text:
    Mrs. Walter H. Reitz, Appellee, v. Yellow Cab Company, Appellant.
    Gen. No. 32,243.

      Opinion filed March 29, 1928.
    Samuels, Costello & Greenberg and Rose & Symmes, for appellant.
    Arthur U. Forman and Charles C. Spencer, for appellee.
   Mr. Justice Holdom

delivered the opinion of the

Plaintiff was a passenger in a Yellow cab of defendant, going in a southerly direction on Central Park avenue, near 16th street, Chicago, on January 5, 1924. The driver of the cab drove it into a depression or hole in the street while proceeding at a rapid rate of speed, causing the plaintiff to bounce up against the top of the cab. In coining down she struck her hip against the seat. At the time she was pregnant and a few days later suffered a miscarriage, which affected her health, and it was claimed that the miscarriage and other incidents following in its wake were the result of and attributable to the accident.

The declaration consisted of two counts, substantially averring the occurrences, as above set out, to which the defendant interposed a plea of the general issue. On the issues so joined the cause proceeded to trial before court and jury. As no questions arise upon the pleadings, we will not further recite them.

Defendant put in evidence a release signed by the plaintiff for the consideration of $10. Plaintiff contended that the $10 was received for the purpose of repairing the torn place in her coat, and that she signed the release without reading it and that the agent of the defendant did not read the same to her, but did state that it was for the purpose of enabling her to have the tear in her coat repaired.

The trial resulted in a verdict of guilty and an assessment of damages at the sum of $2,500.° Both parties moved for a new trial, which was not acted upon until 10 months after the rendition of the verdict. Motions for a new trial were overruled and the court entered a judgment upon the verdict, adding thereto statutory interest for the time between the rendering of the verdict and the overruling of the motions for a new trial, of $104, and a judgment was entered for $2,604, from which judgment defendant prosecutes this appeal.

Defendant assigns for error and argues for reversal that plaintiff was not in the exercise of due care for her own safety at the time she was injured; that the release executed by her is a defense to the action; that the court erred in denying defendant’s motion to withdraw a juror, and also erred in allowing Dr. Smith to testify that the condition of the cervix of the plaintiff, as it was found after the miscarriage, was caused by the miscarriage; that the court erred in giving instructions Nos. 2 and 8 at the request of plaintiff, and refusing to give instructions Nos. 7, 9, 13 and 15 requested by defendant, and that it was error to include interest in the judgment on the verdict.

In its brief defendant states that about two o’clock of the afternoon of Saturday, January 5, 1924, plaintiff took a cab of defendant on Madison and Lotus streets, Chicago, to go to 22nd street and 58th avenue, and to go there was driven west two blocks to Central Park avenue, and then south on that avenue to 22nd street. When the cab in going south on Central Park avenue reached near to about 16th street, it ran into a depression in the avenue, which jolted the plaintiff in the cab, and when the cab reached plaintiff’s destination, plaintiff showed the driver of the cab her coat which had a tear in it at a button, and asked him what he was going to do about it; that he took her name and address and said that he would report the case for the plaintiff; that on the following Monday morning an adjuster for the defendant called on plaintiff, paid her $10 and took a release from her by the terms of which she released the defendant from all claims which she had against it, and at the samó time he took her statement of the accident, which was' to the effect that at 16th street the cab had struck a depression in the street, and as a result of its striking this depression her head had collided with the roof of the cab and she had torn her coat; that on the following Saturday she suffered a miscarriage. The defendant then goes on to say: “As to the foregoing facts, there is, we believe, no dispute in the evidence; but as to the negligence of the defendant, the effect of the release, and the cause of the miscarriage there is positive controversy — the plaintiff giving evidence tending to show that the defendant was going at a rate of speed of from thirty to thirty-five miles an hour; that the release released the defendant for damage to the coat only, and that the miscarriage was caused by the jolting of the plaintiff; and the defendant giving evidence tending to show that it was going at about twenty miles an hour; that the depression was by reason of being covered with snow not visible; that the release released all claims of the plaintiff, and that the jolting of the plaintiff was not the cause of the miscarriage.” Plaintiff and the cab driver were the only witnesses testifying as to the cause of the accident.

Defendant argues that because plaintiff did not give some warning to the driver of the cab that there was a hole in the street, she was not in the exercise of due care for her own safety. Defendant was a common carrier and plaintiff was a passenger for hire. In the first place, it is not contradicted that the day was extremely cold, and that it was about 20 degrees below zero. The jury might have assumed, without evidence, that the windows of the cab were closed and were covered with frost and were thereby rendered opaque, therefore it would have been impossible for plaintiff to have seen the condition of the road as the cab was driven along. However, this principle of law has no application to a carrier-passenger case. It was the duty of the carrier to use all necessary precautions to carry the passenger safely to his destination, and no duty rested upon the passenger to warn the driver of impending dangers. That is solely the driver’s duty.

However, defendant has caused the law to be clarified upon this subject. In the case of Hoffman v. Yellow Cab Co., 238 Ill. App. 269, where the same point was made in a similar situation, this court decided that the driver had a better opportunity than the plaintiff had to see the approaching automobile with which he collided, but that if he did not see it, “it does not follow, as a matter of law, or a necessary conclusion of fact, that plaintiff’s failure to warn the driver was negligence on his part or that it contributed in any degree to cause the accident in question. * * * A warning to the driver from a rear-seat passenger might well distract the driver’s attention, thereby tending rather to canse than to prevent such an accident.” Citing Hedges v. Mitchell, 69 Colo. 285.

Defendant’s attempt to avail of the release which was put in evidence is impotent for the reason that it was obtained by the agent of defendant in a fraudulent manner. Defendant cites Papke v. G. H. Hammond Co., 192 Ill. 631, which is contrary to its contention in this regard. In pointing out under what circumstances a release may be avoided in an action at law, the court said:

“In such cases, there may be fraud, which inheres in the execution of the instrument; that is to say, where the signer of the instrument is deceived into signing it by the belief that he is signing something other than that which he does really sign. Fraud in the execution of the instrument is practiced, where the instrument is misread to the party signing it, or where there is a surreptitious substitution of one paper for another, or where, by some other trick or device, a party is made to sign an instrument which he did not intend to execute. In such cases, the nature of the instrument signed is not fully understood by the party signing it.”

The accident happened on Saturday and on the following Monday an adjuster of defendant called. Plaintiff was then suffering from the effects of the accident. The adjuster then referred to the damage to plaintiff’s coat, in which there was a tear near a button, and after discussion they agree that $10 would repair that damage. Thereupon the adjuster paid the $10, and prepared a general release without reading it to plaintiff or explaining its contents to her, and the plaintiff in her distressed condition did not read it and did not know at the time that she was signing a release for her injuries suffered from the negligent driving of defendant’s servant. This in the teeth of the fact that plaintiff detailed to the adjuster the occurrence which re-suited in her injury, and also her physical condition of pregnancy, to which he responded: “I will give you a form to fill out, and to have your doctor fill out, if anything further develops.” And before she signed the release, the adjuster said to plaintiff: “You sign this for the $10 which will take care of the repair of your coat. ’ ’ She signed it on this verbal representation.

We think this conduct on the part of the adjuster was a fraud upon the plaintiff and that the release was secured by the false representation that it was simply payment for damage to her coat, and not to her person, and that the pretenses on which the adjuster procured plaintiff to sign the release were false. We think this case is within the decision of Chicago, R. I. & P. Ry. Co. v. Lewis, 109 Ill. 120, and Eagle Packet Co. v. Defries, 94 Ill. 598.

The question of fraud in obtaining the release was submitted to the jury under proper instructions, and their finding is supported by the evidence of plaintiff and all of the environing circumstances. It would be absurd to contend that in the physical situation in which the plaintiff was found at the time she was induced to sign the release, the payment to her of $10.00 was for personal injuries suffered by plaintiff in the accident brought about by the negligence of defendant’s servant, or that such payment was for anything more than payment for the damage done to plaintiff’s coat, as testified to by her. The jury were justified under the evidence and the instructions of the court to disregard the release as a defense to the action. The jury were warranted in finding from the evidence that the release was obtained from plaintiff by the fraudulent representations of its adjuster detailed by plaintiff in her testimony.

The argument that the court should have allowed defendant’s motion to withdraw a juror, based on the fact that an envelope given to plaintiff by defendant’s adjuster had upon it “Prairie State Insurance Association,” referred to in the testimony of plaintiff’s husband, was not an attempt to inform the jury or to lead them to believe that defendant was covered by insurance with the Prairie State Insurance Association. There was nothing to warrant such inference by anything which the witness said. It came out in quite an incidental manner, and the responsibility for its being referred to rests with the defendant, who furnished the envelope and thereby injected it into the case. The whole matter came out in the testimony of plaintiff’s husband as to his recollection whether he had telephoned the defendant company in regard to the plaintiff’s miscarriage. "While he testified at first that he had called Jablon, the adjuster of defendant, he after-wards said that he would correct that statement, that he might have called the Prairie State Insurance Association, and that he did not remember it, which is all the evidence to be found in the record regarding any reference to the Prairie State Insurance Association.

The plaintiff testified that Jablon had asked her to communicate with the Prairie State Insurance Association if anything further developed, and it was in an attempt to follow Jablon’s request that the husband made an attempt to communicate either with Jablon or the Prairie State Insurance Association. In any view that may be taken of the matter, the reference was of a harmless character.

