text:
    A. H. Woods Theatre, appellant, v. North American Union, appellee.
    Gen. No. 31,717.
    Action for rent. Judgment for defendant. See 246 Ill. App. 521. Appeal from the Municipal Court of Chicago; the Hon. Robert E. Gentzel, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed with a finding of fact.
    Opinion filed December 12, 1927.
    Rehearing denied December 28, 1927.
    Ryan, Condon & Livingston, for appellant; David J. Greenberg and John M. Tuohy, of counsel.
    Brannan, Markman & Maloney, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Howard Putnam Sturges et al. v. Edith Sturges Heller et al. In the Matter of the intervening petition of Jacob A. Albert et al. Jacob A. Albert et al., intervening petitioners, appellees, v. Grace D. Sturges et al., respondents, appellants. Jacob A. Albert et al., intervening petitioners, appellants, v. Caroline Margaret Sturges Hall et al., respondents, appellees.
    Gen. No. 31,814.
    Gen. No. 31,816.
    Intervening petitions in partition proceeding. Decree against certain respondents. Gross-appeal from decree entered in the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed in part and reversed in part and cause remanded with directions.
    Opinion filed December 12, 1927.
    Defrees, Buckingham & Eaton, for Grace D. Sturges.
    West & Eckhart, for Howard Putnam Sturges.
    Lambert & Mayer, for Edward Spencer Sturges and Caroline Margaret Sturges Hall.
    Mayer, Meyer, Austrian & Platt and Hyman J. Rosenberg, for appellees in Gen. No. 31,814 and appellants in Gen. No. 31,816; Alfred S. Austrian, Henry Russell Platt and David F. Rosenthal, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The Roy Iverson Company, appellee, v. United States Lloyd’s, Inc., appellant.
    Gen. No. 31,913.
    Action to recover on automobile fire insurance policy. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed December 12, 1927.
    Wolf & Love, for appellant; Alexander Wolf, of counsel.
    Harry A. Biossat, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    George F. Satterlee, complainant and plaintiff in error, v. Emma A. Fuller et al., defendants and defendants in error.
    Gen. No. 31,623.
    Bill for construction of a will. Dismissed for want of equity. Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 12, 1927.
    Francis M. Lowes, Edmund S. Carr and Henry N. Shabsin, for plaintiff in error.
    McCulloch & McCulloch, for George A. Satterlee and Illinois Merchants Trust Co., defendants.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Holland Furnace Company, appellee, v. Julius Janelunas, appellant.
    Gen. No. 31,751.
    Action to recover balance due. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Warren H. Orr, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed December 12, 1927.
    Harold O. Mulks, for appellant.
    Carl E. Abrahamson, for appellee,
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Henry M. Hagan, appellee, v. Madison Square Building Corporation, appellant.
    Gen. No. 31,761.
    Action to recover for court costs and legal services. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Daniel P. Trude, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 12, 1927.
    Benjamin C. Bachrach and Joseph E. Paulissen, for appellant.
    Jay Stough, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Florence Eisensee, administratrix of the estate of Earl W. Eisensee, deceased, appellee, v. City of Chicago, appellant.
    Gen. No. 31,802.
    Action for wrongful death. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Harry C. Stuttle, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 12, 1927.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant.
    Charles M. McDonnell, Assistant City Attorney, and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.
    Royal W. Irwin, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Mary L. Kent and Amos W. Martin, trustees, appellees, v. William E. Meyers and Lillian Meyers, appellants.
    Gen. No. 31,904.
    Bill to foreclose trust deed. Decree for complainants. Appeal from the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding.
    Heard in the first division of this court for the first district at the March term, 1927.
    Reversed and remanded with directions.
    Opinion filed December 12, 1927.
    Rehearing denied December 27, 1927.
    Jesse Marcus, for appellants.
    Edward H. S. Martin, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice Jett

text:
    Second District.
    Anna Wells, appellee, v. Walter Higgins, appellant.
    Gen. No. 7,681.
    Action for personal injuries and damage to automobile from automobile collision. Judgment for plaintiff. Appeal from the Circuit Court of Henry county; the Hon. Charles J. Searle, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed September 29, 1927.
    Rehearing denied February 2, 1928.
    Sturtz & Ewan, for appellant.
    Joseph L. Shaw and Henry Waterman, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    Senachwine Club, appellee, v. William E. Green, appellant.
    Gen. No. 7,770.
    Bill for injunction against hunting over complainant’s land. Temporary injunction issued. Appeal from the Circuit Court of Putnam county; the Hon. John. M. Niehaus, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded with directions.
    Opinion filed September 29, 1927.
    Rehearing denied February 7, 1928.
    Henry E. Jacobs and Clarence W. Heyl, for appellant; Heyl & Heyl, of counsel.
    Barnes, Magoon & Horton, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Charles E. Palmer, appellant, v. Fred W. Mateska, appellee.
    Gen. No. 7,695.
    Assumpsit on promissory note and account stated. Judgment for defendant. Appeal from the Circuit Court of Kankakee county; the Hon. Frederick A. Hill, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed October 25, 1927.
    Amos H. Robillard and C. M. Granger, for appellant.
    T. R. Johnston and C. M. Clay Buntain, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    Cummings and Emmerson, appellant, v. Estella L. Stroud, administratrix of the estate of Walter B. Stroud, deceased, appellee.
    Gen. No. 7,693.
    Action on promissory notes given for machine. Judgment for defendant on set-off for breach of warranty. Appeal from the City Court of Kewanee county; the Hon. H. S. Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed October 25, 1927.
    James N. Cummings and Clarence W. Heyl, for appellant; Heyl & Heyl, of counsel.
    John T. Cummings, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Frederick E. Triebel, appellee, v. Estate of Ellen Marion Clisbe Don Meyer, deceased. George R. MacClyment, executor, appellant.
    Gen. No. 7,768.
    Appeal from judgment allowing against estate a claim founded on contract for sculptor’s service and material. Appeal from the Circuit Court of Peoria county; the Hon. Frank Lindley, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 25, 1927.
    Rehearing denied February 6, 1928.
    Clarence W. Heyl and Harry C. Heyl, for appellant; Heyl & Heyl, of counsel.
    Weil, Bartley & Weil, for appellee; Joseph F. Bartley, Leo F. Cavanaugh and Herbig Tounge, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Jones

text:
    Central Trust & Savings Bank of Geneseo, Illinois, appellee, v. John F. Kincaid, appellant.
    Gen. No. 7,775.
    Appeal from decree allowing complainant on interpleader to pay fixed sum into court and from dismissal of cross-bill for accounting for profits. Appeal from the Circuit Court of Henry county; the Hon. Charles J. Searle, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded with directions.
    Opinion filed October 25, 1927.
    Wood, McNeal & Warner and Joseph L. Shaw, for appellant.
    Harry E. Brown and Arthur G. Higgs, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Hilda Harrop, defendant in error, v. Edwin H. Selle and Florence E. Selle, plaintiffs in error.
    Gen. No. 7,811.
    Action for personal injuries to invited passenger from automobile collision. Judgment for plaintiff. Error to the Circuit Court of Stephenson county; the Hon. William L. Emmerson, Judge, presiding.
    Heard in this court at the October term, 1927.
    Reversed and remanded.
    Opinion filed December 15, 1927.
    Rehearing denied February 7, 1928.
    Elwyn R. Shaw, for plaintiffs in error.
    North, Linscott, Gibboney & North, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr, Justice Boggs

text:
    The People of the State of Illinois, defendant in error, v. Joy Burns and William Noren, plaintiffs in error.
    Gen. No. 7,814.
    Prosecution for unlawful possession and sale of intoxicants. Conviction of unlawfully possessing intoxicants. Error to the County Court of Rock Island county; the Hon. Benjamin D. Farrar, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed December 15, 1927.
    Rehearing denied February 7, 1928.
    W. C. Allen and Schriver & Schriver, for plaintiffs in error.
    Benjamin S. Bell, State’s Attorney, for defendant in error; Dan H. McNeal, of counsel.
   Mr, Justice Boggs

delivered the opinion of the court.


