text:
    Charles Alberti, Assignee of Joseph Rollo, Appellant, v. Associated Fruit Company, Appellee.
    Gen. No. 29,652.
    1. Sales — meaning of “acceptance in transit" in fruit trade. The words “acceptance in transit” have an established meaning in the fruit trade that the buyer takes the risk of damage while the cars are in transit from the time of loading or date of the bill of lading.
    2. Sales — transition of title on sale of fruit “f. o. 6. shipping point." A sale of perishable fruit under an invoice providing “1. o. b. shipping point” means delivery to the buyer at that point and at his risk from the time of sale, and therefore the title to the fruit in question is deemed to have passed to the purchaser at that point at the time of the sale and at his risk from that point.
    3. Sales — burden of proof of breach of implied warranty of sound condition of perishable freight in action against seller. In an action to recover for fruit, in cars, under an alleged implied warranty of soundness, where it was claimed that the purchaser was to accept all transit risks, and the invoice read “f. o. b. shipping point,” under which title passed to the buyer at the shipping point, the implied warranty, if any, was either as to the condition at the time of original shipment from California or at the time of sale at Chicago, and the burden of showing the breach at either of such times and places was on plaintiff.

      4. Sales — proof of breach of warranty of sound condition of perishable freight in action against seller. In an action against the seller of perishable fruit in transit for breach of implied warranty of sound and marketable condition of the fruit, proof of the bad condition of the fruit on its arrival at the buyer’s place of business in Indiana, thirteen days after the date of shipment in California and nine days after the date of sale in Chicago, the place of sale, is insufficient to sustain the burden of proof of an implied warranty of condition either at the place of shipment or at Chicago, the only two places as to which there could have been any warranty linder the terms of the sale.
    5. Sales — transition of title under Uniform Sales Act on sale of perishable freight “f. o. b. shipping point” as affected by specific agreement. Section 20, ü 2 of the Uniform Sales Act, Cahill’s St. ch. 121a, f 23, considered, and held that property to the fruit in question passed to the buyer as of the date of shipment, by reason of the delivery and acceptance of the invoice containing the words “f. o. b. shipping point,” regardless of any specific agreement of “acceptance in transit,” subject to the seller’s right of lien or enforcement of the contract until the property was fully paid for, and the buyer took the property with all risks of transit from the shipping point.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed July 14, 1925.
    Allegretti, Shea & Gannon, for appellant; John F. Shea, of counsel.
    Warren Pease, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

By this action appellant seeks recovery of the price paid appellee for a carload of grapes and the amount of the freight bill. The action is based on the claim of an implied warranty that the grapes would be sound and marketable on their arrival, and breach of agreement to deliver without unreasonable delay. On a trial without a jury the issues were found for defendant,

The essential facts are in the main undisputed.

The grapes were sold while in transit from Santa Eosa, California, to Chicago, whence after sale they were diverted to Gary, Indiana, where the purchaser conducted his business. While the purchase was made in the name of one Eolio, and he has assigned the claim sued on to plaintiff Alberti, yet the latter was present and participated in the transactions, in which he had a financial interest, so that whether referring to one or the other we shall refer to him as the buyer or plaintiff.

Defendant was in the wholesale business in Chicago and sold many carloads of fruit while in transit to customers calling at its Chicago office. Of their shipments it received information by wire from its California office, from which it made out for its files a so-called sales card containing data as to the car, its contents, the variety, weight and price of the fruit, etc.

It was from this sales card it made out its invoice and sale, the bill of lading not usually arriving until many days after the arrival of the car.

When plaintiff, with whom defendant had had many transactions, called and inquired about grapes, he was told to look over the files of sales cards and select what he wanted. He selected the sales card referring to the car in question and the sale was then and there made at the price of $175 a ton, acceptance transit, $300 deposit, the balance payable on arrival of the car at Chicago (to which it had previously been reconsigned to defendant) and before diversion to Gary, the purchaser to accept all transit risks. The words “acceptance in transit,” according to the testimony, have an established meaning in the fruit trade that the buyer takes the risk of damage while the cars are in transit from the time of loading or date of the bill of lading.

