author: Mr. Presiding Justice Taylor

text:
    E. Max Nestler et al., Trading as Shawnee Textile Company, Appellees, v. Pure Silk Hosiery Mills, Appellant.
    Gen. No. 30,592.
    1. Sai.es — sufficiency of evidence to show making of binding agreement for the sale of merchandise. Evidence .in an action for damages for breach, of an alleged contract of sale of merchandise held sufficient to establish the making of a binding contract as alleged by plaintiffs.
    2. Sales — misrepresentations by vendor as affecting right of vendee to avoid contract of sale. The fact that the vendor of merchandise to be manufactured for the vendee fraudulently represented that he was the manufacturer of such merchandise, when in fact he was merely a jobber, will not render the contract void, but makes it merely voidable.
    3. Sales — when vendee not relieved of liability under contract of sale by misrepresentation of vendor. The vendee of merchandise to be manufactured will not be relieved of liability under the contract upon the ground that the vendor fraudulently represented that he was the manufacturer of such merchandise when he was merely a jobber, where such vendee did not seek to cancel the contract at the time it learned of such misrepresentation, but some months later and then upon a different ground, and did not then or thereafter, until the trial, claim that it had been misled or damaged because of such representations, nor at any time produce evidence in support of such claim.
    4. Saving questions for review — sufficiency of objections to oral instructions in municipal court. Objections to instructions given orally in municipal court, in an action for breach of a contract of sale, held not sufficiently specific to warrant review, in view of Rule 8 of that court.
    5. .Sales — burden of proof as to duty and possibility of mitigating damages of vendor in action for breach of contract by vendee. In an action for breach of a contract of sale of merchandise the burden is upon the defendant to show that the plaintiff could and should have taken steps to mitigate his damages.
    6. Damages — measure of vendor's/ damages for breach of contract of sale of merchandise by vendee. In the absence of proof that the plaintiff in an action for breach of a contract for the sale of merchandise could' or should have mitigated his damages, the measure of his recovery is the contract price less the cost of performance.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. George A. Curran, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed October 13, 1926.
    McInerney & Power, for appellant.
    Helmer, Moulton, Whitman & Holton, for appellees.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On November 21,1922, three brothers, E. Max Nestler, B. J. Nestler and Ernest E. Nestler, copartners, doing business as the Shawnee Textile Company, brought suit in the municipal court for damages in the sum of $3,000, which it was alleged had been caused by the defendant failing to carry out a contract by which it had agreed to purchase from the plaintiffs 1,500 dozen pairs of ladies’ silk and wool hosiery. There was a trial before the court, with a jury,, and a verdict and judgment in favor of the plaintiffs in the sum of $3,000. This appeal is therefrom.

The statement of claim alleged that on February 6, 1922, the plaintiffs entered into a contract with the defendant whereby they agreed to sell, and the defendant agreed to buy, “twenty-five (25) cases of ladies silk and wool hosiery, a total of fifteen hundred (1500) dozen pairs, style No. 1480, at the agreed price of $13.00 per dozen pairs”; that on the same date, the defendant mailed a letter to the plaintiffs confirming its order, which contained the following:

“We take this opportunity in advising you that we hereby confirm order for 25 cases of the silk and wool same as samples your Mr. Nestler left here at $13.00 per dozen without kloxing, first case to be shipped September 1st. We have seen several other lines of beautiful silk and wool, but all things being considered we propose to deal with your firm.
“You may rest assured that we believe we will use more than the 25 cases we are specifying. We will push this line hard and hope to take a great many more cases before the season is over, so we would like to have an option on 25 additional cases at the same price.
“As we wrote you last week our Mr. Williams expects to call upon you some time during the week of February 13th to> 18th”;

That on February 8, in confirmation of the defendant’s letter of February 6, the plaintiffs wrote to the defendant as follows:

“We acknowledge receipt of your letter of February 6th, and we hereby confirm sale to you of twenty-five cases, total 1,500 dozen of ladies silk and wool hose, style No. 1480, at the price of $13.00 per dozen, without kloxing, subject to confirmation of details as to packing, colors, etc., in the near future. Also that first cases be shipped September 1st.
“We have also covered you for an option on twenty-five additional cases at the same price, these details to be furnished as may be later decided.
“We shall be very pleased to see Mr. Williams, and at this time we will take these various matters which we trust will be entirely satisfactory”;

That on February 15, at MiEintown, Pennsylvania, the defendant approved and accepted the terms of the confirmation as set forth in plaintiffs’ letter of February 8, 1922, and promised to furnish the plaintiffs with instructions as to colors, packing, etc., as its orders might require; that the plaintiffs contracted for the manufacture and completion of the merchandise specified in said order, at the price of $11 per dozen pairs, and was at all times able, willing and ready to comply with the contract;

That on June 16, 1922, without fault on the part of the plaintiffs, the defendant failed and refused to furnish the plaintiffs with instructions as to the colors required, although requested to do so, and breached its contract; that on the last date mentioned, the defendant advised the plaintiffs that it had canceled the contract, and on July 25, 1922, wrote to the plaintiffs that the order was canceled; that the plaintiffs have been damaged in the sum of $3,000, being the equivalent of the margin of profit of $2 per dozen pairs on 1,500 dozen.

On March 12, 1923, the defendant filed an afidavit of merits, alleging that it had a good defense to the merits of the whole of the plaintiffs ’ demand, and that its defense to said suit is as follows:

“That on or about the 6th day of February, A. D. 1922, a representative of the plaintiff called on the defendant, submitted and left with the defendant, samples of hosiery and requested the defendant to purchase hosiery as per sample; that said hosiery was manufactured and made by the plaintiff; that the representative of said defendant then and there stated that said defendant would take twenty-five (25) cases of the silk and wool, same as samples, at thirteen ($13) dollars per dozen, without kloxing, the first case to be shipped September 1st”;

That on February 6, 1922, the defendant wrote the plaintiffs the letter of that date which is set up in the plaintiffs’ statement of claim, and received in return the letter dated February 8, 1922, which is the letter of that date set up in the plaintiffs’ statement of claim.

In the affidavit of merits, the defendant denies that the letter of February 8, 1922, from the plaintiffs to the defendant, is a confirmation of the sale to the defendant of the said merchandise; denies that on February 15, at Mifflintown, the defendant approved and accepted the terms of said confirmation, as set forth in plaintiffs’ letter of February 8, 1922; denies that it promised to furnish the plaintiffs with instructions as to colors, packing, etc., as its orders might require; denies that thereupon the plaintiffs contracted with the manufacturers for the manufacture and completion of the merchandise specified in said order, at the price of $11 per dozen pairs; denies that the plaintiffs were at all times able and willing to comply with the said alleged contract according to its terms; denies that on June 16,1922, without fault on the part of the plaintiffs, it breached its contract in that it failed and refused to furnish plaintiffs with instructions as to colors required, and denies that the plaintiffs have been damaged to the extent of $3,000, or any sum whatsoever.

The plaintiffs, Richard J. Nestler, E. Max Nestler, and Ernest E. Nestler, brothers, constituted a copartnership entitled, the Shawnee Textile Company, and conducted a hosiery brokerage business. Their offices, which were in Mifflintown, Pennsylvania, were in the same building as a hosiery manufacturing concern known as the Juanita Hosiery Mills, which was owned by their father.

The defendant, Pure Silk Hosiery Mills, is a corporation, having its principal place of business in Chicago. At the trial, the depositions of the three plaintiffs were read in evidence, and, for the defendant, one Ennis, president, and Williams, treasurer, testified. Certain letters, the principal of which are those set forth in the statement of claim, were offered in evidence.

On, or shortly before February 6, 1922, as it is stated in the affidavit of merits, of the defendant, “a representative of the plaintiffs called on the defendant, submitted and left with the defendant, samples of hosiery and requested the defendant to purchase hosiery as per sample.” The affidavit of merits then states, “that said hosiery was manufactured and made by the plaintiffs,” but it does not state that that representation was made by the plaintiffs. The affidavit of merits further states, “that the representative of said defendant then and there stated that said defendant would take twenty-five (25) cases of the silk and wool, same as sample, at thirteen ($13) dollars per dozen, without ldoxing, the first case to be shipped on September 1st.”

The letter of February 6, 1922, which is set forth, as stated above, in the statement of claim, and in the affidavit of merits, contains the following:

“We take this opportunity in advising you that we hereby confirm order for 25 cases of the silk and wool same as samples your Mr. Nestler left here at $13.00 per dozen, without kloxing, first case to be shipped September 1st. We have seen several other lines of beautiful silk and wool, but all things being considered, we propose to deal with your firm. ’ ’

It is contended on behalf of the defendant that no contract of sale between the parties was ever completed. With that, we cannot agree. We think it is obvious that the statements set forth above and which are contained in the affidavit of merits taken together with those in the letter of February 6, recite the existence of such facts as in the eyes of the law make out a binding agreement; and, further, that the evidence introduced at the trial establishes the truth of the statements contained in the affidavit of merits and the letter. The affidavit of merits admits, and the evidence proves, that on February 6, a representative of the plaintiffs submitted to the defendant certain samples of hosiery, and requested the defendant to purchase hosiery “as per sample,” and that on the same day the defendant wrote to the plaintiffs advising them not only that it confirmed the order “for 25 cases of the silk and wool, same as samples your Mr. Nestler left here at $13.00 per dozen, without kloxing,” but requested that the “first case lie shipped by the plaintiff to the defendant on September 1st.” 'Certainly the admissions referred to in the affidavit of merits and the letter of February 6 prove that there was a meeting of minds and a contract made, which was complete and binding upon both parties. The defendant’s acceptance of the plaintiffs’ offer was positive and unambiguous. Williston on Contracts, sec. 72, vol. 1. The question remains whether anything was done thereafter which modified or qualified that contract in such a way as to justify the defendant in refusing to comply with its terms.

