text:
    Walter Wille, Appellant, v. Barnet Hodes, Corporation Counsel of the City of Chicago, Appellee.
    Gen. No. 38,751.

      Opinion filed May 11, 1936.
    David T. Alexander, of Chicago, for appellant; Julius Reznik, of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, pro se.

    Quin O’Brien and Adam E. Patterson, Assistant Corporation Counsel, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Petitioner alleged that he was the assignee and owner of a judgment against the City of Chicago for $2,000. He filed his petition for a writ of mandamus directed to Barnet Hodes, corporation counsel, commanding* him, to forthwith issue a certificate certifying to the city comptroller that the judgment was in full force and effect and that no further proceedings were proper for the city to pursue in relation to the judg*ment. The respondent filed his motion in the nature of a demurrer to strike the petition, specifying* a number of grounds. The motion was overruled and he answered. Afterward petitioner filed his motion to strike respondent’s answer. The motion, in the nature of a special demurrer, set up a number of grounds; it was overruled; petitioner elected to stand by his motion; judgment was entered dismissing* the suit, and petitioner appeals.

Petitioner alleged that on June 18, 1929, a judgment for $2,000 was entered in the superior court of Cook county in favor of Julius Steinberg and against the City of Chicago; that it was unpaid and in full force and effect; that afterward Julius Steinberg died, leaving him surviving his mother and other kin; that on August 3, 1935, the mother was appointed by the probate" court of Cook county administratrix of Julius’s estate; that on August 14, 1935, she was authorized as administratrix to sell the judgment, and on August 15th sold it to petitioner for $1,750; that the respondent was corporation counsel of the City of Chicago; that par. 48 of ch. 4 of the Ordinances of Chicago (1922) provides that the comptroller, upon demand of the legal owner of any final judgment against the city, and upon certificate of the corporation counsel that the judgment is final, shall pay the judgment with interest thereon; that sec. 88 of the Municipal Code of 1931 provides, “The Corporation Counsel shall certify to the City Comptroller all judgments rendered against the City as of the date following the last day on which an appeal may be made, when in the opinion of the Corporation Counsel no further proceedings are proper; provided that when the Corporation Counsel is of the opinion that an appeal is not justified, he may certify such judgment to the City Comptroller at any time.”

It was further alleged in the petition that it was the duty of the corporation counsel to certify to the city comptroller, as required by the ordinance, that the judgment in question was final, and unless he does so the judgment will remain a nullity; that despite repeated demands respondent has refused to so certify, and that no proceeding has been taken by the city at any time to alter, affect or set aside the judgment.

The answer of respondent, so far as it is material, is that he admits that no appeal was ever taken from the judgment and that no part of the judgment has been paid, “but denies that such judgment is in full force and effect.”

The answer further avers that respondent is not informed, save by the averments of the petition, as to whether Steinberg departed this life, whether the administratrix of his estate was appointed by the probate court, or whether the administratrix was authorized to sell the judgment, but calls for strict proof thereof; but that he is informed and believes that the sale of the judgment was made with notice and knowledge that the judgment was not legal and final; that it was not honestly obtained and “was soon to be tested in a suit and litigation”; that the city refused to pay the judgment because it was “invalid, unjust, and unconscionable . . . and was obtained dishonestly, as the result of fraud and collusion, and conspiring on the part of the original judgment creditor, his attorneys, agents, and others.”

The answer then sets up that the suit in which the judgment was rendered was for personal injuries sustained in an accident which occurred in the West Park System over which the city had no jurisdiction, and that the city was therefore not liable; that the facts were collusively suppressed; that plaintiff did not come into court with clean hands because the judgment was “founded in fraud.” Other matters are set up which we think it unnecessary to mention here. We think the answer was wholly insufficient.

In People v. Palmer, 356 Ill. 563, which was a petition for a writ of mandamus, the court said (p. 569): “The answer should deny the facts alleged in the petition or confess and avoid them, averring specifically the facts excusing the conduct of the respondent. (People v. Lueders, 287 Ill. 107.) ”

In 13 Ency. Pl. and Pr. it is said (pp. 716-718): “The respondent in his return or answer must state the facts relied upon by him with certainty. Nothing is to be left to inference.

“Where the respondent seeks to avoid performance of the act sought to be compelled by the relator, by traversing facts relied upon by the relator to establish his claim, the return must contain a distinct denial of those facts.

“The return is required to be more certain than the writ, a plea in bar, or an answer in an ordinary case.

“At common law the highest possible degree of certainty was required. This has been described as ‘certainty to a certain intent in every particular.’ ”

The answer did not deny the facts alleged in the petition or confess or avoid them by specifically averring the facts excusing the conduct of the respondent. It was not sufficient under the rule for the respondent to aver in his answer that he did not know the truth or falsity of the allegations of the petition.

And the argument of the respondent that the judg*ment in the personal injury case was obtained by fraud obviously is not pertinent here. The judgment cannot be attacked collaterally. Nor is there any merit in the contention, as stated by counsel for respondent, that “The writ of mandamus is a discretionary writ, and the petitioner cannot have it when, as here, he comes into court with ‘unclean hands.’ ” The judgment being in full force and effect, and petitioner having shown that the respondent should certify the judgment to the city comptroller, there is no discretion in the court, but the writ must issue as prayed for. Nor is there any merit in the contention made that the petitioner is guilty of laches. City of Cairo v. Campbell, 116 Ill. 305.

The judgment of the superior court of Cook county is reversed and the cause remanded with directions to award the writ as prayed.

Reversed and remanded with directions.

McSurely, P. J., and Matchett, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Cleaning and Dyeing Plant Owners Association of Chicago, et al., Appellees, v. Sterling Cleaners and Dyers, Inc., et al., Appellants.
    Gen. No. 38,486.

      Opinion filed May 13, 1936.
    Rehearing denied May 28, 1936.
    Irving Breakstone, Martin J. McNally and Pines, Stein & Beber, all of Chicago, for appellants; Alvin E. Stein, Alfred Broady and William Rosenthal, all of Chicago, of counsel.
    Lavin & Jaffe, of Chicago, for appellees; Maurice Walk, William Jaffe, George S. Lavin and Ira S. Kolb, all of Chicago, of counsel:
   Mr. Justice Hebel

delivered the opinion of the-court.

This is an appeal by Sterling Cleaners & Dyers, Inc., Peacock Cleaners & Dyers, Ltd., Michigan Cleaners & Dyers, Inc., and Checker Cleaners & Dyers, Inc., defendants, and a separate appeal by co-parties, Abarbanell Bros., Inc., and Berwyn Dry Cleaning Co., defendants, from the final decree entered by the circuit court of Cook county on- July 13, 1935, confirming and approving the master’s report and overruling the exceptions of the defendants thereto and permanently enjoining and restraining these defendants from:

“(a) Selling, offering for sale, rendering or offering to render at retail, cleaning and pressing* services below' cost. Selling, offering for sale, rendering or offering* to render, at retail, cleaning and pressing services, for men’s and women’s garments at a price less than, seventy-five (75$) cents per garment, for cash and carry, and less than ninety (90$) cents per garment, called for and delivered.

“Selling, offering* for sale, rendering or offering to render at wholesale, cleaning services for men’s suits, unfinished, or as is commonly referred to in the trade as ‘x’ work, at less than fifty (50%) per cent of the cash and carry price as set forth herein.

“Selling, offering for sale, rendering or.offering* to render at wholesale, cleaning* and pressing, or as is commonly referred to in the trade as finished work, ladies’ dresses at less than sixty (60%) per cent, of the retail cash and carry price as set forth herein.

“(b) Advertising in any publication, newspaper, periodical, by signs, on wagons, signs on windows, signs' on trucks, through the radio, verbal solicitations, through the use of circulars, handbills, billboards, or from making known in any other manner that the cleaning and pressing services as above set forth in paragraph (a) will be rendered at prices below those designated in said paragraph (a) hereof.

“(c) Advertising* in any form designated in paragraph (b) hereof in manner or statement which inaccurately describes the character of service rendered, the grade, quality of the service which is rendered, or from advertising* in any manner which might tend to deceive or mislead customers or the public.

“(d) Advertising in any manner designated in paragraph (b) hereof values of services which might tend to deceive or mislead any customer, and from advertising in any particular in any such manner as would unfairly represent the actual price charged for services rendered, and from making any statements in such advertisements that the prices charged are less than those charged by any other competitors.

“(g) Engaging in the conspiracy or combination in the cleaning business for the purpose or with the effect of destroying, injuring, or damaging the plaintiffs, or any or either of them by the doing of the acts herein restrained.

“ (h) Singly, or collectively engaging in unfair competition or unfair trade practices in the cleaning and dying industry in Cook County, as set forth in paragraphs (2), (a), (b), (e), (d) and (g) hereof.

“ (3) This court hereby specifically retains jurisdiction of the parties hereto and the subject matter hereof for the purpose of modifying or enlarging said decree, or entering another decree in furtherance of the purposes of carrying into complete effect the provisions hereof, so that complete justice may be done between all the parties necessary to carry this decree into practical effect, in the event of a change in economic conditions.”

From the record and the statement of facts in the briefs it appears that one of the plaintiffs herein, Cleaning & Dyeing Plant Owners Association, of Chicago, a corporation not for profit, was organized in October, 1933, to succeed the Chicago Master Cleaners & Dyers Association. This latter association in 1930 and 1931 consisted of about 121 plant owners in the cleaning and dyeing business, who signed a contract with one Dr. B. M. Squires, whereby he was employed as general sales manager to stabilize the cleaning and dyeing industry.