At the time of the sale, October 12, 1920, four days after the car was in transit, plaintiff was handed defendant’s invoice, stating the weight of the grapes, their price “f. o. b. shipping point,” at “Santa Eosa, Calif., October 8, 1920,” the amount of the sale and of the deposit and the terms as cash.

There seems to have been no misunderstanding as to these details except as to a specific agreement by plaintiff for all risks in transit or as to the fact that plaintiff was to pay the balance of the purchase price, as he did, on the arrival of the car at Chicago in the afternoon of October 19, when he received a delivery order for the car, which was diverted the next morning to G-ary, where it arrived on the 21st. Plaintiff paid the freight bill to the railroad company on that day and opened the car. Finding the grapes badly rotted, he proceeded, without notice to defendant of their condition, to sell what he could from the car at reduced prices, getting therefrom about $400; the rest of the car lot he used as a fertilizer. Two days later when buying more grapes from defendant he informed it of the condition in which he found the grapes, and seemed to regard the railroad company as responsible, against which he brought suit for the damages. The bill of lading arrived later and was delivered to him.

While Alberti denied that the purchaser was to accept all transit risks, and the meaning of the words “acceptance in transit,” as understood in the trade, is not disputed, the sale, as appears from the invoice, was f.o.b. shipping point, which ordinarily means delivery to the buyer at that point and at his risk from the time of sale. {Sparta Produce Exchange v. Wilson & Co., 223 Ill. App. 126, and cases there cited.) These words presumably were used and understood in that sense, and the title to the goods must be deemed to have passed to plaintiff at that point at the time of the sale and at his risk from that point.

If there was any implied warranty, therefore, it was either as to the condition of the grapes at the time of shipment from Santa Eosa or the time of sale. Bnt whether one or the other, plaintiff, on whom the burden of showing the breach rested (Cyc., vol. 35, p. 457; Maltman v. Williamson, 69 Ill. 423; Milk v. Moore, 39 Ill. 584), did not undertake to prove the condition of the grapes except at the time of their arrival at Grary, thirteen days after they were shipped, and nine days after the sale, and no circumstances tending to show they were not in sound and marketable condition on either of those dates.

But appellant claims the title did not pass to him until the grapes were delivered in Grary, because by reconsignment the bill of lading belonged to defendant, notwithstanding the sale, and it could by virtue of it have taken possession of the car as against plaintiff any time before it was delivered to him; and he cites section 20, ¶ 2, of the Uniform Sales Act [Cahill’s St. ch. 121a, ¶ 23], which provides that:

“Where goods are shipped and by the bill of lading the goods are deliverable to the seller of (or) his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods.”
But that is not the entire paragraph. It continues: “But if, except for the form of the bill of lading, the property would have passed to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.”

That it was the intention of the parties that the property in the grapes should pass as of the date of shipment may be inferred from delivery and acceptance of the invoice, containing the understood words “f.o.b. shipping point,” regardless of any specific agreement of “acceptance in transit.” And the fact that plaintiff was given a delivery order, by which he could get the goods without the bill of lading, would indicate that plaintiff understood that the sale was absolute, defendant merely reserving the right of possession and its lien until full payment, as it might do where, as here, there was no stipulation for credit (see section 54 of said Act) [Cahill’s St. ch. 121a, ft 57] or for the purpose of securing performance of the buyer’s obligations (see section 20, ]} 2).

The Uniform Sales Act provides that:

“For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the case.” (Section 18, U 2.) [Cahill’s St. ch. 121a, 21]

From all these as shown by the facts we cannot doubt that it was mutually understood and intended that the sale was absolute when the invoice was given as of the date of shipment, subject to defendant’s right of lien or enforcement of the contract until the property was fully paid for, and that plaintiff took the property with all risks of transit from the shipping point.

There was no proof tending to show any unreasonable delay in the delivery of the goods.

The judgment is affirmed.

Affirmed.