A number of other letters which passed between the parties were offered in evidence. One, dated February 8, acknowledged the receipt by the plaintiffs of defendant’s letter of February 6, and recites: “We hereby confirm sale to you of twenty-five cases, total 1,500 dozen of ladies silk and wool hose, style No. 1480, at the price of $13 per dozen, without kloxing, subject to confirmation of details as to packing, colors, etc. in the near future; also, that the first cases be shipped September 1st.” Some argument is made that the use of the phrase, “subject to confirmation of details as to packing, colors, etc.” related back and qualified what had gone before. In onr judgment, however, that was merely a matter of detail, and did not affect the fact that there was already a binding contract on the subject between the parties.

On April 29,1922, the defendant wrote to the plaintiffs that it wanted the first case of samples early in September, and. desired to know about the ability of the plaintiffs to deliver them. That letter, which is too long to quote in full, was evidently written on the assumption that the contract in question was outstanding and binding.

On May 5, 1922, the plaintiffs wrote to the defendant in answer to the foregoing letter of April 29:

“We presume that your deliveries will run from September on and at this time should find us in very good position on account of the fact that the bulk of the jobbers have their deliveries taken in by August, and September deliveries are slight generally speaking, with the exception of the eastern jobbers.”

On June 16, 1922, the defendant wrote a letter to the plaintiffs, which contained the following:

“Very contrary to our personal wishes in the matter, conditions exist which compel us to cancel the order given you, for ladies Silk and Wool hosiery, consisting of twenty-five cases.
“We are getting so many complaints about the prices, the public continually demanding merchandise at a less price, that we have come to the conclusion that we would have a very difficult time in disposing of this number at the price we would be compelled to ask for it.”

At the close of the letter appears the following:

“So we feel that it is a difficult task to try to market the Silk and Wool number, at the price we would be compelled to get for it, and we assure you, it is much to our dislike, personally, that we are compelled to cancel this order.”

On June 26,1922, the plaintiffs wrote to the defendant that, having received the defendant’s letter of June 24 inclosing copy of the letter which the defendant had written on the 16th, he was very much surprised at the action which the defendant had taken. Plaintiffs’ letter of June 26 contained the following:

“Following through the correspondence you will note that the order has been confirmed by you and acknowledged by us and that all arrangements have been made for the delivery and fulfillment of this order in good faith.
“The order was placed with us Feb. 6th, acknowledged on Feb. 8th at which time we also held open an option of an additional 25 cases at the same price. As late as April 29th you advise us that you must have the positive assurance that the merchandise can be turned out on delivery dates specified and that you also intimate that you will be able to use possibly triple the quantity ordered. This latter correspondence, of course, has no direct bearing on the order placed Feb. 6th. * * *
“The season now is past for our trade to buy fall commitments and we are, therefore, unable to accept your cancellation.”

On July 5, 1922, the plaintiffs wrote to the defendant :

“We note your paragraph in which you advise that we should welcome cancellation owing to the fact that the price of the commodities entering into the manufacture of the silk and wool line is higher at this time than at the time your order was placed. * * * The order was taken and confirmed by us and our production has been so outlined to take care of this business.
“We wish to call attention to the fact that it is poor business policy on the part of yourselves to place orders in good faith and expect the mills to cancel them at your will. We accommodated you last year with the cancellation of an enormous amount of goods which we had in stock or else had material contracts covered to manufacture the goods and which cancellations, we accepted owing to the fact that you had given us an order on the wool goods which profit would help this loss out to some extent.”

On July 7, 1922, the defendant wrote to the plaintiffs:

“As far as your ability to sell this quantity is concerned, I would think it would be a simple matter. You could write any of your customers and tell them that owing to a cancellation, you can give them an extremely low price, ‘which you quoted us,’ and they doubtless will be glad to get it.”

On July 7, the plaintiffs wrote to the defendant, acknowledging receipt of the defendant’s letter of July 7, and said:

“The key to your whole letter, as we see it, is the fact that you want this order canceled and for reason other than the complaint as to the quality of the goods, as in your sixth paragraph, you offer the proposition that you take in the silk and wools providing that the silk goods would be returned. This is a commitment that the silk and wool goods can be used or else you would not make this proposition. * * *
“As mentioned in our previous correspondence order has been accepted in good faith and arrangements have been made for the fulfillment and delivery of the same and we shall look to you to take in this order.”

On July 20, 1922, the defendant wrote to the plaintiffs, as it had not heard from the plaintiffs in reply to its, the defendant’s, letter of July 7, as follows:

“Not hearing from you, in reply to our letter of July 7th, in which we made you a proposition that we would return to you the Silk Hosiery purchased from you, in the same value requirements as the Silk and Wool which you wish to ship us, we take it for granted that this proposition is not satisfactory and that the order for Silk and Wool stands cancelled, and the incident closed.”

On July 25, 1922, the defendant wrote to the plaintiffs:

“We can only state that inasmuch as you have aloready failed to accept our proposition to return your silk hose, we can only reiterate our letter of July 20th, and consider the incident closed. We can only say that should you send us any hosiery, we shall not re^ ceive same from the Transportation Co.”

It will he seen from the foregoing that the defendant, by its letter of June 16, 1922, undertook to cancel its contract with the plaintiffs, and on the sole ground that the price which it had agreed to pay for the hosiery made it difficult for them to sell it at a profit. That letter, besides being an effort to cancel the contract, must be considered as evidence that the defendant recognized that there was a contract in existence at the time. It appears, considering that letter and all the letters that follow, that at no time did the defendant claim that a binding contract had not been made; whereas, on the other hand, practically all the letters confirm the fact that both parties recognized the interview, which it is admitted by both parties took place on February 6, together with the letter from the defendant to the plaintiffs on the same day, as resulting in a binding contract for the purchase and sale of the hosiery in question.

The situation was well expressed by the plaintiffs in their letter of June 26, in which they said: “Following through the correspondence you will note that the order has been confirmed by you and acknowledged by us and that all arrangements have been made for the delivery and fulfillment of this order in good faith.” It is our judgment that not only was a binding contract made on February 6, but the fact that in the letter of February 8, from the plaintiffs, the words were used, “subject to confirmation of details as to packing, colors, etc., in the near future,” was unimportant and did not affect in any way the binding qualities of the contract already made. Horgan v. Russell, 24 N. D. 490. Further, from the correspondence above set forth, it is clearly shown that both parties recognized the contract as having been made ande as binding.

It is urged for the defendant that the evidence shows that there was no meeting of minds, because on February 8, Williams, the treasurer of the defendant, called on the plaintiffs at their office in Mifflintown, “to close certain details with reference to packing the order,” and because the evidence shows that Williams selected four papers representing colors of papers to be used on the paper boxes, and took them with him, to call on certain printers and boxmakers; and, also, took four colors of hosiery representing the line which the defendant bought, and because Williams said he would let the plaintiffs have the details of the number of dozens of each color and the packing selected after he returned to Chicago and talked the matter over with Ennis, the president of the defendant; and that at no time were those matters agreed upon. But as we have intimated before, those matters arose subsequent to the meeting of minds on February 6; and, further, even if they had been part of the original negotiations, they were mere details and negligible when determining whether there was a contract of purchase and sale; (sec. 79, vol. I, Williston on Contracts) and then, still further, the subsequent correspondence demonstrates that both parties treated their negotiations as creating a contract, even without an understanding as to the details mentioned.

The defendant makes the further contention that the contract in question is void by reason of the fact that the plaintiffs fraudulently represented that they were manufacturers of the hosiery they were offering for sale, and that the goods which were the subject of this contract were to be made up by them as such manufacturers; whereas, the fact is that the plaintiffs were not manufacturers, but jobbers. Even on the defendant’s theory, the contract might be avoidable, but it would not be void. The defendant did not plead the alleged fraud or misrepresentation of which it now seeks to avail itself, so it was not properly in issue, but when the defendant presented evidence on the subject, the plaintiffs did not interpose any such objection, and, therefore, we shall consider the point.