These plant owners agreed to pay Squires 2 per cent of all their gross proceeds for his services. Squires was permitted under the contract to fix the minimum price at which the members were to sell dry cleaning to the public. In 1930 he recommended a minimum price of $1. In March 1931 he fixed the price at $1.25. Most of the plants under the contract charged that price.

From time to time violations were reported to him of plants under the contract selling services for less than the recommended price and Squires, according to his testimony, “would then undertake methods of a persuasive character looking towards getting them to abide by the recommended price.”

It also appears from the evidence that James P. Gorman one of the plaintiffs’ witnesses and who was president of the Retail Cleaners & Dyers Union was employed by the Association as labor commissioner. Squires testified that as labor commissioner Gorman’s duties were “to go about the industry with such assistants as he might require to see that the various plant owners were complying with the wages and conditions I had set as impartial chairman and secondly to report to me any violations of the minimum prices I had recommended.” He was paid a salary of $200 per week and expenses. From June 1931, to April or May, 1932, Squires paid Gorman $6,000 in salary and $21,000 for expenses.

It also appears that this association financed a strike, which was called in 1931 against the Michigan Cleaners, one of the defendants herein. The Association turned over to the union for that purpose four or five thousand dollars.

It also appears that $30,000 of the Association money was turned over to Frank Harscher, secretary of the Association, for expenses in maintaining an office where complaints were “heard and investigated. ’ ’ $40,000 was spent in advertising and money was turned over to the -unions to finance pickets for strikes against plants that failed to observe the prices fixed by Squires from time to time as needed, for which no accounting was demanded or given.

It also appears from the evidence that George E. Peterson & Co. as oil jobbers supplied 80 per cent of the cleaners with naphtha when the Squires Institute was formed; that during this period the Peterson Company regularly gave the Institute and the Master Cleaners & Dyers a monthly rebate of $800 for a monopoly on the membership patronage.

In 1931 at the suggestion of Squires the name of the Chicago Master Cleaners & Dyers Association was dropped and they called themselves the Cleaners & Dyers Institute of Chicago, with Squires as Chairman. The contract expired with Squires in October, 1933, when the Cleaning & Dyeing Plant Owners Association of Chicago was formed to succeed the former company.

The constitution and by-laws of the plaintiff association are attached to the complaint herein and were offered in evidence and provide among other things that any person, firm or corporation in the business of cleaning and dyeing in Chicago, or operating such business in Chicago shall be eligible for membership. All members thereof agree not to sell any cleaning and dyeing service in or for delivery to or for resale in any part of the trading area .of Chicago at a price lower than set by the board of directors as a fair and equitable price, and further provides that all policies, rules, regulations, orders and decisions adopted shall be obligatory and binding upon all members and-be complied with, and any member violating such by-laws, rules, regulations, orders and decisions shall be subject to suspension and entitle the Association to a restraining order or injunction against such violating member without bond or notice.

Frank Harscher, the secretary of the plaintiff association, testified that the directors of the Association had fixed a price for the members at 69 cents and 85 cents, and the wholesale service to tailors at 40 cents for a finished dress or plain suit, and for rough work without finishing the price of 25 cents. This was the price in force at the time he testified. 69 cents was the only price recognized by the Association.

The Association had committee meetings from time to time attempting to regulate the wholesale prices of cleaning and dyeing for any retail outlet or tailor groups. The 40-cent finishing price is fairly uniform with 90 per cent of the membership of the Association.

Salzman, a witness on behalf of the plaintiffs, testified, “The members of our Association agreed among themselves to maintain a fixed uniform price throughout the membership Association. We attempted to get people outside the Association to' charge the same minimum price.”

The plaintiff association practically controls the entire industry, as out of 104 or 105 power plants engaged in the cleaning and dyeing’ business, 97 are members of the plaintiff association. The Association made a contract with the Cleaning & Dyeing & Pressers Union which was made binding upon all its members. Although members of the plaintiff association failed to comply with the union contract from time to time, no strikes were called against members excepting one.

The defendants Abarbanell Bros, and Michigan Cleaners are two of the oldest dry cleaning establishments in the Chicago area. Abarbanell Bros, was founded in 1900 and the business was operated continuously from that time until the present. It was first located in Chicago and later, in 1908, moved to LaGrange where its plant is still located. All of its machinery is of the latest type construction and practically new, none of it being older than three years, It has 29 chain stores or outlets, representing an investment of $2,000 to $5,000 per store.

The defendant, Michigan Cleaners & Dyers, was started in 1900 in Chicago with one store and grew in proportion. In 1925 it had outgrown its plant and a new one was built at a cost of about $125,000 and machinery and equipment of about $25,000 to $30,000. It is a wholesale and retail plant.

In 1929 the union took away its drivers and considerable of its business and the Checker Cleaners were thereupon organized. They operated about 32 chain stores themselves and about 19 stores through others. The work was done for the Checker Cleaners by the Michigan Cleaners.

The business of the Peacock Cleaners began originally in 1922, but did not do its own cleaning until 1929, when a plant was built. At first it did some wholesale business through the help of one of fhe unions, but these shops were later taken away from it by the union and it began to open up retail or chain stores. In 1930 it had 12 stores in operation, and today it has 32 stores. One of the plaintiffs, Paramount Cleaners, did all the dry cleaning for Sterling at a cost below that charged by Sterling to the public.

One of the labor unions had a number of people organized secretly in the plants of the defendants who were not members of the Association, such as Abarbanell Bros., Inc., Michigan Cleaners, Peacock Cleaners, and others, for the purpose of “pulling a strike” against them. The union did not approach or ask Abarbanell Bros., Inc., or the others to join the union or attempt to bargain with them collectively on behalf of the employees. A strike was called on the plants of the defendants and the other plants without any notice in advance.

The defendants, Michigan Cleaners & Dyers and Checker Cleaners & Dyers, during 1931,1932 and 1933, had various strikes called at their plants, and numerous fires were set at many of their stores. They had repeated bombings, shootings, breaking of windows at numerous stores, threats and intimidation, and acid was spilled on over $40,000 of garments, all resulting in serious damag’es and loss to them.

According to the testimony of three witnesses, the Checker Cleaners opened a store at one time near the shop of Lefkovitz, a member of the Institute, and advertised cleaning at a price of 79 cents for two garments, while the Institute required its members to charge $1.25 per garment. A meeting' was called at which Gorman, the so-called labor commissioner of the Institute, was present. The members who complained of this alleged unfair competition of the Checker asked Gorman if they could cut their price to two garments for $1; Gorman said, “nothing doing” and if they gave him two weeks he would take care of the Checkers. At another meeting of the Master Cleaners & Dyers Association when complaint was again made, Walter Crowley, the president of the Association, requested that they give him two weeks and he would take care of the Checker. Thereupon one Abe Tangle, a member of the Association, got up and said that he was “tired of that stuff” about waiting two weeks; thereafter the Checker shop in question had an explosion, the windows were smashed and the counter splintered.

On May 29, 1931, upon the application of Michigan Cleaners and Checker Cleaners, a decree of -injunction was procured from the superior court of Cook county restraining the various unions from interfering with or molesting them.

During the early part of 1932, Peacock Cleaners, operating as an open shop was picketed by the unions. On May 24, 1932, one of their drivers was waylaid by the pickets and injured. They had, during this period of the so-called strike, a series of spite fires at the plant, which damaged a great many garments. As soon as they signed the contracts with the unions on Juñe 1, 1932, the fires.stopped and they had no further trouble, until sometime in the early part of 1933, when they received two registered letters from the two unions with which they had contracted, to the effect that as their contracts with the respective unions expired, 20 per cent additional would have to be added to the salaries of their employees unless they joined the Chicago Cleaners & Dyers Association. They did not join, and next received a “pineapple” which blew up their plant on April 17, 1933, causing about' $5,000 damages.

In 1931 Abarbanell Bros., although not a union shop, had a strike called by the unions and without notice found their plant picketed one morning and their employees and customers prevented from entering the plant. Various acts of violence were committed. On November 2, 1931, a temporary injunction was entered in the circuit court against the unions to restrain them, among other thing's, from interfering with the business of Abarbanell Bros. In 1933 and 1934 bullets were fired in various of their windows, a suitcase with 24 sticks of dynamite was found in the boiler room of their plant, bnt failed to explode. Several days later two stores were bombed. There is evidence that one of the plaintiffs hired, established, paid for and maintained a picket line against Abarbanell Bros., Inc., stores for the purpose of injuring its business.

It further appears from the evidence that a similar suit was filed in March, 1934, against the defendants herein, Sterling Cleaners & Dyers, Inc., Abarbanell Bros., Peacock Cleaners & Dyers, Ltd., Michigan Cleaners & Dyers, Inc., and several others, by one Theodore M. Becker and 55 others, most of whom were also members of the plaintiff’s association, in the cir-emit court of Cook county. This suit was, however, later dismissed.

In 1934, the plaintiffs shut down their respective plants. The labor unions immediately declared strikes against non-members of the Association,' including Abarbanell Bros., Peacock Cleaners, Michigan Cleaners and Checker Cleaners, and within 72 hours after the lockout by the plaintiff association not a single plant was operating in the entire City of Chicago. The respective plants of the defendants were sur- ■ rounded by three to five hundred pickets and the employees prevented from working. The unions, however, were still friendly with the Association, and while the defendants’ plants were picketed, no pickets operated in front of the tailors or any stores which were operated by members of the plaintiff association.