The defendant objects to certain questions put to Dr. Smith and the answers made by him thereto, as follows:

“Q. Now, doctor, from your treatments and examinations at all of these periods of time of Mrs. Reitz, could you form an opinion as to whether or not the condition of the cervix which you found just prior to this operation in 1926, was the result of any of the miscarriage? A. Yes.

<(Q. In your opinion, was it or was it not the result of the miscarriage? A. It was.”

Dr. Smith was the attending physician and present at the time of the miscarriage referred to, for which he treated the plaintiff, and performed an operation upon her. These questions were not hypothetical, hut put to the attending physician who knew from personal treatment of the plaintiff the conditions about which he was interrogated. The objection is without force, and the ruling of the court thereon without error.

While it is true that Dr. Tenney and Dr. Greenspahn testified in substance in contradiction of Dr. Smith that there was no causal connection between the accident and the miscarriage and that the accident had nothing to do with appendicitis for which plaintiff was afterwards operated on, still the question was one of fact for the jury, and they evidently believed Dr. Smith, whose opportunity for knowing about what he testified to was much greater than that of Dr. Tenney or Dr. Greenspahn, and an examination of the testimony of these three medical men impels us to the same conclusion as that evidenced by the jury’s verdict.

The court did not err in its instructions to the jury. Defendant objects to instruction No. 2 on the ground that while it is a good instruction, there is no evidence on which to base it. The instruction refers to the legal effect of circumstantial evidence, and there is testimony in plaintiff’s evidence, of a circumstantial character, regarding the manner of the occurrence of the accident, and the circumstances involved in the procuring of the general release from the plaintiff, and whether the testimony of Jablon, the adjuster, wherein it was in conflict with that of plaintiff, was the correct version of what took place at the time he procured the release. We think the instruction was fully supported by the facts in evidence. As held in United States Brewing Co. v. Stoltenberg, 211 Ill. 531, so we hold here that there was no error in the instruction. Instructions of like character have been applied by the court in many cases, including North Chicago St. Ry. Co. v. Rodert, 203 Ill. 413; Miller v. Balthasser, 78 Ill. 302; Slack v. Harris, 200 Ill. 96.

The court said in Chicago & E. I. R. Co. v. Beaver, 199 Ill. 34:

“It was necessary to a right of recovery it should be made to appear the deceased was in the exercise of due care and caution for his own safety, but it is not indispensable it should be established by direct proof. It may be shown by circumstantial evidence, or, as has been sometimes said, it may be inferred by the jury from circumstances appearing in the proof.”

Instruction No. 8 correctly instructed the jury regarding the law applicable to the evidence concerning the manner in which the defendant procured the release from the plaintiff. There was naught erroneous in that instruction, and it was one that was necessary to be given as a guide to the jury upon the law affecting the manner in which the defendant obtained the release from plaintiff.

There was no error in the refusal by the court to give defendant’s instructions Nos. 7, 9,13 and 15.

Instruction No. 7 is in effect the same as plaintiff’s instruction No. 16. Instruction No. 9 is in the similitude of defendant’s instruction No. 20. Instruction No. 13 is covered by instruction No. 8, given at the instance of plaintiff, and was also nearly a duplicate of instruction No. 28 given at the instance of defendant, or in other words, the jury were fully instructed in the instructions given upon the questions recited in instruction No. 13. And the same may be said of defendant’s refused instruction No. 15.

There was no error in adding to the verdict of the jury interest between the time when the verdict was rendered and the judgment entered. The statute so provides in section 3, chapter 74, B. S. Cahill’s compilation. It is true that the delay in disposing of the motion for a new trial was extraordinary, but such delay is not chargeable, as counsel indicate, to plaintiff. Counsel were on a parity. Bach could have moved the judge at any time upon giving appropriate notice for a judgment on the verdict or for a new trial. An examination of the record shows that the case was tried before a judge an alien to Cook county, and it may be that the long delay resulted from the inability of the trial judge to leave his own court to sit in Chicago earlier.

We are satisfied that the parties had a fair trial and that there is no reversible error in the record, and that the verdict of the jury and the judgment of the court do justice between the parties. Therefore, the judgment of the circuit court is affirmed.

Affirmed.

Taylor, P. J., and Wilson, J., concur.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    George H. Karagianis and Pete De Metra, Appellees, v. James Stathopulos and L. Vlassis, Appellants.
    Gen. No. 32,249.

      Opinion filed March 29, 1928.
    Gr. A. Buresh and David S. Horwich, for appellants.
    Charles E. Peace and William Reed a, as Reeda & Peace and Thomas P. Fitzpatrick, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action under the forcible entry and detainer statute, chapter 57, R. S., Cahill’s St. ch. 57, for the possession of premises 3531 North Clark street, Chicago. Defendants held possession under a written lease, which by its terms expired April 30, 1927.

While the jury was impaneled to try the case the court instructed a verdict in favor of plaintiffs, which verdict, finding defendants guilty and wrongfully withholding possession of the demised premises from the plaintiff, was returned, and judgment thereon entered, from which defendants prosecute this appeal.

It is not denied that the relation of landlord and ten r ant existed between the parties, and that the defendants held possession under a lease from plaintiffs dated October 20, 1924, for a term commencing May 1, 1925, and terminating on April 30, 1927, at a fixed rental of $150 per month, and also that a deposit of $500 as security for the last three and one-third months of the term was made by the plaintiffs.

There were negotiations between the parties for a new lease, but the minds of the parties never met upon the terms of any lease and none was executed between them for a renewal of the term expiring April 30,1927. A check, claimed to cover the $100 due for January rent and $50 on account of May 1927 rent, was sent by defendants to plaintiffs. On April 29, 1927, plaintiffs by their attorneys sent defendants a check for $50 with a letter stating that it was an overpayment and demanding the possession of the premises at the expiration date of the lease, under which they held, viz, April 30, 1927. Defendants returned the check with the statement that it was not an overpayment, but was given to the plaintiffs as part payment of the May 1927 rent, and was so sent pursuant to a verbal agreement. Plaintiffs’ attorneys, it is claimed, still have that check.

It seems that there had been some talk between the parties for a renewal of the lease for a term of from one to three years, which did not result in the execution or delivery of a written lease, and defendants claim the right to continue in possession of the property under an oral agreement for a lease for a term of from one to three years.

It is patent that the right to possession claimed by defendants is ineffective for that purpose because such agreement was not only indefinite as to the term to be granted, viz, one to three years, but was void under the statute of frauds. It was not necessary to plead the statute in this action in the municipal court as the fact appeared from the evidence of defendants. Whether or not the lease, under which defendants claimed the right of possession of the premises in suit, was void under the statute of frauds was a question of law for the court and not of fact for the jury. In the light of the evidence the court properly directed a verdict for plaintiffs for possession of. the premises.

In Santelli v. Lev, 324 Ill. 454, the court said:

“The proposed leasing being for a period of more than one year it was necessary that a written lease be executed and delivered. The lease never having been executed and delivered there was no evidence whatever in the record that defendants in error were entitled to the possession of the premises, and the court should have sustained the motion of plaintiffs in error.”

In the instant case the trial court applied this rule of law correctly in instructing a verdict for the plaintiffs.

Whatever may be claimed as resulting from the payment of the $50, whether it was on account of May rent or any-other rent, added nothing to defendants’ right to retain possession as against the plaintiffs. That payment whatever it may have been for did not máke a lease between the parties, nor give the right to defendants to remain in possession.

In Santelli v. Lev, supra, a lease was agreed upon between the parties, and such lease executed by all of the parties but one. One of the lessees refused to sign, and notwithstanding that $1,160 was paid on account of rent, and the tenants claimed the right of possession by reason of the aforesaid facts, the Supreme Court held that the contract of lease was never perfected, and that the landlords were entitled to possession.

In Poppers v. Meagher, 148 Ill. 192, it was held that on the termination of the lease by efflux of time, it was the duty of the tenant to yield up possession, and that duty was not dependent upon a demand for possession, or upon any proceeding to be taken or thing to be done by the landlord;-that the pendency of negotiations for a lease of demised premises, under an agreement to extend the term of the original lease, which fail, would not justify a tenant in holding over or relieve him from his covenant to yield up possession to the landlord at the end of the term, even though the lessor may have received a check for the first month. ?s rent pending the negotiations, which was returned.

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

Affirmed.

Taylor, P. J., and Wilson, J., concur.


text:
    Hamilton Glass Company, Appellant, v. Borin Manufacturing Company, Appellee.
    Gen. No. 32,270.
    Opinion filed March 29, 1928.
    Rehearing denied April 9, 1928.

      Henry H. Koven, for appellant.
    Pennish & Rashbaum, for appellee; Ben Abonin, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This suit in assumpsit was commenced May 13, 1926. The declaration was filed May 28,1926, in which plaintiff claimed from defendant the sum of $708.22 for merchandise sold and delivered by the plaintiff to defendant. Summons was served to the June term, 1926, and defendant entered its appearance by counsel May 20,1926. There was filed with plaintiff’s declaration an affidavit of claim showing due the amount above mentioned.