text:
    Jennie Clark, appellee, v. City of Streator, appellant.
    Gen. No. 7,830.
    Action for personal injuries from falling on sidewalk. Judgment for plaintiff. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed December 15, 1927.
    Rehearing denied February 6, 1928.
    Lloyd Painter, City Attorney, for appellant.
    Arthur H. Shay, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Wade A. Abbott, appellee, v. E. N. Betourne Bus Line, appellant.
    Gen. No. 7,683.
    Action for injuries from automobile collision. Judgment for plaintiff. Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Selm, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed December 22, 1927.
    Moloney & Postelnek and John A. Mayhew, for appellant.
    Miller & Streeter, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Truman Adelbert Abbott, appellant, v. Samuel Wilson et al., appellees.
    Gen. No. 7,711.
    Bill to impound notes and trust deeds and restrain transfer. Dismissed for lack of equity and decree for defendants on cross-bill. Appeal from the Circuit Court of McHenry county; the Hon. E. D. Shurtleff, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed December 22, 1927.
    Rehearing denied February 6, 1928.
    D. T. Smiley, for appellant.
    A. H. Pouse and R. K. Welsh, for Samuel Wilson and Clifford Wilson, appellees.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Harold Shear, appellee, v. Illinois Central Railroad Company, appellant.
    Gen. No. 7,728.
    Action for injuries to automobile guest in collision witji train. Judgment for plaintiff. Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Selm, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed December 22, 1927.
    Hunter & Minor, for appellant; Vernon W. Foster, of counsel.
    Miller & Streeter, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


author: Per curiam.

text:
    Third District.
    Lincoln Park Coal & Brick Company, plaintiffs in error, v. Wabash Railway Company, defendant in error.
    Gen. No. 8,025.
    Action in subrogation under Workmen’s Compensation Act. Judgment .for defendant. Error to the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed June 29, 1927.
    Rehearing denied October 12, 1927.
    Johnson & Pefferle, for plaintiffs in error.
    Allen & Converse, for defendant in error.
   Per curiam.


text:
    Israel Sherman, administrator of the estate of Max Sherman, deceased, appellee, v. Illinois Traction, Inc., appellant.
    Gen. No. 8,035.
    Action for death of automobile guest by wrongful act. Judgment for plaintiff. Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed June 29, 1927.
    Rehearing denied October 12, 1927.
    Graham & Graham, for appellant.
    T. J. Sullivan, for appellee.
   Per curiam.


author: Mr. Presiding Justice Shurtleff

text:
    The People of the State of Illinois, defendant in error, v. Thomas Kelley, plaintiff in error.
    Gen. No. 8,067.
    Prosecution for unlawful sale of intoxicants. Conviction and sentence. Error to the County Court of McDonough county; the Hon. T. H. Miller, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Edward Pree, T. MacDowning and Russell F. Meyer, for plaintiff in error.
    William R. Harris, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    William Flint, appellant, v. J. S. Mundy, appellee.
    Gen. No. 8,077.
    Assumpsit for timber sold on contract. Judgment against plaintiff. Appeal from the Circuit Court of Clark county; the Hon. Walter Brewer, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded.
    Opinion filed October 31, 1927.
    William E. Isley, for appellant.
    William T. Hollenbeck and H. J. Buxbaum, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Edward C. Pyatt et al. v. John Kramer et al. Hugh Scott, administrator of the estate of Ann E. Pyatt, deceased, appellee, v. Edward C. Pyatt et al. Edward O. Pyatt, appellant.
    Gen. No. 8,088.
    Partition. Decree against plaintiff on cross-bill. Appeal from the Circuit Court of Moultrie county; the Hon. Geo. A. Sentel, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded with directions.
    Opinion filed October 31, 1927.
    John E. Jennings and C. R. Patterson, for appellant.
    F. M. Harbaugh, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Richard Rohweder, by Henry Rohweder, appellee, v. Martin McMann et al., appellants.
    Gen. No. 8,101.
    Trespass for personal injuries to infant from dog bite. Judgment for plaintiff. Appeal from the Circuit Court of Adams county; the Hon. Fred G. Wolfe, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Leroy Adair and Wm. & P. J. Schlagenhauf, for appellants.
    John E. Wall, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Henry G. Ailts, appellee, v. H. L. Huffington, appellant.
    Gen. No. 8,105.
    Action for personal injuries from automobile collision. 'Judgment, for plaintiff. Appeal from the Circuit Court of Tazewell county; the Hon. Joseph E. Daily, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded.
    Opinion filed October 31, 1927.
    William A. Potts and R. J. Lavery, for appellant; Arne B. Hummeland, of counsel.
    P. A. D’Arcy and Ralph Dempsey, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Geneva Bozarth, by Leslie Bozarth, appellee, v. Louis Ayers, appellant.
    Gen. No. 8,115.
    Action for damages for rape on infant. Judgment for plaintiff. Appeal from the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded.
    Opinion filed October 31, 1927.
    John G. Friedmeyer, for appellant.
    O’Hern & O’Hern and John P. Snigg, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    The People of the State of Illinois, defendant in error, v. Walter S. Haxton, alias Pete Haxton, plaintiff in error.
    Gen. No. 8,062.
    Prosecution for violation of Prohibition Act. Conviction. Error to the Circuit Court of Morgan county; the Hon. Harry L. Chapman, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    William N. Hairgrove, for plaintiff in error.
    Hugh Green, State’s Attorney, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    O. M. Sizemore, appellee, v. John McDaniel, appellant.
    Gen. No. 8,073.
    Trover for breach of warranty in deed. Judgment for plaintiff. Appeal from the Circuit Court of Edgar county; the Hon. John H. Marshall, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Wilber H. Hickman and G. F. Bennett, for appellant.
    O’Hair, McClain & Bristow, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Paul Prehn, appellee, v. Illinois Power & Light Corporation, appellant.
    Gen. No. 8,082.
    Action for damage to automobile from collision with street ear. Judgment for plaintiff. Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded.
    Opinion filed October 31, 1927.
    Green & Palmer, for appellant; William G. Palmer and Oris Barth, of counsel.
    Fred B. Hamill, for appellee; Fred B. Hamill and Forrest B. Gore, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Ethel Hodges, appellee, v. Commercial Union Assurance Company, appellant.
    Gen. No. 8,086.
    Assumpsit on fire insurance policy. Judgment for plaintiff. Appeal from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Jesse Peebles, for appellant.
    Murphy & Hemphill, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Aud Sandusky, appellant, v. William Meithe, appellee.
    Gen. No. 8,104.
    Action to recover wages due. Judgment for plaintiff. Appeal from the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded.
    Opinion filed October 31, 1927.
    William T. Henderson, for appellant; Chas. W. Fleming, of counsel.
    Clark & Hutton, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Maggie Pearl Sharp et al., appellants, v. Matthew S. Sharp et al., appellees.
    Gen. No. 8,110.
    Partition. Decree against defendants on cross-bill involving a freehold. Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding.
    Heard in this court at the April term, 1927.
    Cause transferred to Supreme Court.
    Opinion filed October 31, 1927.
    S. H. Cummins, for appellants.
    L. E. Stone, for appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    William Gillum, administrator of the estate of Truman Gillum, deceased, appellant, v. Central Illinois Public Service Company, appellee.
    Gen. No. 8,014.
    Action for wrongful death. Judgment for defendant. Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed and remanded.
    Opinion filed October 31, 1927.
    Donald B. Craig, James W. Craig, Jr., Fred H. Kelly and James Craig Van Meter, for appellant.
    James Vause, Jr., Carl D. Kiger and Jewell I. Dilsaver, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Fairbanks Morse & Company, appellee, v. William Severns et al., appellants.
    Gen. No. 8,019.
    Mandamus to compel sale of drainage bonds. Judgment for petitioner. Appeal from the Circuit Court of Pike county; the Hon. Fred G. Wolfe, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed October 31, 1927.
    Kraft & Erskine, for appellants.
    Ashcraft & Ashcraft and Williams, & Williams, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Roy R. Duff, appellant, v. W. W. Dye, appellee.
    Gen. No. 8,065.
    Action to recover down payment on realty. Judgment for defendant. Appeal from the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    A. B. Dennis, for appellant.
    Acton, Acton & Snyder, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Ray Spicer, appellant, v. J. W. Thrasher, appellee.
    Gen. No. 8,085.
    Trial of right of property. Judgment for defendant. Appeal from the County Court of McDonough county; the Hon. T. H. Miller, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Switzer & Switzer, for appellant.
    Gumbart & Grigsby, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Theodore Oltmann, appellee, v. Rudolph H. Coorts, appellant.
    Gen. No. 8,106.
    Action for goods sold and delivered. Judgment for plaintiff. Appeal from the Circuit Court of Logan county; the Hon. Frank Lindley, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Harold F. Trapp and Anderson & Mangas, for appellant.
    Homer B. Harris and Peter Murphy, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Samuel V. McGee et al., appellees, v. W. M. Vandeventer et al., appellants.
    Gen. No. 7,898.
    Temporary writ of injunction granted. Appeal from the Circuit Court of McDonough county; the Hon. George C. Hillyer, Judge, presiding.
    Heard in this court at the October term, 1925.
    Reversed.
    Opinion filed October 31, 1927.
    Wilton M. Vandeventer, pro se, and Keefe, Baxter & Miller, for appellants.
    Oscar E. Carlstrom, Attorney General, Sherman, Bainum & Pree, Gumbart & Grigsby, O’Harra, O’Harra & O’Harra, Charles J. Scofield and Philip E. Elting, for appellees.
   Per curiam.