A union official called various meetings for the purpose of arriving at a common price between the defendants Peacock Cleaners & Dyers, Inc., Michigan Cleaners, Abarbanell Bros, and Sterling Cleaners and the members of the plaintiff association, but no settlement was effected. Later, in September, 1934, Abarbanell Bros., Peacock Cleaners & Dyers, Ltd., Michigan Cleaners & Dyers, Inc., and Checker Cleaners & Dyers, Inc., in order to be permitted to carry on their respective businesses, were forced to sign contracts with the labor unions and the strike was then discontinued. Thereupon the members of the plaintiff association, having accomplished their purpose by forcing defendants to unionize their shops, discontinued the lockout and proceeded with their business.

The defendants have since then operated and are now operating their respective plants as union shops and are paying union wages.

Immediately thereafter, the complaint herein was filed by the plaintiff association in the circuit court of Cook county and on October 11, 1934, a temporary injunction was procured on the basis of the complaint, which was subsequently reversed by this court for the reasons stated in the opinion in the case entitled Cleaning & Dyeing Plant Owners Ass’n of Chicago et al., Appellees v. Sterling Cleaners & Dyers, Inc. et al., Appellants, 278 Ill. App. 70.

On January 22, 1935, another strike was called against Abarbanell Bros., by the two labor unions. From the evidence it appears that this concern had complied with all the terms of the union contract and was paying union wages and observing union hours.

The officials of both unions advised Abarbanell Bros., that “if you want your plant to open you will have to go up to 69 cents.” Abarbanell Bros, advised them that they would be willing to raise the wages of their employees 25 per cent over the union scale, if they were permitted to operate at any price they desired. This the unions refused to accept. Abarbanell finally offered to abide by the price, if they would not be compelled to display the 69-cent sign in the windows. Albert, the president of the Cleaners & Pressers Union, claimed that Abarbanells told him that they would pay 10 per cent over the union scale for dry cleaning if they did not have to keep the 69-cent signs in their windows. In order to avoid further labor troubles and losses thereby Abarbanells agreed to increase their prices to 69 cents, whereupon the strike was discontinued by the unions. A similar strike was called by the unions on February 18, 1935, against Peacock Cleaners & Dyers, Ltd., and settled on March 5, 1935. Similar attempts to dictate the prices to be charged by Peacock Cleaners were made by the union officials.

From the evidence it further appears that during the period of lockouts and strikes and sometime prior thereto the plaintiff association approached Sommers of the Sterling Cleaners with a view to buying his business. Like efforts were made by the plaintiff association to buy out the Peacock Cleaners. The reason, as stated by plaintiffs’ witnesses, was to get rid of the Sterling Cleaners & Dyers so that they could thereafter raise the prices satisfactorily to the plaintiff association, and to eliminate competitors in the dry cleaning business.

It appears that plaintiffs’ counsel admitted for the record that this was the purpose and object of the proposed purchase of Peacock Cleaners and Sterling Cleaners. The attempts to purchase the business of the Sterling Cleaners by the plaintiff association continued as late as the week prior to the filing of the suit herein. None of the purchases was consummated, because neither the plaintiff association, nor any of its members, were able to raise the necessary cash required.

Numerous witnesses were produced upon the trial of this case by both sides, and many exhibits offered in evidence, and as we have indicated, when the matter was finally before the court upon the master’s report, in disposing of the exceptions, which were overruled, the court in its decree finds that the defendants are guilty of unfair competition, unfair trade practices and bait advertising and grants relief by permanently enjoining and restraining both plaintiffs and defendants.

The defendants contend in this case that the court in fixing the price for the industry by injunction did not base its conclusion upon any alleged contract or agreement of the parties, that as a matter of fact none existed between the plaintiffs and the defendants and that there is no evidence in the record to that effect. It is further contended that there is no statute in force in this State which would in any way authorize the court to fix prices or regulate trade practices in the cleaning and dyeing industry. The court by its mandatory injunction compels all the parties, both plaintiffs and defendants, to this suit, constituting nearly all of the cleaning and dyeing plant owners in Chicago and vicinity, to observe the prices fixed for the industry by the decree, ostensibly for the purpose of eliminating so-called “unfair competition.” In doing so, the court compels the defendants to dispose of their services and commodities only at the prices fixed and in the manner provided by the decree.

It is further contended that it seeks to control the industry by supervising labor conditions in the shops and prescribes the method of advertising* which the parties may adopt and none other.

For plaintiffs’ answer to this contention is that— “Competition, i. e., the existence of and access to the open market through the legal power freely to. contract for the disposal of goods and services, is not an absolute end which stands outside the law, but is a legal construction which the law must conform to changing social needs. Freedom of contract is a social policy, not an absolute value. ’ ’

And the plaintiffs again suggest that—

“The absolute conception of free competition as an end outside the law is a rationalization of requirements in the early stage of capitalist economy. It was justified at that time by the economic facts then existing, but is now no longer responsive to present social and economic needs. ’ ’

And further the plaintiffs in support of their position state that — ■

“The doctrine of the ‘natural right’ to freedom of contract has been used until recently to defeat judicially many restraints on the competitive market required by sound social policy.”

This position of the plaintiffs is not supported by the recognized rules of law governing cases of the kind before us now.

Competition is not of itself a violation of any right of one engaged in a like business. The life of a business enterprise is the sale of its products or services at a price such as will conduce to the disposition of its products by encouraging large sales. The profits will depend largely upon the methods employed in production cost, including economy and the necessary expense in carrying on the business. It is self-evident that large sales necessarily result in large returns, and the profits of course depend upon economical administration cost. To say that the sale of a commodity for a smaller profit results in the destruction of a competitor is not sound. If that were so, the court, upon a showing that a business enterprise was unable to meet competition, would be obliged to consider the question when called upon and to protect such unfortunate merchant. The courts are not concerned with the conduct of a business enterprise unless it appears that those engaged in the business seek by their methods to destroy a business adversary, and that such methods are used only for the evident purpose of driving from the business field a competitor by acts which indicate an intent to destroy and injure.

The fact that a merchant is enguged in a profitable business does not limit the field to such enterprise. The field must necessarily remain open, and the merchant engaged in an enterprise is chargeable with knowledge that he may have to meet competition, and for that reason it will be necessary for him to apply his efforts to withstand successfully the price range for the sale of the products. Fair competition as applied to business covers a wide range. The fact that there are sales for less than those of a like business is not of itself unfair. In order to determine the purpose it is necessary to consider the facts and circumstances concerning such competition, and the court will consider such facts and the reason for cutting the price, and if the court finds that such price cutting is for the primary purpose of destroying the competing business, then such purpose is not fair competition.

The courts of last resort in this country have considered the question of what would be unfair competition and the law governing such question, and have by the weight of authority approved the doctrine that fair competition of itself is not a violation of any lawful right of a like competitor. “The right to follow any of the common occupations of life is an inalienable right.” Butchers’ Union Slaughter-House & Live Stock Landing Co. v. Crescent City Live Stock Landing & Slaughter-House Co., 111 U. S. 746; and the price which one may put upon that which he is to sell or lease is a matter wholly his own. United States v. Trans-Missouri Freight Ass’n, 166 U. S. 290, 320; Sears, Roebuck & Co. v. Federal Trade Commission, 258 Fed. 307.

Ag’ain, the fixing of a price for services has been considered in the case of Wilentz v. Crown Laundry Service Inc., 116 N. J. Eq. 40. The court in its opinion makes the following pertinent statement:

“No common law right has been more firmly established or more treasured than the right of the individual to sell his goods or his services at whatever price he and the purchaser might agree upon. Indeed, a few years ago every court in the land would have held that a statute abrogating* that right, except in the case of a business or property affected with a public interest, would deprive the individual of his property without due process of law and therefore be void. Tyson & Brother v. Banton, 273 U. S. 418, 47 Sup. Ct. 426; Ribnik v. McBride, 277 U. S. 350, 48 Sup. Ct. 545; Williams v. Standard Oil Co., 278 U. S. 235, 49 Sup. Ct. 115.”

Then again the Supreme Court of Illinois in the case of People v. Weiner, 271 Ill. 74, announced this doctrine as to right of individuals to pursue a lawful calling:

“Under the Federal and State constitutions the individual may pursue, without let or hindrance, all such callings or pursuits as are innocent in themselves and not injurious to the public. These are fundamental rights of every person living under this government and the legislature by its enactments cannot interfere with such rights. (Frorer v. People, 141 Ill. 171; Ramsey v. People, 142 id. 380; City of Chicago v. Netcher, 183 Ill. 104.)”

In the case of Frorer v. People, 141 Ill. 171, the court passed upon the validity of a statute involved in the litigation. This statute limited the right of a company to sell merchandise to its employees. The court said:

“The privilege of contracting is both a liberty and a property right, and if A is denied the right to contract and acquire property in a manner which he has hitherto enjoyed under the law, and which B, C, and D are still allowed by the law to enjoy, it is clear that he is deprived of both liberty and property to the extent that he is thus denied the right to contract. Our constitution guarantees that no person shall be deprived of life, liberty or property without due process of law. (Art. 2, sec. 2.) And says Cooley: ‘The man or the class forbidden the acquisition or enjoyment of property in the manner permitted the community at large, would be deprived of liberty in particulars of primary importance to his or their pursuit of happiness.’ Cooley’s Const. Lim. (1st ed.) 393; People v. Otis, 90 N. Y. 48; People v. Gillson, 109 id. 398.”