On June 25, 1926, defendant was defaulted for want of a plea and a judgment entered by default for $708.22. After the statutory time for filing a plea had expired, and on June 30, 1926, without leave of court or any application for leave to file, pleas had been made to the court, defendant filed pleas in the office of the clerk of the superior court. Execution on the judgment was issued June 30, 1926. Defendant on July 8, 1927, filed its motion supported by an affidavit to vacate the default judgment theretofore entered June 25, 1926. On July 9, 1926, an order was entered without notice to plaintiff or its attorneys, vacating the judgment. On July 10, plaintiff moved to vacate that judgment, which motion was denied. On September 23, 1926, defendant filed without leave of court certain amended pleas. On January 18, 1927, defendant’s motion for a continuance.of the hearing of the cause was denied. On January 18,1927, the cause proceeded to trial before court and jury, in which there was a finding for plaintiff with damages assessed at the sum of $124.72.

On February 26, 1927, the following proceedings were had and order entered:

“This cause coming on to be heard upon plaintiff’s motion to strike from the records all orders entered and proceedings had herein subsequent to July 8th, 1926, and upon argument of counsel and due deliberation by the court, said motion is overruled, to which order the plaintiff, by its counsel, takes exception; This Cause further coming on to be heard upon the plaintiff’s motion heretofore entered herein, for judgment non obstante veredicto, after argument of counsel and due deliberation by the court, said motion is' overruled, to which order plaintiff by its counsel, takes exception.

“And the court, being now fully advised in the premises, It Is Ordered that the plaintiff have judgment upon the verdict of the jury in the sum of $120.72 against the defendant herein;

“Whereupon, comes the said plaintiff, by'its attorney, and excepts to the orders and rulings of the court in overruling its motions to strike from the files all orders and pleadings had and entered subsequent to July 8th, 1926, and its motion for judgment non obstante veredicto, and prays an appeal from the Superior Court of Cook County to the Appellate Court of this State, which is ordered to be granted upon condition that said plaintiff does within thirty days from this date file herein its bond in the sum of $250.00, with sureties to be approved by this court, and upon further condition that the said plaintiff does file herein within sixty days from date its bill of exceptions.”

On the trial it was stipulated between the attorneys of both parties that it might be considered as proven that plaintiff had manufactured and delivered to defendant glass and labor of the total value of $708.22, of which amount $375 represented the price for silvering 100 sets of mirrors.

Plaintiff assigns for error and argues for reversal that the trial court was without jurisdiction to vacate the judgment rendered June 25,1926, of the June term, on July 9,1926, being one of the days of the succeeding July term; that all proceedings in the cause subsequent to the entry of the judgment at the June term are void; that the pleadings filed by defendant without leave of court should have been stricken on plaintiff’s motion.

After the June term the court was without jurisdiction to vacate or set aside the judgment or disturb the same upon motion. The motion to vacate was not grounded on Section 89 of the Practice Act, chapter 110, R. S., Cahill’s St. eh. 110, fí89, which provides:

11 The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.”

The rule in this State is correctly stated in People v. Omega Chapter of Psi Upsilon Fraternity, 320 Ill. 326:

“It has long been settled in this State, that after the expiration of a term of court at which a judgment is entered the court has no authority to set aside the judgment for any alleged error of law and can only amend it in matters of form, after notice to the opposite party.”

By the judgment plaintiff had a vested right which the trial court had no power to disturb notwithstanding there may have been procedural errors in the record. If such there were they could only be corrected after the term at which the judgment was entered, by review on writ of error. It may have been error to have entered the judgment without notice to defendant’s attorneys whose appearance was on file. However, that point does not call for our decision on this appeal. Defendant filed pleas after the time permitted by statute without leave of court. Such pleas so filed are unavailing, and may be entirely disregarded. Farmer v. Fowler, 288 Ill. 494, in which the court said:

Plaintiff entered into no stipulation nor did any act which reinvested the trial court with jurisdiction after the June term, 1926. While it is true plaintiff’s counsel took part in the second trial, he was forced so to do against his protest. The stipulation entered into on the trial above set out was simply as to two questions about which there was no dispute. Nothing found in that stipulation in the remotest degree referred to the vacated judgment, and no consent to the order vacating the judgment can be found in it either in apt terms or by construction.

It is also stated in defendant’s brief that stay of execution was granted for 24 hours, but nothing of the kind is found in the record, nor is it claimed that such stay was granted on plaintiff’s motion. Such unsupported statement cannot be considered de hors the record. Homewood v. Stein, 211 Ill. App. 359.

For the foregoing reasons the judgment of the superior court is reversed and the cause is remanded to that court with directions to expunge from the record all orders entered in said canse subsequent to the June term, 1926 of said court, and to restore to the record the judgment entered in said cause June 25, 1926, for the sum of $708.22.

jReversed and remanded with directions.

Taylor, P. J., and Wilson, J., concur.


author: Mr. Presiding Justice

text:
    William Lowry, Appellee, v. Chicago & North Western Railway Company, Appellant.
    Gen. No. 32,043.

      Opinion filed April 3, 1928.
    Rehearing denied April 17, 1928.
    Nelson J. Wilcox and I. C. Belden, for appellant.
    Joseph D. Ryan, for appellee; Stuart B. Krohn, of counsel.
   Mr. Presiding Justice

Barnes delivered the opinion of the court.

This is an appeal from a judgment for $24,000 in an action to recover for personal injuries received by plaintiff from being “run upon, against or over” by one of defendant’s freight cars while in a switching movement on a side track or so-called coal track, which led into a coal storage yard in the city of DeKalb.

The declaration contains four counts. As the first differs from the third, and the second from the fourth, only in respect of an averment that the movement was in interstate commerce — a feature not affecting the questions before us — we shall refer to the cause of action as differentiated in the first and second counts only.

The first is predicated on defendant’s alleged negligence in moving the cars “after it knew, or should have known that the plaintiff was in a dangerous or perilous position in the event the said cars should be started or moved,” plaintiff being, as alleged in said count in the yard on the side track close to defendant’s coal cars. The second count is predicated upon negligence in starting and moving the cars without notice or warning “backward in an easterly direction toward, upon and across” a certain driveway “and toward the place where the plaintiff was standing,” it being alleged that he was then “near to and upon the said sidetrack, aforesaid, at or near a much used and traveled driveway.”

It is alleged and was shown that plaintiff prior to the accident on the day in question, and on the previous day, was employed in unloading coal cars on said side track in said yard, not as a servant of defendant but as an employee of a private concern using said yard. The yard was immediately east of the driveway and south of Oak street, which runs east and west. Running from the north to Oak street is Eighth street. The driveway would be a continuation of that street if extended south. The side track runs easterly across said driveway into said yard. West of the driveway about six feet south of the track is a coal shed about 180 feet long, the east end of which is somewhere between 12 and 30 feet west of the driveway. Two of the cars loaded with coal, alleged to have been negligently started or moved, stood by this shed, the most easterly being about a half or three quarters of a car length (20 to 30 feet) west from said driveway. Four other loaded cars were pushed up by the engine from the west and coupled onto these two cars, and the movement continued at the rate of about a mile an hour until three of the cars had crossed the driveway into the yard.

Plaintiff had worked in the coal yard during the early part of the forenoon, when on account of rain the work had been suspended, and it was not again resumed that day, though there was an apparent understanding it might be if it stopped raining. After quitting work plaintiff went to his home about a mile west, where after getting dry clothing he started back, going about the distance of two blocks north and then turning east. That was the last he was seen before he was found, about half an hour later, underneath the car in question after the movement had stopped at a point about three car lengths east of the driveway. The greater weight of the evidence is that it was then raining and had been intermittently up to that time.

Just where plaintiff was at the precise time of the collision or his being struck, or how he got there, or from what direction he came, was not shown, save by his alleged admissions. The only two persons besides plaintiff shown to have been at the scene of the accident were the conductor and brakeman engaged in said movement. They testified as to the slowness of the movement, the ringing of the engine bell, that no one was on the track, and that the conductor stood on top of and at the east end of the loaded car that was backed up against and coupled onto the two standing cars. From that position the conductor testified that he had a clear view of the track east of the standing ears; that he could see the crossing over the ends of the two cars; that no one was there or in sight or approaching; that he could see to the north and someways south of the crossing, and was looking towards the same during the movement. Their testimony is the only direct testimony respecting the movement of the cars and surrounding circumstances at the time.

Defendant called four witnesses, two doctors, a nurse, and plaintiff’s employer, who testified that after the accident, while plaintiff was in the hospital on the operating table, a short time before he underwent an operation for the amputation of one of his legs, he said that he got under the car to get out of the rain and then the car moved and he was injured. There was no contradiction of this testimony (except by plaintiff whose testimony was afterwards stricken as hereinafter stated). To rebut it plaintiff relied upon cross-examination of said witnesses, mainly as to plaintiff’s condition at the time the statement was made. Each stated, however, that plaintiff was conscious or apparently understood what he was talking about, and we do not think the jury were justified in treating it as incredible, as they must have done, in the absence of any impeaching testimony, or evidence legitimately tending to show its improbability.

Plaintiff was called to testify in his own behalf. In the course of his cross-examination he refused for some reason to answer further questions, whereupon defendant moved that his entire testimony be stricken. The ruling was reserved to the close of the case when the motion was granted on the court’s holding that defendant had been deprived of its right to a full and complete cross-examination.