author: Mr. Presiding Justice Barry

text:
    Fourth District.
    Floyd R. Sumpter, appellee, v. Pennsylvania Railroad Company, appellant.
    Action under Federal Employers’ Liability Act for personal injuries. Judgment for plaintiff. Appeal from the City Court of East St. Louis; the Hon. W. F. Borders, Judge, presiding.
    Heard in this court at the March term, 1927.
    Reversed and remanded.
    Opinion filed November 5, 1927.
    Whitnel & Browning, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Newhall

text:
    A. H. Burns, appellee, v. William Fulton, appellant.
    Action for goods sold and delivered. Judgment for plaintiff. Appeal from the Circuit Court of Randolph county; the Hon. J. F. Gillham, Judge, presiding.
    Heard in this court at the March term, 1927.
    Reversed and remanded.
    Opinion filed November 5, 1927.
    Schuwerk & Schuwerk, for appellant.
    J. Fred Gilster, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.


author: Mr. Justice Williams

text:
    R. F. Tunnell, appellee, v. Alton Brick Company, appellant.
    Action for damage to house from blasting. Judgment for plaintiff. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the March term, 1927.
    Reversed and remanded.
    Opinion filed November 5, 1927.
    Terry, Gueltig & Powell, for appellant.
    R. Ferd Tunnell, Jr., for appellee.
   Mr. Justice Williams

delivered the opinion of the court.


author: Mr. Presiding Justice Taylor

text:
    The Christian Mills, Inc., Appellant, v. Berthold Stern Flour Company, Appellee.
    Gen. No. 31,697.
    1. Contracts — liquidated damages on buyer’s breach of contrast to purchase flour to be manufactured. A provision in a contract for the sale of flour to be manufactured and shipped when directed by the buyer, that the seller shall recover as liquidated damages on flour unshipped, by reason of the buyer’s breach, the total from a formula amounting to (a) about 19 cents per bushel of flour resulting from the loss upon the wheat to be made into flour, (b) about 38 cents per bushel of flour covering interest on the cost of the wheat, insurance and storage for a period of four months between the dates of the contract and the date of the breach, and (e) the amount of the decline between the highest closing price per bushel of wheat on the date of the contract and the date of the breach, the buyer to be given a corresponding credit if the price had advanced — held fair and reasonable and, therefore, binding upon both parties.
    2. Contracts — damages based, upon wheat on buyer’s breach of contract to purchase flour. It is proper for a contract for the sale of flour to provide that the flour need not be manufactured if the buyer does not furnish shipping directions, and that in such ease the damages to the seller shall be estimated upon the wheat to be made into flour instead of upon the flour.
    3. Contracts — date to be used in considering rule for estimating damages. The reasonableness of the contract rule for estimating damages on the breach of a contract for its sale of flour must be considered as of the date of the contract and not as of the date of the breach.
    4. Contracts — mutuality of obligation and of performance. A contract for the sale of flour which provided that the buyer should furnish shipping directions; that the seller upon receiving the directions should manufacture and ship the flour as directed; that the buyer be given one rule for damages as to flour shipped and refused and another as to flour for which no directions were given; and that the seller be given a rule for damages on a breach by the seller, held not lacking in mutuality of either obligation or performance.
    5. Sales — necessity of buyer performing conditions: in proper time. Where a contract for the sale of flour provides that the seller shall pay a certain sum as carrying charges during an extension of the time for him to furnish shipping directions, an offer of the buyer to pay the charges is ineffectual when not made before the time of the seller’s termination of the contract for failure of the buyer to furnish shipping directions within the limited time.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. William; N. Gemmill, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Reversed and remanded.
    Opinion filed December 21, 1927.
    Rehearing denied January 6, 1928.
    Carleton H. Pendleton, for appellant; H. L. Hoidale, of counsel.
    Schoenbrod & Rosengabd, for appellee; Louis Exstein, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On June 1, 1925, Christian Mills, Inc., the plaintiff, brought suit in assumpsit in the superior court of Cook county, Illinois, against Berthold Stern Flour Company, a corporation, the defendant, to recover damages for an alleged breach of contract. On January 12,1925, a written contract had been made by which the plaintiff agreed to manufacture and sell, and the defendant agreed to buy, 3,000 barrels of “Christian’s Special Patent” flour, at $8 per barrel. Of that amount the defendant took and paid for 500 barrels and no more. The plaintiff declared the contract broken as to the remaining 2,500 barrels, and charged the defendant with damages therefor in the sum of $4,052.34, which amount the defendant refused to pay. This suit was brought to recover that amount as liquidated damages. The contract of purchase and sale contained provisions expressly specifying the manner in which damages accruing to either party as the result of a default should be ascertained. At the trial plaintiff proffered evidence to show the amount of damages, calculated in accordance with the express provisions of the contract. The trial judge before whom the case was tried refused to admit such evidence of damages, and held that the terms of the contract, which expressly provided for the measurement of the plaintiff’s damages, were nugatory in that they provided for a penalty, and that the plaintiff could only recover as damages the difference between the price which the defendant agreed to pay for the flour, and the lower market value, if it were lower, at the time of the breach.

The plaintiff, after having proved the contract and that it was breached, proffered evidence to prove the amount of damages in accordance with the specific provisions of the contract, and, upon that evidence being rejected by the court, rested its case, without introducing any evidence to show the lower market value of the flour at the date of the breach.

On November 30, 1926, at the close of all the plaintiff’s evidence, and on the motion of the defendant, the court instructed the jury to find the issues for the defendant. Motions by the plaintiff to set aside the verdict, grant a new trial, and in arrest of judgment, were all denied, and on the same day, judgment was entered that the defendant do have and recover from the plaintiff its costs and charges, and have execution therefor. This appeal is from that judgment.

The pleadings consist of a declaration, a plea of the general issue, and an affidavit of merits. The declaration alleges that the plaintiff, a corporation of Minneapolis, Minnesota, was engaged in the business of manufacturing flour out of wheat and selling it under the trade name or brand of “Christian’s Special Patent”; that on January 8,1925, the defendant made a written offer to the plaintiff to buy “3,000 bbls. flour, in 140 size Jute packages, Christian’s Special Patent, price $8.00 per bbl.” i

The declaration sets forth the whole of the defendant’s offer, in addition to what is above recited. It contains the following:

“Ship to Berthold Stern Flour Co. Destination Chicago, Illinois. To be shipped on or before April 1, 1925, 10c per bbl. carrying charge after April 1st.
“Question: Is buyer hereafter to furnish directions for shipment for the above goods within the time or times last above written? Answer: Yes.
“Railroad delivery desired at destination: to be given before delivery time. * * *
“Par. 1. Subject to limitations herein, seller’s-wrongful failure or refusal to substantially perform its part of contract shall authorize buyer to purchase within 30 days after seller’s breach, in open market at manufacturer’s prices, in quantity equal to that which seller fails or refuses to ship, goods of the same quality as herein contracted for and recover, as liquidated damages, excess of price so paid over purchase price herein. * * *
“Par. 2. On breach of contract by buyer, liquidated damages shall be recoverable by seller as follows :
“2nd. As to any of the above flour remaining unshipped by reason of buyer’s breach, seller shall recover damages as follows: (a) a sum equal to 4c multiplied by the number of bushels of grain required to make such unshipped flour, figuring 4% bushels to the barrel of flour; plus (b) a sum equal to 2c multiplied by the said number of bushels which sum shall be calculated for each 30 days, or fraction thereof, intervening between date of this contract and date of breach; plus also (c) amount of decline, if any, per bushel from date of this contract to date of breach, in the highest closing price at Minneapolis of said grain, such price to be No. 1 Northern Spring Wheat.
“In case of a rise in such price of such grain between said dates, instead of decline, seller shall recover the sums at (a) and (b) above, less a sum determined by multiplying amount of such rise per bushel by said number of bushels, such prices on date of contract and date of breach being taken to determine amount of decline or rise per bushel. Any carrying charges paid on such flour only shall also be deducted from seller’s said recovery. If there is neither rise or decline in such price, seller shall recover the sums at (a) and (b) above, less such carrying charges paid, if any.
“Par. 3, Clause (2). If indicated by affirmative answer (written on face hereof) to question within, that buyer is hereafter to furnish directions for shipment, buyer shall (without prior request therefor being made), be obligated to specify date or dates for shipment, which shall not be later than date, or last day of period, appearing in writing on face hereof immediately following the printed words, ‘To be shipped,’ or last day of last extended period, if any; also quantity and * * * package or assortment wanted; * # *. His failure or refusal to so furnish directions shall give seller right, as to any of within goods remaining unshipped by reason thereof, to either: (a) treat contract as if rescinded; or (b) extend time herein limited for buyer to furnish directions, or any extended time, if any, 30 days, and thereafter (as long as buyer’s said failure or refusal continuous) continue the life of this contract by as many such successive extensions as seller may desire; or (c) ship such goods within 30 days after expiration of time limited to furnish directions or last day of last extended period, if any; or (d) terminate contract (as to such unshipped goods only) at 5 o’clock P. M. Central Time, on last day of time limited herein for buyer to furnish directions or on last day of last extended period, if any, and recover on such unshipped goods, damages as set out in sub. 2nd of Par. 2, construing date of such termination to be date of breach. If seller desires to exercise any of said rights last above (a), (c) or (d), it shall at least five days before expiration of time limited herein for buyer to furnish directions or last day of last extended period, if any, give buyer written notice of such intention, specifying approximate date of shipment, in case of election to ship. Mailing of such notice to buyer to within or known address shall be compliance with this Par., time to be calculated from date of mailing, which shall count as first day. If notice is not so given, seller shall be deemed to have elected under sub. (b) of this Clause (2) and this contract shall automatically extend itself as to any such goods so remaining unshipped, for 30' days at a time, subject to the hereinbefore mentioned carrying charges against buyer, until buyer furnishes directions for shipment of such goods, or one of the said rights (a), (c) or (d) is exercised.
“Par. 5. Buyer shall pay seller for any and all extensions or postponements of .shipment, shipping date or time limited to furnish directions (whether at buyer’s request or otherwise), carrying charges equal to one-third cent per barrel per day on flour.
“Par. 7. This contract shall not bind seller, until it has mailed, * * * its acceptance or confirmation hereof, from its said Minneapolis office. It is expressly agreed that this is a contract to sell by description and not by sample, goods to be manufactured, and goods shall not be deemed manufactured until shipped. No salesman of seller can modify this contract or waive any of its terms.
“Par. 8. In fixing damages as set out in sub. 2nd of Par. 2, and sub. (d) of Clause (2) in Par. 3, the desire is for a certain mode of calculation, since seller’s actual loss cannot be predetermined, would be difficult of ascertainment, and a matter of argument and unprofitable litigation, it being agreed that said mode is an equitable rule for measurement of seller’s prospective actual loss; sum allowed seller, in each of said subdivisions, being for decline in grain price, if any, and such inconvenience, damage (general and special, speculative and certain), expense and loss as may result from buyer’s default or breach, or may have been incurred. Seller shall not be required to prove any actual loss in order to recover damages as in said subdivisions provided, and no provision shall be construed as a penalty, as such is not the intention. As to sub. 2nd of Par. 2: grain prices refer to grain (of grade mentioned) known at Chamber of Commerce, Mpls. as ‘cash’ grain ‘delivered,’ and such prices as shown by ‘Daily Market Record’ of Mpls., shall be conclusive, unless proved materially erroneous. ‘No. 1 Northern Spring’ refers to a certain grade of spring wheat, adopted or fixed from time to time in Minnesota. ’ ’

The declaration further alleges that the above-mentioned offer was duly accepted in writing by the plaintiff at Minneapolis, on January 12, 1925, as follows :

“The Christian Mills * * * sold to Berthold Stern Flour Co. * * * Chicago, Illinois. Date of sale January 8, 1925. * * * 3000 bbls. Christian’s Special Patent $8.00 per barrel, 140’s Jute. Shipment on or before April 1, 1925. 10c per bbl. carrying charge after April 1st. Freight allowed to Chicago, Ill. Ship to Chicago, Ill. # * * Draft through Foreman National Bank. We have entered your order as per details given above in accordance with the terms and conditions of contract No. 2555 dated Jan. 8, 1925.”

It further alleges that on March 26, 1925, pursuant to shipping directions, the plaintiff shipped to the defendant 500 barrels of flour, which were accepted and paid for by the defendant; that the defendant failed to furnish the plaintiff with-shipping directions for the remaining 2,500 barrels within the time limited, that is, on or before April 1,1925, and that on the expiration of that time, the time limited for the defendant to furnish shipping directions was extended for 'a period of 30 days pursuant to sub. (b) of clause (2) of par. 3 of said contract, which time would expire May 1, 1925;

That on April 24, 1925, the plaintiff notified the defendant that. such contract would be terminated, pursuant to sub. (d) of clause (2) of par. 3, on May 1, 1925, as to any part of the 2,500 barrels of flour which might then remain unshipped, for failure to furnish shipping directions; that at the expiration of the time limited in the plaintiff’s notice, it did on May 1, 1925, terminate the contract as to the remaining 2,500 barrels of flour, under the terms above mentioned in sub. (d) and charged the defendant with damages, as authorized by the said sub. (d) in the amount of $4,052.34; that at the time of the termination of the contract, 2,500 out of the 3,000 barrels of flour had not been shipped solely for the reason that the defendant, in breach of its contract, failed to furnish the plaintiff with shipping directions;

That the highest closing price per bushel at Minneapolis of No. 1 Northern Cash Spring Wheat, delivered on January 8, 1925, the date of the contract, was $1.76⅜; and that the price of such wheat per bushel at Minneapolis on May 1, 1925, the date of breach, or termination of the contract, was $1.54¼, making a total decline in price of the above-mentioned wheat between the date of contract and the date of breach of 22⅛ cents per bushel; that the plaintiff was at all times ready, able and willing to perform its part of the contract and to manufacture for and ship to defendant the remaining 2,500 barrels of flour; that the damages, which the plaintiff is entitled to recover on defendant’s breach, calculation being based on 11,875 bushels of wheat computing 4% bushels to each of the remaining 2,500 barrels of flour, as specified in clause 2nd of par. 3, of the said contract — are as follows:

“(a) 4cx 11875 .........................$475.00
(b) 2cx 11875x4 (the number of periods of 30 days each intervening between date of contract and date of termination) .............................. 950.00
(c) Decline, per bushel, in wheat price aforesaid, 22%c x 11875.............2627.34
Total sum which plaintiff is authorized to recover from defendant on defendant’s aforesaid breach of the said contract, calculated in accordance with Clause 2nd of Par. 2 of said contract, pursuant to subdivision (d) of Clause (2) of Par. 3 of said contract...........4052.34”;

That on May 4, 1925, the plaintiff notified the defendant of the termination of the contract and demanded payment of the sum of $4,052.34, but the defendant failed to pay any part thereof, and by reason of the premises that amount, with legal interest at 5 per cent per annum from May 4, 1925, is due the plaintiff.