In the case of Anderson & Lind Mfg. Co. v. Carpenters’ District Council, 308 Ill. 488, the court upon the question of right to contract, used these words:

“It is an absolute legal right of every person to carry on any legitimate business and to make and enforce all lawful contracts in the prosecution of such business. The complainant had a right to operate its mill and sell its product free from molestation for the purpose of injuring it or coercing it to comply with the demand that it should operate a closed shop.” See also the case of People v. Steele, 231 Ill. 340, and Adams v. Brenan, 177 Ill. 194.

The courts have always considered the question of price fixing of commodities or services, and have approved the doctrine announced by the Supreme Court of the United States in National Cotton Oil Co. v. Texas, 197 U. S. 115. There the court said: “According to them (the state and national legislature) competition and not combination, should be the law of trade. If there is evil in this it is accepted as less than that which may result from the unification of interests, and the power such unification gives.”

And again, the United States Supreme Court used these words in United States v. Trenton Potteries Co., 273 U. S. 392: “. . . for whatever difference of opinion there may be among economists as to the social and economic desirability of an unrestrained competitive system, it cannot be doubted that the Sherman law and the judicial decisions interpreting it are based upon the assumption that the public interest is best protected from the evils of monopoly and price control by the maintenance of competition. See United States v. Trans-Missouri Freight Ass’n, 166 U. S. 290; Standard Oil Co. v. United States, 221 U. S. 1; American Column & Lumber Co. v. United States, 257 U. S. 377, 400; United States v. Linseed Oil Co., 262 U. S. 371, 388; Eastern States Retail Lumber Dealers’ Ass’n v. United States, 234 U. S. 600, 614.”

In our State the Supreme Court in Distilling & Cattle Feeding Co. v. People, 156 Ill. 448, upon a like question said: “No rational purpose for such organization can be shown consistent with an intention to allow business to run in its normal channels, to give competition its legitimate operation, and to allow both production and prices to be controlled by the natural influence of supply and demand, and the results, as shown by the information, were such as might be anticipated. ’ ’

In Hall v. Woods, 325 Ill. 114, the Supreme Court said: “Whatever tends to prevent competition, and thereby restrain trade and create a monopoly, is opposed to public policy and unlawful. Grants and contracts whose tendency is to create a monopoly are void at common law. (People v. Chicago Gas Trust Co., 130 Ill. 268; Dunbar v. American Telephone & Telegraph Co., 224 Ill. 9.)”

In People v. Aachen & Munich Fire Ins. Co., 126 Ill. App. 636, this court said:

“No authority, we think, need be cited in support of the general proposition that combinations and conspiracies in restraint of trade, or to prevent fair competition, are violative of the common law as supplemented by the English statutes in force prior to, the fourth year of James the First. This much we understand counsel to concede, but their contention is, that such legislation as is now in force in this State has abrogated the common law rule with respect to combinations and conspiracies in restraint of trade, and that we must now look to this legislation alone to find the public policy of our State with respect thereto.

“This proposition has been decided adverse to counsel’s contention, by the Supreme Court, in the very recent case of C. W. & V. Coal Co. v. The People, 214 Ill. 421. It is there held that ‘the common law as to regulating and fixing* prices is in force in Illinois ’ and that ‘a combination to prevent competition . . . is a common law conspiracy. ’ ”

What was said in the case of More v. Bennett, 140 Ill. 69, is pertinent to and somewhat controlling* upon the questions appearing in this record, and in discussing the case, the court said:

“The rule of public policy here involved is closely analogous to that which declares illegal and void contracts in general restraint of trade, if it is not indeed a subordinate application of the same rule. As said by Mr. Tiedeman: ‘Following the reason for the rule which prohibits contracts in restraint of trade, we find that it is made to prohibit all contracts which in any way restrain the freedom of trade or diminish competition, or regulate the prices of commodities or services. All combinations of capitalists or of workmen for the purpose of influencing trade in their especial favor, by raising or reducing prices, are so far illegal, that agreements to combine can not be enforced by the court.’ Tiedeman on Commercial Paper, Sec. 190. Many cases may be found in which the doctrine here stated has been laid down and enforced. . . . All of the members of the association are engaged in the same business within the same territory, and the object of the association is purely and simply to silence and stifle all competition as between its members. No equitable reason for such restraint exists, the only reason put forward being, that under the influence of competition as it existed prior to the organization of the association, prices for stenographic work had been reduced too far, and the association was organized for the purpose of putting an end to all competition, at least as between those who could be induced to become members. True, the restraint is not so far-reaching as it would have been if all the stenographers in the city had joined the association, but so far as it goes, it is precisely of the same character, produces the same results, and is subject to the same legal objection.” Many cases have been called to our attention by the parties to the appeal now before us, but for this court to cite all of them would be of no particular aid, as the doctrine applicable to this case upon the question of competition is announced by the courts in the cases above set forth.

The case simmers itself down to whether the facts justify such competition as is evident from the record, and in a general way the plaintiffs do not deny that competition is necessary. The point on which they seem largely to rely is that competition in business must not be such that if used by a competitor it would tend to injure and destroy competitor’s adversary. The question then arises whether the purpose of the competition was an unlawful intent to destroy; and, of course, if that was the intent, it was malicious.

The plaintiffs, however, urge that if it is clear there was no malevolent motive in this case in the sense that defendants were motivated by sheer spite, by a desire simply to injure plaintiff with no corresponding benefits to themselves, they were simply doing what they thought was for their own self interest. The malice which was found actionable here therefore consisted in the intentional damaging of plaintiffs ’ business without just cause or excuse.

The plaintiffs do contend, however, that — “Freedom of contract is no longer a dogma but a problem. The question is not whether freedom of contract should be abolished; nor how much freedom must be allowed the individual on principle, because of his natural inalienable etc., rights; but how must and should the sphere of freedom of the individual be formulated in view of the factual conditions and the changing needs of social economic life.”

In the case of John D. Parks & Sons Co. v. Hartman, 153 Fed. 24, what was said by the court is a fitting reply to the plaintiffs’ contention in the instant case, and we cite it with approval.

“It has been suggested that we should have regard to new commercial conditions and a tendency toward a relaxation of old common-law principles which tend to prevent development on modern lines. This-is an argument better addressed to legislative bodies than to the courts. Neither is it wise for the courts to countenance the introduction of artificial distinctions dependent upon the variant economic views of individual judges. Distinctions which are specious or analogies which are but apparent will but afford opportunities to whittle away broad economic principles lying at the bottom of our public policy, principles which have long received the sanction of statesmen and the approving recognition of a long line of jurists. A like argument is expected whenever some new method of circumventing freedom of commerce comes under the tests of the law. It was made and answered by Judge Taft in the Addyston Pipe case with a strength to which we can add nothing.” Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211.

In the ease of Schechter Poultry Corp. v. United States, 55 Sup. Ct. 837, the Supreme Court of the United States added this statement to the letter of the law: “Extraordinary conditions do not create or enlarge constitutional power. . . . Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary.”

The plaintiffs make this significant statement:

“Even if, therefore, there were a combination among the plaintiffs to fix the price in the case at bar, such a combination would be entirely justifiable. Strictly speaking, however, the issues in this case do not involve the power of a combination of producers to fix the price, but the power of a court of equity to prevent a combination of cut-throat competitors from demoralizing the industry by selling below cost.”

Perhaps this statement induced the court to enjoin plaintiffs in this case by the provisions of the unusual order that was entered. This puts the plaintiffs in a position which would indicate that their bill was not properly based upon facts which would justify the relief prayed for, and that from the evidence introduced by them the order of the court was justified. The bill of complaint was filed seeking relief from the oppressive competition of the defendants, which was injuring the plaintiffs in the Cleaning and Dyeing business. Among the plaintiffs is one known as the Cleaning and Dyeing Plant Owners Association of Chicag'o, a corporation not for profit. The objective of this plaintiff, as appears from the record, was to enroll as members all who were engaged in the cleaning and dyeing business, and it is at present in control of 97 out of 104 or 105 power plants and contends that its'purpose through its membership is to control the output. From an examination of the record, it is apparent that plaintiff’s purpose was to control the price for services rendered in cleaning and dyeing articles placed in its hands by customers. This is also apparent from the testimony of a Mr. Squires, who was employed by the plaintiffs, and is the presiding officer of this corporation. When called as a witness he stated that where violations were reported to Mm of plants under contract selling services for less than the recommended price he would “undertake methods of a persuasive character looking towards getting them to abide by the recommended price.” And he further stated in his testimony that James P. Gorman was employed as labor commissioner by this plaintiff, who was also president of the Retail Cleaners & Dyers Union; that Gorman was paid a large salary and allowed a sufficient expense account, and that Gorman’s duties were to visit the industry with such assistants as he might require to see that the various plants were complying with the wages and conditions. We ask “Why?” There is no satisfactory explanation in the record, except by inference, as strikes were called, property was destroyed by the explosion of bombs and ■acid thrown to destroy garments in the defendants’ stores and other unlawful acts. Is it not strange that the membership of this plaintiff corporation was not molested? No doubt this fact impelled the court to act when it enjoined the plaintiffs.

The record does not show that the conduct of the defendants in their several businesses was for the purpose of injuring the plaintiffs by means of unfair competition; but on the contrary the evidence suggests that the plaintiffs by use of suppressive measures endeavored to create a monopoly in the cleaning and dyeing business in this immediate territory by attempting to compel the defendants to accept and sell at the prices fixed by the plaintiffs, and failing to accomplish this, means were used that led to violence and destruction of defendants’ properties. The evidence does not show, as alleged by the plaintiffs, that the defendants sought to destroy plaintiffs’ several businesses by unfair competition, nor is this claim supported by evidence of bait advertising or sweatshop practices. The court erred in entering the decree in this case.

