text:
    Anna Jones, Appellee, v. Walgreen Company, Appellant.
    Gen. No. 35,398.

      Heard in the second division of this court for the first district at the October term, 1931.
    Opinion filed February 23, 1932.

      Church, Haft, Robertson, Crowe & Spence, for appellant; Burt A. Crowe and Egbert Robertson, of counsel.
    Royal W. Irwin, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Anna Jones, plaintiff, sued Walgreen Company, a corporation, in case. There was a trial before the court, with a jury, and a verdict returned finding the defendant guilty and assessing the plaintiff’s damages at the sum of $20,000. Judgment was entered on the verdict and the defendant has appealed.

The declaration alleges that on July 13, 1929, the defendant was engaged in the manufacture, sale and distribution of drugs, and maintained divers drug stores wherein it sold to the public divers drugs, and employed in and about the operation, management, sale and distribution of the drugs in said drug stores divers druggists and pharmacists; that on the day aforesaid “the plaintiff presented to the defendant a certain prescription of a duly registered and licensed physician and surgeon of Cook County, Illinois, for certain drugs to be then and there taken by the plaintiff internally for the purpose of curing a certain malady, and the plaintiff requested the defendant by means of such prescription, to sell, furnish and compound. the drugs, medicines prescribed thereby, but that the defendant did then and there carelessly, negligently and unlawfully substitute or cause to be substituted therefor, without notification to the plaintiff, other drugs, medicines, chemicals and pharmaceutical preparations; that thereafter the plaintiff did, in the exercise of ordinary care for her own safety, without notice of said substitution, take and consume internally said drugs, medicines, chemicals and pharmaceutical preparations so substituted by the defendant, and by reason thereof, the plaintiff then and there became and has so remained from thence hitherto, sick . . .; all of which injuries plaintiff says are permanent and lasting,” to the damage of the plaintiff in the sum of $25,000. The defendant filed a plea of the general issue.

On July 13, 1929, the plaintiff was suffering from a dull pain in her arm and the family physician, Dr. Markiewicz, was called. He diagnosed her ailment as muscular rheumatism and gave her a prescription, which read, “Strontium Salicylate four ounces (Wyatt), teaspoonful in water four times a day,” signed “S. Markiewicz Registry No. 6379.” The plaintiff’s son-in-law left the prescription with a clerk in the defendant’s drug store about noon and was told to call later for the medicine. During the afternoon he called for the medicine and was again told to call later. About 7 p. m. he called at the drug store and was given a bottle containing a drug in powder form.. It is agreed that the prescription was filled with pure strontium salicylate prepared by Parlce-Davis & Company. The plaintiff took a dose of the medicine about 7 p. m. and in less than half an hour she become very sleepy and went to bed. She felt extremely tired and had a buzzing in her ears. During the course of the night her son administered to her three additional doses of the medicine. Her drowsiness and sleepiness increased, her breathing became slow and labored and her pulse slow. She could not be aroused and seemed to be in a state of coma. When Dr. Markiewicz saw her the following morning she was cold and clammy and in a state of coma. Her respiration was depressed. Dr. Markiewicz prescribed hot coffee, hot lemonade and frequent drinks of water, for the purpose of eliminating the drug. The plaintiff, according to testimony offered in her behalf, appears to have been unconscious for about two days. She testified that when she finally became conscious she could neither-see nor hear; that. the pressure in her head was terrible and she had great difficulty in breathing; that she felt like “stretching” her “body to pieces just for one good breath.”. She had a severe pain across her back. There was a buzzing noise in her ears. She had violent fits of nausea and vomiting, which continued for a considerable time. A severe diarrhea ensued. For a period of 36 hours after taking the drug there was a complete suppression of urine.

Testimony for the plaintiff shows that strontium salicylate “is a combination formed by combining strontium with salicylic acid. Strontium is a metal, we call it a metal, very much like calcium.....It belongs in the same family chemically and is used much in the same way that lime is used in medicine, especially as a salicylate, carbonate, and so on. . . . Salicylic acid is an acid found in some plants. . . . They also can prepare it from coal tar products. It is used especially in the treatment of rheumatism,” and when given in reasonable doses it is not dangerous. Physicians prescribe 60 grains a day, “even sometimes 100.” Over 60 grains a day is a large dose. “Anything over 100 grains is dangerous, likely to . . . cause vomiting, produce sweating, ringing in the ears, disturbance of vision, maybe collapse, nephritis, even death. . . . Pure salicylate is used as a corn cure, directly applied to corns.” It cures a corn by eating away the tissue and softening it. A large does in the stomach produces the same effect. “By irritating the stomach it causes vomiting; going into the intestines it causes diarrhea in the same way by irritation.” It is absorbed into the blood and into the nervous system. “It causes ringing in the ears, disturbance of vision, also dilates the blood vessels so that you get the blood vessels of the ears and eyes dilated. Sweating is caused because it injures the heart, drops blood pressure, and in that way a combination of the whole can produce death with excessive doses.” It depresses the nervous system. It is excreted mainly by the kidneys and when it is passing through them in large doses it irritates them and causes suppression of the urine, “and may cause nephritis, that is inflammation of the kidney.” It causes the kidneys to swell and may permanently injure them. Plaintiff’s proof also shows that the plaintiff, after she had taken four heaping teaspoonfuls of the prescription, had received into her system, within 16 hours, 720 grains of the pure strontium salicylate. There are certain “pharmaceutical manufacturing companies” in the United States which are well known to all pharmacists. John Wyeth & Brother, Parke-Davis & Company, Merck, Squibb and Lilly are in this class. It is undisputed that John Wyeth & Brother do not manufacture pure strontium salicylate and that ParTce-Davis $ Company is the only company that manufactures it. John Wyeth & Brother manufacture an effervescent strontium salicylate compound, which contains, in a heaping teaspoonful, 5 grains strontium salicylate, 5 grains ammonium strontium salicylate, 2 grains lithium bitartrate, and the rest effervescent alkalines. The Wyeth compound is composed of 10 per cent of strontium salicylate “and the rest is something filled in,” and it is so harmless that it may be sold over the counter, without a prescription. A teaspoonful of the pure strontium salicylate is 10 or 12 times as powerful as a teaspoonful of the Wyeth preparation. Dr. McGruigan, a witness for the plaintiff, testified that “an overdose of strontium salicylate will poison very frequently”; that he had “seen lots of cases of salicylate poisoning in the hospitals.” Dr. Markiewicz, a witness for the plaintiff,.testified that strontium salicylate “is very seldom used on account of its toxicity. The effect it has upon the organs of the body.”

In Tremblay v. Kimball, 107 Me. 53, 77 Atl. 405, the Supreme Court of Maine said (pp. 407-8):

“Finally, in applying his knowledge and exercising care and diligence, the druggist is bound to give his patrons the benefit of his best judgment;-for even in pharmacy there is a class of cases in which judgment and discretion must or may be exercised. The druggist is not necessarily responsible for the results of an error of judgment which is reconcilable and consistent with the exercise of ordinary skill and care. He does not absolutely guarantee that no error shall ever be committed in the discharge of his duties. It is conceivable that there might be an error or mistake on the part of a qualified druggist which would not be held actionable negligence. Patten v. Wiggin, 51 Me. 596, 81 Am. Dec. 593; Leighton v. Sargent, 27 N. H. 460, 59 Am. Dec. 388; Small v. Howard, 128 Mass. 131, 35 Am. Rep. 363. As to druggists, see Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298; McDonald v. Snelling, 14 Allen (Mass.) 290, 92 Am. Dec. 768; Brown v. Marshall, 47 Mich. 576, 11 N. W. 392, 41 Am. Rep. 728.
“But while, as has been seen, the legal measure of the duty of druggists towards their patrons, as in all other relations of life, is properly expressed by the phrase ‘ordinary care,’ yet it must not be forgotten that it is ‘ordinary care’ with reference to that special and peculiar business. In determining what degree of prudence, vigilance, and thoughtfulness will fill the requirements of ‘ordinary care’ in compounding medicines and filling prescriptions,,it is necessary to consider the poisonous character of so many of the drug's with which the apothecary deals, and the grave and’ fatal consequence which may follow the want of due care. In such a case ‘ordinary care’ calls for a degree of vigilance and prudence commensuraté with the dangers involved. The general customer ordinarily has no definite knowledge concerning the numerous medicines and poisons specified in the ‘U. S. Dispensatory and Pharmacopoeia, ’ which registered apothecaries are by our statutes expressly allowed to keep, but must rely implicitly upon the druggist who holds himself out as one having the peculiar learning and skill and conceptions of legal duty necessary to a safe and proper discharge of that duty. ‘Ordinary care’ with reference to the business of a druggist must therefore be held to signify the highest practicable degree of prudence, thoughtfulness, and vigilance and the most exact and reliable safeguards consistent with the reasonable conduct of the business in order that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine. As observed by Judge Cooley in Brown v. Marshall, 47 Mich. 576, 11 N. W. 392, 41 Am. Rep. 728: ‘The case, it must be conceded, is one in which a very high degree of care may justly be required. People trust not merely their health, but their lives, to the knowledge, care, and prudence of druggists, and in many cases a slight want of care is liable to prove fatal to some one. It is therefore proper and reasonable that the care required shall be proportioned to the danger involved. ’ Maxfield v. Railroad Co., 100 Me. 80, 60 Atl. 710, and cases cited. Raymond v. Railroad Co., 100 Me. 531, 62 Atl. 602, 3 L. R. A. (N. S.) 94.” (Italics ours.)