Testimony was submitted in behalf of the defendant to the effect that when one of the plaintiffs’ representatives called at the defendant’s place of business in Chicago and solicited its business, he stated that the plaintiffs were manufacturers. There are a num-' her of statements in the letters of the plaintiffs to the defendant which would lead the latter to conclude that such was the status of the plaintiffs and that they were going to make up the hosiery which was the subject of this contract, but we do not consider the fact that the plaintiffs were not manufacturers as material in this case. The contention now sought to be made by the defendant on this ground is, apparently, an afterthought on its part. Williams testified that he visited the plaintiffs at Mifflintown, Pa., in February, and that he complained at that time that the prices the plaintiffs were asking for his hosiery were too high, for the defendant could purchase as good or better for less money, and that one of the Nestlers then told him that one of the plaintiffs ’ salesmen, who had called on the defendant, had been overcharging the defendant a dollar a dozen, which overcharge they had been turning over to the salesmen. Ennis, the president of the defendant company, testified that he did not know that the plaintiffs were jobbers, marketing the product of the Juanita Hosiery Mills until Williams told him of the situation after he returned from Ms trip East. Williams testified that one of the Nestlers showed him through the plant of the Juanita Hosiery Mills when he was East, but he did not then know that it was not the plaintiffs’ plant, and that he first learned that the plaintiffs were a jobbing concern after he came back. He says this knowledge came to him, and thus through him to the defendant, some time in the month of May. But the defendant did not seek to cancel the order it had given the plaintiffs at that time. It did not make any such move until after the middle of June, and even then not a word appears in its letter of cancellation claiming that it had been misled by the alleged misrepresentations now relied upon, or that such misrepresentations had caused or would cause it any damage. Under the circumstances, we do not consider the point well taken.

It is contended that the court erred in giving two instructions. Buie 8 of the municipal court provides: “Objections to the giving or refusing of oral instructions to the jury must be specific.” The record discloses that the court asked counsel, “Have you an objection to those two instructions?” and counsel answered, “To those two instructions.” No specific objections being made, the matter may not now be reviewed.

It is further contended that if the plaintiffs were injured by the defendant’s breach of contract, the plaintiffs were bound to use reasonable care in mitigating the damages, and that there can be no recovery of damages which might have been prevented by a reasonable effort on the part of the plaintiffs. The UMform Sales Act, section 64 [Cahill’s St. ch. 121a, [[67], provides:

“(1) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for nonacceptance.
“ (2) The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer’s breach of contract.”

Here, there is no evidence in the record, even tending to show that the plaintiffs should, or could, have mitigated their damages, and as the burden of proving those facts was upon the defendant, who breached the contract, the contention is untenable. Ryan v. Miller, 153 Ill. 138. Howard Supply Co. v. Wells, 176 Fed. 512; Lillard v. Kentucky Distilleries & Warehouse Co., 134 Fed. 168; Advance Veneer & Lumber Co. v. Hornaday, 49 Ind. App. 83; Norman v. Vandenberg, 157 Mo. App. 488; Easy Payment Co. v. Parsons, 62 W. Va. 26; Cornwall v. J. J. Moore & Co., 132 Fed. 868; McDermott v. DeMeridor Co., 80 N. J. L. 67; Sedro Veneer Co. v. Kwapil, 62 Wash. 385; Sutherland Damages, sec. 438, 4th Ed. The case of Cedar Rapids & I. C. Ry. & Light Co. v. Sprague Electric Co., 280 Ill. 386, states the rule as to the measure of damages, but does not consider the question upon whom is the burden of proof. The general rule is that the plaintiff is entitled to recover the total benefit of the contract, less expenses (Sedgwick on Damages, sec. 201, 9th Ed.); that, without evidence to the contrary, the amount which would have been made as profit if the contract had been kept, is the measure of damages if the contract is broken. Here, with the evidence as it is, the plaintiff is entitled to the excess of the contract price, that is, the amount over what it would have cost to perform, and as the evidence shows, and there is nothing to the contrary, that the profits of the contract were $3,000, being $2.00 a case on 1,500 cases, that was the proper measure and was the one evidently used in reaching both verdict and judgment.

For the reasons stated, the judgment will be affirmed.

Affirmed.

O’Connor and Thomson, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Grace Williams, Administratrix of the Estate of Gustavis Williams, Deceased, Defendant in Error, v. Saul J. Kaplan, Plaintiff in Error.
    Gen. No. 30,845.
    1. Highways — sufficiency of declaration in action for injury by automobile as averment of wilful and wanton negligence. A declaration in an action for damages resulting from the striking and killing of a pedestrian by defendant’s automobile at a street intersection, which alleged that it became the duty of the defendant to so manage, run, operate and drive his automobile at the place in question as not to injure pedestrians crossing the street on which he was driving, but that he nevertheless “so wilfully, wantonly and maliciously ran, managed, operated and drove” his automobile on the street in question “that said automobile without any fault on the part of the deceased, was caused to and did, run into, upon and against the deceased” thereby causing his death, held sufficiently to state a cause of action based upon wilful and wanton negligence.
    2. Negligence — elements essential to liability for wilful and wanton negligence. It is not an essential element of a defendant’s liability for wilful and wanton negligence that he shall be made to appear to have known that the victim of his negligence was in a position such that he was likely to be injured, or that defendant intended, as a matter of fact, to injure him.
    3. Highways — sufficiency of evidence to support count for wilful and wanton negligence, in action for injury to pedestrian by automobile. Evidence in an action for damages resulting from the striking and killing of a pedestrian by an automobile at a street intersection held so strongly to support a count for wilful and wanton negligence that the reviewing court would not be justified in setting aside the verdict for plaintiff thereon as against the weight of the evidence.
    4. Highways — unavailability of defense of contributory negligence, in action for injury to pedestrian by automobile, where evidence supports count averring wilful and wanton negligence. Where the declaration in an action for damages for killing a pedestrian with an automobile at a street intersection contains a count sufficiently charging wilful and wanton negligence, and there is evidence supporting a verdict for plaintiff thereon rendered under appropriate instructions, the fact that there may have been evidence tending to show contributory negligence on the part of the deceased is not material upon the question of the defendant’s liability.
    5. Evidence — when witness, in action for injury by automobile, properly asked whether speed of car was fast or slow. Where a witness had testified, on direct examination in an action for injury by an automobile, that the car was being driven at “a moderate rate of speed,” it was not error to permit her to be asked, on cross-examination, whether the driving was fast or slow.
    6. Evidence — propriety of asking witness who testifies indefinitely as to speed of automobile, to state its speed in terms of miles per hour. Where after a witness in an action for injury by an automobile had testified, in response to a question as to the speed of the automobile at the time of the accident, “I wouldn’t call it slow,” was asked by the court if he could give the speed of the car approximately in miles, and responded that as near as he could tell it was 25 miles an hour, it was not error to overrule an objection to the question and answer.
    7. Harmless and prejudicial error — characterization by witness of movement of car as “speeding," where she also stated it in terms of miles per hour. Defendant in an action for injury by an automobile was not prejudiced by the fact that after the testimony of a witness to the effect that the car “was coming up the hill at a terrific speed” was stricken upon objection, she was permitted to state that it was “speeding up the hill,” where she subsequently testified that the car was traveling at a speed of over 30 miles an hour.
    8. Instructions — propriety of instruction purporting to state what declaration averred, but not employing language of pleader. An instruction undertaking to inform the jury as to what was charged in the declaration held not erroneous where it gave the substance of the allegations of the declaration, although it did not follow the language of the declaration as closely as some instructions of this type do, and although it did not conclude, as it might better have done, by charging the jury that it was their province to determine, from all the evidence, under the court’s instructions, whether the plaintiff’s case, as so alleged in some of the counts of the declaration, had been made out by a preponderance of the evidence.
    9. Highways — propriety of instruction reciting language of statute as to speed of automobiles, in action for injury to pedestrian. An instruction, in an action for damages for an injury to a pedestrian by an automobile at a street intersection, which recited the statute as to speed, held not erroneous.

      10. Highways — accuracy of definition of wilful and wanton negligence in instruction in action for injury by automobile to pedestrian. An instruction in an action for damages for an injury to a pedestrian by an automobile at a street intersection held properly to have defined wilful and wanton negligence.
    11. Harmless and prejudicial error — instruction as to elements of damages varying insub stantially from statutory requirements. Defendant in an action for damages for injury to a pedestrian by an automobile at a street intersection held not prejudiced by an instruction pertaining to the elements of recoverable damages, although it did not accurately follow the exact standard of the statute, where the variance therefrom was obviously insubstantial.
    12. Harmless and prejudicial error — omission to mark instructions as “Given” before delivery to jury to take to jury room. Where it is not made to appear in what respect defendant in an action for damages for negligence was harmed by the fact that the instructions of the court were not marked “Given” until after the jury had rendered their verdict, the irregularity was not a ground for reversal of a judgment for plaintiff, where it appeared that the jury heard read all the instructions in fact given, and took them with them to the jury room, and such instructions were thereafter properly marked upon the hearing of the motion for a new trial.
    13. Damages — when verdict for $1,000 not excessive for death of pedestrian killed by automobile. A verdict for $7,000 for the wrongful death of a mail carrier, 63 years old, who had been receiving an annual salary of $1,800, and who left surviving him a widow, a daughter 30 years old who was a school teacher, and a son 28 years old who had an income of $25 a week, both of such children living with their parents who owned their own home, held not so excessive as to suggest passion or prejudice or that the award was in any degree punitive, so as to warrant the Appellate Court in setting it aside.
    Error by defendant to the Superior Court of Cook county; the Hon. Charles A. Williams, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed October 13, 1926.
    Cohen, Tomas & Cohen, for plaintiff in error.
    Joseph E. Winterbotham, for defendant in error.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On January 31, 1923, Grace Williams, administratrix of the estate of Gustavis Williams, deceased, brought suit in the superior court against the defendant, Saul J. ICaplan, for damages resulting from an automobile driven by the defendant, striking and killing Gustavis Williams. There was a trial before the court, with a jury, and a verdict and judgment for the plaintiff in the sum of $7,000. This appeal is from that judgment.