Before the testimony was stricken and after defendant rested, plaintiff’s counsel called a physician who was permitted, over objection, to give his opinion of plaintiff’s mental status at the time of the trial as determined from his examination of plaintiff after he had so testified. He defined it as “psychasthenia,” meaning, he said, “a kind of mental exhaustion or mental bankruptcy” that corresponds to the physical condition known as neurasthenia. He testified that plaintiff seemed quite clear in answering his questions in the morning but before he got through “he apparently was confused and apparently asked me to give him a rest.” Such evidence had no tendency to rebut any evidence offered by defendant and was objectionable on that ground. Its only relevancy was manifestly to account for plaintiff’s conduct on the witness stand or his failure or refusal to submit to a full cross-examination. Having no other relevancy it should have been stricken along with plaintiff’s evidence to which it alone pertained, though no motion was made to strike it. We think it was error to receive such medical opinion. It not only was not rebuttal evidence, but its consideration by the jury may well have involved their discussion and consideration of plaintiff’s evidence.

The striking of plaintiff’s own testimony left plaintiff without any direct proof of the exercise of ordinary care by plaintiff for his own safety, and none from which it was legitimately inferable.6 To meet the necessity of such proof his counsel was permitted, over objection, to introduce evidence of plaintiff’s habits in exercising such care. While such testimony has been held admissible where the victim of the accident was dead or insane, and so unable to testify, and there was no other eyewitness to the accident, no authority has been cited recognizing the admissibility of such testimony where the victim was alive and not proven to be insane. Assuming, for the sake of argument, that the medical testimony so offered to explain plaintiff’s conduct on the witness stand might have been admissible to explain his inability to testify had he not taken the witness stand, and that in such a case proof of his habits of care would have been admissible, and assuming further that the conductor and brakeman could not, under the circumstances, be deemed eyewitnesses of the accident, nevertheless said medical testimony having been erroneously received it was also error to receive proof of plaintiff’s habits of care, it having no other basis than improper and prejudicial testimony, under the circumstances, of plaintiff’s mental status.

In view of this conclusion it is hardly necessary to discuss the theory of liability and the proof adduced to support it, and whether, as contended by defendant, the verdict was manifestly against the weight of the evidence. But it is clear that if plaintiff’s admissions, which we cannot say were impeached or incredible, be accepted, he was a trespasser. The theory of the case, however, is that he was lawfully in the place where he was struck. The first count is predicated upon the theory that he was in the yard on or near the track. There was no direct proof to support that theory. He was not working then and had no occasion to be there on the track unless walking on it to his place of work when he would have been seen by the conductor. Unless he was walking with his back to the train he would have seen the train, and if crossing the track he certainly should have seen it and been able to get out of its way moving at the rate of a mile an hour, starting up as it did 20 feet away from him.

The theory of the second count is that he was at or near the driveway and it was apparently plaintiff’s theory, as indicated by the argument here, that when he was struck he was on the driveway in a place where he might lawfully be. The count does not expressly state that he was on the driveway, but that he was “ at or near the driveway” and that the cars were moved “upon and across the said driveway aforesaid and toward the place, where the plaintiff was standing.” The allegations of this count are somewhat obscure with respect to where he was standing. In fact there was no proof that he was standing when hit. As to where he was plaintiff relied entirely upon circumstantial evidence, namely, proof indicating that an object had been dragged in the coal dust between the tracks from the east point of the driveway to where the most easterly car was stopped and to where the body was found tangled in its easterly axle, and that a cap (not shown to be plaintiff’s) was found at or near said driveway after the accident. We do not regard such circumstantial evidence as outweighing the direct unimpeached testimony of the conductor to the effect that he had a clear view of the track and crossing, was looking towards it, and saw no one on the same or approaching it at the time of the movement, and the uncontradicted admissions of plaintiff that he was under the car at the time of the accident. Such circumstantial evidence is not inconsistent with such admissions.

We think the erroneous admission in evidence of the physician’s opinion and the evidence as to plaintiff’s habits, if not the prejudicial circumstances above stated, require a reversal of the judgment and a remanding of the cause for a new trial when plaintiff may have a new opportunity to testify in his own behalf.

We are not prepared to say there should have been an arrest of judgment or a directed verdict for defendant, as asked. It would be more in keeping with justice to permit such opportunity in view of the unusual circumstances that would have justified withdrawal of a juror.

Reversed and remanded.

Gridley and Scanlan, JJ., concur.


author: Mr. Presiding Justice Barnes

text:
    O. M. White, Appellant, v. Mandel Brothers, Appellee.
    Gen. No. 32,206.

      Opinion filed April 3, 1928.
    Rehearing denied April 17, 1928.
    Kirkland, Patterson & Fleming, for appellant; Charles F. Rathbun and Allan W. Cook, of counsel.
    Altheimer & Mater, for appellee; A. B. Manion, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Plaintiff sued defendant to recover salary and commissions claimed for the year 1923, under a written contract for his employment as buyer and manager of defendant’s furniture department. His claim was for over $12,000. A trial was had without a jury. At the close of plaintiff’s case defendant’s motion for a finding was allowed, and a judgment was entered thereon for plaintiff for $192.28, an amount admitted to be due on his semi-monthly salary from December 15 to December 21, 1923, when he was discharged. This appeal followed.

The contract was for a term of three years from January 1, 1922, to December 31, 1924, subject, however, to termination December 31, 1923, on 60 days’ notice by either party. Such notice was given by plaintiff. Ten days before the contract terminated he received his discharge for, among other reasons, insubordination and abusive language.

Aside from the testimony of an accountant as to the state of his claim plaintiff was the only witness.

Plaintiff had been in defendant’s employ under different contracts since 1917. Under the contract in question entered into November 7,1921, he took charge as buyer and manager of defendant’s furniture department. In the performance of his duties he purchased the stock, arranged for its sale, fixed retail prices, made the reductions thereon in the course of the year or at inventory periods, and had been unrestricted in the exercise of the duty of making reductions from the year 1917. The reductions he made kept in view his duty to maintain a gross profit of 33 1/3 per cent on net retail sales for the firm, and during the year 1923 reductions were made by him in the usual course when necessary for the purpose of selling, he going over the stock for further reductions in December, 1923, preparatory to the inventory at the end of the year. Apparently contrary to former practice of the firm his superiors on December 20, 1923, sought to make further reduction of prices that plaintiff thought was uncalled for and unjustifiable and that would have a tendency to deprive him of commissions he had earned during the year. This resulted in an interview with Robert Mandel, who had general supervision of the department, in which plaintiff said to him: “It is a dirty, crooked trick and you are not going to get away with it if I can help it,” and suggested consulting a lawyer. On being told by Mandel to get out of the office plaintiff pointed to Kaufman, Mandel’s assistant, and said: “That dirty little kike is the instigator of this.” To Frank Mandel, the vice president of defendant, who was just outside the room as he was leaving, he said: “What do you think, these crooks are trying to beat me out of my bonus”; and as he left he said to certain employees: “If you want to be sure of getting what is coming to you, you better get it in your salaries after this because they are trying to beat me out of what I have got coming to me.”

We are not disposed to differ with the trial court’s finding that the use of such language to his superiors justified his discharge, even though, as contended by appellant, he was goaded and unjustly provoked to such conduct and language. We cannot but be impressed, however, in the absence of any testimony for defendant, that the course resorted to by defendant under the circumstances and at that particular time in making further reductions out of all proportion to what had been made in previous years and to such an extent as would, on the basis of the inventory about to be taken, deprive plaintiff of his commissions for the year that would otherwise have amounted to several thousand dollars, furnishes some mitigation for plaintiff’s conduct and some support for his suspicion that the reductions were to be made for the purpose of depriving him of justly earned commissions.

But regardless of the amount of the commissions to which plaintiff may be legally entitled, which would appear on any theory to be at least nearly $4,000, the controlling question is whether defendant by reason of such discharge was entitled to forfeit plaintiff’s earned commissions up to the date of such discharge which, but for such reductions, amounted to approximately $12,000.

Under the terms of the contract plaintiff was to be paid a salary of $12,000 a year in equal semi-monthly instalments, and in addition thereto an amount equal to 1% per cent of all net retail sales in his department in excess of $650,000, and one per cent of all net contract sales in excess of $150,000, said excess to become due and payable within 30 days after the annual inventory was completed. This clause as to commissions was to be inoperative and void unless the gross profits of such department during the year should be 33 1/3 per cent of the net retail sales, and at least 15 per cent of the net contract sales, and the contract provided further “that if the employee shall leave the employ of the company before the term of his employment-has terminated or is discharged for cause from the employ of the company before the term of this contract has terminated, then and in that event any commissions or bonus that might have accrued after January 1st preceding shall be and are hereby waived and released and are to be retained by the company.”

The testimony disclosed that but for unusual reductions of prices made by defendant after plaintiff’s discharge, plaintiff would have been entitled at the end of the year to a commission of $8,278.52 on the retail sales, and $3,971.81 on the net contract sales, and to a slightly less amount if computed to the date of his discharge, and approximately the latter sum in any event. The question arises, therefore, whether a proper construction of the contract justifies the forfeiture of plaintiff’s commissions for the year, regardless of their amount, and the retention of the same by defendant; in other words, whether the quoted provision for such retention was intended as one for liquidated damages or for a penalty.

In the absence of any ambiguity we must look to the contract itself to determine the purpose of the provision and the intention of the parties.