In 29 L. R. A. (N. S.) 900, in the note to the above case, it is said:

“There is no conflict of authority as to the duty required of a druggist in his dealings with his customers. All the decisions support the principle enunciated in Tremblay v. Kimball, that while the law requires of a druggist only reasonable and ordinary care in compounding prescriptions, in selling medicines, and in performing the other duties of his profession, such care with reference to him means the highest degree of prudence, thoughtfulness, and diligence, and is proportioned to the danger involved; and that a breach of such duty would be negligence rendering him liable for injuries resulting therefrom.” (Italics ours.)

In support of this statement many cases are cited. (See also Tombari v. Connors, 85 Conn. 231, 234-6; McGahey v. Albritton, 214 Ala. 279, 107 So. 751; Brown v. Marshall, 47 Mich. 576, 583 (opinion by Cooley, J.); Martin v. Manning, 207 Ala. 360, 92 So. 659, 660; Faulkner v. Birch, 120 Ill. App. 281, 284-5.)

Cahill’s Ill. Rev. St. ch. 91, U 65, provides, inter alia:

“Nor shall any druggist or other person being requested by means of prescription, or in any manner, to sell, furnish or compound any drug, medicine, chemical or pharmaceutical preparation, substitute or cause to be substituted therefor, without notification to the purchaser, any other drug, medicine, chemical or pharmaceutical preparation.
“Any person violating any provision of this section upon conviction shall be liable to all the costs of the action and all the expenses incurred by the State Board of Pharmacy in connection therewith, and for the first offense shall be fined not less than ten dollars nor more than one hundred dollars, and for each subsequent offense shall be fined not less than seventy-five dollars nor more than one hundred and fifty dollars.”

Maurice Zaritsky, a clerk for the defendant, who filled the prescription on July 13, 1929, was then about 22 years of age. He had graduated in pharmacy the previous month. He was not registered and licensed as a regular pharmacist until September, 1929. The following appears from his testimony: “That prior to July 13,1929, he had passed the State Board examination for the position of assistant registered pharmacist; that he was familiar with the principal pharmaceutical manufacturers, including Parke-Davis & Company and John Wyeth & Brother; that doctors sometimes indicated on their prescriptions P-D for ParkeDavis & Company, and Wyeth for John Wyeth & Brother; that he knew that Wyeth did not make strontium salicylate,; that the defendant had in stock strontium salicylate made by Parke-Davis & Company, and also effervescent strontium salicylate made by John Wyeth & Brother; that when he received the prescription to fill he “dispensed four ounces of strontium salicylate” from the “stock bottle probably ParkeDavis & Company’s”; that before he filled the prescription he saw on it the word “Wyatt” but “it didn’t mean very much to me, it seemed to indicate the doctor had in mind a brand of strontium salicylate”; that he looked in the “red book” to see if there was a manufacturer by the name of Wyatt but did not find one; that there is no manufacturer with a name that sounds like Wyatt; that Wyatt sounds lilte Wyeth “if you slur it”; that “when you get a prescription and you don’t know what it means’ ’ you call up the doctor; that he did not examine the catalogue of Wyeth & Brother; that he knew that Wyeth made an effervescent strontium salicylate compound and that “Wyeth doesn’t make strontium salicylate.” The manager of the defendant’s store testified that it is the custom and practice in the drug trade and of registered pharmacists to give the drug of the pharmaceutical house called for; that physicians use the names “Parke-Davis, Wyeth, Squibb,” “right often,” and that when Dr. Markiewicz spoke to him about the prescription on July 14 it “flopped” into his mind that the word Wyatt on the prescription meant John Wyeth & Brother; that doctors sometimes think that the product of a certain manufacturer is better than the product of another and that “one manufacturer may use one preparation and another one another including different ingredients,” and that “for that reason they very often specify some particular pharmaceutical manufacturer” and that it is the duty of the druggist to follow the prescription in that regard. Emanuel A. Novak, pharmacist, a witness for the defendant, testified that he was familiar with the drug known as strontium salicylate and alsq with the drug manufactured by John Wyeth & Brother called effervescent strontium salicylate. When crossrexamined as to what he would understand the word “Wyatt” on a prescription to mean, he answered, “Well, I would say probably it would mean John Wyeth & Bro. or Sons.” The witness was further cross-examined as follows: “Q. If you were filling this prescription wouldn’t you find out? A. Surely. Q. You would find out? A. Yes. Q. And if you found that this effervescent strontium salicylate was the only one made by Wyeth and this prescription contains strontium salicylate Wyatt there might be a question in your mind as to whether this was called for or something else? A. Well, there is a question in every prescription. Q. There is a question in every prescription? A. Yes. Q. Why is there a question in every prescription? A. Sometimes it isn’t definitely written or definitely prescribed. . . . Q. When you can’t read a prescription correctly you take chances and consult the pharmacopoeia to see? A. If we can’t read it correctly we call the doctor. . . . Q .Is there a strontium salicylate Wyatt? A. No. Q. There is not. Then it couldn’t he filled according to the prescription? A. The manufacturer doesn’t— Q. It could not he filled according to the prescription? A. Say so, if you want to. .. . Q. This calls for strontium salicylate manufactured by Wyatt. A. There isn’t such a manufacturer according to the spelling of the prescription there. ... A. There isn’t such a manufacturer as Wyatt. . . . Q. If you received this prescription over the desk in your drug store you would know what was meant by that, wouldn’t you? A. Not necessarily.” Frank Hassett, pharmacist, a witness for the defendant, testified, on direct, that it was the custom and usage in the trade of a registered pharmacist “in regard to prescriptions ... to fill them as they are written”; that the word “Wyatt” on the prescription in question “would mean that the doctor ivas trying to specify a certain brand of make.” Upon cross-examination the following occurred: “Q. Suppose that prescription came to you, what would you take the word (Wyatt) to mean? A. Probably meant Wyeth. Q. Wyeth $ Bro.f A. Wyeth <& Bro. Q. Pharmaceutical manufacturers, are they? A. Yes, sir. Q. That is what you would take it for, wouldn’t you? A. Yes, sir.” This witness further testified that he knew that John Wyeth & Brother did not make strontium salicylate; that he would not sell a patient anything the doctor did not prescribe; that when a doctor made a mistake in the prescription he called him up and asked him about the prescription; that it is the duty of a pharmacist to fill a prescription exactly as called for; that when a doctor prescribes Wyeth, Parke-Davis or any other proprietary pharmaceutical manufacturer’s preparation it is the duty of the pharmacist to follow the prescription; that the doctor evidently made a mistake in the prescription. “Q. Have you a right when a doctor prescribes a particular kind of drug, when you find the doctor has made a mistake, to substitute something else in place of that? A. No.” George W. Funck, physician, a witness for the defendant, testified that the name “Wyatt” on the prescription indicated to him that the physician referred to some particular manufacturer of strontium salicylate; that Wyeth’s effervescent strontium salicylate is only one-tenth as strong as pure strontium salicylate; that when, on a prescription, the name of a pharmaceutical manufacturing company appears, “it means that the prescriber has a preference for that particular make, he designates that make, that manufacture”; that when a doctor has prescribed an overdose it is the duty of the pharmacist to refuse to fill the prescription. A. C. Tenney, a physician, a witness for the defendant, admitted that when he prescribed a drug made by a certain pharmaceutical company he wanted that drug. “I don’t call for anything else than that. That is the reason for taking your prescription. If I call for Parke-Davis I don’t want Lilly.”