In the affidavit of merits of the defendant, it is stated that by the contract in question it was agreed that-the defendant was not obliged to take delivery of the. flour on April 1, 1925, but that it was mutually agreed .that plaintiff would carry the flour and retain possession of it, without making deliveries until such time as: the defendant would have use for such flour, conditioned upon the defendant paying the plaintiff a sum- equal to 10 Cents per barrel carrying charge after April 1,1925, and that the defendant has been at all times ready, able and willing, and offered to pay the plaintiff the sum of 10 cents per barrel, but that the plaintiff refused to accept it; that contrary to the provisions of the contract, the plaintiff committed a breach thereof, by advising the defendant on or about May 2, 1925, that it would no longer be obligated under the terms of the contract, and that it had canceled it.

At the trial all the material allegations of the declaration were proved, but no evidence was put in to show the price of wheat on the date of the contract and on the date of the breach and the trial judge ruled without such evidence the plaintiff had failed to make out a cause of action.

The substantial question in the case is whether the contract, provisions for the measurement of the plaintiff’s damages on the 2,500 barrels of flour which were not shipped were valid as a matter of law — Williston on Contracts, sec. 777 — rand should have been recognized and applied at the trial in the determination of the case.

The written offer of the defendant of January 8, 1925, to buy 3,000 barrels of flour, which were to be manufactured by the plaintiff, provided, among other things, that if the plaintiff failed to perform its part of the contract, the defendant might recover as liquidated damages, according to a certain formula set forth in the offer, and if the defendant, as buyer, failed to perform, liquidated damages should be recoverable by the seller, according to a certain formula. And when the written offer of the defendant was thereafter, on January 12, 1925, accepted by the plaintiff, and the contract in question came into being, it contained the. provisos as to the computation of damages, in case of a failure to perform either by the buyer or by the seller, which were originally made by the defendant in its offer of January 8, 1925.

The provision as to damages recoverable by the defendant, in case of the plaintiff’s failure to perform, is that the defendant might purchase, “within 30 days after seller’s breach, in open market at manufacturer’s prices, in quantity equal to that which seller fails or refuses to ship goods of the same quality as herein contracted for, and recover, as liquidated damages, excess of price so paid over purchase price herein.”

The provision for damages recoverable by the plaintiff in case of a breach by the defendant is as follows : “Liquidated damages shall be recoverable by seller as follows: ” as to any of the flour shipped which the defendant wrongfully refuses to pay for or accept, “seller may resell same at public or private sale, without notice, and recover from buyer thereon the difference between purchase price thereof herein contracted, and price obtained on resale, if the latter be less than the former; and all incidental loss, such as salesman’s time and expense, demurrage, storage, cartage, additional freight, reconsigning charges, etc. and any carrying charges unpaid on such goods.”

“2nd. As to any of the above flour remaining unshipped by reason of buyer’s breach, seller shall recover damages as follows: (a) a sum equal to 4c multiplied by the number of bushels of grain required to make such unshipped flour, figuring 4% bushels to the barrel of flour; plus (b) a sum equal to 2c multiplied by the said number of bushels which sum shall be calculated for each 30 days, or fraction thereof, intervening between date of this contract and date of breach; plus also (c) amount of decline, if any, per bushel from date of this contract to date of breach, in the highest closing price at Minneapolis of said grain, such price to be No. 1 Northern Spring Wheat.”

In par. 7 of the contract there is the following: “It is expressly agreed that this is a contract to sell by description and not by sample, goods to be manufactured, and goods shall not be deemed manufactured until shipped. ’ ’ The evidence shows that the flour was not in existence at the time the contract was made; that it was to be- manufactured and shipped as the defendant might call for it, from time to time, on or before April 1,1925, or within such extended period as the plaintiff might sanction under sub. (b) of clause (2) of par. 3 of the contract. The contract provided that in the event the plaintiff consented to any extension of time for the defendant to furnish shipping directions, the defendant would become bound to pay the plaintiff for any such extension at the rate of 10 cents per barrel for each 30 days of extension granted. Under the contract, it was optional with the plaintiff whether or not it would grant the defendant any extension of time for the furnishing of shipping directions.

.It is the evidence of R. W. Goodell, vice president of the plaintiff, that on receipt of the “contract” dated January 8, 1925, the plaintiff bought 14,250 bushels of wheat to make the 3,000 barrels of flour; that it took 4¾ bushels of wheat to make one barrel of flour; that the plaintiff paid for that wheat and put it in storage in readiness to be made into flour as the flour might be called for; that the plaintiff took delivery of the wheat into its elevator, unloaded it, paid for it, and held it to manufacture the flour in question, and that it took 2,375 bushels of wheat to manufacture the 500 barrels of flour that were shipped to the defendant and paid for by it, and that there was then left a balance of 11,875 bushels of wheat in the plaintiff’s hands under the contract; that the 11,875 bushels were carried by the plaintiff until May 2,1925, when it was sold. When the witness was asked at what price per bushel the wheat was purchased, and if the plaintiff paid the market price for the wheat on January 8, 1925, objections were made by the defendant and sustained by the court; and when the witness was asked at what price the plaintiff sold the 11,875 bushels on May 2, 1925, and whether the plaintiff sold the 11,875 bushels on May 2,-1925, at the market price, objections were made by the defendant and sustained by the court; and, also, when the witness was asked what was the market price of the wheat on May 2, the day it was sold by the plaintiff, objection was made by the defendant and sustained by the court, the trial judge saying, “This is a purchase of flour; it must have had a market value on that day. * * * The market value of the flour on that day would be the correct measure of damage.” When the witness was asked, “Do you know if there was any market value for flour on that day?” he answered, “There is no fixed market value for flour at any time, and at any place.” He further stated that “Christian’s Special Patent” flour was a straight grade of flour, but not a standard flour; that there is no definite market in the United States for this straight grade flour, nor was there between January 8 and May 1,1925; that there is no fixed market price for different grades of flour; that the price of flour is always a matter for negotiation; that it has no fixed market price.

In our judgment it is the law that if the contractual formula, as to the measurement of damages, which the defendant prescribed in its offer, and which became an integral part of the completed contract, was fair and reasonable — having in mind the particular business involved, and the kind of merchandise to be manufactured and sold, which was “Christian Special Patent” brand of flour — then the formula which pertained to the measurement of the seller’s damages should have been recognized in the trial of the case as lawful and properly binding upon both parties, and appropriate evidence admitted to prove the allegations of the declaration.

In treating of the excuse of conditions and promises which would cause a forfeiture or penalty, Williston, in his work on Contracts, section 769, says:

“Though the law cannot create contractual obligations which are not based on the expressed intention of the parties, it can excuse the performance either of conditions or promises agreed upon by the parties for any reasons which seem to be just. The mere fact that a promise or condition is somewhat harsh or unfair in its operation is not enough to furnish such an excuse, but a principle of somewhat vague boundaries prohibits the enforcement of forfeitures or penalties. ’ ’

Are the terms of the contract for the measurement of the damages fair, reasonable and just? At the outset, it is to be noted that the parties did not agree upon a lump sum as liquidated damages, but upon a rule whereby the damages might be computed: a rule which seems to have been formulated as the result of great experience in, and full knowledge of, the flour business.

First. The rule, par. 2, 2nd (a), measures the loss upon wheat, the raw material out of which the flour was to be made — figuring 4% bushels of wheat to a barrel of flour — at 4 cents per bushel, or the equivalent of, approximately, 19 cents per barrel. Certainly that amount, of profit would neither be harsh, nor unfair, nor unjust. Then, too, that provision obviated what might be something exceedingly difficult of accomplishment, that is, to make proof, with any degree of accuracy, of what the actual net profit per barrel to the manufacturer would be. The parties having agreed that the net profit should be considered as, approximately, 19 cents per barrel, in order to avoid the difficulties and expense that would be attendant upon proving it in the course of litigation, obviously, it follows that by so doing it was not only no evidence of an intention to create a penalty, but evidence, on both sides, that it was fair and just.

Second. Sub. (b), which provides that a sum equal to 2 cents multiplied by the number of bushels, which sum should be calculated for each 30 days, or fraction /thereof, intervening between the date of the contract and the date of breach, was intended, it is reasonable to infer, as contended by counsel for the plaintiff in its brief, to cover interest on the cost of the wheat, insurance, and elevator storage charges, pending the manufacture of the wheat into flour. Apparently, sub. (b), that is, 2 cents per bushel, was merely a reasonable, bona fide estimate of certain inevitable expenses plaintiff would be put to in carrying the wheat if the defendant failed to carry out its contract to take the flour. As urged by counsel for the plaintiff, it would certainly be unreasonable to assume that the plaintiff would have sold the flour at any price which did not include those necessary items of expense and disbursement entering into the cost of the production of the flour. Further, stipulating that those costs should be put at 2 cents per bushel obviated the difficulty of proving that expense, as it pertained to a particular transaction concerning which the agreement was made, proof that would be in detail practically impossible.