The plaintiffs rely largely on the case of Nebbia v. People of State of New York, 291 U. S. 502. In this case Nebbia was convicted for the violation of a New York statutory provision which regulated the method of sale of milk to the general public. It is not contended by the defendants in the instant case that a statutory regulation for the control and sale of defendants’. services was violated. The public policy of this State remains the same, in that courts cannot control the price at which a merchant’s commodity that is not of general public interest, is to be sold, and the court can only interfere when the sale price is fixed so as to intentionally destroy competing business. The Nebbia case would probably be of comfort to the plaintiffs if a regulatory measure had been adopted by the Illinois Legislative body.

Considerable comment is made by the plaintiffs in citing the opinion of this court in the case of Chicago Laundry Owners Ass’n v. American Wet Wash Laundry, Inc., 276 Ill. App. 604 (Abst.). This case was heard on appeal from an order granting a temporary injunction. The question considered was, did the bill of complaint upon its face justify the restraining order entered by the court, and this court in passing upon that question held that the order was justified upon the facts charged in the sworn bill of complaint. The rule is that the case is not disposed of upon the merits, but the injunction is issued only to maintain the status quo until a final hearing is had upon the merits. Then again, in that case the defendants were members of the plaintiff association and sought to raise the question in this court that the price provided for was a violation and tended to create a monopoly, but being members of the association they were properly charged with consenting to the by-laws, and this court held that such question could not be raised on the hearing, and it was properly denied this right. It is to be noted that in the opinion of this court we stated:

“The cause was referred to a master in chancery to take evidence and report conclusions and the matter is still pending before him, and we are informed on oral argument that the taking of evidence is still in process. We are now holding only that under the circumstances there was no abuse of discretion on the part of the chancellor, who could rightly hold that the benefits derived from continuing the injunctions would be greater than those which would follow should they be dissolved.”

We have considered the case above mentioned and the other cases cited, and do not regard them as being helpful upon the questions presented upon appeal in the instant case.

The plaintiffs complain that by false and deceptive advertising in connection with the unfair methods of competition they were injured. The court may consider the facts surrounding a transaction to determine whether there was intentional injury. By reason of the fact that this court has determined in this case that the defendants were not properly chargeable with unfair competition with intent to destroy plaintiffs ’ business, it will not be necessary to comment upon the character of defendants’ advertising matter, except to say that the subject under discussion is largely controlled by the matter set up through the medium of advertising. It does not appear that the purpose of the advertising medium was to mislead the buying public and to represent that the services rendered by the defendants were like the cleaning methods used by the plaintiffs, or that the defendants’ methods were better than those of the plaintiffs. The purpose of the advertising plan was to inform the public that the defendants were furnishing cleaning services at the price named in the advertisement. From the printed matter used, the statements were not misleading, but used to put the defendants’ wares and services before the public, and such advertising does not come within the rule of “palming off” services as being a product of the plaintiffs, nor does such advertising, standing alone, as we have indicated,' afford the plaintiffs a remedy such as prayed for in their bill of complaint.

It is necessary to merely make a short comment upon the charge that the defendants operate, their respective plants by means of so-called sweatshop methods— in other words, the employees are required to work to an extent hardly endurable, and that it is wrong to operate by this severe sweatshop method.

The defendants contend, however, that the plaintiffs do not claim that the several shops are operated by the defendants in violation of the existing laws pertaining to the health, safety and comfort of the employees, nor of the factory inspection laws, at least there is no evidence in the record that the sanitary condition is bad; but rather that in order to accomplish the great amount of work required of defendants’ employees in pressing dresses and suits, sweatshop methods are employed. However, after examining such evidence we do not feel that by reason of the claimed sweatshop methods of the defendants there was a violation such as would aid a conspiracy by unfair competition to destroy the plaintiff’s business.

The claim of the defendants for damages is based upon the reversal by this court of the temporary injunction issued in the case of Cleaning & Dyeing Plant Owners Ass’n v. Sterling Cleaners & Dyers, Inc., 278 Ill. App. 70, wherein we stated our reasons for such reversal.

Defendants’ claim for assessment of damag'es was referred by the trial court to a master in chancery, and after evidence was submitted, the master filed his report, and also a supplemental report therein, recommending that the court deny any and all damages claimed by the defendants, save the amount of $1,021.27 allowed for attorneys’ fees and necessary costs and expenses incurred in the presentation of the interlocutory appeal to this court. .The trial court, however, approved the master’s original and supplemental report except as to that part of the report wherein the court allowed the representative, Robert W. McKinlay, trustee in bankruptcy of the defendant Sterling-Cleaners & Dyers, Inc., an additional sum of $750 for damages sustained by this defendant by reason of the wrongful issuance of the temporary injunction, as stated above.

From the final orders, the defendants, Peacock Cleaners & Dyers, Ltd., and Abarbanell Bros., Inc., prosecuted several appeals, which will be considered with the plaintiffs’ cross appeal from the order awarding a judgment for damages of $750 to the defendant Robert W. McKinlay, Trustee in Bankruptcy of Sterling Cleaners & Dyers, Inc.

The procedure followed is found in ch. 69, Injunctions, sec. 12, Ill. State Bar Stats. 1935, which provides :

“In all cases where an injunction is dissolved by any court of chancery in this State, the court, after dissolving such injunction, and before finally .disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain, to the party damnified by such injunction, and may award execution to collect the 'same: Provided, a failure so to assess damages shall not operate as a bar to an action upon the injunction bond. ’ ’

The court having passed upon the exceptions to the master’s report, disallowed the damages claimed by all of the defendants, except as to the claim filed by McKinlay, trustee in bankruptcy of the Sterling Cleaners and Dyers, Inc.

The amount of damages claimed by the defendant Peacock Cleaners & Dyers, Ltd., covers a wide range of from $13,703 to $20,292.82, and if, as appears from this record, the defendant is uncertain as to the amount of damages sustained by it, then evidently the trial court was not in a position to determine the amount, and this court cannot fix the amount with certainty. For us to pass upon the amount of damages appearing from the record would place upon the Appellate Court the burden of doing what the trial court should have done.

As to the claim of Abarbanell Bros., Inc., from this record we find the amount claimed is $9,254.09 for loss of gross profits during the period the temporary injunction was in force and effect. Just what is meant by gross profits is not altogether clear. If this figure is the net amount of the profits during the period, then this defendant should have suggested the fact. From an examination of the facts as they appear in the record on the trial of the case on its merits, we find this defendant has stressed the point that it was not selling its services below cost, as evidenced by its statement. From this statement this defendant had a net profit for a year’s business amounting to $12,448.29. The fact is this temporary injunction was in force during the period of 83 operating days between October 11, 1934, and January 16, 1935, and for this period of time the amount of loss of gross profits claimed was $9,254.09 which is not in keeping* with the amount of profit made by this company during the time it sold at the prices complained of. In other words, for a year’s period the profits amount to $12,448.29. Therefore the claim for damages amounting to $9,254.09 during the 83 operating days when this injunction was in force does not seem reasonable, and from the facts as they appear we are of the opinion that the court was right in approving the master’s report recommending a denial of this claim.

There is only one further question, and that is as to the amount allowed the trustee in bankruptcy of Sterling Cleaners & Dyers, Inc., et al. This defendant claims that it suffered loss to the extent of $32,266.24 during the term the temporary injunction was in force. This amount is based upon the loss of business amounting to $21,208.48. Deducting from this amount the production costs of $8,580.24, the profits lost would be about $12,261.24. Adding to this amount the loss in value of its capital stock of $20,000, makes the total loss claimed as above stated. In the alternative, however, the judgment should be at least $22,261.24. This amount is reached by adding to the loss of profits of $12,261.24, the balance of $10,000 arrived at by a proposed sale of the business for the sum of $25,000 which sale was not consummated, after the deduction of its liability of about $13,000.

It is evident from the record that this defendant’s claim for damages accruing during* the time the temporary injunction was in force is based upon the claimed loss of business profits for that period. In the service rendered by the defendant to its customers are many items which were not within the terms of the injunction order, so that when the evidence is considered the result arrived at no doubt included items that should not have been properly charged to the plaintiffs. It is important that the result reached in determining* the amount of the profits lost by the defendant should be certain and not based upon speculative value of probable profits alleged to have been lost by the acts of the plaintiffs.

Upon the question of the measure of damages in cases of this character, the Supreme Court in the case of Landis v. Wolf, 206 Ill. 392, said:

“It is claimed by appellants, that the court below erred in allowing appellee any damages for injury to his business, and loss of profits therein, while the injunction was in force. It is well settled that, in such cases, damages, which are remote, speculative and incapable of ascertainment cannot be allowed, but where, by the issuance of an injunction, a business is unavoidably suspended and thereby injured, damages may be allowed. It may not be possible to show by- demonstration the precise extent of such damages, but profits for a reasonable period next preceding the time, when the injury was inflicted, may be taken as the measure of such damages, and as the basis of an estimate thereof, leaving the other party to show that, by depression in trade or other causes, they would have been less. (Chapman v. Kirby, 49 Ill. 211; Green v. Williams, 45 id. 206; Gerard v. Gateau, 15 Ill. App. 520.) ”

The evidence of the defendants upon the question of damages is not clear, and, as indicated in this opinion, the amounts arrived at are based upon claimed losses or profits during the time the injunction was in force, and largely problematical and speculative. The defendants ’ business continued to operate during the time the temporary injunction was in force and, as this court has indicated, items of service upon which probable profits were claimed were not affected by the injunction and therefore should not have been considered in arriving at the result. The allowance of the sum of $750 to the Sterling Cleaners & Dyers, Inc., was erroneous, as under the facts and circumstances it was not allowable.