The defendant contends that “the legal duty of a druggist to a purchaser can go no further than to dispense the identical substance which his prescription calls for.” No authority is cited by the defendant in support of this contention. In its brief it states: “We have searched the books and have been unable to find a case similar to the one at bar. ’ ’ The instant contention is primarily based upon the assumption that a pharmacist is obliged to fill any and all prescriptions. Such is not the law. As a chemist he may know that the physician has erred in his prescription and that to fill it might cause death or serious injury to the patient. The argument interposed, briefly stated, is this, that the proof shows that there was no such pharmaceutical manufacturer as Wyatt and that therefore Zaritsky, who filled the prescription, had the right to disregard the word Wyatt and to fill the prescription with pure strontium salicylate. It would be a sufficient answer to this contention to say that the jury were fully warranted, under all the evidence in this case, in finding that a competent and careful pharmacist would have understood what was meant by the word Wyatt. The statute provides that the druggist shall not “sell, furnish or compound any drug, medicine, chemical or pharmaceutical preparation, substitute or cause to be substituted therefor, without notification to the purchaser, any other drug, medicine, chemical or pharmaceutical preparation.” It is undisputed that ParheDavis <& Company was the only pharmaceutical manufacturer that compounded pure strontium salicylate and that Zaritsky used this compound in filling the prescription. It is further undisputed in the evidence that the only compound manufactured by Wyeth which contains strontium salicylate is effervescent strontium salicylate. Zaritsky admitted that he was familiar with the two compounds and that the word Wyatt on the prescription indicated to him that “the doctor had in mind a brand of strontium salicylate.” It is clear that the prescription did not call for the Parke-Davis compound, and yet Zaritsky used this dangerous drug in filling the prescription. He admitted that physicians sometimes use the word Wyeth for John Wyeth & Brother in the prescriptions and that Wyatt sounds like Wyeth “if you slur it.” It is significant, in this connection, that the record shows that the court reporter was not always able to tell whether the name used in a question and answer was Wyatt or Wyeth. Zaritsky’s excuse for disregarding the word Wyatt is that he looked in the red book and found no manufacturer by the name of Wyatt. The name Wyeth, however, would put any careful pharmacist upon his guard, and under such a situation his duty was plain. If a prescription is doubtful as to what drug is really intended it is the duty of the pharmacist to be alert to avoid a mistake, and if there is any reasonable doubt as to the identical thing ordered, it is his duty to take all reasonable precaution to be certain that he does not sell one thing when another is called for. (See Tombari v. Connors, supra, p. 236.) A contrary rule would tend to make a pharmacy a menace, instead of an aid, to suffering humanity. The plaintiff’s evidence shows that it required three calls at the defendant’s place of business before the prescription was furnished, and therefore Zaritsky had ample time to make proper inquiry. Zaritsky had graduated in pharmacy only a few weeks before the time in question. He was not then registered or licensed as a regular pharmacist. He had not yet passed the examination required by the statute to entitle him to be registered as a registered pharmacist, and it is difficult to understand why he did not call up Dr. Markiewicz in reference to the prescription. He did not even consult one of the other pharmacists in defendant’s place of business. Even the dangerous character of the drug used by him in filling the prescription did not cause him to make inquiry. The jury were fully warranted, from the evidence, in finding that if the plaintiff used the prescription as filled it might prove fatal and in any event would cause very serious consequences. We entirely approve of the action of the jury in refusing to believe the evidence of the defendant to the contrary. The jury were fully warranted in finding that Zaritsky was not a competent pharmacist. But even if it be assumed that he was competent, he was grossly negligent in filling the prescription as he did. He admits, in effect, that he filled the prescription with a compound not indicated by the prescription.

The defendant next contends that the court erred in giving plaintiff’s instruction number two to the jury. This instruction reads as follows:

‘1 The court instructs the jury that under the law of Illinois, no druggist or other person being requested by means of prescription, or in any manner, to sell, furnish or compound any drug, medicine, chemical or pharmaceutical preparation, shall substitute or cause to be substituted therefor, without notification to the purchaser, any other drug, medicine, chemical or pharmaceutical preparation. ’ ’

This instruction is in the language of the statute and it does not purport to direct a verdict. The contention of the defendant is that “the prescription was filled exactly as called for and that there was no substitution and no drug or chemical preparation dispensed to the purchaser other than the one called for in the prescription.” There is no merit in this contention. The defendant admits, as it must, that instruction number eight, given at its request, covers the specific charge of substitution and places the burden upon the plaintiff of proving it.

The defendant next contends that “the verdict and judgment are against the manifest weight of the evidence.” The contention is that “the record in this case clearly indicates beyond doubt that there was no substitution but that the plaintiff received the drug from the dispensing defendant druggist exactly as called for.” There is no merit in this contention. In our judgment the jury would not have been justified in finding a verdict for the defendant.

The defendant next contends that “the court erred in admitting evidence by the attending physician which invaded the province of the jury.” In the direct examination of Dr. Markiewicz, the attending physician, the following occurred: “Q. Are you able to form an opinion, Doctor, based on reasonable certainty as to whether or not the conditions that you have described as existing in the plaintiff may or could have arisen and be caused by the administering of the strontium salicylate! A. I do. Mr. Crowe (attorney for defendant) : That calls for an answer yes or no. A. I do, yes. Mr. Irwin (attorney for plaintiff): What is your opinion! Mr. Crowe: Objected to; it invades the province of the jury. It has been held by the Supreme Court in this state to be absolutely bad. . . . The Court: I am going to let him answer. Mr. Crowe: All right. Mr. Irwin: Q. What is your opinion, Doctor! A. As to what! Q. Whether or not the conditions that you have described as existing in the plaintiff, whether you have an opinion based on’reasonable certainty whether or not the conditions that you have described as existing in the plaintiff may or could have been caused or produced by the strontium salicylate administered to the plaintiff. A. I do. Mr. Crowe: That I object to. The Court: Objection overruled. ... A. In my opinion this woman has a chronic nephritis.- Mr. Crowe: I move to strike the answer. (The answer was stricken.) . . . Q. Whether or not the condition may or could have been caused or produced by the administering of the strontium salicylate. Mr. Crowe: The same objection. A. I do. Mr. Irwin: You mean you think it was % A. Yes, sir. Mr. Crowe: I move to strike the answer. The Court: Overruled.” In support of its contention the defendant relies upon the case of Kimbrough v. Chicago City Ry. Co., 272 Ill. 71. In that case the court was passing upon the competency of certain questions put to an expert who was testifying in reference to a hypothetical person. The court held that “a physician may be asked whether the facts stated in a hypothetical question are sufficient, from a medical or surgical point of view, to cause and bring about a certain condition or malady, or he may be asked whether or not a given condition or malady of a person may or could result from and be caused by the facts stated in the hypothetical question, but he should not be asked whether or not such facts did cause and bring about such condition or malady.” Even if Dr. Markiewicz had been placed upon the stand as an expert witness to testify as to a hypothetical person, the question complained of would have been in accord with the ruling in the Kimbrough case. Moreover, Dr. Markiewicz was the attending physician and was called upon to give his opinion in reference to the conditions he found. We may state that the defendant, in making the instant contention, has not accurately followed the record.

The defendant next contends that “the verdict of the jury is so excessive in amount as to indicate the jury were actuated by passion and prejudice.” We find no merit in the contention that the amount of the verdict indicates passion -and prejudice. After a very careful consideration of the evidence bearing upon the question of damages, we have reached the conclusion that the amount awarded is excessive. It is undisputed that pure salicylate is used as a corn cure and that when it is directly applied to a corn it cures it by softening and eating away the tissues of it, and it is clear that the drug taken into the stomach in certain quantities produces very serious injuries to the system of the patient. That she might have died but for the elimination process followed by Dr. ‘Markiewicz seems a reasonable conclusion. That the plaintiff was still suffering from the effects of the drug at the time of the trial is evident. However, the full extent and character of the permanent injury is not clearly shown by the proof. After a very careful consideration of the question we have reached the conclusion that $10,000 would be a reasonable compensation for the damages sustained by the plaintiff. Accordingly, if within 10 days plaintiff files in this court a remittitur of $10,000, the judgment against the defendant will be affirmed for $10,000, otherwise it will be reversed and the cause remanded to the superior court of Cook county for another trial.

Affirmed for $10,000 upon remittitur; otherwise reversed and cause remanded for another trial.

G-ridlby, P. J., and Kerher, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Mortimer L. Hudson, Appellee, v. James H. Hooper, Appellant.
    Gen. No. 35,681.

      Heard in the second division of this court for the first district at the October term, 1931.
    Opinion filed February 23, 1932.
    A. G. Dicus, for appellant.
    Sanders, Childs, Bobb & Wescott, for appellee; Wm. A. Bradford and F. M. Hartman, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an interlocutory appeal from an order enjoining the collection of a judgment entered in the municipal court of Chicago.