Third. Sub. (9c), which gives the plaintiff the amount of the decline from the highest closing price per bushel of No. 1 Northern Spring Wheat between the date of the contract and the date of breach, was an entirely reasonable provision, especially as the contract provided that if there was a rise in the price of the whéat instead of a decline, the defendant was to be credited with the amount of the rise as against items (a) and (b). For aught the contracting parties knew at the time the contract was made, there might have been, at the time of breach, a rise in the price of wheat sufficient to wipe out items (a) and (b), and leave the plaintiff without any recovery but nominal damages. It certainly was fair and just for the parties to provide that if there was a decline in the price of wheat between the two dates, the plaintiff should recover the amount of the decline, and if there was a rise instead of a decline that the defendant should receive credit to that extent.

We know of no law which would prevent the parties from agreeing, in effect, that the flour need not be manufactured if the defendant did not furnish shipping directions, and that in such case, the damages to the plaintiff should be estimated upon the raw material instead of upon the flour which had not been manufactured. Under the contract in question, it could not reasonably be claimed that if the defendant did not furnish shipping directions, the plaintiff must manufacture the wheat into flour, and then liquidate its loss by reselling the flour and charging the defendant with the difference between the price the defendant agreed to pay and the price received on the resale. Apparently, for good reasons, it is the custom to defer the manufacture of the flour, under such contracts, until the flour is called for by the buyer.

Further, sub. (c) provides for the taking of the highest closing price of wheat at Minneapolis to determine the decline or rise in price, at the date of the contract and the date of breach. That was entirely reasonable and just, and was intended, fairly, to measure the decline or rise in the price of wheat between the date of the contract and the date of breach. That standard of measurement, evidently, was reasonable, as it might be exceedingly difficult, perhaps impossible, to measure the damages by the difference between the actual cost of the wheat and the actual amount received for it upon resale. To prove the latter, it would be necessary to segregate one particular sale of flour from all the rest of the business, and determine exactly what the wheat bought against that sale cost. This provision seems to be fair and reasonable, and as accurate a way of measuring the actual loss or gain as could be devised. The kind of wheat specified in sub. (c), the price of which is to be taken as No. 1 Northern Spring Wheat, seems to have been selected not because all or any of the flour in question would have been manufactured from that particular grade of wheat, but in order to avoid dispute and argument as to what grade or grades of wheat should be considered in determining the rise or fall in price. We see nothing harsh or unreasonable or unjust in that provision.

Further; sub. (c) also provides that if the buyer has paid any carrying charges, he shall receive credit therefor as against items (a), (b) and (c), in order t'o avoid — what otherwise might be claimed — the payment of carrying charges twice.

All in all, it would seem that the standards the parties undertook to establish for the measurement of damages were not only scientifically conceived, but, as a matter of business were entirely fair, reasonable and just. We are unable to discover that any of the provisions is in any way “harsh or unfair in its operation.” We know of no reason, therefore, which would justify the law in excusing the defendant from the performance of any of the conditions or provisions agreed upon for the measurement of plaintiff’s damages.

The parties undertook in limine to value the injury, and, apparently, because it would not be readily calculable afterwards; and if what they did was reasonable — and we find it was — it would make no legal difference even if it turned out afterwards that by the rule agreed upon, the amount would exceed the actual damage, as the reasonableness of the rule must be considered as of the date of the contract.

In Dunlop Pneumatic Tyre Co., Ltd. v. New Garage & Motor Co., Ltd., The Law Reports, Appeal Cases (1915) 79, 86, the court intimated that whether the amount provided for was a penalty or liquidated damages was “a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of breach.” The modern tendency of the courts seems to be to consider reasonableness as the final test — United States v. Betlehem Steel Co., 205 U. S. 105 — and that as of the time of the making of the contract, and not as of the time of the breach.

It is provided in the Uniform Sales Act, section 71, Part VI, of chapter 121a, entitled, “Interpretation” (Cahill’s St. 1925, ch. 121a, ¶ 74), as follows: “Where any right, duty or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement.” Under that provision, which is declaratory of the common law, the parties here were entitled to contract in a reasonable way, as to how the plaintiff’s damages should be measured.

In Sheffield-King Milling Co. v. Domestic Science Baking Co., 95 Ohio St. 180, the Supreme Court of Ohio, passing upon a situation similar to the one in the instant ease, said:

“We think that a consideration of the whole instrument forces the conclusion that the contract did not provide for, and the parties did not contemplate, a direct sale of the flour as an ordinary commodity, as it might have done if the parties had so desired; but it provided for, and they contemplated, the purchase of the wheat at once and the future manufacture and delivery by the plaintiff of the amount of flour within the period covered by the terms of the contract. With these steps in contemplation the parties contracted that defendant should reimburse plaintiff for any loss on account of the purchase of the wheat in case defendant refused to take the flour, or ‘fails to furnish directions for shipment.’ The parties in this case were fully competent to contract. Each was fully able to consider and provide for his own interest. It is not claimed that there was any fraud or circumvention in' connection with the negotiation, and we can conceive of no injustice or inequity in the enforcement of the terms of a contract thus made, which contemplated the purchase by the seller of sufficient wheat to supply the commodity to be manufactured and delivered thereafter during a period of a number of months. The parties agreed that wheat, the thing from which the flour was to be made, should be the basis upon which to calculate damages. They could, of course, have agreed that the flour should be such basis, but they did not do so. That was a matter for them to agree about. They did not fix an arbitrary lump sum which might turn out to be wholly inequitable, but fixed a method, the chief element of which was the price of wheat from which the flour was to be made, a matter not within the control of either.”

In Sheffield-King Milling Co. v. Jacobs, 170 Wis. 389, which involved a contract similar to the one here in question, the court said: “Stipulations of parties, therefore, which establish a plain, simple rule of damages, having a just and fair relation to the subject matter of the contract, in cases where the ascertainment of actual damages is difficult, ought, in the public interest, to be given legal effect.” United States v. Bethlehem Steel Co., 205 U. S. 105; New Prague Flouring Mill Co. v. Hewett Grain & Provision Co. of Escanaba, 226 Mich. 35; Yerxa, Andrews & Thurston v. Randazzo Macaroni Mfg. Co., 327 Mo. 238.

In the Yerxa case, which, also, involved a contract similar to the one here in question, the court said:

“The parties having contemplated, as indicated by the language of their contract, that the flour was to be subsequently manufactured, and it appearing that, in order to manufacture and deliver the flour at future dates to be determined by defendant’s shipping directions, plaintiff must necessarily purchase the basic wheat from which to make the flour, the price of which wheat might rise or fall from day to day during the life of the contract, it would seem to follow that the parties had the unquestionable right to agree upon some reasonable method of determining their respective damages in event of a subsequent breach of the contract by either party. This they have done by paragraph- 4 (which measures buyer’s damages) and by paragraph 5 (which measures seller’s damages), respectively, of their contract.”

From the foregoing it will be seen that the highest courts of Ohio, Wisconsin, Missouri and Michigan have held similar contract provisions to be valid and binding. Sun Printing & Publishing Ass’n v. Moore, 183 U. S. 642, 659.

Apparently, the rule agreed upon in the contract was made under subsections 2 and ¶ 4 of the Uniform Sales Act, Cahill’s St. ch. 121a, 4 et seq. and not under subsection 3. The parties provided that a failure on the part of the defendant to furnish shipping directions would relieve the plaintiff from the obligation to make the flour and permit it to measure its loss chiefly by that upon the raw material. George J. Cooke Co. v. Hell, 175 Ill. App. 532; H. W. Faulkner & Co. v. Centralia Bottling Works, 234 Ill. App. 9, 14.