It is clearly inferable from the large renumeration provided for and the long term of the contract that defendant placed a high estimate on the value of plaintiff’s services; that it sought to insure his remaining in its employ for at least two years and contemplated damages that might ensue in case he left its employ, whether voluntarily or involuntarily, before the expiration of that time. With these matters in mind by the parties to the contract we may readily perceive that the primary purpose of the provision in question was to afford defendant compensation for damages in case of loss of plaintiff’s services by breach of contract in quitting its employ or by conditions that warranted his discharge. What other reasonable purpose would such a clause subserve? If intended merely to mete out punishment it is clearly in the nature of a penalty, and if intended as compensation for damages it would appear to be equally so, for the closer to the end of the term of the contract plaintiff might leave or be discharged the less would be the damages sustained by defendant from loss of his services, but the greater would be the amount of the forfeiture. Such disproportion is inconsistent with a purpose to agree upon liquidated damages commensurate with probable loss. In other words, had plaintiff left at the beginning of the year 1923, the commissions earned would have been comparatively small to what they were at the end of the year to compensate defendant for the loss of his services for the rest of the year. On the other hand, discharged, as he was, only ten days before the contract was to terminate, defendant’s loss would be manifestly slight and plaintiff’s commissions greatly in excess of any loss which defendant could, in all reasonable probability, have sustained, which, however, if the pure letter of the agreement be followed, he would be required to forfeit. The utter disproportion of the fund that might thus be retained to any reasonable loss that might be sustained indicates that the provision was in the nature of a penalty rather than an agreement for liquidated damages. Taken in connection with the fact that the commissions were not to be paid or ascertained until after the end of the year the provision seemingly contemplates defendant’s right to retain them against any damages it would be entitled to under the contract by way of set-off for loss of plaintiff’s services. While no damages were either proved or pleaded the- theory of the court’s finding and judgment is based wholly on the right to forfeiture of the commissions on the ground of plaintiff’s discharge for cause, and hence in effect a construction of the clause as one providing for liquidated damages. In this conclusion we cannot concur.

That the attitude of the courts is unfavorable to forfeitures is well known, and where it is doubtful whether a provision should be deemed one for a penalty or for liquidated damages, the courts incline to regard it as for a penalty. (Iroquois Furnace Co. v. Wilkin Mfg. Co., 181 Ill. 582; Advance Amusement Co. v. Franke, 268 Ill. 579; 17 C. J. 1937.) In the Franke case, supra, the court said:

“While the intention of the parties on this question must be taken into consideration, the language of the contract is not conclusive. The courts of this State, as well as in other jurisdictions, lean towards a construction which excludes the idea of liquidated damages and permits the parties to recover only damages actually sustained.”

In that case the court adhered to the principle that a stipulated sum will not be allowed as liquidated damages unless it may be fairly allowed as compensation for the breach, and it said that courts will look to see the nature and purpose of fixing the amount of damages to be paid, and if it appears to have been inserted to secure the prompt performance of the agreement it will be treated as a penalty and no more than actual damages proved can be recovered.

We think, too, it would be unconscionable to enforce a provision that would require the forfeiture of a large sum earned as salary or commissions merely for the loss of an employee’s personal services like those of the plaintiff. We fail to see any valid distinction in principle between the nature of the contract in question and that of a contract of hiring for wages. In the latter class of cases, where the principle of compensation has been clearly departed from requiring the servant to forfeit unpaid wages as liquidated damages for breach of his contract, courts have not enforced the forfeiture. (Vol. 1, Sedgwick on Damages [9th Ed.], ch. 17, ]]][ 391, 393, 407; Richardson v. Woehler, 26 Mich. 90; Schmieder v. Kingsley, 6 Misc. 107, 26 N. Y. Supp. 31; Schrimpf v. Tennessee Mfg. Co., 86 Tenn. 219, 6 S. W. 131.) In the cases cited the court held the forfeiture provision was in the nature of a penalty and not liquidated damages. In the Schmieder case, the court said, as have our courts (see Franke case, supra, 268 Ill. 579): “The language used is immaterial, if the intention to provide a penalty is apparent.” And as said in the Schrimpf case, supra, citing from Sutherland on Damages, “the folly of one making a wild and reckless stipulation will not justify oppression in the other.” In the Schmieder case it was held that a provision in the agreement that the employee should suffer the loss of all moneys due him at the time of his departure from employment without reference to the extent of the injury, immediate or remote, which defendants might suffer from plaintiff’s conduct, could be regarded only as a penalty. The court added: “It might be, therefore, that the amount owing to plaintiff from defendants is outrageously in excess of any loss which the latter have sustained, or in all reasonable probability could sustain; and still, if the letter of the agreement was permitted to be controlling, plaintiff would be without redress. Assuredly, such a provision is intended to mete out punishment, rather than to afford compensation.” We think the quoted language is particularly appropriate to the case at bar.

If we follow the letter of the agreement here plaintiff would forfeit over $12,000, a sum seemingly disproportionate to any probable damages defendant may have sustained from the loss of his services for a period of ten days. Neither in reason nor in conscience can it be said that the parties contemplated or intended any such result. Suppose plaintiff had been discharged on the last day of the year, would it be deemed otherwise than unreasonable and oppressive exaction to require the forfeiture of his entire commission earnings for the whole year? Can it be deemed any less so that his contract had only ten more days to run? As said in Sedgwick on Damages, Vol. 1, ¶ 406 (9th Ed.), when the parties “undertake to stipulate, not for compensation, but for a sum out of all proportion to the measure of liability which the law regards as compensatory, then the law will not allow the agreement to stand.” It can hardly be doubted that had the agreement in question fixed the sum of $12,000 or $4,000 as liquidated damages for the loss of ten days’ services it would be regarded in the nature of a penalty and considering the character of the services a forfeiture thereof would not be permitted to stand.

Conceding then that the court was justified in holding that plaintiff was properly discharged for cause, we think it erred in holding that plaintiff was not entitled to recovery for anything in excess of the unpaid balance of his salary. However, had there not been a finding at the close of plaintiff’s evidence defendant would have been privileged to offer testimony as to the amount of commissions due, and, had it put in a connterclaim, to make proof of damages sustained for loss of plaintiff’s services. If on a retrial it is found that plaintiff is entitled to commissions, and also that there was proper ground for his discharge, we think the amount of his commissions should be computed to the date of his discharge.

The judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.

G-ridley and Scanlan, JJ., concur.'


author: Mr. Justice Gridley

text:
    Greenebaum Sons Bank & Trust Company, Trustee et al., and Lloyd J. Smith, Receiver, Appellees, v. John W. Kingsbury et al., Defendants, on Appeal of Walter R. Ceperly and Annetta S. Ceperly, Appellants.
    Gen. No. 32,066.

      Opinion filed April 3, 1928.
    Rehearing denied April 17, 1928.

      . Elmer D. Brothers, for appellants; William A. Adams and Lester C. Childs, of counsel.
    Newman, Poppenhusen, Stern & Johnston and Gustav E. Beerly, for appellees; Henry L. Stern and and James W. Hyde, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

The trust deed sought to be foreclosed conveyed not only the premises i-rt question but also the “rents, issues and profits” thereof, as security for the debt, and provided for the appointment of a receiver upon the filing of a bill to foreclose, without regard to the solvency or insolvency of the person or persons liable for the debt and without regard to the value of the premises. It is well settled by Illinois decisions that the rents and profits of land can be conveyed by mortgage; and that, when so conveyed, they constitute a primary fund equally with the land for the payment of the debt. (Ortengren v. Rice, 104 Ill. App. 428, 432; McLester v. Rose, 104 Ill. App. 433, 436; First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140, 148; Bagley v. Illinois Trust & Savings Bank, 199 Ill. 76,78.) In the Ortengren case it is said: “Where the rents and profits, together with the land, are pledged for the payment of the debt, the case is wholly different. Then, upon default in payment and foreclosure, the rents and profits are, as is the land, primarily liable for the debt. It is therefore a matter of indifference that the real estate is ample security, and that the debtor is solvent. The contract of the parties governs. Such a contract does not interfere with the equity of redemption. It is lawful, and the courts will enforce it as it is made, i. e., give the rents and profits, as well as the real estate, to the mortgagee as a fund to be applied to the extinguishment of his debt.” In 1 Jones on Mortgages (6th Ed.), sec. 27, p. 22, referring to the law in Illinois, it is said: “Upon breach of the condition the mortgagee has the legal title, and may bring his action without giving the party in possession any notice to quit. The condition is broken when one or more installments are due and unpaid, * * *. The mortgagee may pursue all his remedies at the same time, * * *. Except as against the mortgagee, the mortgagor is regarded for all beneficial purposes as the owner of the land. Moreover, the mortgagor or a purchaser from him is the legal owner of the mortgaged estate as against all persons, except the mortgagee or his assigns, who are the legal owners for one purpose only, namely, the enforcement of the debt secured.” In the same textbook, section 776, page 818, the author says: “Upon a breach of the condition the mortgagee may enter, and treat the lessee as a trespasser, and without notice bring ejectment.. If the mortgagee after entry accepts rent from such lessee, the relation of landlord and tenant is thereby created, but this tenancy will be deemed one from year to year, and not for the term of the original lease. * * * Whether the tenant has actual notice of the mortgage or not makes no difference if the mortgage be recorded; it is then constructive notice, and affects one who becomes the tenant of the mortgagor as much as it affects a purchaser. The mortgagor has no implied power to bind the mortgagee by lease.” In 16 R. C. L. 598, § 77, it is said: “WTiere the common law theory prevails that a mortgage in fee carries the legal estate, a mortgagor though he remains in possession after the execution of the mortgage cannot give a lease to a third person which will have any effect as against the mortgagee, and such a lease does not itself create the relation of landlord and tenant between the lessee and the mortgagee; there is in such a case no privity of estate or contract between the mortgagee and the lessee of the mortgagor. And the mortgagee may on entry for condition broken * * * treat the lessee as a trespasser and bring ejectment without any notice to quit.” The author cites in support of his statements, among other cases, the case of Gartside v. Outley, 58 Ill. 210, an action in ejectment, wherein it is said (pp. 213-214): “The lease granted to Twiss was for no definite period, but was to run so long as there was coal to mine. * * * It is not doubted that the lease, being subsequent to the mortgage, could have no force as against the rights of the mortgagees.” And it is also said (p. 215,): “The rule of the common law is well established, that the mortgagor can not, without the consent of the mortgagee, execute a lease that will prevail against the rights of the mortgagee, and it has been uniformly held that the entry of the mortgagee puts an end to the lease.” And in the ejectment case of Taylor v. Adams, 115 Ill. 570, 575, it is said: “A mortgagor, or his grantee, can not make a lease of mortgaged premises which will give greater right than he possesses, and that will interfere with the right of the mortgagee to enter for condition broken.” In Gaynor v. Blewett, 82 Wis. 313, 316, it is decided that, “so far as the possession of the premises is concerned, the appointment of the receiver had the effect of an equitable ejectment.” (See, also, Ortengren v. Rice, 104 Ill. App. 428, 431.) In the foreclosure suit of Niccolls v. Peninsular Stove Co., 48 Ill. App. 317, 321, where the rents and profits of the premises were pledged by the mortgage, it is said: “The right' of appellant to the rents in question secured to him by the mortgage and the action of the court in appointing the receiver could not be contracted away by the mortgagor.” In Mutual Life Ins. Co. v. Spicer, 12 Hun (N. Y.) 117, a pending foreclosure suit, it is held that where a person, having knowledge of the mortgage, has obtained possession of the mortgaged premises under an agreement with the mortgagor, he may be required to surrender such possession, or pay a reasonable rent therefor to the receiver appointed by the court to collect the rents and profits of the premises for the benefit of the mortgagee. In the foreclosure suit of Harris v. Foster, 97 Cal. 292, 295, it is stated as a well-established rule “that a subsequent grant or lease of mortgaged premises is subject to the prior mortgage, if the purchaser or lessee had either actual or constructive notice of such mortgage”; and that “if the law were otherwise, it would be in the power of the mortgagor to materially diminish the value of the mortgaged property, as security for the debt for which the mortgage was given, by simply leasing it for a long period and collecting the rent in advance, or by leasing it for such period for a nominal rent.” And it has frequently been decided that a tenant in possession under the mortgagor, who, having notice of the mortgage, pays rent in advance to the mortgagor does so at his peril, and that, if a receiver is appointed during the period for which the rental has been paid in advance, such tenant may be required to pay the same again to the receiver for the period following the latter’s appointment. (41 C. J. 634, § 611; Gaynor v. Blewett, 82 Wis. 313, 315; Henshaw, Ward & Co. v. Wells, 28 Tenn. 567, 582; Fletcher v. McKeon, 71 App. Div. 278, 75 N. Y. Snpp. 817, 819.)