The appellant, Hooper, hereinafter referred to as the defendant, filed his suit in the municipal court to recover rent from the appellee, Hudson, hereinafter referred to as the complainant, for one of the apartments in the huilding known as 1000-1050 Hollywood avenue, Chicago, Illinois. The suit of the defendant in that case was based upon the claim that he was the owner of the premises and that the complainant, as a tenant, was obligated to attorn to him for the rent. The facts as to the alleged ownership of the property by the defendant have been before this court on a number of occasions. In Hooper v. Becker, 254 Ill. App. 606, we held that plaintiff’s title to the property was void, and a certiorari was denied in that case by the Supreme Court. In Becker v. Hooper, 263 Ill. App. 18, we deemed it advisable to state the history of the litigation surrounding the alleged ownership and we again held that defendant’s title to the property was void and that it had been so adjudicated in the former case. In Hooper v. Klipper, 263 Ill. App. 642 (Abst.), Hooper v. Cohen, 263 Ill. App. 642 (Abst.), and Hooper v. Birkenstein, 265 Ill. App. 603 (Abst.), the first division of this court followed the aforesaid opinions of this division and also held that the defendant’s title was void. In Hooper v. Foreman, 263 Ill. App. 652 (Abst.), the defendant sued a tenant for rent and we again held that his title to the property was void, and we said: “From the records of this court we learn that the plaintiff is still harassing the tenants of this building with suits for rent. These suits are without a semblance of merit and the plaintiff, who is entirely familiar with the aforesaid decisions, should cease to further prosecute such suits.” In Hooper v. Spitalny, 263 Ill. App. 651 (Abst.), the defendant sued another tenant for rent and we therein followed our former ruling. In Hooper v. Birkenstein, supra, the first division of this court said: “It would seem that these opinions and decisions ought to have been sufficient information to plaintiff that it had been repeatedly adjudicated that his title to the property was void, yet we find him in the instant case again prosecuting a writ of error and still endeavoring to collect rents from the premises to which we have repeatedly held he has no claim. ’ ’ It now appears that in spite of the aforesaid decisions of this court, the defendant is still harassing the tenants of this building with suits for rent. We are satisfied that the plain purpose of the defendant is to prosecute these suits with the idea that some of the tenants, tired by litigation, will sleep upon their rights. The complainant in this case paid his rent to Celle Becker in accordance with an order entered by the superior court June 19, 1928. In Becker v. Hooper, 263 Ill. App. 18, supra, 20-21, this order is cited. Equity would be weak, indeed, if it could not afford relief to the unfortunate complainant in the instant case. The contention of the defendant that the bill does not make out a prima facie case for relief is without merit.

The defendant contends that the bond given by the complainant does not comply with section 8 of the Injunctions Act, Cahill’s St. ch. 69, H 8. We feel impelled to say that we regret that we must hold that this contention is a meritorious one. The complainant practically concedes, as he must, that the bond does not comply with section 8. Instead of calling the attention of the trial court to the defect in the bond the defendant saw fit to take an appeal from the order and to raise the question as to the bond in this court. His action in that regard is entirely in accord with his plan to obtain rent from the tenants by harassment.

The injunctional order of the superior court of Cook county is reversed and the cause is remanded with directions to the chancellor to again enter an injunctional order in accordance with the prayer of the bill upon the complainant’s filing a bond in accordance with the provisions of section 8 of the Injunctions Act. Each party will stand his own costs in this court.

Reversed and remanded with directions.

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


author: Mr. Presiding Justice O’Connor

text:
    Mary Walters, Appellee, v. Checker Taxi Company, Appellant.
    Gen. No. 35,473.
    Opinion filed February 29, 1932.

      James C. Byrne and Busby, Weber, Miller & Donovan, for appellant.
    Wm. E. Rodriguez, for appellee; John M. Humphrey, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover damages for personal injuries claimed to have been sustained by her through the negligence of one of defendant’s drivers. There was a jury trial and a verdict of $25,000 in plaintiff’s favor. Plaintiff entered a remittitur of $10,000, judgment was entered in plaintiff’s favor for $15,000, and the defendant appeals.

The record discloses that on January 30, 1923, while plaintiff was a passenger in one of defendant’s taxicabs, the cab collided with the safety island at Madison street and Michigan avenue, in Chicago, injuring plaintiff, and on March 7,1923, she brought suit. From time to time the case was stricken off the docket and put on the calendar of cases that had been passed. In May, 1926, the case came on for trial before Judge Fisher, both parties appeared by counsel, and when the case was called the court suggested that the parties settle the controversy. At that time the defendant taxicab company had a number of suits and claims filed against it and was in financial difficulties, and parties had been settling their claims, defendant making payments thereon from time to time as it earned the money. At the suggestion of the court the parties withdrew to the court’s chambers and an agreement of settlement was reached, plaintiff’s version of the matter being that she was to be paid $5,000, payments to be made from time to time, and in case it later developed that she was permanently injured, the settlement was not to be binding and the case could then be tried.

On the other hand, defendant’s version of the matter was that a settlement had been reached, the defendant agreeing to pay $3,000, $100 a month, or, as some of the witnesses testified, $100 a week, and that when the $3,000 was paid a release would be given and the matter disposed of in court.

After the agreement was reached Judge Fisher continued the case generally and a few days later, May 12, 1926, defendant paid plaintiff $150, and thereafter made the following payments in 1926: July 19, $100; September 8, $75; October 5, $75; December 20, $150; in 1927: February 23, $175; March 9, $100; April 6, $100; June 23, $100; August 4, $100; September 6, $100; October 7, $100; November 23, $100; December 21, $100; and in 1928: January 11, $75; February 13, $200; February 22, $300; and on March 8, defendant made a tender of $400 and demanded release. This $400, together with other payments would aggregate $2,500. Counsel for plaintiff refused to accept this and pointed out the settlement had been made for $3,000, and on September 8, 1928, the defendant tendered the other $500. Plaintiff refused to accept the last two payments and they were deposited with the clerk of the court.

In January, 1930, the case went to trial before Judge Rush and a jury, and there was a verdict in plaintiff’s favor for $14,000. Afterwards a new trial was granted and on July 7,1931, the case went to trial before Judge Summers. There was a verdict of $25,000. The court gave the jury a special interrogatory as to whether the claim had been settled, and the jury answered it in the negative. Afterwards, plaintiff remitted $10,000, the motion for a new trial was then overruled and judgment entered for $15,000.

On this appeal the defendant does not question its liability but contends that the verdict of the jury to the effect that there had been no settlement, is against the manifest weight of the evidence, and that the court erred in giving certain instructions.

Is the verdict against the manifest, weight of the evidence on the question of settlement? Plaintiff was the. only witness who testified on this question in her behalf. On cross-examination she testified that her lawyer was Mr. Davies and that Mr. Bynum did not represent her but that they were associated together in the case. Davies died prior to the trial. She further testified that Bynum sent the checks to her as they were received by him from the defendant company, and that she got two-thirds of each check and the lawyers the one-third; that when the case was up for trial before Judge Fisher she went to court with Mr. Davies and Mr. Bynum and the witnesses; that when the case was called Judge Fisher suggested that the parties might settle the case and that then the lawyers discussed the matter and it was agreed that defendant would pay $5,000 and if it was later found that the plaintiff was permanently injured, the case would be opened up and tried; that she was to be paid $5,000 in settlement. Fred Kanst, called by the plaintiff, testified as to how the accident occurred when plaintiff was injured. On cross-examination he testified that when the case came up before Judge Fisher he went to court and he was there told by plaintiff’s lawyer that the case had been settled, so that he would not have to testify, and he then left.

James L. Bynum, called by the defendant, testified that he was a lawyer and had practiced his profession for about 25 years, the last 15 years largely in personal injury cases; that he was requested by Mr. Davies, attorney for plaintiff, to try the case for him; that he had tried a number of cases for Mr. Davies; that afterwards he was introduced by Davies to plaintiff and they went over the case in detail as to how the accident occurred, and the nature of the accident and of plaintiff’s injuries, and prepared the case, for trial, having conferred also with the doctors; that when the case was on the trial call of Judge Fisher, witness appeared on behalf of defendant with Mr. Davies, ready to try the case when it was called; that both sides stated they were ready for trial; that Judge Fisher suggested the parties might settle the controversy ; that all the parties then went into the judge’s chambers and the question of settlement was discussed; that they finally reached an agreement whereby defendant was to pay plaintiff $3,000 and that was the most defendant would pay because if the case was prosecuted and a judgment obtained, there would probably be bankruptcy proceedings against the defendant. He further testified that they talked the matter over with plaintiff for a considerable period of time; that she thoroughly understood the matter; that they then went back to the court room and explained the matter to Judge Fisher and plaintiff finally agreed to accept the $3,000; that he made a memorandum on an envelope of the amount agreed upon; that they would pay the amount agreed upon in instalments and after the settlement they agreed the case was continued. He further testified that he received the payments above set forth, and the checks are in the record. They are all made payable to “Mary Walters and James L. Bynum, her attorney,” and it is undisputed that plaintiff received two-thirds of each of these checks. Bynum further testified that about March 8, 1928, when defendant sent him a check for $400 and demanded a release, the witness refused the check on the ground that there was $900 due on the settlement for $3,000 and not $2,500. Later the check for the other $500 was given but plaintiff refused to accept the $900.