The declaration consists of five counts. The first alleges that on December 23, 1922, Williams was a United States mail carrier; that while on that day with all due care and caution for his own safety, he was lawfully crossing on Washtenaw Street where it intersects Diversey Boulevard, it became and was the duty of the defendant to drive his automobile so as not to injure pedestrians; but that the defendant so carelessly drove his automobile in a westerly direction on Diversey Boulevard, that, without the fault of Williams, he ran against and into Williams, injuring him so that he died on the same day. It further alleges that Williams, the deceased, left surviving him, his widow, and a son and daughter, who suffered pecuniary loss by reason of his death, and that the plaintiff, Grace Williams, was appointed administratrix of the estate of her husband, and began suit within one year of his death.

The second count is similar save that the negligence alleged is that the defendant, at the time, was driving his automobile at a speed of 40 miles an hour.

The third count alleges “that the defendant drove his automobile willfully, wantonly and maliciously” and as a result caused the injury.

The fourth count is similar to the first save that it alleges that the neighborhood was a closely built-up residence part of Chicago and that the defendant drove his automobile at a rate of 20 miles an hour, contrary to the statute.

The fifth count is similar to the first, save that it alleges that the defendant drove at a rate of speed in excess of 15 miles, an hour, contrary to the statute.

Three occurrence witnesses, William Canty, a chauffeur, Paul Wolfram, a chauffeur, and a bystander, Mrs. H. Freudenberg, testified for the plaintiff. The substance of Canty’s testimony is as follows: He was a chauffeur for a teaming company and had been in that occupation from eight to nine years. At the time in question, about noon on December 22, 1922, he was driving a Beo truck north on Washtenaw Street, going about 20 miles an hour and at the time of the accident was about 60 feet from the comer of Diversey Boulevard and Washtenaw Street. When he first saw Williams he was stepping off the curb on the east side of Washtenaw Street, going south. There was a truck, with a canopy, to the east of where Williams came from. Williams had just gotten a few steps from the curb, not quite to the center of the street, when he was hit; that the automobile was going 35 miles an hour. The automobile tossed Williams in the air and when he came down he fell on the front right fender and was carried by the automobile to the curb at the southwest corner of the street. The automobile went 35 feet over the south curb of Diversey Boulevard before it stopped. On cross-examination he testified that there was a truck standing on the northeast corner; that Washtenaw Street is about 60 feet, and Diversey Boulevard about 40 feet wide; that the southeast corner was built up; that he saw the automobile about 10 feet before it hit Williams; that he judged the speed as he crossed the street and from the time Williams was hit. On redirect he testified that the automobile was coming from the east, going west, and when he first saw it, it was east of Washtenaw Street.

The substance of Wolfram’s testimony is as follows: On December 22,1922, he was working as a chauffeur for a teaming .company, and had been in that occupation for six years. When he was at Rockwell Street, driving west, the defendant passed him going about 40 miles an hour or better. From Rockwell Street to Taiman Street to Washtenaw Street, all north and south streets crossing Diversey Boulevard, there is a rise of about 25 feet from the depression under the Northwestern viaduct. When he had almost reached Taiman Street, he saw Williams’ body fly up in the air. At that time the defendant had not slackened his speed. Williams was on the east side of Washtenaw Street about four or five feet north of the south curb. The body flew into the air 25 to 30 feet and fell down and caught between the lamp and the motor, and then, about 20 to 30 feet west of the intersection, fell alongside of the curb, the automobile going over the curb and sidewalk into a lot on top of a big bush about four feet around. The defendant’s automobile went about 60 to 70 feet from the curb, until it struck the bush. On cross-examination, he testified that Rockwell Street is two short blocks from Washtenaw Street; that Diversey Boulevard is about 60 feet wide and Washtenaw Street about 52 feet; that he was going about 11 miles an hour when the defendant was going 40, and traveled half a block in the time that the defendant went two blocks; that there was an ice cream truck at the northwest corner of Diversey Boulevard and Washtenaw Street; that he did not see Williams before the accident, did not see him until he flew up in the air; that he did not know in what direction he was going prior to that time; that there is a building at the southeast corner of Diversey Boulevard and Washtenaw Street; that in defendant’s automobile there was a woman and three children; that the streets were wet.

The evidence of Mrs. H. Freudenberg is, in substance, as follows: About the time in question, she was walking west on the south side of Diversey Boulevard, and when about 20 feet from Washtenaw Street, she saw Williams. He was on the northwest comer of the intersection and started to cross over to the south side of Diversey on the west side of the street. He looked east, and got within two feet of the southwest curb. The defendant’s automobile was going over 30 miles an hour. It was within 10 feet of her when she first saw it. It struck Williams when he was on the south side of the street. It knocked him up in the air about 15 feet and he came down and was 15 feet west of the west curb line of Washtenaw Street. On cross-examination she testified that she was on the southeast corner at the time of the accident, and that Williams was at the northwest comer; that Williams started across the west side of Washtenaw Street in a southerly direction, and she looked back over her shoulder and saw the automobile coming up Diversey Boulevard between Washtenaw and Taiman Streets, about half way; that the accident happened at the southwest corner and not on the east side of the street; that she never had driven an automobile and did not know what a cut-out was, although people had told her the cut-out was open. In the course of her direct examination the following colloquy occurred between the trial judge, the witness and counsel:

“Mr. Winterbotham (counsel for the plaintiff) : What, if anything, occurred that attracted your attention?
“A. Why, the machine was coming up the hill there at a terrific speed and the cut-out open.
“Mr. Cohen: I object to the answer and move it be stricken out.
“The Court: The words ‘terrific speed.’ We do not know what you mean by terrific speed. Tell what it is, as far as you can.
“The Witness: Well, it was speeding up the hill.
“Mr. Cohen: I move that answer be stricken out.
“The Court: Well, let it stand.”

In addition to the three occurrence witnesses, the plaintiff called one G-ormalley, the police officer who patrolled that particular region. His evidence is in substance as follows: He was called to the place of the accident about five or six minutes after it happened. The defendant was there, and the automobile was standing in the vacant lot — at the southwest corner of Diversey Boulevard and Washtenaw Street. It was 75 feet from the west side of Washtenaw Street, about 40 feet from the curb. There were some bushes there in the vacant lot, about 75 feet from the corner and about 15 feet from the sidewalk. There were some tracks beyond the sidewalk as if the automobile had been wiggling around, and some tracks over the sidewalk into the vacant lot. The temperature that day was about 70 degrees; there was ice and snow on the ground, but there was a thaw and a lot of water. The locality is a residence neighborhood. There is a railroad track at about Taiman Street, which is next to Washtenaw Street and the tracks are about 16 feet high over Diversey Boulevard; there is a one story brick factory on the southeast comer of Washtenaw Street and Diversey Boulevard which is 30 feet on Washtenaw and 60 feet on-Diversey, and an old frame building on the northeast corner. On the southeast comer there are three or four stores and on the southwest corner a vacant lot. There is an incline of about three feet from the top of Washtenaw Street to the bottom of the Northwestern Railway Company. When he got to the scene of the accident they were just lifting Williams’ body. It was then about 60 feet west of Washtenaw and a little to the south of the center of Diversey Boulevard.

At the close of plaintiff’s evidence, counsel for the defendant made a written motion to find the defendant not guilty as to the charge made in count three of the declaration. The motion was overruled.

For the defendant four occurrence witnesses testb tied. One of them was a brother of the defendant; one, a school teacher who was riding in the defendant’s automobile, sitting at his right; one, a salesman who, at that time, was on the sidewalk on Washtenaw Street, just south of the southeast corner of the intersection; and one a boy, Lester Bobin, who was riding in the rear of the automobile. The defendant was called to testify for himself, but his testimony was objected to on the ground that he was incompetent, and the objection sustained.

The evidence of the salesman, Ernest Dietel, is in substance as follows: At the time of the accident, he was on the east side of Washtenaw Street south of Diversey Boulevard, about five doors from the corner, walking north. He saw the automobile before the contact, and heard the yell, but did not see Williams struck. He did not see Williams go up in the air, but saw papers flying about. He did not see Williams until after he was lying on the south side of Diversey Boulevard near the curb and about 10 to 15 feet west of Washtenaw Street. As near as he could judge, the automobile was going about 25 miles an hour. It went about 25 feet after it hit him. He found Williams lying in the street. All the corners of the intersection are built up save the southwest, which is a vacant lot. At the northeast corner there was a large bulky truck, a little east of the sidewalk east of the crossing about five or six feet. On cross-examination, he testified that when he first saw the automobile, it was even with the east side of Washtenaw Street; that the contact took place about the center, a little southeast of the center of the intersection; that from the time the automobile struck Williams it, until it stopped at the .bush, went about 35 feet.