In the light of these authorities, and in view of the pleadings in the present case, the provisions of the trust deed sought to be foreclosed, the evidence, and the findings of the master sustained by the evidence, we are of the opinion'that the court did not err in entering the order appealed from. The trust deed was given to secure a building loan of $225,000, to be used in the erection of the apartment building which was afterwards erected upon the premises. By its terms, as security for the debt, not only were the land and the building to be erected thereon conveyed, but also, as a primary fund, the rents and profits of the premises. It is a well-known fact that one of the considerations that actuate a lender of money in making a building loan on apartment building property is its probable productivity in fair, market rentals, and it is quite probable that, if Kingsbury had not agreed that the rents and profits be conveyed as security, as well as the land and building, the loan in the present case would not have been made. The trust deed was recorded on December 31, 1923, and the Ceperlys had constructive notice of its terms long before they made their written contract with Kingsbury of May 10,1924. Furthermore, it appears from the evidence, and as found by the master, that, on September 16, 1924, the board of directors of the Glen-Lunt Co. (of which company Walter R Ceperly afterwards became president) adopted by-laws; that in them is contained the form of lease to be given to all lessees, or to the so-called “cooperative owners” of apartments in the building; that in one of the paragraphs of said form it is provided that “the lessee accepts this lease subject to the lien of the mortgages on said premises”; and that at another meeting of the directors of the company, held October 1,1924, a resolution was adopted stating that Ceperly was entitled to a stockholder’s lease of apartment B-2. The evidence further disclosed, and the master found, that on September 1, 1924, the Ceperlys received the keys and went into possession of said apartment and have remained in possession ever since; that, although often requested by the receiver, they have not paid any rent to him therefor, and that the reasonable fair rental or commercial value of the apartment, which consists of five rooms, is $110' per month.

The master further found that on the hearing before him the Ceperlys, and other stockholders of the Grlen-Lunt Co. holding leases of and occupying other apartments in the building, took the position that “complainants had entered into a partnership arrangement of some kind or character” with Kingsbury, and that “complainants were advised of and acquiesced in his actions in making the various tenant leases, and that they should be estopped in this proceeding from demanding the payment by the stockholders, holding tenant leases, of a fair and commercial rental value of the apartments occupied by them,” but the master further found, as to said contention, that “no proof of any kind sufficient to charge complainants with notice of and acquiescence in the actions of said Kingsbury or the G-len-Lunt Building Corporation has been offered, and no reason has been shown why complainants should be estopped from claiming the rentals conveyed under the trust deed.” As to all respondents, including the Ceperlys, the master further found that they were in “similar unfortunate positions,” in that each had purchased stock of the Grlen-Lunt Co. with the knowledge that the premises were subject to the lien of the trust deed, which conveyed not only the premises but the rents and profits thereof as security for the debt therein mentioned, and in that “in the lease accepted by each (except the Ceperlys who by their answer demand the issuance of stock and a lease to them in accordance with their contract) it is provided: ‘Whereas the capital stock of the lessor consists of 2394 shares of stock of no par value, and the lessee is the owner of (blank) shares of said stock, by reason of which ownership this lease is granted, pursuant to resolution of the board of directors of the lessor (Glen-Lunt Co.) under the authority of the bylaws of the lessor.’ ” And the master further found that the payment of the various sums of money by respondents, including the Ceperlys, “practically amounts to the payment by them of that much rent in advance.” And the master further found that the questions of the solvency or insolvency of Kingsbury, whether the premises are adequate or inadequate security for the indebtedness secured by the trust deed, whether the foreclosure is for the purpose of collecting the whole or only a part of said indebtedness, whether the contract amount paid by the Ceperlys or the assessments paid by the other stockholders of the GlenLunt Co. are adequate or inadequate, and whether a sale of the premises will result in a deficiency, “do not enter into this proceeding”; that the complainant trustee is entitled to have the receiver collect the fair cash or commercial rental value of each apartment in the building during the pendency of the foreclosure proceeding; but that neither the maker of the bonds nor the Glen-Lunt Co. should be allowed to profit .by respondents being compelled to pay more than the amount contracted for, as in the case of the Ceperlys, or more than the monthly assessments as passed by the stockholders, as in the case of the other respondents. We think that all of these findings of the master, confirmed by the court, are sustained by. the evidence or the law or both.

Counsel for the Ceperlys contend in substance that, in view of the written agreement of the Ceperlys with Kingsbury of May 10, 1924, and their taking possession by virtue thereof of apartment B-2 on September 1, 1924, they are entitled as lessees to the possession of the apartment ‘ ‘ at the nominal rental of $1 per year” until a foreclosure decree be entered and until the period of redemption shall have expired, and in addition to have heat, refrigeration and janitor service furnished to them free of charge, and that, notwithstanding the provisions of the prior trust deed of which they had notice, wherein the rents and profits of the premises were conveyed as security for the building loan, the receiver can only collect rent from them at the rate of $1 per year for use and occupation of the apartment. On principle and reason, sustained by the authorities above mentioned, we do not think there is any merit in the contention. Under the trust deed, wherein the rents and profits were conveyed, if Kingsbury, the mortgagor, had been in possession of the apartment, after default and proper appointment of a receiver under the bill to foreclose, he could either have been compelled to pay a reasonable, commercial rental therefor or to turn over possession to the receiver, whose duty it would have been to rent the apartment at a fair rental value so long as he remained in possession. Kingsbury, by his agreement with the Ceperlys, could not give them any greater rights, as against the mortgagee, than he himself had. To hold otherwise would be tantamount to holding that a mortgagor, who had conveyed the rents and profits of the premises as security for his debt, could, by making a lease prior to default, abridge the rights of the mortgagee or the receiver to possession, after default, by the simple act of making such a lease. If counsels’ contention be sound, Kingsbury would have the right to make 35 other similar agreements as to the 35 other apartments with other persons, and, had this been done, the result would be that the receiver upon taking possession of the premises under the bill to foreclose, could not obtain legal possession of any of the apartments for the benefit of the mortgagee, would have total annual rental receipts of $36, and have liabilities in a large sum for taxes, upkeep, heat, refrigeration, janitor service, etc. Such a result would be without reason or law to sustain it.