Edwin Mitchell testified that he was a lawyer associated with Bynum and that he was in Judge Fisher’s court at the time in question, but not in chambers, and that the parties came out of the judge’s chambers and stated they had settled the case, and the amount of the settlement was discussed.

Edgar H. Deets, attorney at law, associated with Bynum, testified that he was present at Judge Fisher’s court at the time the case was settled and that he took the checks received by Bynum from the defendant from time to time to plaintiff at her home.

Seymour Sheffres, attorney at law connected with the defendant company, testified that he was in Judge Fisher’s court at the time the case was called for trial; that the lawyers and the parties were there and Judge Fisher took a hand in the matter with a view of settling the case; that it was agreed to pay $3,000 and that he would try to pay $100 a week until the amount was paid; that this took place in the judge’s chambers and then Mr. Davies and Mr. Bynum went out into the court room and talked to the plaintiff and came back and said she would accept the $3,000; that it was agreed that a release would be prepared and executed by the defendant when the final payment was made. The Checker Taxi Company was at that time in financial difficulties and if a judgment were taken against it there would probably be a receiver and bankruptcy proceedings. The settlement was agreed upon and the case placed upon the calendar of passed cases. This is substantially all the evidence on the question of settlement.

If plaintiff’s version of what took place at the time is accepted, there would be no settlement at all. She testified that $5,000 was the amount agreed upon and if it later turned out that she was permanently injured the case would be tried and the settlement off. It must be remembered that this settlement was made three years after the accident. On the other side, the witnesses testified to the effect that settlement was made for $3,000, to be paid in instalments, and a release taken when final payment was made.

We think the finding of the jury in favor of the plaintiff to the effect that there was no settlement is against the manifest weight of the evidence, and in these circumstances it is our duty under the law to reverse the judgment. Donelson v. East St. Louis & Suburban Ry. Co., 235 Ill. 625.

Complaint is made of the giving of instructions 1, 2 and 4, requested by plaintiff. Instruction No. 1 directed a verdict for the plaintiff in case the jury found the facts as therein stated, and it is said this was erroneous because it did not take into consideration the question of the settlement of the case. We think this contention is not warranted because it was admitted that the defendant owed plaintiff, in any view of the case, $900, being the balance of the $3,000, for which sum it contended the case had been settled.

Instruction No. 2 was on the question of damages, and it is said that by it the jury were told to take into consideration all the facts and circumstances shown by the evidence in determining the question of damages, and that it did not tell them that on this question they should confine themselves to the evidence touching the question of damages. We think there is no merit in this contention. The instruction is the usual one given in such cases.

Instruction No. 4 is complained of because it enumerates elements to be considered “In determining upon which side the preponderance of the evidence is, ’ ’ and that it omits the element of the number of witnesses, and further, that the instruction told the jury what elements they should take into consideration instead of what elements they might take into consideration. We think neither of these objections would warrant us in reversing the judgment. There may be some little inaccuracy in the instructions in regard to the first contention made, but we think it not of a serious character. Elgin, J. & E. Ry. Co. v. Lawlor, 229 Ill. 621. There is no merit in the second contention. There are some cases where language is used which would suggest that an instruction which tells the jury what evidence .they “should” take into consideration, is erroneous. But we think the word is the proper word. The jury does not have any option to consider any evidence they may think proper. It is their duty to consider the evidence admitted by the court. Posch v. Chicago Rys. Co., 221 Ill. App. 241; Meyer v. Mead, 83 Ill. 19. In the latter case an instruction told the jury what they must take into consideration, and we think that is a better and more correct word than that they may or might take such evidence into consideration.

For the reason that the verdict is against the manifest weight of the evidence on the question of the settlement, the judgment of the circuit court of Cook county is reversed and the cause remanded.

Reversed and remanded.

McSurely and Hatchett, JJ., concur.


author: Mr. Presiding Justice O’Connor Mr. Justice Hatchett

text:
    Daniel H. Bailey, Appellee, v. Orville E. Babcock et al., Appellants.
    Gen. No, 35,533.

      Matchett, J., dissenting.
    Heard in the first division of this court for the first district at the October term, 1931.
    Opinion filed February 29, 1932.
    Rehearing denied March 14, 1932.
    Ashcraft & Ashcraft, for appellants; Carroll J. Lord, of counsel.
    Barthell & Rundall, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action of trover against the defendants, stockbrokers, claiming that they had converted to their use plaintiff’s 200 shares of common stock of the Utility and Industrial Corporation. The defendants filed a plea of not guilty, and there was a jury trial which resulted in a verdict and judgment in plaintiff’s favor for $4,300, and the defendants appeal.

Plaintiff’s theory of the case was that the 200 shares of stock were bought by the defendants for him, that he tendered them the balance due and demanded the stock but that the tender and demand were refused. On the other hand, defendants’ theory was that they had, at plaintiff’s order, bought 100 shares of other stock at $66 a share; and that they were entitled to hold the 200 shares of stock until plaintiff had paid for the 100 shares.

The record discloses that plaintiff had been buying stocks through the defendants, brokers, who were carrying the stocks on a margin of 50 per cent, and on Saturday, August 3, plaintiff telephoned the defendants and requested them to buy for him 100 shares of stock of the Chicago Corporation at $67 a share. This stock apparently could not be bought on Saturday for $67 a share, and it is agreed that the stock was not purchased on that date. The evidence further shows that over Sunday plaintiff became interested in the Utility and Industrial Corporation stock and on Monday morning when he got to his office he called up defendants ’ representative and inquired whether defendants had bought the 100 shares of Chicago Corporation as ordered, and upon being advised by defendants’ representative that the stock had not been bought, plaintiff requested that the order be canceled, which defendants agreed to do, and thereupon plaintiff requested defendants to buy 200 shares of the Utility and Industrial Corporation, which they also agreed to do.

The testimony as to what was said at this telephonic conversation is somewhat variant but not materially so. Plaintiff testified, “I called him (Mr. Lundborg) promptly at nine o’clock on the Monday morning following Saturday, August 3, 1929. ... I talked to Mr. Lundborg and told him that I had changed my mind, I would like to buy Utility Industrials instead of Chicago Corporation, and asked'him if the Chicago Corporation order had been executed, and he said, ‘Well, I don’t think so, but I will find out.’ I says, ‘Well, be sure to find out please and I will hold the ’phone. ’ Mr. Lundborg left the ’phone and in a short while returned, and says, ‘Tour Chicago Corporation has not been purchased and I have cancelled it.’ I says, ‘All right, instead of buying Chicago Corporation for me then I want you to buy instead of that 200 Utility Industrials. ’ ’ ’

Lundborg testified that he was employed by defendants and that about 11 o ’clock on the morning of Saturday, August 3, plaintiff placed an order with defendants to buy 100 shares of Chicago Corporation at $67. The stock was then selling at $70; that “The next conversation I had with Mr. Bailey was on August 5,1929, in the morning. This conversation took place about ten minutes after nine. Mr. Bailey called on the ’phone . . . and asked what Utility Industrial was selling at. I called out to the Chicago Board marker and he replied, ‘56%’ and I told Mr. Bailey . . . Utility Industrial Corporation was selling at 56%. Then Mr. Bailey asked me if the Chicago Corporation order had been purchased yet, and I told Mr. Bailey, ‘Just one minute, while I look at the Chicago Board.’ I left my desk and ran about ten feet to the Chicago Board and I saw one sale of Chicago Corporation marked up at 69 and ran out to my ’phone immediately and told Mr. Bailey that I did not think it had been bought. It was marked up now at 69. Mr. Bailey told me to cancel the order to buy Chicago Corporation and enter an order to buy 200 Utility Industrial at the market, and I wrote out the order, ‘ Cancel buy Chicago Corporation at 67 open and buy Utility Industrial common at market, ’ I wrote this out as I spoke to Mr. Bailey on the ’phone.”

The evidence further shows that shortly thereafter defendants bought the 200 shares of the Utility stock and plaintiff was advised of that fact by telephone. And there is some evidence that sometime during that day Lundborg telephoned plaintiff that the 100 shares of Chicago Corporation had also been bought. The next day, August 6, plaintiff received from defendants, by mail, two communications, one showing that they had canceled the order for the 100 shares of Chicago Corporation, the other that they had bought the 200 shares of Utility stock. Some time later on defendants advised plaintiff that they had also bought the 100 shares and that they had been in error in notifying him that this order had been canceled.