Gridley and Fitch, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    The People of the State of Illinois ex rel. Otto Cederwall, Appellee, v. Nicholas R. Finn et al., Civil Service Commissioners of City of Chicago, Appellants.
    Gen. No. 29,794.
    1. Appeal and erbob — when confession of demurrer presumed on appeal. Where a demurrer was filed to respondents’ answer to a petition for mandamus, and the record failed to disclose that the demurrer was disposed of, but afterwards pleas were filed and the trial was had upon the issues formed by such pleas only, the presumption was that the parties treated the demurrer to the answer as confessed.
    2. Mandamus — sufficiency of plea of illegality of appointment under civil service. A plea in mandamus against Civil Service Commission requiring the Commission to restore the petitioner to a position and expunge its order canceling petitioner’s certificate for appointment, which presented the question that the petitioner’s appointment was void ah initio, and that he was appointed as the result of an original entrance examination, and that no promotional examination was held although there were persons in the employ of the city eligible and desirous of talcing a promotional examination for the position in question, sufficiently set forth facts supporting the legal conclusion that the appointment was illegal.
    3. Officers and public employees — right of Civil Service Commission to expunge its record. Although the Civil Service Commission may under certain circumstances cancel its eligible lists and revoke certifications, it has not the right to expunge the record of its official proceedings upon which the public or interested parties have been induced to act.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Reversed and remanded with directions.
    Opinion filed July 14, 1925.
    Francis X Busch, Corporation Counsel, Leon Hornstein and Carl Hjalmar Lundquist, Asst. Corporation Counsels, for appellants; Cora B. Hirtzel, Asst. Corporation Counsel, of counsel.
    Franklin Raber, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is a mandamus proceeding to restore the petitioner, Cederwall, to a position or place of employment in the civil service of the City of Chicago, and to require its Civil Service Commission to expunge its order canceling its certification of petitioner for appointment to said position, and to have the salary of the position paid to him for the interim he has been separated from the service. The prayer for the salary was dismissed without prejudice. The judgment appealed from gave the rest of the relief asked.

Respondents’ answer to the petition was demurred to, and while the record does not disclose that the demurrer was disposed of, respondents afterwards filed four pleas, on two of which, the third and fourth, issues were formed. As the trial was had upon those issues only, the presumption is that the parties . treated the demurrer to the answer as confessed.

However, it is unnecessary to consider this part of the record in the view we take of the case.

A demurrer was sustained to the first and second pleas. The first plea presents what we regard the vital question in the case, that the appointment of petitioner was void ab initio by reason of its having been made from an original entrance examination when there were persons in the employ of the city eligible and desirous of taking a promotional examination for the position in question.

The plea set up the provisions of section 9 of the Civil Service Act [Cahill’s St. ch. 24, [[ 693] relating to promotions and requiring the Commission to provide therefor in the classified service, also the rule of the Commission relating thereto, which provides that promotional examinations shall be held when the next lower rank or grade contains two or more eligible persons desirous of taking the examination. The plea set up these facts: that petitioner was appointed as the result of an original entrance examination for such position; that no promotional examination therefor was held; that at the time of the original examination and of petitioner’s appointment, the next lower rank or grade in the same line or character of work as said position did contain two or more eligible persons desirous of taking a promotional examination for said position; that the ward superintendents, then holding their positions as such in the classified service, were the next in rank or grade to said position and eligible and ready and willing to take a promotional examination for such position.

The grounds of the demurrer were (1) that the averments contained merely legal conclusions and were not supported by any averments of fact; (2) that whether a promotional examination should have been held cannot now be considered and is not decisive in determining the legality of the examination held; (3) that the action of the Civil Service Commission with regard thereto is functus officio and it cannot review or correct its errors; and (4) that there is nothing in the Civil Service Law to prohibit holding such an original examination, even though there are persons eligible to take promotional examinations.

We think the court erred in sustaining the demurrer on any one of these grounds. The plea sufficiently sets forth facts which support the legal conclusion that the appointment of petitioner was unauthorized and illegal. If so, it sufficiently traverses plaintiff’s claim to a legal appointment, and renders the second and fourth grounds of the demurrer untenable. The third ground has no bearing on that issue.

In People v. Errant, 229 Ill. 56, there was a petition of mandamus to compel the Civil Service Commission of Chicago to hold a promotional examination for the same position as here involved. The material facts of that case are much like those appearing from the pleadings in this record. Discussing the purposes and object of the Civil Service Act the court recognized the ultimate question to be decided was whether it was the duty of the Civil Service Commissioners to hold a promotional examination for such position, limiting the examination to ward superintendents. A like rule of the Commission with regard to promotions was before the court as here set up in the plea, and its conclusion was that the ward superintendents being the next in order or grade to such position, it was the clear legal duty of the Commission to hold a promotional examination for such position, there being ward superintendents ready and willing to take the examination for the position to be filled, as is here alleged in said plea.