The order of the court entered on July 13, 1935, and the allowance of $750 to Robert W. McKinlay, trustee in bankruptcy, is reversed, and the order, also entered on July 13,1935, is affirmed as to the Peacock Cleaners & Dyers, Ltd., and Abarbanell Bros., Inc.

For other reasons stated in this opinion, the decree here on appeal entered on July 13, 1935, in the case of Cleaning and Dyeing Plant Owners Association of Chicago, a corporation not for profit, et al., v. Sterling-Cleaners & Dyers, Inc., et al., was not a proper one, and being erroneous is reversed.

Decrees reversed.

Hall, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Allaben

text:
    Benjamin P. Kitchell, Appellee, v. Chicago and Illinois Midland Railway Company, Appellant.
    Gen. No. 8,906.

      Opinion filed April 17, 1936.
    Rehearing denied May 27, 1936.
    Provine & Williams and Clark H. Milky, all of Taylorville, for appellant.
    J. M. Powers and Ramon A. Powers, both of Pekin, for appellee.
   Mr. Justice Allaben

delivered the opinion of the court.

On May 18,1933, Benjamin P. Kitehell was riding in a truck owned by him and driven by his son, George Kitehell on Washington street in the city of Pekin,

Illinois. Washington street was a through street and the truck was proceeding in a westerly direction. As the truck proceeded west it came upon the track of the Chicago & Illinois Midland Railway Company, which crosses Washington street at grade, and at practically a right-hand intersection. A northbound train of that railway company collided with the truck in question, and as a result thereof the truck was demolished and Benjamin P. Kitehell injured. As a result of this accident Benjamin P. Kitehell, plaintiff-appellee, brought suit against Chicago & Illinois Midland Bailway Company, defendant-appellant, in the circuit court of Tazewell county, and was awarded damages hy a jury in the sum of $3,800 and costs. It is to reverse this judgment that the defendant has prosecuted this appeal to this court.

The original declaration consisted of two counts, and later by leave of court four additional counts were filed. The case was submitted to the jury upon the first count of the original declaration, and the third additional count. The first count of the original declaration alleges that on May 18, 1933, defendant operated a railway through the city of Pekin; that in said city Washington street, a public highway, running east and west, is intersected by said railway, and that on said date plaintiff was riding in a Chevrolet truck upon said Washington street, toward said crossing, not as the driver but as a passenger, the truck being driven by George Kitchell; that while the plaintiff was riding in said truck with all due care and caution for his own safety at the time and immediately prior thereto, the defendant by its servants then and there so carelessly, improperly and negligently operated its locomotive and train of cars that by and because of said conduct the locomotive ran into and struck the truck in which plaintiff was riding, demolishing the same and severely injuring the plaintiff, both temporarily and permanently, so that he lost and will lose great gains and profits, and has been required to expend large sums of money endeavoring to be cured, and his Chevrolet truck was destroyed, to the plaintiff’s damage in the sum of $25,000.

The third additional count contains the same allegations as to the general situation of the street and the railway, and as to his riding in the truck, including an allegation that he was in the exercise of all due care, and then proceeds to charge that the defendant negligently, recldessly, and unlawfully drove its locomotive up to and across Washington street crossing, in that no bell of at least 30 pounds of weight was rung, or steam whistle sounded at a distance of at least 80 rods from said crossing and kept ringing or whistling until said crossing was reached by said locomotive, and that in consequence thereof the locomotive ran into the truck, thereby injuring the plaintiff and destroying his property.

The court directed a verdict for the defendant as to the second original count, and the first, second, and fourth additional counts of plaintiff’s declaration.

The plaintiff has assigned as cross error the ruling of the trial court in withdrawing plaintiff’s first additional count from the jury, and also in withdrawing plaintiff’s second additional count from the jury. Therefore, these two counts will be set out later in this opinion.

The plaintiff testified that he was 60 years old on the day of the accident; that on that day he was running a cream station at Gifford in Champaign county where he then lived; that he was the "owner of a 1929 Chevrolet truck with a body 10 feet long, seven and one-half feet wide, two and one-half feet deep, with a two-inch lumber floor, open body, left-hand drive; that the truck had been driven to Pekin a number of times, but that he never, prior to the accident, had been on Washington street; that neither he nor his son had driven the truck on Washington street; that previously they had always come into Pekin on Court street; that on the day in question the son, George, was driving, sitting on the left-hand side, and plaintiff was sitting* on the right-hand side; that there was a load of about 500 pounds on the truck; that the truck was not new when he bought it, that the brakes were in first class condition ; that as they were proceeding west on Washington street they first came to the I. C. tracks which were about 300 feet from the tracks where he was struck and injured; that they stopped and a flagman motioned them across, and they crossed five tracks; that he noticed a freight house on his right-hand side, and there were three more buildings on that side of the street, but that there was an opening between the freight house and the first building, and that he noticed a train to the north with smoke coming out; that after that there was no more view; that he looked both ways and could not see anything either way; that there were dwelling houses with sheds in back of them, which obscured the view; that it is 15 feet from the west house on the south side of Washington street to the nearest rail of the C. & I. M. tracks; that a fence was connected with a corner of the house, about four and a half feet high, with vertical pickets, and goes west to within five feet of the track, then turns and goes south, and that there were trees, shrubbery, brush and limbs hanging down, which would obstruct the view; that on the day of the accident the trees were leafed out; that after they crossed the I. C. tracks he remarked to his son there was a train up north; that they were going from 10 to 15 miles per hour and stopped when the front end of the truck was about 20 feet from the first C. & I. M. track, looked both ways and could not see to the south except for a small distance of the track; after looking both ways, and as he got farther west he could see the train to the north, apparently standing still, looked south and saw the passenger train coming toward them about 125 feet down the track; that at that time the front end of the truck was just on the first rail of the side track, or about between the rails of the first track and this train was coming on the next track; that the speed of the truck was 10 miles an hour; that his son immediately applied the brakes, tried to stop, and just came to a standstill when the train struck the truck; that the front wheels of the truck were right between the two rails of the second track; that the train was traveling about 45 miles an hour; that the train struck the truck with great violence and he felt something hit his back and he was rendered unconscious; that he remembers being placed in an ambulance and taken to the Pekin hospital. He then testified as to his injuries and the medical attention he had received; that as one went west on Washington street toward the C. & I. M. railway company tracks one first reached the east rail of the east track; that there followed the width of that track, the space between the first track and the second track before reaching the track where the train moved on; that the truck was being driven a very little to the right of the center of Washington street; did not hear a train whistle and does not remember any train whistle but does not say that there was not any; admits that there was on the right-hand side of Washington street, just at the curb, and east of the first track, a railroad signal light, which he did not see, and does not remember seeing at all; that a view of that signal light was obscured by a telephone pole, which was the ordinary size; that the railroad signal was a pole with a cross bar, about three feet long, at right angles, and there was a cross bar with a large light on each end; that 25 or 30 feet east of the track the road is two feet lower than the track.

George Kitehell testified for the plaintiff, and his testimony is in accordance with that of his father, the plaintiff in this case. He also states that he did not see the railway signal because there was a telephone pole there, and that there were wires on it, which were 20 feet from the ground; that the railway signal was about six to eight feet high, with a crossbar with a light on each end; that he did see the railroad crossing sign, but did not see the flashing light signal.

A number of other witnesses testified for the plaintiff, who placed the speed of the train at from 25 to 40 miles an hour. They also testified that the view to the south was obstructed by buildings, sheds and trees, so that it was not possible to look very far down the track until one was almost on the track. Some of them testified that they did not hear any whistle or any bell, while others testified as to hearing the whistle and bell. No witness for the plaintiff testified that no whistle was blown or no bell rung.

Dr. William S. Needham testified at some length as to the present condition of the plaintiff, as did also Dr. Hugh Cooper. It is sufficient to say that their evidence would indicate that the plaintiff has been permanently and rather severely injured. Plaintiff then offered in evidence as exhibit 5 general order 123 of the Illinois Commerce Commission. This offer was refused, and the refusal has been assigned as cross error in this court. In our opinion this exhibit was properly refused for the reason that it has to do with many matters not at issue in this case, and that it would tend to confuse rather than to clarify the issues.

Thereafter the plaintiff offered in evidence as exhibit 6 parts of general order 123 of the Illinois Commerce Commission, with proper certificate. The court refused to admit plaintiff’s exhibit 6 in evidence, and such refusal of the trial court was assigned as cross error by the plaintiff. This plainly was an effort to correct some of the objections to plaintiff’s exhibit 5, which was the entire order. However, we do not believe that it rendered plaintiff’s exhibit 6 admissible in the form as presented, and that the trial court committed no error in refusing to admit the same.

At the conclusion of all of plaintiff’s evidence motions were made to find the defendant not guilty as to all counts, and as to each count separately. As previously stated the court withdrew the second original count, and the first, second and fourth additional counts, and denied the motion as to the first original count, and third additional count, to which ruling the defendant excepts, and has assigned error.