The evidence further tends to show that plaintiff did not want the 100 shares of stock and that defendants were advised of this fact; that plaintiff ought not to be held on account of defendants’ mistake. A few days later plaintiff called on the defendants .and stated that his banker had advised him to see some member of the firm about the matter and he took the matter up with Mr. Rushton, a member of the firm of brokers. The evidence shows that plaintiff had with him at that time three documents he had received from the defendants concerning the transactions, one of which was that the defendants had canceled the order for 100 shares. Mr. Rushton stated that apparently there was a mistake and asked plaintiff to leave the papers and he would look into the matter and in a few days would advise plaintiff and return plaintiff’s papers to him. The papers were left and apparently Mr. Rushton looked into the matter and returned two of the papers but did not return the document which stated that the order for 100 shares had been canceled, as he had agreed to do.

Lundborg further testified that on .August 6, after the purchase by the defendants of the two stocks, .he again talked with plaintiff over the telephone and that plaintiff said that if there was a mistake like that he felt Babcock and Rushton should go along with him; that just at that time he did not feel that he should be required to put up the full 50 per cent margin to carry the 300 shares of stock and I told him that I would check up with Mr. Eushton in view of this state of affairs and see if we could not carry the full 300 shares on a third margin rather than to require a 50 per cent margin on 200 shares of Utility Industrial as it would require the same amount of money practically in either case. And there is evidence tending to show that subsequently defendants reduced the margin requirements to one-third. Lundborg further testified that the first time plaintiff ever'told him he would not be responsible for the Chicago Corporation stock was when Lundborg called plaintiff for additional margin in October, 1929. This was denied by plaintiff.

Defendants offered a great deal of other evidence showing the method by which they transacted business in the purchase and sale of stock. The court at first sustained plaintiff’s objections that this was immaterial, but later some of this evidence was admitted and we think erroneously so. While it is a general rule of law that a broker is the agent of the customer in the buying and selling of stock and is required only to use ordinary care and intelligence in the execution of orders, yet that principle has its limitations, and if a broker makes a mistake in informing his customer as to what has been done in a particular situation, and the customer then changes his position on the faith of the broker’s statement and acts upon it, the broker cannot afterwards deny the correctness of the statement. Meyer on Law of Stockbrokers and Stock Exchanges, pp. 293, 294. That author announces the rule as follows: “If the broker transmits a statement in which, through a clerical error, a more favorable price is reported than that at which the order was actually executed, he is entitled to send a duplicate corrected statement, provided that the customer has not changed his position on the faith of the original statement. In such a case the broker is not estopped to deny the accuracy of the statement first sent. However, if the customer has changed his position on the faith of the broker’s statement and acted upon it, the broker will subsequently be estopped to' deny its correctness.” This law is applicable to the facts in the case before us. If the defendants made a mistake in advising plaintiff that the 100 shares of Chicago Corporation had not been bought, and it is clear that they did make such mistake and plaintiff, acting on such misinformation, ordered the defendants to cancel the order for the Chicago Corporation stock and to buy the Utility stock, then the defendants will not be permitted to endeavor to avoid the consequences of their own mistake. All of the evidence shows that plaintiff, on Monday morning, informed defendants that he was interested in buying the Utility stock and. in canceling the order for the Chicago Corporation stock. Lundborg was clearly told this and, if the Chicago Corporation stock had not then been bought, to cancel the order and buy the Utility stock; and then Lundborg, after investigating the matter to ascertain the facts, advised plaintiff that the Chicago Corporation stock had not been bought; that the order was then canceled and the order for the Utility stock given. A memorandum of these two orders was written out by Lundborg and is óf much more evidentiary value than his testimony to the effect that he did not think the Chicago Corporation stock had been purchased. Plaintiff’s order to buy the Utility stock was upon the express statement of Lundborg, defendants’ representative, that the order to buy Chicago Corporation stock had been canceled. If defendants made a mistake either in notifying the plaintiff that the first order was canceled when it was not, or in purchasing the Utility stock without having canceled the order for Chicago Corporation, the mistake was the defendants’ and they should not be permitted to avoid liability by simply explaining how their mistake occurred. Plaintiff changed his position on the information given him by defendants, and under the law they must stand the consequences of their mistake.

Complaint is made of remarks made by the trial judge concerning certain witnesses and evidence offered by defendants, and some of the complaints would be justified were the evidence offered material and competent; but this evidence was all to the point that the defendants had exercised reasonable care in endeavoring to carry out plaintiff’s orders. Under the facts in this case, we hold that that evidence was incompetent, therefore the remarks of the court would not warrant us in reversing the judgment.

Complaint is made that the court erred in refusing an instruction requested by defendants on the question whether after the 300 shares of stock were bought by defendants, plaintiff had not ratified the purchase of the 100 shares of Chicago Corporation. The refused instruction is as follows: “The court further instructs the jury that if you believe from all the evidence in this case that plaintiff assented to the purchase of any stocks or securities by defendants for plaintiff’s account, then you are instructed that plaintiff is liable to defendants for the amount of the purchase price of such stocks or securities so purchased, if any, even though such stocks or securities were purchased without a previous order from plaintiff to defendants or after plaintiff had given defendants or their agents, instructions to cancel such orders, if any, previously given, and even though defendants, by the exercise of reasonable skill and diligence, could have made effective any cancellation order previously given by plaintiff to defendants or defendants’ agents.” We think it obvious that this instruction was properly refused. It is misleading and confusing and not based on the evidence in this case. By it the defendants sought to have the jury told that plaintiff would be liable to the defendants for the amount of the purchase price of stocks or securities, “even though such stock or securities were purchased without a previous order from plaintiff to defendants.” Of course the evidence all shows that there was a positive order to buy the 100 shares, and it is elementary that it is not error to refuse an instruction which is not based on the evidence in the case but contrary to it.

The defendants’ evidence by which it is shown, as they apparently contend, that plaintiff ratified the purchase of the 100 shares of stock, is slightly more, if anything, than a scintilla. We think substantially all the evidence shows that throughout plaintiff was repudiating the purchase by the defendants of the 100 shares of stock. It is not every slight error that warrants the reversal of a judgment. On the merits of this case, under the law and the evidence, we are clear that justice has been done, and the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

McSurely, J., concurs.

Hatchett, J., dissents.

Mr. Justice Hatchett

dissenting: The opinion of the majority of the court it seems to me disregards the well settled rules of law applicable to transactions of the kind here disclosed, disregards the fact that even on plaintiff’s theory of the case the issues, of fact were not fairly submitted to the jury, and then proceeds to decide the case upon a theory of law expressly disclaimed by plaintiff’s brief and upon an issue which was not before the trial court and which is not before this court upon the pleadings. It has been, supposed that the general rules of law applicable ■ to a transaction of this kind are well settled. I understand the law to be that in the buying and selling of stocks brokers act as the agents of their customers, sometimes as the agents of both parties to the transactions. Saladin v. Mitchell, 45 Ill. 79; Banta v. City of Chicago, 172 Ill. 204; Markham v. Jaudon, 41 N. Y. 235; Richardson v. Shaw, 209 U. S. 365; Don Passes on Stock Brokers and Stock Exchanges, 2nd ed., vol. 1, pp. 180, 182. If a broker faithfully and diligently executes the order of his customer, the customer is bound as principal and becomes indebted to the broker for the amount the broker has advanced in executing the order of the customer. Perin v. Parker, 126 Ill. 201; Hately v. Kiser, 253 Ill. 288; Markham v. Jaudon, 41 N. Y. 235; Don Passes on Stock Brokers and Stock Exchanges, 2nd ed., vol. 1, pp. 182, 218; Campbell on The Law of Stock Brokers, 2nd ed., pp. 41, 46; Meyer on The Law of Stock Brokers and Stock Exchanges, pp. 254, 255, 266.

The customer has just as much right to cancel an order given and the broker is just as much obligated to exercise skill and diligence where the customer has canceled to prevent the fulfillment of the order as he would be obligated to fulfill the original order. If before the order to cancel is given the broker has become obligated to a third person, or if the order is given too late to be transmitted to the exchange in the exercise of ordinary diligence, the customer is nevertheless bound and held to the trade as made. Meyer on The Law of Stock Brokers and Stock Exchanges, pp. 273, 274; Don Passos on Stock Brokers and Stock Exchanges, 2nd ed., vol. 1, p. 211; Lloyd v. Silvers (Tex. Civ. App.), 274 S. W. 253. It is also well'settled that the broker has a general lien upon all stocks carried in the customer’s account as security for the debit balance owing by the customer to the broker. Campbell on The Law of Stock Brokers, 2nd ed., p. 17; Meyer on The Law of Stock Brokers and Stock Exchanges, pp. 313, 314; Markham v. Jaudon, 41 N. Y. 235; Richardson v. Shaw, 209 U. S. 365.