Counsel further contend in substance that the Ceperlys, having acquired subject to the provisions of the trust deed a lease of the apartment for 99 years from Kingsbury for a nominal annual rental, and not having expressly.assumed to pay any part of the indebtedness secured by the trust deed, may properly require the complainant trustee “to exhaust its remedy against the mortgagor (Kingsbury) and the corpus of the remaining property before resorting to them for the commercial rent,” upon the doctrine of marshalling of assets. It is said in Metzger v. Emmel, 289 Ill. 52, 62: “That doctrine is, that where a creditor has a lien upon two securities with which to make his debt and another party has an interest in one of the securities, that party has a right to compel the creditor first to exhaust the security in which the other party has no interest.” We fail to see how this doctrine is applicable to the present case, or how the doctrine of “sale in the inverse order of alienation” is applicable, as is also contended. Counsel argue that the Ceperlys should not be required to pay any rentals until after the premises are sold under a foreclosure decree and it has been determined that there is a deficiency. But the order appealed from does not purport to dispose of the rentals to be collected by the receiver, but only directs that they be collected and conserved, so that they may be under the control of the court when it is finally determined to whom they shall be paid.

For the reasons indicated the order appealed from is affirmed.

Affirmed.

Barnes, P. J., and Soanlan, J., concur.


text:
    Bernard McDevitt, Appellant, v. Nicholas R. Finn et al., Appellees.
    Gen. No. 32,151.
    Opinion filed April 3, 1928.
    Gallagher, Shulman, Abrams & Henry, for appellant.
    Samuel A. Ettelson, Corporation Counsel, James W. Breen, First Assistant Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellees.
   Mr. Justice Gridley

delivered the opinion of ..the court.

In plaintiff’s amended petition for mandamus, filed March 30, 1927, against the three civil service commissioners of the city of Chicago, and A. A. Sprague, as commissioner of public works, he prayed that the writ issue, commanding the civil service commissioners to certify him “as the only person eligible for the third vacancy for the position of District Superintendent” of the water pipe extension division of the bureau of engineering, existing on October 28, 1925, and that the commissioner of public works “be directed to permit petitioner to have the position of District Superintendent as of the date of said wrongful refusal to the certification and appointment of him to that position.” On April 25, 1927, the court sustained respondents’ general demurrer to the petition and, plaintiff electing to stand by it, dismissed the petition, and entered judgment against him for costs. This appeal followed.

In the petition it is alleged in substance that plaintiff is, and has been since 1898, employed in the classified service of said city as foreman in the water pipe extension division; that under the ordinances of the city it is required that only such persons are qualified for the position of district superintendent of said division as are certified by the civil service commission and who have passed a “promotional” examination; that on September 29, 1925, the commission held such an examination and declared plaintiff eligible to take it; that plaintiff successfully passed it, being third in a list of five who obtained a grade of over 70 per cent, and that on October 28, 1925, his name was posted in the rooms of the commission as having successfully passed it and being third in rank on the list; that there existed “three vacancies” for the positions of district superintendents, and the commissioner of public works had requested the civil service commission “to certify three names for said position”; that accordingly, under date of October 28,1925, the commission in writing certified to said commissioner, in one letter, the names of three persons “standing next in order for promotion,” D. W. Anglim, B. W. Cullen and plaintiff, and that on the same day said commissioner appointed said Anglim, “who was first in grade,” to the office of district superintendent and refused to appoint plaintiff; that in another letter, written on the same day and “for the purpose of preventing plaintiff from being appointed to said position,” the commission, “in conspiracy with said Commissioner of Public Works,” certified to said commissioner the names of three persons “standing next in order for promotion,” viz, said Cullen, plaintiff and one John T. Garrity, and that on the same day the commissioner appointed Cullen; that on the same day, “there being a third vacancy open for the office of district superintendent,” the commission, “in furtherance of the conspiracy and scheme to deprive plaintiff of the position,” sent a third communication to said commissioner in which it certified the names of three persons, “standing next in order for promotion,” viz, plaintiff, said Garrity and one John Costello, and that said commissioner did not appoint plaintiff to the position, “but appointed one who was lesser in rank than plaintiff”; that in the list of names in said last communication plaintiff’s name appeared as first in rank for the office wherein there was a vacancy; that plaintiff then demanded of the commissioner that he be appointed to the office and to fill the vacancy, and has since made other and repeated demands, but that the commissioner has refused each and all of the demands, and that the certifications, in the manner as above alleged by said commission, “were done for the sole purpose and intent to deprive plaintiff from the position to which he was entitled and were illegal and contrary to the statute made and provided.”

We are of the opinion that the circuit court did not err in sustaining the demurrer to plaintiff’s petition and dismissing it at plaintiff’s costs. There are no facts stated disclosing that any conspiracy existed between the commission and the commissioner of public works to prevent plaintiff being promoted to the higher office which he sought. We fail to find that any of the acts of either, as stated, are contrary to the provisions of the Civil Service Act, relating to cities. In section 10 of that act, Cahill’s St. ch..24, 694, it is in part provided: “The appointing officer shall notify said commission of each position to be filled separately, * * In section 9 of the act, Cahill’s St. ch. 24, If 693, relative to “promotions” it is in part provided: “All examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to such examination; and it shall be the duty of the commission to submit to the appointing power the names of not more than three applicants for each promotion having the highest rating. The method of examination and the rules governing the same, and the method of certifying, shall be the same a& provided for applicants for original appointment.” Plaintiff’s bill discloses that in September, 1925, he was foreman in the water pipe extension division; that he took and passed the prescribed promotional examination for the position of the higher office of district superintendent of the division, made up of several districts requiring a superintendent for each; that he was third on a list of five persons eligible for the positions, and that in October, 1925, there were vacancies in three of them. The bill does not disclose the written request that the commissioner of public works made upon the commission, but merely alleges that he “requested” that the commission certify to him “three names for said position.” Without regard to the necessity of said commissioner sending to the commission a separate request for each promotion to be made, we think it clear, in view of the provisions of the act above mentioned, that the commission properly certified a list of three names for one promotion, and, an appointment having been made of one of the three submitted, properly certified another list of three names for another promotion, and so on. And we think that of each list submitted the commissioner of public works was clothed with the discretion of choosing from the list for appointment any one of the three persons named. Having such discretion, while he may be compelled to act, he cannot by mandamus be compelled to act in a particular manner. (People v. Webb, 256 Ill. 364, 373.) Furthermore, plaintiff not having shown in his petition a clear right to the writ as prayed for, the court was fully justified in entering the judgment appealed from, as such a writ is never awarded in a doubtful case. (People v. Busse, 248 Ill. 11, 16; People v. Blair, 292 Ill. 139, 144.)

The judgment of the circuit court should be affirmed and it is so ordered.

Affirmed.

Barnes, P. J., and Scanlan, J., concur.


author: Mr. Justice Soanlan

text:
    I. S. Spiro, Trading as I. S. Spiro & Company, Appellant, v. Morris R. Cable, Appellee.
    Gen. No. 32,203.

      Opinion filed April 3, 1928.
    Hyman Soborofe, for appellant.
    A. S. & E. W. Froehlich, for appellee.
   Mr. Justice Soanlan

delivered the opinion of the court.

I. S. Spiro, doing business as I. S. Spiro & Company, plaintiff, sued Morris B. Cable, defendant, in the municipal court of Chicago in an action on contract. The parties waived a jury and the cause was submitted to the court, and at the conclusion of the evidence for the plaintiff, on motion of the defendant, the court found the issues against the plaintiff. Judgment was entered on the finding and this appeal followed.

The plaintiff sued to recover upon a quantum meruit the sum of $973.60 for labor and material furnished in setting tile on certain premises of the defendant and for extra work in connection with the same. The suit was based upon a written contract between the parties whereby the plaintiff was to furnish and set in place tile work in said premises and the latter was to pay therefor the sum of $950. The plaintiff also claimed compensation for extra work and material which he alleges was ordered by the defendant and for which the latter agreed to pay the plaintiff the sum of $90. Plaintiff further alleges “that after more than 85% of the work had been completed, plaintiff requested defendant to pay him part of the money due under the contract, there being a custom and usage of long standing and of which the defendant had knowledge, that in the building trades in Chicago, payments were made as follows: 85% of the contract price as the work progressed and the balance of 15% upon completion; that defendant refused to pay any moneys to plaintiff for the work done by him and refused to allow plaintiff to continue the work already started.” Plaintiff further alleges that on August 27,1926, the date when the last work was performed by the plaintiff, materials to the amount of $81 had been furnished and labor performed by him on the contract in question to the amount of $892.60, and that certain materials ordered specially for the contract in question were held for the defendant’s sole use, “as they cannot be used in the general course of business.” The defendant filed an affidavit of merits and a set-off. In the former he admitted the written contract1 ‘ and that upon completion of the entire work the defendant agreed to pay to the plaintiff therefor the contract price of nine hundred and fifty dollars ($950.00),” but denied ordering or agreeing to pay $90 for extra work; denied that plaintiff performed 85 per' cent of the work covered by the contract and denied that the plaintiff requested him to make payment of a portion of the contract price; denied the existence of the custom alleged in the statement of claim; denied that the plaintiff substantially performed his contract; “denies that the defendant refused to pay any moneys to the plaintiff, or refused to allow the plaintiff to continue the work already started, but avers on the contrary, that he always requested the plaintiff to perform and complete said contract”; alleges that the work was done in an unworkmanlike manner; that an inferior grade of material was used, and that the plaintiff abandoned the work. In the defendant’s statement of claim under the set-off he alleges that by reason of the abandonment of the work by Spiro 'and as a result of a conspiracy between the latter and certain officials of the Chicago Mantel & Tile Dealers Association and certain members of the Tile Layers & Helpers Association the defendant has never been able to complete the work on the premises in question and has suffered damages to the amount of $1,000. The plaintiff filed an affidavit of merits to the set-off denying all the allegations contained in the set-off.