The subject of liquidated damages is well considered in the Bun Printing & Publishing Ass’n case, supra; in Peine v. Weber, 47 Ill. 41, 47, and in Weiss v. United-States Fidelity & Guaranty Co., 300 Ill. 11. In the latter case, Mr. Justice Duncan said:

“The burden of proof in such case is on the defendant to show that the contract provided for a penalty and not for liquidated damages, where there is nothing upon the face of the contract that requires the court to make the legal finding that the provision is for a penalty. Such a contract is prima facie evidence that the parties have stipulated and agreed on the actual amount of damages that ought to be recovered for a breach, and in the absence of evidence to the contrary the damages will be held to be liquidated damages. Selby v. Matson, 137 Iowa, 97; Harper v. Tidholm, 155 Ill. 370.”

In Advance Amusement Co. v. Franke, 268 Ill. 579, Mr. Justice Carter said:

“First, where by the terms of a contract a greater sum of money is to be paid upon default in the payment of a lesser sum at a. given time, the provision for the payment of the greater sum will be held a penalty; second, where by the terms of a contract the damages are not difficult of ascertainment according to the terms of the contract and the stipulated damages are unconscionable, the stipulated damages will be regarded as a penalty; third, within these two rules parties may agree upon any sum as compensation for a breach of contract. ’ ’

Defendant cites with emphasis Marshall Mill. Co. v. Rosenbluth, 231 Ill. App. 325, In that case, however, although the, contract was similar to the one here, the evidence disclosed a different state of facts existed at the time the contract was actually made. There the seller had already manufactured the flour and six months before the contract was made had shipped it to Chicago. In that situation, of course, the seller had no right to treat the flour as unshipped and calculate its damages on the wheat. The seller should have treated it as flour, which it was, that had been shipped, and asked to have applied the provisions of the contract relating to flour that had been shipped. In the instant case as the flour was never manufactured, a different provision of the contract is apt.

Our attention is called, also, to the ease of Russell Miller Mill. Co. v. Bastasch, 70 Ore. 475, which seems to be contra; but the statement of facts is not full enough to justify any definite inference. The cases Radloff v. Haase, 196 Ill. 365; Westfall v. Albert, 212 Ill. 68; Parker-Washington Co. v. City of Chicago, 267 Ill. 136; Advance Amusement Co. v. Franke, 268 Ill. 579, are not in point.

We know of no law that so circumscribes the freedom of contract guaranteed to all, by the constitution, which justifies this court in declaring invalid the terms of the contract which the plaintiff and the defendant agreed upon for the measurement of the plaintiff’s damages. Sun Printing & Publishing Ass’n v. Moore, supra, p. 674.

It is contended for the defendant that the contract was “unenforceable because it lacked mutuality of either obligation or performance.” No such claim was made at the trial, and if made, should not have been allowed. The contract contained mutual obligations. It provided that the defendant should furnish the -plaintiff with shipping directions and that the plaintiff upon receiving them should manufacture and ship the flour as directed by the defendant.. It, also, provided not only the plaintiff’s measure of recovery — one rule as to flour shipped and refused, and another as to flour concerning which no directions were given — but it provided a rule as to the defendant’s recovery. In the Yerxa case, supra, the court said:

“Defendant insists that there must be mutuality both as to the obligation and the remedy. Conceding the truth of that premise, it does not follow therefrom that the contract must afford the same remedy to each of the respective parties. In 13 C. J. 333, the rule is stated: ‘Mutuality does not require that the parties have the same remedies against each,other.’ In Meola Elevator Company v. Kruckman, 185 Iowa, 1254, loc. cit. 1258, 171 N. W. 743, 744, wherein it was claimed that a contract for delivery of corn was void for want of mutuality, that court said:
“ ‘Contracts are not deprived of mutuality'simply because one party thereto is granted privileges not given to the other. Their obligations need not be equal. The contract in question contained mutual promises and imposed mutual obligations, and is not, therefore, without consideration, or void for want of mutuality.’ ”

Instead of lacking mutuality, it was replete with it. It was a well-balanced equation and with fairly equal and commensurate obligations, and with fair and reasonably equivalent means for recovery in case of any default.

It is contended for the defendant that it was not guilty of a breach of the contract; that the defendant at all times offered to pay the carrying charges. But the evidence shows that the plaintiff did not receive any offer from the defendant to pay the carrying-charges on or before May 1., 1925. This contention is obviously untenable.

For the reasons set forth above, we are of the opinion that the trial judge erred in refusing the proffered evidence and in instructing the jury to find the issues for the defendant. The judgment, therefore, will be reversed and the cause remanded for a new trial.

Reversed and remanded.

Holdom and Wilson, JJ., concur.


text:
    Ralph M. Merrill for use of J. F. Gresly, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Garnishee, Appellant.
    Gen. No. 31,797.
    1. Garnishment — property coming into hands of garnishee after service of writ. A railroad company is liable as garnishee where property of the defendant, located in the jurisdiction where the suit is brought, comes into the possession of the garnishee as a common carrier between the time of service of the writ and the time of filing its answer.
    2. Garnishment — public policy in holding railroad liable as garnishee. It is not against public policy to hold a railroad company liable as garnishee for property in its possession as a common carrier.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Albert B. George, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 21, 1927.
    Rehearing denied January 6, 1928.
    J. A. Connell and Sidney F. Blanc, for appellant; Bruce Scott, of counsel.
    Herbert A. Schryver, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On January 21,1927, J. F. Gresly, as plaintiff, began suit in the municipal court by filing an affidavit of attachment, alleging nonresidence, against Ralph M. Merrill, defendant, for the sum of $156.39. The claim of the plaintiff was described as a balance due the plaintiff from the defendant, Merrill, on a carload of lumber sold and delivered by the plaintiff to him on February 25, 1924. Pursuant to the filing of the affidavit, an attachment writ was issued on March 31, 1926, and summons directed against the Heidler Hardwood Lumber Company and the Chicago, Burlington 8s Quincy Railroad Company, as garnishees, to appear before the court on April 14, 1926, and answer. The writ was returned, with the following notation: “No property of the within named defendant found * * * on which to levy this writ, and by order of the plaintiff’s attorney, I have served this writ on the within named Chicago, Burlington & Quincy R. R. Co., as garnishee, by delivering a copy thereof to F. X. Meyer, Agt. of said corporation * * * this 1st day of April, 10:55 A. M. ’26 * * * also, it contained a similar notation showing service on the Heidler Hardwood Lumber Company.

On April 14,1926, the Chicago, Burlington & Quincy Railroad Company (hereinafter called the Railroad Company) filed an answer as garnishee, stating that at the time of service of the garnishee summons it had no. property of any nature or description belonging to Ralph M. Merrill. On April. 23, 1926, an attachment notice was filed, showing that an attachment notice was issued on April 19, 1926, giving public notice to Ralph M. Merrill that a writ of attachment had been issued, and that it had been duly posted, and notice sent to him. On April 26,1926, the Heidler Hardwood Lumber Company (hereinafter called the Heidler Company) filed, its answer as garnishee, stating that neither on the' date of service, nor since, did it have any money or property belonging to Ralph M. Merrill. On April 30, 1926, the defendant, Ralph M. Merrill, filed his appearance. On June 8, 1926, upon the case being called in open court, and upon defendant Merrill’s default, judgment was entered against him in the sum of $156.39; and on motion of the plaintiff, the Heidler Company, as garnishee, was discharged, and the plaintiff was given leave to contest the answer of the Railroad Company.

There was a trial of the garnishment of the Railroad Company, before the court without a jury,, and the evidence introduced is substantially as follows: Ralph M. Merrill did business under the name and style of R. M. Merrill Lumber Company. The Heidler Company did business at 2559 South Robey street, Chicago. It had a switchtrack running into its place from the tracks of the Railroad Company. About two weeks before April 1, 1926, Heidler, of the Heidler Company, had a talk with Merrill, and was informed that as certain lumber which had been received by the Heidler Company, and which belonged to the Merrill Company, was not up to a certain grade, the Merrill Company would take it back and reship it. Subsequent thereto, Heidler had a talk with one Correll, a representative of the Merrill Company. Correll gave him instructions to ship one of two cars to Milwaukee, and one to Jamestown, N. Y. Pursuant to those instructions, the two cars of lumber in question were sent out. The lumber was worth approximately $1,200 to $1,400. Final shipping tickets, in the handwriting of Heidler, were put on the cars. One contained the following: “C. B. & Q. coupon 242476, Car No. N. Y. C. Consignee: R. M. Merrill Lbr. Co. Destination, Jamestown, N. Y., Via Erie R. R.. * * *; Consignor: Heidler Hard. Lbr. Co.”; the other was of car number 91090, destination, Milwaukee, and was otherwise generally similar to the first.