For the defendant, a taxicab driver, named Roderick Lane, testified that he came on to Washington street after the plaintiff’s truck had just passed him, and that he went west behind said truck; that he heard the railroad engine whistle, saw the crossbar railway crossing sign, and the lights thereon, and that the lights were flashing; that the truck was going 25 to 30 miles per hour and it did not stop at any time before it reached the C. & I. M. tracks. In addition to this testimony there were a number of witnesses who testified for the defendant that they heard the whistle and bell. Without going into their testimony in detail, three witnesses testified that they heard the whistle and bell, four more testified that they heard the whistle, and one that he heard the whistle and saw the red flasher working. No witness testified that the whistle was not blown, or that the bell did not ring, or that the flasher lights were not in operation. The testimony as to that, on behalf of the plaintiff, was all negative; that is, that the witness did not hear the whistle or did not hear the bell, or did not see the flasher light, but as before mentioned no one said that the bell did not ring or that the whistle was not blown, or that the flasher lights were not operating.

The plaintiff and,his son tried to explain away the fact that they did not see the cross-buck sign or the flasher, although they admit the signs were there, by saying that a telephone pole and the wires were in the way. This explanation is not satisfactory in any way. The truck was being driven just north of the middle of the street, the cross-buck sign with the flasher lights was just at the north curb and a short distance from the east rail of the east track. The post mentioned was near the curb and across a paved alley to the east of the sign some 10 or 12 feet. The wires which were supported by this post were 20 feet or more above the ground. Both plaintiff and the driver of the truck testified that the truck was stopped about 20 feet east of the east rail of the east track. This would be approximately even with the post heretofore mentioned. Considering all the above it is very clear there was no obstruction which would prevent the plaintiff and the driver of the truck from seeing the cross-buck sign and the flashing lights when they brought the truck to a stop, if not for a considerable distance east of the point where they brought the truck to a stop. “It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger.” (Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627.) Certainly that includes looking for danger signs established by the railroad for the protection of those going upon its tracks just as much as it applies to looking up and down the track before entering upon the same to see if any train is coming.

Plaintiff seeks to find an excuse for his action because this was the first time he had ever traveled upon Washington street, and that he had always traveled on Court street, and that on Court street the Illinois Central and the defendant use the same tracks. We fail to follow the reasoning because if the plaintiff did not know the situation on this new road it was his duty to use all the more care not to put himself in a position of danger, and we fail to see that the fact that the same tracks were used at one intersection would justify the assumption that they were used at all other intersections, so that it could be said that the plaintiff having been flagged-across the I. C. tracks could assume that the act of the flagman would justify the belief that the other tracks, 275 to 300 feet farther west, were clear, and that he could assume that the flagman was assuring them that there would be nothing on these tracks of another railroad. From an analysis of the above testimony it seems clear to us that taking the most favorable viewpoint of the testimony on behalf of the plaintiff, the plaintiff failed to show that he was in the exercise of due care and caution for his own safety at the time and place of the accident, and that the trial court should have directed a verdict for the defendant on the first original count and the third additional count, at the close of plaintiff’s testimony.

Inasmuch as the plaintiff has filed cross error on the ruling of the trial court in withdrawing plaintiff’s first additional count, and plaintiff’s second additional count from the jury if this court finds that the judgment of the trial court should be reversed it will be necessary to set out these two counts. The first additional count charges that the defendant wilfully, wantonly and with gross and reckless disregard for the safety of the life and limb of plaintiff, operated and drove said locomotive across said Washington street crossing, and because of said wilful, wanton and gross misconduct of the defendant, said locomotive struck the truck in which plaintiff was riding, with the consequent injury. It further charges the defendant with having failed to drive said train across said Washington street at the time of the accident with caution and with said train under control in accordance with Illinois Commerce Commission order 123, and charges further that it drove its train over said crossing at the speed of 45 miles per hour in utter disregard and violation of said general order 123. We are of the opinion that the court properly withdrew this count from the consideration of the jury. The evidence shows that the train was operated at from 25 to 45 miles an hour over this grade crossing within the limits of the city of Pekin. This does not constitute wilful and wanton misconduct. In the case of Provenzano v. Illinois Cent. R. Co., 357 Ill. 192, Mr. Justice Shaw in commenting on what constitutes wilful and wanton misconduct in the operation of a train said: “In order to constitute wilful and wanton misconduct the injury must either have been intentionally inflicted, or produced by acts so grossly negligent as to exhibit a reckless disregard for the safety of others. (Brown v. Illinois Terminal Co., 319 Ill. 326.) The only evidence for the plaintiff tending to show negligence on the part of the defendant was to the effect that some of the witnesses did not hear a bell or whistle, and evidence tending to. show that the speed of the train was something between 45 and 60 miles per hour. The testimony of the witnesses to the effect that they heard no bell or whistle was merely negative in its character and did not tend to raise an issue of fact as to whether or not the whistle was blown or the bell rung. (Morgan v. New York Central Railroad Co., 327 Ill. 339.) However, even if it be taken as true that no bell was rung or whistle sounded, it would be nothing more than an act of negligence. The same is true as to the speed at which the train was running, even if it be assumed at the highest estimate of 60 miles per hour. The public interest requires, and the law permits, that passenger trains may be operated at such speed as may be consistent with a due regard for the safety of the passengers and those persons who are, in the exercise of due care for their own safety, traveling on the highways over and across the railroad tracks. (Chicago & Northwestern Railroad Co. v. Dunleavy, 129 Ill. 132; Partlow v. Illinois Central Railroad Co., 150 Ill. 321.) There being no evidence showing or tending to show that the defendant wilfully or intentionally injured the plaintiff and no evidence of any circumstance exhibiting a reckless disregard for his safety, there should have been a directed verdict as to the third count of the declaration.”

It is, therefore, our opinion that the trial court properly withdrew this count from the consideration of the jury.

The second additional count charges the railway company with negligence in that it operated its engine within the city of Pekin at 45 miles per hour which it is alleged was careless, reckless, negligent and unlawful conduct, and' in violation of general order 123 of the Illinois Commerce Commission. This count is a restatement of the first additional count, without the charges of wanton and wilful misconduct. Inasmuch as we have previously determined from the evidence that the plaintiff’s proof did not show that he was exercising due care and caution for his own safety at the time and place in question we believe no further comment is necessary in deciding that the trial court properly withdrew this count from the consideration of the jury.

What we have said previously in regard to the refusal of the trial court to admit in evidence plaintiff’s exhibits 5 and 6 has already disposed of that contention. We believe this disposes of all the contentions raised by either party, and that this judgment must be reversed for the reason that the evidence at the close of plaintiff’s case disclosed that the plaintiff failed to exercise due care and caution for his own safety at the time and place of the accident.

Judgment reversed.


author: Mr. Presiding Justice

text:
    H. O. Carlton et al., Trading as The American Laundry of West Frankfort, Appellants, v. George W. Smith, Appellee.

      Opinion filed May 8, 1936.
    Frank E. Trobaugh, of West Frankfort, and Fred Gr. Bierer, of Murpliysboro, for appellants; Stephen E. Brondos, of West Frankfort, of counsel.
    Isaac K. Levy, of Murphysboro, and Loyd M. Bradley, of Garbondale, for appellee.
   Mr. Presiding Justice

Edwards delivered the opinion of the court.

On July 25, 1928, appellants brought suit in the circuit court of Jackson county to recover from appellee damages claimed to be resultant from a failure of the-latter to perform a contract entered into between said parties for the sale of a laundry business in the city of West Frankfort. A demurrer to the declaration being sustained, appellants took leave to file additional counts thereto, which same was done, and such counts designated as five to eleven inclusive. Appellee demurred to the additional counts and the court held with him. Appellants refused to plead further and judgment was entered against them in bar of the action and for costs, from which judgment this appeal has been perfected.

The clause of the contract of sale, which forms the basis of this suit, and upon which each count is based, reads: “Parties hereto agree that this agreement is subject to the procurement of a satisfactory lease between second party and owner of building wherein business is now located.” Appellee being the one designated as “second party.”

Counts six, eight and nine, after reciting such clause, further aver that at the time and prior to the execution of the written contract, the parties thereto verbally agreed with each other that if the appellee could secure from the owner of the building in which the business was being conducted, a lease, such as was in effect between the owner and appellants, that he (the appellee) would be satisfied therewith. Appellee contends that to permit such to be pleaded and proven would be to vary the terms of the written agreement.

It will be observed that the terms of the clause in question are unambiguous, clear and easy of understanding. Where such is true, the primary rule that all antecedent negotiations are merged into the written agreement, as the final repository of the intentions and understandings of the parties, is controlling, and the contract may not be varied or explained by showing a contrary parol agreement. Schweickhardt v. Chessen, 329 Ill. 637; Robinson v. Yetter, 238 Ill. 320. We think the demurrer to these counts was properly sustained.

Count number ten sets out the written contract, including said clause, but does not aver a compliance therewith, that appellee either procured such a lease as was satisfactory to him, or that he wilfully and purposely refused to do so. We think such a -condition precedent to appellants’ right.of recovery, and that same should have been so alleged.

The rule of law is that where a right of action depends upon the performance of an antecedent condition, the pleader must aver that such has been met, or a legal excuse for its nonfulfillment. Meyers v. Phillips, 72 Ill. 460; Mumaw v. Western & Southern Life Ins. Co., 97 Ohio St. 1, 119 N. E. 132; 13 Corpus Juris, p. 724, sec. 847. The count failed to allege this necessary element, hence was obnoxious to the demurrer.

In counts five and seven it was charged that the owner of the building tendered to appellee a lease, which was satisfactory to the latter, but that appellee, however, capriciously and to avoid the terms of the contract, and to evade his obligations thereunder, refused to accept such lease. It is the position of appellee that the averment is merely the statement of a conclusion, and that facts should be pleaded from which such inference might be drawn.