The plaintiff contends that upon the evidence introduced by him he made out a prima facie case entitling him to recover the sum of $973.60, and that the. trial court should have denied the motion of the defendant for a finding in favor of the defendant, made at the close of the plaintiff’s case. After a careful consideration of the record, we have reached the conclusion that the contention of the plaintiff is a meritorious one. The only evidence submitted to the court was that offered and received on behalf of the plaintiff. It appears that the plaintiff furnished substantially all. of the labor and material required by the contract. In fact, the defendant stipulated that plaintiff’s evidence, if introduced, ‘ would show that he done work to the amount of $973.60.” The evidence clearly shows that the only real trouble between the plaintiff and the defendant arose on a question as to how the plaintiff was to be paid for his work under the contract. The contract did not state how payments should be made. The plaintiff claimed that there was a general custom or usage in the building trades of the city of Chicago at the time in question that a contractor should be paid 85 per cent for work done, as the work on the contract progressed. The defendant in his pleadings, in the hearing before the trial court and on this appeal, insists that there was no such general custom as plaintiff claimed and that no part of the contract price was payable to the plaintiff until the substantial completion of the entire work under the contract. The proof abundantly sustains the claim of the plaintiff that such a custom prevailed. The plaintiff’s testimony is to the effect that from time to time as the work progressed he requested that he he paid 85 per cent for work done, in accordance with the general custom; that the architect, who was a son of the defendant, would tell him that he would fix the matter up in a couple of days; that he made the same request of the defendant on a number of occasions and that the defendant promised that he would fix the matter up in a day or two; that on one occasion he asked the defendant to pay him the 85 per cent that he was entitled to and that the defendant promised that he would fix the matter up the next day; that promises of this character were made him almost daily; “they told me they were going to pay me the next day, and they kept saying the next day and the next day.” When the work was substantially done it appears that the plaintiff, acting upon the assumption that he was entitled to 85 per cent on the contract as the work progressed, and feeling aggrieved by the conduct of the defendant, took his men off the work. Five or six days later he got a letter from the lawyer of the defendant that he should finish up the work at once, and thereupon, in company with his men, he went to the premises to complete the work, and he there met the defendant and said to him: “Mr. Cable, I am going to finish up your work, but give me an order now. I need the money,” to which the defendant replied: “That is all right, but I don’t want you to finish the job no more,” to which the plaintiff replied: “If you feel that way, it is all right with me,” and the plaintiff then left the premises with his men. It is conceded that the defendant paid the plaintiff nothing on the contract. ■

The defendant contends that “a custom or usage must be clearly proven by the party asserting it, and must be known to both of the contracting parties, or must be so general and certain that such knowledge of each will be presumed.” We think that the plaintiff’s evidence abundantly proves that the custom claimed by the plaintiff to exist in the matter of pay was so general and certain that knowledge of it will be presumed. Moreover, the evidence for the plaintiff tends to prove that the defendant admitted a knowledge of the custom in question. Under the plaintiff’s theory of fact he was justified in quitting work when he did, and the defendant, not the plaintiff, was in default under the contract at the time in question. Further, it appears that five or six days after the plaintiff quit the work, the attorney for the defendant notified him to finish the work, and that the plaintiff thereupon went with his men to the premises in question and told the defendant that he was there to finish the work and that the defendant informed the plaintiff that he did not want Jhim to finish the job. Under such a state of fact it J seems idle to argue that the plaintiff, without just ' cause, abandoned the work.

But if we assume, for the purposes of the argument, that plaintiff was wrong in his contention as to the manner in which payments should be made under the contract, and that he was at fault in quitting the work, nevertheless, under the facts of this case, the plaintiff would be entitled to recover. Mr. Justice Windes, in Turner v. Goodman, 90 Ill. App. 339, 342, well states the principle that controls in the present case: “Where a party has in good faith partially performed the terms and conditions of a contract on his part, and the other party has received the benefit of such partial performance, and does not or cannot restore to the other the fruits of such partial performance and place him in statu quo, then the consideration of the contract must be paid, less any damages suffered by reason- of the failure to perforin the contract. 2 Parsons on Contracts, p. 523, 529; Underwood v. West, 52 Ill. 397; Wolf v. Dietzsch, 75 Ill. 205; Smith v. Brittenham, 109 Ill. 540; Underwood v. Wolf, 131 Ill. 425.” To the same effect are Lighthall v. Colwell, 56 Ill. 108; Spencer v. Dougherty, 23 Ill. App. 399, 402. In the present case there can be no doubt but what the plaintiff in good faith assumed that he was entitled to payments as the work progressed. He had almost completed his contract. In fact on the trial he made an offer to prove that there was little that remained to be done, and the court, erroneously, refused to allow him to make this proof. While, as we have heretofore said, we do not think that the evidence justifies the conclusion that the plaintiff, without just cause, abandoned the contract, nevertheless, if we assume that as the work was about complete, through some misconception of his legal rights, he temporarily abandoned the work, still the law is not so unjust as to permit the defendant to obtain the benefit of the labor and material furnished by the plaintiff under the contract without payment therefor. According to the theory of fact of the plaintiff it would have required the expenditure of only a small amount to complete the contract, and yet the trial court apparently held that although it was conceded that the plaintiff had furnished labor and material to the amount of $973.60, on a contract on which the stipulated amount was $950, nevertheless, merely because he had not fully and completely performed the contract on his part, he could recover nothing from the defendant. We cannot sanction any such holding. If the defendant can prove that the plaintiff abandoned the work without just cause and that he did not carry out the terms of the contract, and that the defendant has sustained damages by reason thereof, he has the right under the pleadings to recoup for all damages he has sustained thereby.

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

Reversed 'and remanded.

Barnes, P. J., and G-ridley, J., concur.


author: Mr. Presiding Justice Matchett

text:
    John C. Allmon and Fern Allmon, Appellees, v. Rose Davis, Appellant.
    Gen. No. 32,551.
    Opinion filed April 9, 1928.
    Sissman & Sissman, for appellant; Jesse G. Sissman, of counsel.
    Chambers & Cochran, for appellees; Oliver J. Chambers, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This litigation grows out of a written lease executed between the parties on August 15, 1925, by the terms of which Bose Davis demised to John C. and Pern Alimón the premises known as the first and second apartments of 3108 West Madison street, Chicago, for a term beginning on that day and ending April 30, 1928, at a rental of $100 a month. The lease contained a provision authorizing the confession of judgment for any rent that might become due. It also contained a provision that the lessor agreed to hire a reputable concern to exterminate any rodents should the lessees desire it; that certain repairs and remodeling upon the building should be done by the lessor.

The lease further provided that $300 was to be deposited with the lessor for the faithful performance of the lease, and that if any of the covenants of the lease should be broken by the lessees the $300 should be forfeited by them, but that at no time should this money be used except for payment of rent for the last three months of the lease. The lessor also agreed to pay interest upon this deposit at 6 per cent per annum.

August 18 the lessees went into possession and remained in possession during the remainder of August and the month of September, when they vacated and abandoned them. On October 17 they sued the lessor demanding the return of the money deposited. On October 20 the lessor caused a confession of judgment to be entered against the lessees in the municipal court of Chicago for $120 on account of rent claimed to be due. The two causes were consolidated and heard together by the court without a jury. There was a finding in favor of the lessees, John C. and Fern Alimón, and against Eose Davis, in the sum of $392.95, upon which the court entered judgment.

Mrs. Davis contends in this court that the finding of the court is against the manifest weight of the evidence, but the argument and authorities cited all seem to be based upon the theory that on the uncontradicted evidence the plaintiff tenants were not entitled to recover. It is urged upon the authority of Wright v. Lattin, 38 Ill. 293; Rubens v. Kill, 213 Ill. 523, 535, that since the lease contained a covenant to repair and the tenants went into possession, they could not abandon the premises for breach of any covenant other than quiet enjoyment, and that the failure to repair in this instance did not amount to such a breach. However, we do not deem it necessary to decide that point on this record.

The lease in evidence shows that the premises were demised to the tenants to be used as a dwelling, and the uncontradicted evidence shows that in the condition in which the premises were it was impossible to obtain water for personal or other use. Mrs. Alimón testified that she could not rent a room; that the men could not take a bath; that the tenants could not keep themselves clean, and that such were the conditions at the time they moved out. A witness, a carpenter who had made repairs upon the premises in the way of remodeling, testified: “I think the plumbing itself was in fair mechanical order, but no water pressure at all. Tried the water pressure. There was none. Used a pump.”

It is the duty of a landlord, as we understand it, to furnish to a tenant premises which may be used for the purpose for which they are leased, otherwise the object for which the contract is made entirely fails; and the later cases in this State seem to hold that it is immaterial that the landlord does not intend that result. In this great city, under circumstances which exist in the community, it would appear to be self-evident that an adequate supply of water is necessary in order to make premises used as a dwelling tenantable and habitable. The decision of the Supreme Court in Gibbons v. Hoefeld, 299 Ill. 455, and of the Appellate Court in Sweeting v. Reining, 235 Ill. App. 572, would seem to make the discussion of prior decisions from this State and from other States unnecessary.

We hold that on the evidence the court was justified in finding that there was a constructive eviction, in finding for the plaintiffs and against the defendant, and in entering judgment.

The judgment is therefore affirmed.

Affirmed.

O’Cohnor and McSurely, JJ., concur.