The brother of the defendant — a boy of 9 years and 3 months old at the time of the accident — testified that the road was wet and bumpy; that when the automobile was going up the incline the defendant blew the horn; that at the top of Washtenaw Street there was a truck on the right side; that Williams sprang out in front of the truck and the defendant drove to the left and the bag flew up in the air. On cross-examination he testified that Williams was walking from the north to the south, and was hit when in the middle of Diversey Boulevard. The boy Bobin, who was also in the automobile, and at the time was 11 years and 3 months old, testified that they were going west and there was a truck on the right-hand side and that Williams started out from the truck, went in front of the automobile and was hit by the right part of the fender; that he saw Williams ’ mail flying up.

The evidence of Alice Foy, the school teacher who was sitting at the defendant’s right, is, in substance, as follows: They were driving west and when they came to the viaduct, about half a block east of Washtenaw Street, there was no moving traffic, and they were driving at a moderate rate of speed. She was not able to state in terms of miles at what rate the automobile was going. The defendant sounded the horn as they started and kept on blowing it until they got to the top. The top of the incline is about at Washtenaw Street. She did not see anything except the truck that was parked on the northeast corner. Williams came from in front of the truck. She did not see him until he stepped out in front of the truck. Then the defendant swerved the automobile over to the left to avoid hitting him. Williams came from the front, saw them coming and then jerked back and then came forward again. The right side of the automobile struck him. The mail bag went up in the air. The automobile was turned to the left and went over the curb into the prairie. On cross-examination she testified that Williams was at the center line of Diversey Boulevard on the east crosswalk of Washtenaw Street when he was struck; that the lot at the southwest corner was excavated.

At the close of all the evidence written motions for the defendant that the jury be directed to find the defendant not guilty as to all the counts of the declaration, and that the jury be directed to find the defendant not guilty as to count three of the declaration, were made and overruled. Nine written instructions were given for the plaintiff and eleven for the defendant. At the request of the plaintiff the following interrogatory was given to the jury: “Did the defendant wantonly and willfully propel and operate said automobile in such a manner that it ran into and against the deceased, as alleged in the third count of plaintiff’s declaration?” and it was answered by them in the affirmative. After the verdict, motions for a new trial and in arrest of judgment were made for the defendant, and were overruled. At the time when the motion for a new trial was being considered, it was discovered that the written instructions had been given physically to the jury without being marked'“ Given, ” and counsel for the defendant took an exception.

It is contended for the defendant that the declaration does not state a cause of action based upon wilful and wanton negligence; that the death of Williams was the result of an unavoidable accident, and would not have occurred if Williams had looked before he undertook to cross the street; that there was no wilful and wanton negligence on the part of the defendant.

The third count of the declaration alleged that it became the duty of the defendant to so manage, run, operate and drive his automobile at the place in question as not to injure pedestrians crossing the street on which he was driving. That properly stated the defendant’s duty. It then alleges that nevertheless, “the defendant so willfully, wantonly and maliciously ran, managed, operated and drove a certain automobile, by him driven in a westerly direction on said Diversey Boulevard that the said automobile, without any fault on the part of the deceased, was caused to, and did, run into, upon and against the deceased,” so that as a result he was killed. It must be borne in mind that it is not necessary, where a cause of action is based upon a charge of wilful and wanton negligence, even for the evidence to show that the defendant, with malice aforethought, and with premeditation, and with conscious intention, brought about the injuries of the defendant. As the court said in Bremer v. Lake Erie & W. R. Co., 318 Ill. 11: “If there is any evidence in the record fairly tending to show such a gross want of care as indicates a wilful disregard of consequences or a willingness to inflict injury, then it is a question to be determined by the jury whether the negligent conduct of the defendant amounted to wantonness or wilfulness. * * * The gross negligence which will justify the presumption of wilfulness or wantonness is such as to imply a disregard of consequences or a willingness to inflict injury.” East St. Louis Connecting Ry. Co. v. O’Hara, 150 Ill. 580; Jeneary v. Chicago & I. Traction Co., 306 Ill. 392; Chicago, B. & Q. R. Co. v. Johnson, 103 Ill. 512; Chicago City R. Co. v. Jordan, 215 Ill. 390; Neice v. Chicago & A. R. Co., 254 Ill. 595; Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. 596. It need not be claimed for the plaintiff in such a case that there was a particular intention to injure, but that there was such “wilful and wanton recklessness” as “authorizes the presumption of an intention to injure generally,” to use the language of the Johnson case, supra. In that case the court also said that in negligence merely, “there is no purpose to do a wrongful act or omit the performance of a duty,” but that there may be such a dereliction of duty as will furnish evidence of a wilful or wanton act.

In the recent case of Bremer v. Lake Erie & W. R. Co., 318 Ill. 11, Mr. Justice Dunn said: “It is necessary in an action to recover damages for personal injuries to allege and prove the existence of a duty on the part of the defendant to protect the person injured from the injury of which he complains, the failure of the defendant to perform that duty and the resulting injury. * * * The plaintiff in error contends that in this case no duty is shown a breach of which was the cause of the injury, and relies upon the proposition that because the deceased was a trespasser, the only dhty which the plaintiff in error owed him was to refrain from wantonly or willfully injuring him after his presence in a place of danger was known to the defendant or its servants. In its brief many cases are cited to the proposition that after discovery of the presence of a trespasser, and not until then, it is the duty of a railroad company or its servants to avoid willfully or wantonly injuring such trespasser. The proposition stated is not the law of this State and the cases cited do not support it.”

In the same opinion, the court further said, in discussing Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. 596: “In the first of these cases (meaning the case just mentioned), the running of a train at a high rate of speed in a crowded city, over street crossings, upon unguarded tracks so connected with the public street and so apparently the continuation of a public street as to be regarded by ordinary citizens as located in a public street, along a portion of such tracks where persons were known to be passing and crossing every day, in violation of a city ordinance as to speed and without warning of the approach of the train by the ringing of a bell, was held to be such gross want of care and regard for the rights of others as to justify the presumption of willfulness. ’ The Neice case, supra, holds that there is a duty to the general public, even to trespassers. “The duty which a railroad company owes to a trespasser before it has knowledge of his presence or danger is, not to do any wilful or wanton act to injure him.” Bremer case, supra. A fortiori in the instant case, it was not necessary that the defendant should have known that Williams was in such a position that he was likely to he injured. East St. Louis Connecting Ry. Co. v. O’Hara, supra. What it is necessary to prove and, therefore, what it is necessary, in substance, to allege in such a case, is stated in the Bremer case as follows: “If there is any evidence in the record fairly tending to show such a gross want of care as indicates a wilful disregard of consequences or a willingness to inflict injury, then it is a question to be determined by the jury whether the negligent conduct of the defendant amounted to wantonness or willfulness. * * * An intentional disregard of a known duty necessary to the safety of the person, and an entire absence of care for the life, the person or the property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness such as charges the person whose duty it was to exercise care with the consequences of a wilful injury.” Not infrequently the law imputes to a wrongdoer an intention which, as a matter of fact, he did not possess, and as Salmond says (Salmond Jurisprudence, 7th ed., p. 397): “The reason for the recognition by the law of such cases of constructive intention, is the expediency of extending to the more serious forms of negligent wrongdoing, the liability or additional liability attached to wilful wrongdoing.” In the instant case, therefore, although the defendant may not have known that Williams was in such a position as to be likely to be injured, and had no intention, as a matter of fact, to injure him, such knowledge and such intention, in fact, were not necessary elements of his, the defendant’s, liability for wilful and wanton negligence. The conclusion follows, therefore, that the declaration properly stated a cause of action based upon wilful and wanton negligence. In so far as the decision of this court in Harris v. Piggly Wiggly Stores, Inc., 236 Ill. App. 392, is to the contrary, it must be considered as not to be followed, especially in view of the later decision of the Supreme Court. The Bremer case, supra. The manifest tendency of the law as shown by the decisions is towards less rigor in the technique of pleading, provided, of course, the defendant’s rights are not thereby endangered or impaired.

As to the merits of the case, the evidence- of wilful and wanton negligence is so strong that we feel bound to let the verdict stand. If an automobile is driven over a street crossing into an intersection of two city streets, in a residence district, at 30 miles or more an hour (here the two chauffeur-witnesses put the speed at 35 and 40 miles an hour, respectively, and Mrs. Freudenberg at over 30), especially bearing in mind the greater care required at the street crossing (Heidenreich v. Bremner, 260 Ill. 439), and the maximum speed fixed by the statute for such areas is 15 miles an hour, it seems to be, at the very least, reasonable— to use the language of the decisions — to infer an intended disregard of a known duty necessary for the safety of others, and a want of care for the life of others, and shows such a conscious indifference to consequences as to justify and establish a charge of constructive or legal wilfulness. The Jeneary case, supra.