Whether a lease, satisfactory to appellee, was in fact tendered to him by the owner of the building, was an ultimate fact, the existence of which was essential to appellants’ right of recovery. The rule appears to be that it is competent for the pleader to allege ultimate facts, notwithstanding that they to an extent represent conclusions. Crane v. Schaefer, 140 Ill. App. 647; Curtiss v. Livingston, 36 Minn. 380, 31 N. W. 357; California Packing Corp. v. Kelly Storage & Distributing Co., 228 N. Y. 49, 126 N. E. 269; Western Travelers’ Accident Ass’n v. Munson, 73 Neb. 858, 103 N. W..688; Rudd v. Rudd, 223 Mo. App. 472, 13 S. W. (2d) 1082.

The averment of such ultimate fact is necessarily a conclusion drawn from intermediate and evidential facts, and we are of opinion that appellants could not differently have charged the fact unless they had pleaded the. evidential matters from which the deduction was made, which would have been repugnant to the fundamental rule that evidence should not be pleaded. Zimmerman v. Willard, 114 Ill. 364. We do not think the objection thus argued is tenable, and are of opinion that the demurrer to these counts should have been overruled.

The eleventh count charged that appellee, notwithstanding his contract obligation so to do, did not endeavor or attempt in any way to obtain from the owner of the building in which the laundry was then located a satisfactory lease therefor.

The enforcement of the contract was by its terms dependent upon “the procurement of a satisfactory lease between second party and owner of the building wherein business is now located.” This clearly contemplated that there should be some effort on the part of appellee to procure from the landlord a lease which was satisfactory to him. If he could, without good reason, refrain from doing so, then the agreement, at his whim, could be rendered nug’atory and the execution of the contract an idle and meaningless ceremony. We cannot ascribe to the parties, as evidenced by the language of the contract, such an intent; on the contrary, it is our conclusion that they purposed that appellee should, in good faith, attempt to secure from the landlord a lease which was. satisfactory to him, and failing in the endeavor, should be excused from the performance.of his contract.

The count charges that appellee did not attempt to secure such a lease, and if he, without good reason, did not, it amounted to a failure on his part to perform the obligations of the contract. We think the count is sufficient and that the court erred in sustaining the demurrer thereto.

The judgment is reversed and the cause is remanded, with directions to overrule the demurrer to the fifth, seventh and eleventh additional counts of the declaration.

Reversed and remanded with directions.


author: Mr. Presiding Justice Edwards

text:
    Alice E. Kirkham and John E. Crockett, Appellees, v. B. A. Harris, Appellant.

      Opinion filed May 8, 1936.
    Rehearing denied May 26, 1936.
    Asa J. Wilboürn, of Cairo, for appellant.
    George E. Martin, of Monnd City, and D. B. Reid, of Cairo, for appellees.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

In 1932 appellant instituted an action to foreclose a mortgage securing a note for $2,500, executed by appellee Alice E. Kirkham and others; said appellee entered her written appearance in the cause, was ruled to answer, and called and defaulted for failure to comply with the rule. A decree pro confesso was entered, which, among other matters, recited: “The court further finds from the .evidence that the said promissory note and mortgage deed have been duly assigned and transferred to the complainant, B. A. Harris, for a valuable consideration, and that the same is now held and owned by the complainant, and that he is entitled to all of the benefits thereof and of the said mortgage deed.” A sale was had of the mortgaged premises under the decree. Appellant became the purchaser and received the master’s certificate of purchase therefor, and afterward sold to appellee, John E. Crockett, an undivided one-half interest in the certificate.

Before the expiration of the period of redemption, appellees instituted the present suit, alleging that on September 26, 1932, appellee, Alice E. Kirkham, being the owner of the nóte and mortgage, assigned and delivered same to appellant to indemnify him as a surety upon the bond of W. B. Kirkham, treasurer of the Olive Branch Drainage District; that the foreclosure suit above referred to was begun at the instance and request of said appellee, for her benefit and to further her interests, and that she paid the cost and expense thereof; that the certificate of purchase was, at her request, delivered to appellant for her use, and that she has requested the latter to assign and deliver to her the undivided one-half interest therein, not assigned to appellee Crockett, but that appellant refuses so to do. It further avers that the treasurer of said drainage district had fully discharged his obligations as such, and accounted for all funds in his custody as such treasurer; that appellant, in consequence thereof, was not in anywise damaged, and that thereby the consideration for which the note and mortgage were assigned to appellant was fully released and discharged. The prayer was that appellant be decreed to assign and deliver to said Alice E. Kirkham the remaining one-half interest in such certificate of purchase, not heretofore sold and assigned to Crockett, and that the master in chancery be restrained from executing or delivering any deed of conveyance, based upon such certificate, until the court should decree in the premises.

Various defenses were set up in the answer of appellant, the principal of which, and the one urged upon this appeal, being that the matters sought to be litigated in the pending proceeding were adjudicated and finally concluded in the foreclosure suit; that the decree therein entered has never been appealed from, set aside or otherwise vacated, and that same is in full force and effect. Upon a hearing the court found for the appellees and entered decree granting the relief prayed for in the complaint; to reverse which this appeal has been perfected.

As to when a plaintiff is concluded by the judgment or decree entered in a former suit between the parties, in which he was a defendant, the rule appears to be that the doctrine of former adjudication is not limited to those things which were actually pleaded as defenses, but also as to all those which were properly involved in the subject matter of the suit, and which might have been set up, litigated and determined in such suit; in which event the defendant cannot use such defenses upon which to ground a subsequent action against the former plaintiff. People v. Wade, 351 Ill. 484; Springer v. Darlington, 198 Ill. 121; Ralls County Court v. United States, 105 U. S. 733; Paulson v. Oregon Surety & Casualty Co., 70 Ore. 175, 138 Pac. 838; Mally v. Mally, 52 Iowa 654, 3 N. W. 670; Schwan v. Kelly, 173 Pa. St. 65, 33 Atl. 1107; Drewyour v. Merrill, 112 Mich. 681, 71 N. W. 486; Teel v. Miles, 51 Neb. 542, 71 N. W. 296.

In Bacon v. Reichelt, 272 Ill. 90, the court declared the rule to be: “It was the duty of the appellant to set up in that proceeding his interest in the premises, and the decree in that case is conclusive upon Mm, not only as to the issues which were actually made and determined in the case, but also as to every matter which was properly involved and which mig’ht have been raised and determined. A prior adjudication between the same parties is conclusive upon them, not only as to the matters actually determined, but as to every other thing within the knowledge of the parties which might have been set up as a ground for relief or defense.”

The question in Hamilton v. Quimby, 46 Ill. 90, was whether a contention there made had been decided in a previous suit between the parties, and the court said: “The question seems to have been litigated and judicially determined in the decree, under the bill for an injunction. The court then found the note to have been legal and binding, and it must be regarded as res adjudicata. When he filed his first bill, he must have known of this fraud, if it existed, and he should then have relied upon it, as it would undeniably have constituted a good defense, if it were true. A party cannot litigate and try a cause by parts, in different proceedings; he must bring his whole case before the court, and have it disposed of in one. proceeding.”

Dyer v. Hopkins, 112 Ill. 168, was analogous to the instant case. There, in a foreclosure suit, an adult defendant, duly served with process, made no defense, but permitted the cause to go to decree and sale, and without redeeming therefrom. Some years later, in a proceeding by thé heirs of such party, who was then deceased, seeking to set aside such foreclosure sale as having been obtained by fraud, the court said: “The complainants have had their day in court, and having neglected to interpose their defense against the mortgage then, they cannot now be allowed to urge the same matters as grounds for affirmative relief.”

The complaint states that the matters now claimed as ground for action, existed at the time of the foreclosure suit, and were known to appellee, Alice E. Kirkham, who was the mover and procurer of the case.

The complaint, in the foreclosure proceeding, averred that appellant was the owner of the note and mortgage. This was a material allegation and necessary to be proved. Alice E. Kirkham entered her written appearance in the cause, and was charged with knowledge of what was alleged in the complaint. If the matters for which she now contends had been pleaded in such suit, it would have been an effectual and complete defense to the action. Within the rule of the cases cited it was her duty to have set up such defense, and having failed to do so she cannot use same as the basis of an independent subsequent proceeding against the complainant in the foreclosure suit.

The decree in the foreclosure suit specifically found that appellant was the owner of the note and mortgage. The adjudication has never been set aside or reversed, but remains and still is in full effect. No fraud in procuring the decree is alleged, nor is any mistake of fact in its entry charged; hence the inference is that it was regularly entered in full accord with legal forms. The fact that Alice E. Kirkham failed to interpose a defense thereto, when she was a party to the suit and with full knowledge of the facts, liars her from now attempting to litigate the questions which were germane to and could have been tried and determined in the former suit. As was said in Dyer v. Hopkins, supra: ‘‘ Complainants have had their day in court, and having neglected to interpose their defense against the mortgage then, they cannot now be allowed to urge the same matters as grounds for affirmative relief.”

Nor does the fact that the decree in foreclosure was based upon a default, alter the rule. Judgments by default have the same validity and force as those rendered upon a trial of the issues. Dyer v. Hopkins, supra; Walden Nat. Bank v. Birch, 130 N. Y. 221, 29 N. E. 127; Jacobson v. Miller, 41 Mich. 90, 1 N. W. 1013; Watson v. McHenry, 107 Md. 245, 68 Atl. 606.

The matters averred in the complaint, as ground for relief, were concluded by the decree in the foreclosure suit, and as such were res adjudicata.

The decree is reversed, and the cause remanded with directions to dismiss the complaint for want of equity.

Reversed and remanded with directions.