It was the theory of defendants in this case (and I think they had a right to show, if they could) that the purchase of the Chicago Corporation stock had in fact been made prior to the cancellation of the order for the purchase of the same given by plaintiff; In support of that theory defendants called a witness by whose testimony they endeavored to show the circumstances under which this purchase was made by them. The record shows the following:

‘‘The Court: You don’t think you are going to show that by a clerk in somebody else’s office, do you?
“Mr. Lord: I think this is the best evidence that that trade was executed and when it was executed. Here is a man that was right on the floor and got the document at the time.
‘ ‘ The Court: I think that is immaterial. The basis of it is when it was given and when it was canceled, not when it was executed. If they gave it one day and they handled it two or three weeks after, that is their business.
“Mr. Lord: Does your Honor hold that whether the cancellation could be or could not be effective is immaterial in this case ?
“The Court: I think in view of the circumstances it is. Whether it can or not is a self-serving declaration. You served a written notice as well as a verbal notice that it was canceled, and they are in evidence. They can’t excuse themselves now by coming back afterwards and saying that they couldn’t do it.
“Mr. Lord: With all due respect to your Honor, I know you will grant me this permission. I except to the Court’s statement, and at this time I make a motion that a juror be withdrawn in this case.
“The Court: Overruled.”

To the contention of defendants that these statements by the trial judge in the presence of the jury were prejudicial, plaintiff replies by saying that the evidence defendants offered was wholly immaterial and irrelevant. The evidence was not immaterial on defendants’ theory and was certainly not immaterial if Lundborg’s testimony was true. Lundborg denied that he had given a verbal notice to plaintiff of the cancellation of the order to buy Chicago Corporation shares and expressly denied the evidence offered by plaintiff tending to show that the order for the purchase of the Utility and Industrial shares was conditioned upon the cancellation of the first order. There is a sharp and decisive conflict in the evidence upon this point. The remarks of the trial judge must have disclosed to the jury that he accepted the testimony of plaintiff and discredited the testimony of Lundborg. They gave the weight of the opinion of the judge in favor of the testimony of plaintiff. The effect could not have been much different had he told the jury that the testimony of plaintiff was to be believed, that of the witness for defendants disbelieved. It is hardly necessary to cite cases to the proposition that in this State it is reversible error for a trial judge to express an opinion on an issue of fact in the presence of the jury. A few of the cases which so hold are Andreas v. Ketcham, 77 Ill. 377; Marzen v. People, 173 Ill. 43; Illinois Cent. R. Co. v. Souders, 178 Ill. 585; People v. Lurie, 276 Ill. 630; Artz v. Robertson, 50 Ill. App. 27; Wellman v. Wellman, 191 Ill. App. 514.

But the error of the trial court, in my opinion, did not end here. I think it excluded proper and competent evidence that was offered in behalf of defendants. It is defendants’ theory of the case that the order for the purchase of the Utility and Industrial stock was not conditioned upon the cancellation of the order for the Chicago Corporation shares, and upon that theory defendants had a right to show, if they could by competent evidence, that the order of plaintiff to cancel the purchase of the stock of the Chicago Corporation was received by them too late to be made effective through the exercise of diligence on their part. To that end it was important for defendants to show, if they could, that the written notice mailed by them on August 5, 1929, and received by plaintiff on the 6th, which stated that the order for the purchase of the Chicago Corporation stock was canceled, had been sent out by mistake and inadvertence. If the confirmation was in fact mailed through a clerical error (and that is defendants’ theory), it would seem that the legal effect of sending it would not be greater (in the absence of an estoppel which plaintiff disclaims) than the erroneous mailing by one person to another of a receipt for money. It has been held in well considered cases that under such circumstances the true facts may always be explained by parol evidence. Paris v. Lewis, 85 Ill. 597; Starkweather v. Maginnis, 196 Ill. 274; Donner, Childs & Woods v. Sackett, 251 Pa. 524, 97 Atl. 89; Friedman & Co., Inc. v. Newman, 255 N. Y. 340, 174 N. E. 703. There was a sharp conflict in the testimony of plaintiff and of Lundborg with regard to what had been stated about this alleged cancellation, plaintiff insisting that Lundborg had distinctly told him that the Chicago Corporation stock had not been purchased and that the order therefor had been canceled, while Lundborg testified that he only said that he did not think that the stock had been bought and that the stock was then marked up to 69. For the purpose of corroborating Lundborg’s version of the transaction and for the purpose of showing due diligence on their part, defendants offered evidence tending to show the facts with reference to the actual purchase of this stock on the morning of August 5, 1929, on the floor of the stock exchange through the brokerage house of Mitchell, Hutchins & Co. Defendants produced as a witness the order clerk for defendants, who represented them on the floor of the Chicago Stock Exchange, and proved that his duties there were the giving of orders received by him over the telephone from his firm to brokers on the floor for execution and the receiving of original reports of execution of trades of his firm from the brokers on the floor and reporting the same to his firm. He testified, identifying the execution slip in the handwriting of Shimmin, the expert specialist who handled the transaction, showing the purchase of the Chicago Corporation stock for plaintiff on August 5. It is in evidence as defendants’ exhibit 6. The witness was asked by defendants’ counsel when he first saw the document, from whom he received it, and what it was, as well as other questions tending to disclose the actual transaction and to prove facts which, if true, would show that it was impossible for defendants to make effective the attempted cancellation order which plaintiff gave. These questions were objected to by plaintiff, and the objections were sustained by the court.

There was much evidence of the same kind excluded. The court refused to let Lee, the order clerk for defendants, tell the time that he had ’phoned plaintiff’s order, which was No. 242, to the floor of the Chicago Stock Exchange and to let the same witness tell what he said to another employee in telephoning the order there. The court refused to let Lee tell of a conversation he had with Lundborg on the morning of August 5 concerning the filling of plaintiff’s order. This evidence was ruled out upon the theory that it was not admissible as not having been made in the presence of plaintiff. Conversations between Lee and Walter Tholl, the representative of defendants on the floor of the Chicago Stock Exchange, were also excluded, although defendants offered to show by Lee that when the order was received it was telephoned by him to Tholl and that the number of the order was given to Tholl as 242. Conversations between Tholl and Shim-min, the specialist on the floor of the stock exchange, with reference to the transaction were also excluded. Defendants offered to prove by Lee that after the conversation with Tholl he placed the order in a box for cancellation and asked questions tending to disclose what the practice was in the office of defendants in handling such cancellation orders and how the notice was sent out to customers, but this was objected to by plaintiff and the objection was sustained by the court. Defendants then offered to show that after telephoning the cancellation order to their representative upon the floor of the stock exchange, Lee wrote a large letter “C” across the face of the order and placed it in the cancellation file; that under the regular practice of carrying on the business of that transaction, immediately after a cancellation order was entered the original order was taken out of the pouch where all open or unfilled orders were kept; that a large letter “C” was marked upon the orders to be canceled and were placed in the cancellation pouch; that these cancellations remained in this pouch until the end of the day when they were taken out by another employee and cancellation confirmations were prepared by defendants and mailed out to the customers. Defendants further offered to prove by this witness that after having been informed by Tholl that it was too late to cancel the purchase of 100 shares of Chicago Corporation stock he failed to take the order out of the cancellation bin and remove the letter ‘ ‘ C ” therefrom, and that it was due to his oversight in failing to do these things that the confirmation of the cancellation was prepared by other employees of defendants and mailed to plaintiff on the night of August 5, 1929. Plaintiff objected, and the objection was sustained by the court. Defendants then asked questions tending to disclose when Lee had first received notice of the price at which the 100 shares of Chicago Corporation had been bought for plaintiff’s account and, upon objection, offered to prove by the witness that he first learned of such price on the morning of August 6, 1929, and that he was then informed by Tholl that the order had been filled at $66 a share, but the plaintiff objected and the objection was sustained by the court.

Tholl was produced as a witness "and questions asked him about the same matters were objected to, and the objections were sustained. The check of defendants to the order of Mitchell, Hutchins & Co. for the sum of $6,600, drawn on the Continental Hlinois Bank & Trust Co., and marked as having been paid through the Chicago Clearing House, was offered and received in evidence. The right of defendants to submit evidence as to any acts which in fact took place with reference to the execution or cancellation of these orders and also as to any verbal statements or admissions which accompanied such acts, is established by the cases, and I do not understand that plaintiff in his brief contends otherwise. The cases which so hold are many and well considered. Delaware & Hudson Canal Co. v. Mitchell, 92 Ill. App. 577; Prussian Nat. Ins. Co. v. Empire Catering Co., 113 Ill. App. 67; Benedict v. Dakin, 148 Ill. App. 301; Michigan Cent. R. Co. v. Gougar, 55 Ill. 503; Matzenbaugh v. People, 194 Ill. 108; Hoffman v. Chicago Title & Trust Co., 198 Ill. 452; G-reenleaf on Evidence, 16th ed., vol. 1, sec. 184-c; Jones on Evidence, 2nd ed., secs. 944, 952, 1235 and 1240. I think the court committed reversible error in excluding this evidence.