The evidence here tends to show that Williams was doing his duty as a mail carrier, and was walking south on the street crossing, or some short distance to the west of it, and that he looked east — such is the uncontradicted testimony of Mrs. Freudenberg — that he was in the exercise of ordinary care, and that the defendant drove at a speed, which in and of itself, considering the circumstances and the situation at the time, was obviously unreasonable, and in violation of the statute. And such being the situation of fact, as disclosed by the record, and as it was the duty of the defendant, as a matter of law, as he approached the street crossing located in a residence area, to exercise appropriate care, both as to speed and as to persons who might be in the act of crossing, it follows, in our judgment, that we would not be justified in overriding the verdict of the jury as being clearly against the weight of the evidence.

It is contended that there was evidence tending to show that Williams was guilty of contributory negligence. But that, in view of the evidence as to wilful and wanton negligence, becomes immaterial. The declaration having sufficiently charged wilful and wanton negligence, and substantial evidence tending to show wilful and wanton negligence having been introduced, and the jury having been properly instructed on that subject, the evidence as to the conduct of Williams in no way relieves the defendant of liability.

Objection is made that the trial judge erred in ruling on certain questions propounded to defendant’s witness, Foy. She had already been allowed on direct examination to testify that the defendant was “driving at a moderate rate of speed.” Apparently, that was as definite a judgment as she could give. And so when asked whether the driving was fast or slow, the question called for no more than she had already given. As to the objection to the ruling when Dietel testified, it is untenable. The trial judge asked the witness, after he stated, “I wouldn’t call it slow,” if he could give it approximately, in miles, and the witness answered that as near as he could tell it was about 25 miles. That was entirely proper. The court sought the concrete truth and the witness reduced his former vague expression, “ordinary speed” to the more comprehensible one, of “about twenty-five miles an hour.” Nor do we find any serious error in the rulings when Mrs. Freudenberg was testifying. It is true that she said the automobile was “coming up the hill there at a terrific speed”; but that the trial judge struck out the phrase, and although she also testified that “it was speeding up the hill,” she stated later in her testimony that it was going over 30 miles an hour.

It is contended that the plaintiff’s first instruction, which undertook to instruct the jury as to what was alleged in the declaration, constituted error justifying a reversal of the judgment. Attabella v. Krzepton, 233 Ill. App. 320. This instruction briefly gave the substance of the allegations of the plaintiff as set forth in her declaration. It did not follow the language of the declaration closely as some instructions of this type do. While the instruction might better have concluded by telling the jury that it was their province to determine from all the evidence, under the court’s instructions, whether the plaintiff’s case, as so alleged in some one of the counts of her declaration, had been made out by a preponderance of the evidence, we do not consider it error for the court to have given it in the form complained of. It is, also, contended that the plaintiff’s second instruction, which recites the statute as to- speed, constituted error. Obviously, that objection is not tenable. As to the objection to plaintiff’s third instruction, we have already stated that the third count of the declaration set forth a cause of action, and it follows that the instruction, defining quite accurately, as it did, the phrase, wilful and wanton negligence, was entirely proper. It is argued that the instruction is a general one and “disregards the proposition that the defendant must know of the situation of plaintiff’s intestate before he can be charged with wilful and wanton misconduct.” As we have already stated, there is no such law.

It is contended that plaintiff’s fourth instruction which pertains to the assessment of damages, and what may be included therein, is erroneous. The instruction does not accurately follow the exact standard of the statute, but the variance is quite obviously insubstantial.

It is further contended that as the instructions were not marked “Given” until after the jury had rendered its verdict, the omission constituted error sufficient to justify a reversal. It was irregular, but as all the instructions the jury heard read and which were delivered to them were, of course, the ones that were “Given” and so marked afterwards, upon the hearing of the motion for a new trial, we do not see, and it is not pointed out, how the omission could have deprived the defendant of any right or caused him any harm.

It is further contended that the damages are excessive. At the time of his death, Williams was 63 years old, a mail carrier, with an annual salary of $1,800. He left a widow, a daughter 30 years of age who was a school teacher, and a son 28 years of age, who received $25 a week. Both children lived with their parents, who owned their home. The statute provides that “the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife and next of kin * * * not exceeding $10,000.00.” Of course, it is not possible to make a scientific appraisement of “the pecuniary injuries.” But that is not essential. The legislature has empowered the jury to name a sum which it considers fair under the circumstances. They have done so, and, considering the verdict of $7,000 and what the pecuniary situation of the widow and next of kin was at the time of William’s death, we do not feel entitled to override it. The amount does not in any way suggest passion or prejudice or that it was in any way punitive. Northern Trust Co. v. Grand Trunk Western R. Co., 207 Ill. App. 11; Moore v. Bloomington, D. & C. R., 215 Ill. App. 546.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

O’Connor and Thomson, JJ., concur.


author: Mr. Presiding Justice Taylor Mr. Justice Thomson,

text:
    S. L. Cooper, Appellee, v. Palais Royal Theatre Company et al., Defendants, on appeal of Nelson Thomasson, Appellant.
    Gen. No. 31,124.
    1. Mechanics’ mens — when lumber intended for use in making forms for concrete work not “delivered to owner or his agent” within meaning of Cahill’s St. ch. lfi, If 7. Although a contractor for the erection of a building at a certain street corner, with the permission of an agent of the owner of the premises where the structure was to be erected, piled upon an opposite corner of that intersection, owned by the same party, secondhand lumber which he intended to use in the construction of concrete forms in the erection of that building, and employed men to put such lumber into condition for the intended use by drawing out nails, etc., such lumber was not furnished and delivered to the owner or his agent so as to make its value and the cost of the labor thereon the subject of a mechanic’s lien, notwithstanding Cahill’s St. ch. 42, 7.
    2. Mechanics’ mens — sufficiency of evidence to show owner of premises “knowingly permitted” delivery of material to contractor making improvements thereon. Evidence in a proceeding to establish a mechanic’s lien held to show that the owner of the premises whereon the work was done and the material was furnished and delivered, knowingly permitted such work and delivery pursuant to a contract between such contractor and one with whom such owner had negotiated with a view to a sale of the premises.
    3. Mechanics’ mens — right to lien for reasonable worth of material furnished for use of one whom owner “knowingly permits" to make improvement-, where contract abandoned because of other party’s default. Under Cahill’s St. ch. 42, If 4, a contractor who has furnished labor and material for an improvement upon property under a contract with one whom the actual owner of the property has knowingly permitted to make such improvement, may have a lien for the reasonable worth of such labor and material although he does not complete the contract because of the failure of the other party thereto to perform on his part.
    4. Mechanics’ mens — validity of statute authorizing lien for reasonable worth of material furnished on uncompleted contract, where construed to attach as against owner knowingly permitting delivery thereof to one making improvement. The owner of premises against which a lien is decreed under Cahill’s St. ch. 42, 7, is not deprived of his property without his consent, or without due process of law, although the establishment of such lien results from a construction of such provision of the statute such that it will support a claim of lien for the benefit of a contractor furnishing labor and material under a contract with one whom the real owner of the premises has knowingly permitted to make the improvement although such contractor has no contract signed by the real owner.
    5. Appeal and erbob — affirmance of decree for mechanics lien as against claim of excessiveness, where appellant omits to bring up for review all exhibits pertinent to issue. A decree awarding a mechanic’s lien will not be disturbed upon a claim that it is excessive in amount where as far as the record shows the items allowed were proper subjects for a lien, and the appellant has failed to bring up all the pertinent exhibits offered in evidence in the court below.
    Thomson, J., specially concurring.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding. Heard in the third division of this court for the first district at the April term, 1925.
    Affirmed in part and reversed in part.
    Opinion filed October 13, 1926.
    Rehearing denied October 27, 1926.
    Granville W. Browning, for appellant.
    A. S. and E. W. Froehlich, for appellee, Complete Artificial Stone Company; Edmund W. Froehlich, of counsel.
    Litsinger, Healy & Reid, for appellee, S. L. Cooper.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On July 29,1921, S. L. Cooper, as complainant, filed a bill of complaint in the circuit court, seeking to obtain a mechanic’s lien upon certain real estate of Nelson Thomasson, Sr., the defendant. A number of others were made parties defendant. On March 8, 1922, Thomasson, Sr., filed an answer, and later, a cross-bill. On March 15,1922, the matter was referred to Master in Chancery Doyle. On June 9, 1922, leave was given to the Complete Artificial Stone Company to file an intervening petition, and on the same date a petition and answer to the bill of complaint were filed. After various proceedings before the master and the chancellor in regard to the pleadings and the evidence, the master filed a report, recommending mechanics ’ liens in favor of both the complainant and the intervening petitioner; and on February 13, 1925, a decree was entered overruling exceptions to the master’s report. The decree gave the complainant a lien in the sum of $8,355.09, with interest from July 20,1921, making a total of $9,843; and gave the intervening petitioner a lien, inferior only to that of the complainant, in the sum of $11,815.90, with interest from June 22,1920, making a total of $14,662.

