net amount of $1,409.36, leaving a balance on the notes of $640.75. Appellee contended upon the trial that prior to the foreclosure of the mortgage he had paid appellant his entire indebtedness; that by reason thereof the sale was unlawful and he was entitled to recover the full cash market value of the property sold, with interest thereon; that he was also entitled to damages for the wrongful suing out of the writ of replevin. The trial resulted in a verdict for $2,587.28. The court required appellee to remit $587.28, denied a motion for a new trial and rendered judgment for $2,000.

The notes secured by the mortgage were, at least, prima facie evidence that appellee was indebted to appellant in the amount thereof. He offered no evidence tending to prove that he made any payment after October 3, 1928, the date of the notes. He contends that before he executed those notes he had paid his entire debt to appellant. His first transaction with appellant was the purchase of a tractor and plow for $1,160. He paid $200 thereon and gave Ms note for $960 dated April 1,1920. Since that time he purchased numerous articles of merchandise from appellant and notes were given and renewed from time to time for the balance due. The final renewal notes are those dated October 3,1928, which were secured by the mortgage aforesaid. Appellee was permitted to introduce in evidence many of the old notes which had been renewed by others. He introduced some receipts for money paid, all of which were properly credited on his debt.

Appellee does not claim that he was charged with any merchandise that he did not receive. He claimed to have paid his debt, and the burden was upon him to show that such was the fact. We have carefully considered all of the evidence and find nothing that would warrant us in holding that appellee did not owe appellant the full amount of the two notes executed on October 3, 1928. Appellant had the right to foreclose the chattel mortgage and it cannot be held liable for any alleged difference between the fair cash market value of the property as fixed by the evidence on behalf of appellee, and the amount realized upon the foreclosure sale. There is no claim that the sale was not properly advertised and conducted in accordance with the law.

It was stipulated that if appellee is entitled to recover an attorney’s fee, $400 is a reasonable fee. The evidence clearly shows that the net amount realized from the foreclosure sale lacked $640.75 of being enough to pay the notes. That being true, appellee would not be entitled to a judgment for an attorney’s fee. The judgment is reversed with a finding of facts.

iReversed with a finding of facts.

The clerk will insert in the judgment the following: “The Court finds that when appellee executed the two notes dated October 3, 1928, he was indebted to appellant in the sura of $1,912.86 and that no part thereof had been paid prior to the foreclosure sale; that $1,409.36 was realized from the foreclosure sale and credited upon the notes, leaving a balance of $640.75.”