On March 31,1926, the attorney for the plaintiff sent a letter to the Railroad Company. It contained the following:

“I have today started two attachment suits * * *. In each of the suits you will be served as garnishee. I am informed that you have two cars of lumber in your possession now on the track at the Heidler Lumber Company, Robey Street Yard, belonging to the defendant. They are cars NYC 242476 and C&NW 91090. This information will probably enable you to check the cars and make the proper answer as garnishee.”

The letter was received by the attorney for the Railroad Company on April 1, 1926. One of the cars was taken into the yards — on the switch of the Heidler Company — on March 27, 1926, and the other on March 29, 1926. They remained there until some time on April 1, 1926.

Lembke, a foreman for Heidler Company, testified that the two cars were loaded up with lumber and stayed there on the switch until some time on April 1, when, later, on that day, they were taken out by the C. B. & Q.

Renn, a yard checker for the Heidler Company, testified that the two cars were on the Heidler switch track on April 1, and were not there on April 2.

It is the evidence of Blanc, attorney for the Railroad Company, that upon receipt of the letter of March 31, he investigated personally to find out if the Railroad Company had in its possession the two cars referred to in the letter; that he found one car had been placed upon the Heidler Company track, empty, on March 27, 1926, and that the other had been delivered to the Heidler Company on its track on March 28, 1926, and was loaded with lumber shipped by the Merrill Company, consigned to the Heidler Company; that that information was obtained by him on the morning of April 1; that as a result, he drew up and filed the answer of the Railroad Company, garnishee, showing no property on hand belonging to the defendant at the time of the service of the garnishee summons; that the answer was filed on April 14, 1926. When he was asked by the court, “Did you not take any account at all of what transpired between the date of the service and the date of the answer? ” he answered, “It is our contention that these cars of lumber being in possession of the C. B. & Q. R. R. as a common carrier in course of transportation could not be reached by garnishment process, simply by serving the writ on the carrier.”

At the close of the evidence, the learned trial judge entered judgment for the plaintiff and against the Railroad Company, garnishee, in the sum of $161.59. This appeal is by the Railroad Company from that judgment.

As the evidence shows that at the time of the service of the attachment writ, 10:55 a. m. April 1, the two cars, loaded with lumber, were standing on a switch track which ran from the track of the garnishee into the place of business of the Heidler Lumber Company, and, as so loaded, had not been received from any connecting line; that the same day, before the two cars were taken away — so it is admitted — the attorney for the garnishee knew from a letter he received that the two cars, described by road and number, were in process of attachment, the question arises, such being the facts at the time of the service of the writ, whether the garnishee was entitled afterwards, that is, late on April 1, to take the two cars away, and then successfully claim as a defense, by its answer filed on April 14, 1926, that at the time of service of garnishee summons it had no property belonging to the defendant. Made more generic and so simplified, the question is whether or not a common carrier is liable as a garnishee where property of the defendant, located in the jurisdiction where the suit is started, comes into the possession of the garnishee between the time of service of the writ and that of filing its answer in court. It does not involve the right to garnishment where the property is all the time in transit, e.g., merely passing through the jurisdiction where the suit is pending (as in Michigan Cent. R. Co. v. Chicago & M. L. S. R. Co., 1 Ill. App. 399); nor the right where the property of the defendant is in the garnishee’s possession but on its road outside of the jurisdiction of the court where the suit is pending (as in Illinois Cent. R. Co. v. Cohh, 48 Ill. 402).

In the instant case, the lumber cannot be considered as actually in the possession of the garnishee at 10:55 on the morning of April 1, when the writ was served; but the garnishee actually took possession of it, by taking the two cars, sometimes late on that day, and so had possession some time between service of the writ and the time of filing its answer.

It is contended for the garnishee that a railroad company is not liable as garnishee for property in its possession as a common carrier for transportation; that an attachment is a summary process whereby creditors in this State are afforded a means of holding, within the jurisdiction of the court, property of a nonresident debtor, in anticipation of an adjudication in favor of the creditor and against the nonresident debtor; that by section 21 of the Attachment Act, Cahill’s St. ch. 11, ¶ 21, where the sheriff is unable to find property of the defendant, he is authorized to serve the writ on persons in control or possession of property belonging to the defendant; that although no person or class of persons is mentioned as being-exempt from liability to service as a garnishee, yet, upon grounds of public policy, the courts have uniformly denied the liability as garnishees of certain persons and corporations, deriving their authority from the law; that if the application of the statute is inimical to the best interests of the public, the legislature will be deemed to have intended that in such cases the particular class of persons or corporations involved shall not be subjected to garnishment (Millison v. Fish, 43 Ill. 112, 118; Merwin v. City of Chicago, 45 Ill. 133, 136; Lightner v. Steinagel, 33 Ill. 510, 518); that while the cases just cited are confined to municipalities and public officials, on the same broad ground of public policy, the Illinois courts in the cases of Illinois Cent. R. Co. v. Cobb, 48 Ill. 402, and Michigan Cent. R. Co. v. Chicago & M. L. S. R. Co., 1 Ill. App. 399, have extended the doctrine to include common carriers in the conduct of their quasi-public function.

Upon an examination of the Cobb case, supra, it is found that there the shipment sought to be subjected to the garnishment process was in possession of the railroad company in transit and was outside of the county in which the suit was brought; and that in the Michigan Cent. R. Co. case, supra, the court held that a railroad company was not subject to garnishment where it had in its possession cars of the defendant which were received from a connecting line and were passing over its own line. Obviously, neither of those cases involved the question that arises in the instant case.

In Malott v. Johnson, 37 Ind. App. 678, 683, the court said:

“In the last case cited this court said: ‘If the property is in possession of the carrier, and the transit has not yet begun, or is completed, and is held by the carrier, either at the place of shipment or the place of delivery, and the property is within the jurisdiction of the court issuing process, there is no reason for holding that the carrier is not subject to garnishee process, the same as individuals or other corporations.’ ”

In the Cobb case, supra, Mr. Justice Breese said, though by way of digression: “When the goods are in the depot of a railroad company, in the county in which the attachment proceedings are instituted, there could, perhaps, be no objection to such process, but on this point we express no definite opinion.”

In Davis v. Cleveland, C., C. & St. L. Ry. Co., 217 U. S. 157, in which the Michigan Cent. R. Co. case in the Appellate Court of this State was cited by Mr. Justice McKenna, it was urged that “to permit the instrumentalities used in the interchange of traffic by railway common carriers to be seized on process from various state courts does directly burden and impede interstate traffic "within the inhibition of the acts of Congress.” But, after discussing that contention, the learned justice said:

“This can only result if there is incompatibility between the obligations a railroad may have to its creditors and the obligations which it may have to the public, either from the nature of its service or under the acts of Congress. Obligations it surely will have to -creditors, inevitable even in providing equipment for its duties, — inevitable in its performance of them. It would seem, therefore, that the contentions of the defendants are but deductions from the broader proposition that all of the property of the railroad company is put apart in a kind of civil sanctuary.”

Although, therefore, the Davis case does not hold that under the State statute garnishment would lie, but merely holds that the regulation of interstate commerce by Congress does not deprive the State of the right to enforce its own attachment laws, still the reasoning of Mr. Justice McKenna is apt, inasmuch as it practically demonstrates that there is no ground for holding that the property of a railroad company, as it may be affected by the attachment laws of this State, “is put apart in a kind of civil sanctuary.” Rosenbush v. Bernheimer, 211 Mass. 146; Pittsburgh, C., C. & St. L. Ry. Co. v. Cox, 36 Ind. App. 291; Clifford v. Brockton Transp. Co., 214 Mass. 466; Adams v. Scott, 104 Mass. 164.

Inasmuch, therefore, ms the attachment writ in the instant case was served upon the garnishee on April 1, and the answer of the garnishee was filed on April 14, and between those two dates the garnishee received the property into its possession, in the City of Chicago, we are of the opinion that it was subject to garnishment, and the Kailroad Company liable as garnishee.

Some other subjects are discussed by counsel, but after considering them, we do not find them substantially material.

Affirmed,

Holdom and Wilson, JJ., concur.