As to the general situation and the relations of the parties, the evidence shows, the following: The real estate in question was at the southeast corner of Ainslie and Kedzie Streets, in Chicago. It was owned by the defendant Thomasson, Sr. He, also, owned the real estate at the southwest corner of the same streets. Covering both properties, there was a mortgage outstanding, securing $25,000 of indebtedness.

Some time in the year 1920, one Schaeffer undertook the organization of the Palais Boyal Theatre Company, with a view to building a theatre, and began negotiations looking towards the purchase of the property of Thomasson, at the southeast corner of Ainslie and Kedzie Streets. The company was incorporated by Thomasson, Jr. (so he testified). Schaeffer was president. The theory was that the building, including the ground, was to cost $750,000, and to finance the matter, there was to be a bond issue of $600,000. Bonds were never issued, although some interim certificates were sold. Thomasson, Jr., subscribed for one share of stock, as an incorporator, and was treasurer of the company for about 30 days, and signed some stock certificates. Schaeffer testified that the stock was all common stock, and that $100,000 of it was kept for the promoters; that one-sixth of the stock was to go to Thomasson, Jr.

Thomasson, Sr., testified that his son, Thomasson, Jr., represented him about the property. In the fall of 1920, negotiations took place between Schaeffer and Thomasson, Sr., in regard to the purchase by the company of the property at the southeast corner of the streets above named. Schaeffer offered to pay off the mortgage of $25,000, and give Thomasson, Sr., and Jr., 49 per cent of the stock of the company. Thomas-son, Jr., testified that his father said he was not interested in the stock; that they could give that to him, his son. The negotiations finally resulted in a so-called escrow agreement being deposited on September 20, 1920, signed by Thomasson, Sr., with the Chicago Title and Trust Company. The escrow agreement was an offer, in writing, by Thomasson, Sr., authorizing and directing the Chicago Title and Trust Company to deliver a deed to the property in question — which deed was deposited contemporaneously with the escrow agreement — “when there has been delivered to you a release of trust deed * * * to the premises in question * * In other words, Thomasson, Sr., offered to consummate a sale of the property, but only when the Palais Boyal Theatre Company should pay off the incumbrance of $25,000, and certain taxes and instalments. Schaeffer tried to raise the necessary amount, approximately $25,000, but failed, and so the offer to sell was not accepted, and the deed of the property never delivered.

The Palais Boyal Theatre Company — hereinafter called the Theatre Company — made in 1920, two contracts, among others, one with the Complete Artificial Stone Company, — hereinafter called the Stone Company, — and one, in September, 1920, with Cooper. The Stone Company was to put in the concrete foundations, and Cooper to build the theatre. The Stone Company began work on June 7, 1920, and finished its work on June 22, 1920. The work and material of the Stone Company, the intervening petitioner, according to the testimony of its president Wahl, was worth $12,500. The decree — which is too meagerly set forth in the abstract of record — allowed, exclusive of interest, $11,815.90. Cooper, the complainant, began work on the premises in October, 1920. The last work he did Xas in July, 1921. The decree allowed him, exclusive of interest, $8,355.09.

Cooper, shortly after making his contract, went to xork to put up the building. He testified that he agreed to erect a tower (to elevate material), complete all the chutes, to bring all his tools and lumber, and have everything prepared before any money was raised for a financing fund. He built the tower, which was about 100 feet high. The building was to be one of concrete, and the tower was to be used chiefly in carrying up prepared concrete for purposes of distribution. He took to the premises certain machinery, and certain lumber. Most of the lumber was not taken to the'premises in question, — the southeast corner, on which a lien is claimed — but was delivered to, and piled on the premises at the southwest corner, which was also owned by Thomasson, Sr. Cooper testified that he did not know how much lumber he had on the southwest corner, but that he did pile up a lot of lumber there, and that he did not use it, and that at the time of the trial it was still there.

One Eosenzweig, Cooper’s timekeeper, who checked in lumber that was delivered, and whom Cooper said he employed, testified that he worked there from October 5 to November 18, 1920; that he checked the material that came, and made a record of it, and kept the time of the laborers; that they helped unload the trucks of lumber; then piled it, and cleaned it and took nails out of it — that some of the lumber of the first delivery was put on the ground between the sidewalk and the curb, at the southeast corner, and was used in the hoisting tower, and that all the 4 by 4 were put on the southwest corner, save some that were used in the hoisting tower. All the lumber was used lumber, he says, and had been used for forms in building another theatre; that the only lumber actually used was in building the hoisting tower; and that none of it was used on the premises in question for forms. He further testified that the lumber was hauled on trucks, carrying from 5 to 8 tons each; that the first load was piled on the street, beside the curb, and was later taken away and put on the southwest comer; that all the lumber was dirty, used lumber, and had nails in it. He testified, exhibiting 13 sheets with memoranda which he made at the time of the various transactions, that in all 13 truck loads of lumber were delivered, all of which was delivered to, and piled on the southwest comer, with the exception mentioned; that it was all delivered in October, 1920. He also testified to the amounts paid to the laborers who worked on the lumber which was piled on the southwest corner. Cooper testified that he piled the lumber on the southwest corner because there was no room on the southeast corner; that he did not know how much he had there; that Schaeffer told him that he had the right to pile it there; that the lumber was to be used in the construction of the building, and for forms and moulds to pour concrete in; that part of the lumber was used in making the hoisting tower; that what was not used in the hoisting tower was still piled upon the southwest comer. He further testified that the lumber was Georgia Pine, Grade No. 1, but was used lumber, taken from the Senate Theatre.

He further testified that he unloaded on the premises two concrete mixers, one steam hoist, a gasoline pump, double gauge hoisting engine, iron chutes, two-wheeled carts, 35 wheelbarrows, 80 wooden horses, three mortar boxes, 40 mortar boards, and some cables, and gave the rental value of the property so delivered.

Cooper further testified that he told Thomasson, Jr., he wanted permission to put the lumber on the southwest corner. Thomasson, Sr., said that he never gave anyone, and never was asked permission to pile lumber and machinery on the southwest corner and that he was never out at the premises except on Sundays, and was never there when men were working on the southeast corner. His son said he spoke to Cooper in October, 1920, and asked him if he, Cooper, was not bringing up an “awful” lot of stuff; that Cooper said, yes, he had just finished a theatre and had to have some place to put his stuff, and that he wanted to know if there was any objection to it being put on the southwest corner; that he, Thomasson, Jr., told him he had no objection to his putting his lumber on the southwest comer.

Schaeffer testified that he saw Thomasson, Sr., at the property on Sundays; Wahl, that he saw him there two or three times while the men were working, and talked with him; Gflover, that he saw him there when the hoisting tower was being built, saw him talking with Schaeffer; Eosenzweig, that he saw him there in the early part of October, 1920, when the laborers were unloading lumber, and the carpenters were working on the hoisting tower, saw him twice just looking around; Nelson, that he saw him once or twice at the corner at the time the foundation was going in, in 1920. Cooper testified that a few months prior to the hearing, Thomasson, Sr., told him that he knew what was going on, on the premises, and that the work was being done by him, Cooper, and asked him, “How are you going to prove it?”

Owing to the inability of the Theatre Company to obtain money to finance the undertaking, and the consequent failure to pay Cooper what, if anything, was due him, some time after he had built the hoisting tower, he quit work. Cooper said that he did not take any of the lumber away that was piled on the southwest corner, because it belonged to the Theatre Company.

. As the decree allowed Cooper $8,355.09, being the amount recommended by the master, less $883, for the hoisting tower, and as the $8,355.09 was made up — • in addition to the item of $883 — of the following items: $6,408.65 for lumber used on the premises; money paid to laborers, $1,969.62, and 10 per cent of the last two amounts, the question arises at the outset whether the evidence sufficiently shows that the lumber was delivered as required by section 7 of the Lien Act [Cahill’s St. ch. 42, TT 7 ] - In answering that question, we think a consideration of what the evidence shows leads irresistibly to the conclusion that no such delivery took place. The testimony of Cooper, Schaeffer and Thomasson, Jr., is not enough. Secondhand lumber forms piled across the street on property entirely disconnected with the actual building site, and Thomasson, Jr., testifying that he told Cooper he had no objection to his piling lumber there, does not make out a case of delivery. The bill of complaint does not even mention the real estate at the southwest corner, where the lumber was delivered.