Defendants in their original brief in this court, anticipating the reply of plaintiff, argued quite fully that there was no estoppel of defendants to deny that plaintiff’s order to purchase 100 shares of Chicago Corporation stock was canceled by defendants. They also pointed out that the issue of estoppel had not been raised by the pleadings of the case and therefore could not be urged. The brief of plaintiff replied in the following language:

“We confess our inability to understand Appellants’ argument with reference to the so-called estoppel. There is no element of estoppel in this case. The pleadings set forth the claim of Appellee that he requested Appellants to buy for him 200 Utility & Industrial shares; that he tendered to them the amount remaining unpaid on account of such purchase and demanded their surrender, but that they refused to deliver such shares to him. ... We are unable to follow Appellants argument that in his declaration Appellee should have specifically pleaded an estoppel. None is claimed, and liability is not predicated on cm estoppel but upon a conversion of Appellee’s property. ’ ’

Aside from the fact that the theory upon which a majority of the court decides this case is thus expressly disclaimed, it seems to me that the opinion overlooks the well settled law that the facts out of which an estoppel is alleged to arise must be established by a preponderance of the evidence (Stanley v. Marshall, 206 Ill. 20); that proof of such facts constituting a claim to estoppel must be of the clearest and most satisfactory character (Preble v. Conger, 66 Ill. 370); that where the complainant party relies on an estoppel as the basis of his claim, the alleged estoppel must be established by clear, precise and unequivocal evidence (Coal Belt Elec. R. Co. v. Peabody Coal Co., 230 Ill. 164). The law, I think, is equally well settled that if a complaining party relies upon an estoppel to establish his case, he must specifically plead it; that if the matter of estoppel does not appear in the declaration, the plaintiff must, by a replication to the plea, expressly show such matter and that he relies thereon. Smith v. Whitaker for use of Jonas, 11 Ill. 417. That distinguished authority, Chitty on Pleading, states the rule (15 Amer. Ed., vol. 1, p. 603):

“If the matter of estoppel do not appear from the anterior pleading, the replication must expressly show such matter and rely thereon and there must be an appropriate commencement and conclusion to the replication; or by replying an estoppel without relying upon it, the advantage of the estoppel as such may often be lost.” At page 509 the same author says: “Matter of estoppel should be specifically pleaded as such. ’ ’

I have set forth my views quite at length because of what I conceive to be the great importance of this case to this commercial community and because I think the theory upon which the majority opinion proceeds is fundamentally wrong.


text:
    Bernerd Carlin, Trading as Bernerd Carlin Organization, Appellee, v. Millers Motor Corporation, Appellant.
    Gen. No. 35,580.

      Heard in the first division of this court for the first district at the October term, 1931.
    Opinion filed February 29, 1932.
    Rehearing denied March 14, 1932.
    Byron Tyler and John F. Denissen, for appellant.
    Marvin W. Wallach, for appellee; Arthur C. Lewin, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendant seeks to reverse a judgment of $1,000 rendered ag’ainst him in the county court of Cook county on May 5, 1931, in an action of assumpsit.

The record discloses that on May 15, 1931, plaintiff brought an action of assumpsit against the defendant, claiming $1,000 on account of the breach of a written contract for services which plaintiff apparently contends he performed for the defendant. The declaration was in one count and there was an affidavit of claim. The defendant filed a special plea and an affidavit of merits. Plaintiff filed a general demurrer to the plea and on May 5, the parties appeared before the county court to have the demurrer disposed of. The judgment order apparently was prepared by counsel and, after stating that the demurrer came on for hearing, continues: “It Is Ordered, Adjudged and Decreed, that the motion of the defendant to carry back to the declaration the demurrer of the plaintiff to the special plea, he and is hereby overruled, and

“Furthermore, that the general demurrer of the plaintiff to the special plea of the defendant be and hereby is sustained.” And the defendant electing to stand by its special plea it was defaulted for want of a plea. The next paragraph of the order is: “Furthermore, the motion of the plaintiff to strike the defendant’s affidavit of merits to plaintiff’s sworn statement of claim for failure to disclose a meritorious defense, be and is hereby sustained” and the defendant elected to stand by its affidavit of merits. The order then continues:

“Therefore, let judgment be entered for the plaintiff against the defendant on the merits for his damages in the amount of One Thousand Dollars ($1,000.00), together with plaintiff’s costs, and that execution issue therefor.” Then follow the prayer and allowance of appeal to this court. We have quoted from the "order to show that it in no way follows the customary judgment order entered in a common law action. The judgment order does not speak the truth because it is obvious that judgment was entered on plaintiff’s affidavit of claim; the defendant having been defaulted for want of a plea it was not entered against the defendant “on the merits” as the judgment order states.

The defendant having moved that the demurrer be carried back to the declaration, the first question for decision is the sufficiency of the declaration. Rieman v. Morrison, 264 Ill. 279; Stott v. City of Chicago, 205 Ill. 281 (erroneously cited by counsel for defendant as Scott v. City of Chicago, 205 Ill. 581); Giddings v. Williams, 336 Ill. 482 (also erroneously cited by counsel for defendant as 336 Ill. 432). The substance of the declaration is that on December 16, 1929, plaintiff being “by occupation an export counseler, and the defendant a manufacturer of marine motors,” entered into a certain agreement in writing whereby the defendant employed plaintiff “to represent and sell for him certain goods, wares and merchandise, connected with its said business as manufacturer of marine motors”; that the employment was for a period of five years commencing January 1, 1930; that “plaintiff then and there accepted the said employment, and in consideration thereof the defendant then and there . . . promised the plaintiff to pay him for such services” $2,400 per annum, payable monthly at the rate of $200 per month. And it is further averred that plaintiff “then and there entered into the employment of the defendant under a written contract, a trué and correct copy of which is hereto attached and marked ‘Plaintiff’s Exhibit A,’ and by reference is herein incorporated as if set forth in like words and figures; and plaintiff continued in such employment unto the present date”; but that the defendant refused to pay the $200 per month; that plaintiff was always ready and willing and “offered the defendant” to continue in the services of the defendant as aforesaid “and to perform all the duties required of him to be performed, according to the terms of the contract, heretofore referred to as ‘Plaintiff’s Exhibit A’ ” and that there was now due and owing from the defendant to the plaintiff $1,000, “being the amount due the plaintiff under said contract from the- date of his employment as aforesaid until the first of May, A. D. 1930.”

The defendant, in its plea to the declaration, referred to the contract attached to plaintiff’s declaration as Exhibit A, and if the declaration and plea were to be considered in the absence of a demurrer, the defendant would not be in a position to contend, as he does here, that the contract attached as an exhibit is no part of the declaration under the common law system of pleading. But since we are testing the sufficiency of the declaration by demurrer, we must pass on its sufficiency without reference to the exhibit attacked, because such an exhibit is no part of the declaration in an action at common law. Plew v. Board, 274 Ill. 232. A pleading is to be taken more strongly against the pleader where it is tested by a demurrer, and, applying this rule to the declaration before us, we are of the opinion that the demurrer should have been sustained. The averments are uncertain in a number of particulars. It is first alleged that the parties entered into a written' agreement dated December 16, 1929, whereby plaintiff was employed by defendant “to represent and sell marine motors for the defendant for a period of five years and commencing January 1, 1930”; that plaintiff accepted the employment and that defendant was to pay plaintiff $2,400 a year at the rate of $200 a month. It is then alleged that plaintiff then and there entered into the employment under a written contract, a true copy of which is said to be attached as plaintiff’s Exhibit A. "Whether this is the same contract mentioned above cannot be determined from a reading of the declaration without reference to the exhibit attached, which, under the law, we are not at liberty to notice. There is no specific allegation, as there, should be, that plaintiff performed the services required of him under the contract, except inferentially. It is alleged that the plaintiff entered into the employment “under a written contract” attached as an exhibit, plaintiff apparently assuming to recover for five months ’ salary; but he should have alleged that he performed the services, as this is apparently his contention, as appears from counsel’s brief. Moreover, we might point out that plaintiff’s claim of $1,000 is based upon the allegation of plaintiff’s employment from January 1 to May 1, a period of but four months, and which at $200 a month would be but $800; but plaintiff claims and has his judgment for $1,000.

Plaintiff entitled his case, “Bernerd Carlin d/b as Bernerd Carlin Organization.” Section 18 of the Schedule of the Constitution of 1870 provides that judicial proceedings shall be conducted and preserved in the “English language,” which, since the legislative enactment of 1923 probably should be referred to as the “American language.” Laws of 1923, paragraph 8, Cahill’s 1931 Statutes, ch. 17b, p. 194.

The judgment of the county court of Cook county is reversed and the cause is remanded with directions to sustain the demurrer to the declaration. Of course the court will permit plaintiff to amend if so advised.

Reversed and remanded with directions.

McSurely and Hatchett, JJ., concur.