The Mechanic’s Lien Act of this State being in derogation of the common law, it has been held by the Supreme Court that it must be strictly construed. Provost v. Shirk, 223 Ill. 468. The statute itself provides, section 39 [Cahill’s St. ch. 82, [¶] 39]: “This act is and shall be liberally construed as a remedial act.” Prior to July 1, 1913, when the Mechanic’s Lien Act was revised, it was the law that a lien for materials was limited to the extent of their actual use in the construction of the building, and in Rittenhouse & Embree Co. v. F. E. Brown & Co., 254 Ill. 549, decided in 1912, the court held that lumber used in making forms in which concrete was poured was not within the statute, as they did not become a part of the completed construction. But, as the court said in Hoier v. Kaplan 313 Ill. 448:

“In 1913 the act was amended by including within its scope ‘forms or formwork used in the process of construction where cement, concrete or like material is used. ’ This amendment authorized a lien for such forms when used in the process of construction in the manner specified, even though they did not become a part of the completed building or improvement. * * *
“Section 7 of the Mechanic’s Lien act, as amended in 1913, permits the enforcement of a lien, within certain limitations, if ‘it is shown that such material was delivered either to said owner or his agent for such building or improvement, to be used in said building or improvement, or at the place where said building or improvement was being constructed, for the pur- . pose of being used in construction or for the purpose of being employed in the process of construction as a means for assisting in the erection of the building for improvement in what is commonly termed forms or formwork where concrete, cement or like material is used, in whole or in part.’ The words ‘to be used in said building or improvement,’ and ‘for the purpose of being used in construction,’ have a more direct and immediate relation to the improvement than do the words ‘for the purpose of being employed in the process of construction as a means for assisting in the erection of the building,’ etc. ‘Used in said building or improvement’ and ‘used in construction’ denote use as a part of the construction so that the material becomes a part of the completed structure. (Rittenhouse & Embree Co. v. Brown & Co., supra.) The words ‘used in the process of construction’ were not in the act before the amendment of 1913, and are specifically limited to ‘forms or formwork where concrete, cement or like material is used.’ These words do not enlarge the act to cover any other means employed in the process of construction. Labor indirectly employed, unless it be upon forms put to the specified use, will not give rise to a lien.”

As the lumber was all placed on the southwest corner, and workmen merely worked on it cleaning and scraping it, and pulling nails out of it, and all of the lumber was left there in that state by Cooper, we are of the opinion that, although it was the intention of Cooper ultimately to use the lumber for the making of forms to be used in the construction of the concrete work of the prospective building, it cannot be said that the lumber in question was so furnished and delivered as to make it the subject of a mechanic’s lien.

As to the claim of the Artificial Stone Company: The property at the southeast corner having been excavated, a contract was made on June 3, 1922, between the Theatre Company and the Stone Company by which the Stone Company undertook to furnish all the labor and materials for the construction of the concrete foundations, according to certain plans, and to do certain excavating, for $19,293, 85 per cent to be paid during the progress of the work, the first payment to be made 10 days after work was begun, and a payment each 10 days thereafter. The Stone Company began the work and proceeded to dig the trenches, lay the footings and build the concrete foundations.

Wahl, the president of the Stone Company, attended the work daily. He testified that he saw Thomasson, Jr., there every morning and saw Thomasson, Sr., there two or three times; that the first time he saw Thomasson, Sr., there, the latter said, “You are putting in some pretty heavy foundations there”; and he, Wahl, answered, “Yes,” and that Thomasson, Sr., then said it would be a good proposition as a theatre. Schaeffer, upon request for payment, as the work progressed, gave Wahl, for the Stone Company, two checks, but they were returned, “Not sufficient funds.” No actual payment was ever made on the contract. After the return of the second check, Wahl notified Schaeffer that unless the Stone Company was paid as required by the contract, the work would be stopped. Later, it filed its intervening petition, asking for a mechanic’s lien in the sum of $12,500. The master recommended, and the chancellor decreed a mechanic’s lien in favor of the Stone Company in the sum of $11,895.90. That amount was made up of the following items: $10,497.90 for 14,997 cubic feet of concrete work at 70 cents per cubic foot; $750 for 500 cubic yards of trench excavation at $1.50 per cubic yard; and $648 for labor in constructing forms for concrete work.

It is urged for Thomasson, Sr., that it was not shown that Thomasson, Sr., knowingly permitted the work to be done. We think otherwise. Considerable of the evidence on that subject that we have considered in discussing the claim of Cooper is pertinent, and all tends strongly to show that Thomasson, Sr., did, with full knowledge, permit the work and materials to be furnished by the Stone Company, and to the premises owned by him at the southeast corner. It is urged that Wahl knew that Schaeffer had no money; that he knew that one Erickson, a contractor, had been offered the contract with a large profit, but had declined to take it, on the ground that there was no money in sight; that he must have known that there was no contract between the Theatre Company and Thomasson, Sr.; and that the Stone Company proceeded heedlessly, without a valid contract. None of those objections, or all taken together, are sufficient. The Theatre Company was under way, supposedly as a going concern, even though it might be hard up for money. The Thomassons, both father and son, knew the Stone Company was at work furnishing materials and labor for the Theatre 'Company, and by no overt act disputed the right of the Stone Company, or the Theatre Company, to go on, and put in a large and costly amount of labor and materials. In such a situation, we think an estoppel arose, such as the Lien Act contemplates, and as gives a right by the use of the words, ‘ ‘ knowingly permitting. ’ ’ Wertz v. Mulloy, 144 Ill. App. 329.

It is urged that the Stone Company is not entitled to a lien because it did not complete its work, and that there may be a lien for unfinished work only where the “owner of the land” signs a contract. With that we do not agree. In our judgment, the meaning of the word “owner” as used in section 4 of the act [Cahill’s St. ch. 82, ][ 4] is the same as when used in section 1 [Cahill’s St. ch. 82, ff 1]. Hacken v. Isenberg, 288 Ill. 589. In the latter case, in passing upon the meaning of the word “owner” in section 30 of the act [Ca-hill’s St. ch. 82, ]f 30], the court said: “The words ‘the owner’ in section 30 have the same meaning as they do in section 1, and have reference to anyone having such an estate, right or interest as aforesaid, whether his estate, right or interest be one in fee, for life, for years or for any other interest.” As, therefore, in our judgment, the Theatre Company was “an owner” under section 1, it was likewise “an owner” under section 4. In our judgment, as far as the statute is concerned, there is no distinction between an owner who authorizes, and one who knowingly permits. Reading section 4 in conjunction with the rest of the act, we cannot believe that it was intended by the legislature to affect or impair in any way any lien arising by reason of section 1. Section 4 seems to have been enacted so as to extend and broaden the rights of a contractor and improve his remedy by way of a mechanic’s lien, in the event of any breach of any kind by the one with whom he has his contract, even though the one with whom he has his contract is an owner only in the sense of being one whom the actual owner has knowingly permitted to make an improvement. In our opinion, the act permits a lien for uncompleted work, although the owner of the land as such owner signed no contract, if he may be considered as having knowingly permitted a third person to do so, and work and materials are furnished thereunder.

It is further contended that if section 4 be construed favorably to the claimant here, it results in depriving the owner of certain property rights without his consent. With that we do not agree; having had knowledge and permitted the thing to be done in part or in whole, he is for that reason properly chargeable with notice.

It is urged that the decree deprives the defendant of his property without due process of law; that there is no provision of the statute giving a lien for unfinished work except where the contractor has a contract with “the owner of the land”; that the Stone Company had no such contract, and therefore the decree is not based on any valid right. That is untenable, and what we have said above shows why.

The amount of the decree in favor of the Stone Company is criticized. It must be borne in mind that the amount of the Stone Company’s claim is not to be figured upon the basis of the contract itself, but upon a quantum meruit, that is, the value of the work and material furnished. Fehr Const. Co. v. Postl System of Health Bldg., 288 Ill. 634. As far as the record shows, all the work and material considered in arriving at the amount of the decree were part of those contracted for and were a proper subject — considering the nature of the contract and what was done under it — of a mechanic’s lien. City of Salem v. Lane & Bodley Co., 189 Ill. 593. Further, in view of the fact that the defendant failed to bring- up all the pertinent exhibits that were offered in evidence, we are not justified in modifying the decree as to the amount of the lien.

As to the contentions of fraud and bolstering up the claim of the Stone Company, the evidence shows such charges to be negligible.

The decree in favor of S. L. Cooper will be reversed, and the decree in favor of the Complete Artificial Stone Company will be affirmed.

Affirmed in part and reversed in part.

0 ’Cohhor, J., concurs,

Mr. Justice Thomson,

specially concurring: I concur in the decision of this case, but I do not agree with all that is said in the foregoing opinion, with respect to the right of S. L. Cooper to a lien. In the foregoing opinion the part of the decree of the circuit court giving Cooper a lien is reversed not only on the ground that the material for which he asked a lien, as well as the labor put upon it, was not used in the construction of the Palais Royal Theatre; but also apparently upon the ground that the material for which Cooper asked a lien was not delivered physically to the real estate or lot upon which the theatre was being built; but upon a lot belonging to the same owner, on the opposite side of the street. With the latter proposition I do not agree. In my opinion the fact that the excavations for the theatre foundation took up practically the entire lot upon which it was being constructed, and that the lumber which Cooper, who had the contract for the superstructure, intended to use for the building of concrete forms, for convenience was piled across the street — on other property belonging to this defendant — with the knowledge and acquiescence of his agent, is quite immaterial. I agree with the holding that the trial court erred in granting Cooper a lien, but solely on the ground that the language of the Mechanic’s Lien Act, as interpreted in Hoier v. Kaplan, 313 Ill. 448, does not cover material hauled to a building site by a contractor for the purpose of use in the construction of forms for concrete work, nor does it cover labor in cleaning such lumber where it has previously been used for a similar purpose, and in preparing it for use on the job in question, where it is shown as it is in the case at bar, that, in fact, such lumber was never so used, but that shortly after the lumber was hauled to the building site, the erection of the building was abandoned.