It being the legal duty to hold a promotional examination under the law and rule of the Commission in such a state of facts, it cannot be said that it was lawful to disregard that duty and hold an examination open to all citizens instead of one limited to those in the next lower grade or rank in the same line of employment, as the law requires. To hold otherwise would permit the Commission to evade a legal duty and defeat the purposes of the Civil Service Act in requiring a promotional examination.

While we are not impressed with the evidence in support of the third and fourth pleas on which issues were formed and the trial had, or with the grounds set up in the second plea, we think the first plea if sustained is sufficient to bar the relief asked for in the petition, and that the case should have been tried on the issues it presented.

We might add that while the Commission may, under certain circumstances, cancel its eligible lists and revoke certifications, we do not think it has the right to expunge the record of its official proceedings upon which the public or interested parties have been induced to act. However, such question is not decisive of the merits of the case, and need not be considered unless the petitioner is held to be entitled to be restored to his position.

Accordingly the judgment will be reversed and the cause remanded with directions to overrule the demurrer to the first plea and for such further proceedings as are consistent with this opinion. We suggest, also, that the record be made to show some disposition of the answer.

Reversed and remanded with directions.

Gridley and Fitch, JJ., concur.


text:
    Dwight Brothers Paper Company, Appellee, v. Morris P. Ginzburg, Appellant.
    Gen. No. 29,895.
    1. Sales — unenforceability of sales contract for indefiniteness and' uncertainty. A sales contract providing that the maximum price at which the paper in question was to be billed was a stated amount per pound net cash, 30 days from date of invoice, sidewalk delivery, and that the buyer was to be given the benefit of any reduction in price which the mill should make during the life of the contract, is unenforceable, assuming the contract to mean that any deduction in price was to be made from the stated maximum, as an unvarying factor, because indefinite as to what was the intended standard for determining the amount of the reduction for want of any basis for ascertaining what mill price was intended, and was also indefinite as to whether the price of the first shipment was to be determined solely by plaintiff, not exceeding the maximum, or by comparing the price of the miU at that time with some previous price.
    2. Sales — burden of proof of performance in action by seller on express contract. In an action by the seller on an express sales contract, providing that the maximum price at which the paper in question was to be billed was a stated amount per pound net cash, 30 days from date of invoice, sidewalk delivery, and that the buyer was to be given the benefit of any reduction in price which the mill should make during the life of the contract, where the declaration expressly alleged that plaintiff gave defendant the benefit of the reduction made by the mill, the burden was on plaintiff to show that it had complied with the terms of the contract with respect to price in other respects.
    3. Appeal and ebiiob — proper judgment on review. Where the plaintiff, in an action upon a written contract declared specially on the express contract and also pleaded the common counts in indebitatus assumpsit and in its proof on trial before the court without a jury, relied solely on the special count and made no proof under the common counts pleaded, and the court erred in the conception of the law relating to such alleged contract, the judgment for plaintiff was reversed and remanded.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Timothy D. Hurley, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Reversed and remanded.
    Opinion filed July 14, 1925.
    Rehearing denied July 24, 1925.
    Shannon & Morrill, for appellant; Carl M. Johnson, of counsel.
    Harris, Reinhardt & Russell, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

In this suit, declaring upon an express contract and the common counts in indebitatus assumpsit, plaintiff recovered a judgment against defendant, on a trial without a jury, for $5,200.37, from which defendant appeals.

The alleged express contract consisted of a letter from plaintiff, which was engaged in the wholesale paper business, addressed to the Jewish Courier, under which name defendant publishes a daily newspaper, and of defendant’s noted acceptance thereon.

The' letter is dated April 5, 1921, and acknowledges “your order” for 3 cars of certain described paper, ‘' shipment to be made, 1 car July 1921,1 Aug. 1921, 1 Sept. 1921,” and then says:

“The maximum price at which this paper is to be billed to you is 5% e per pound net cash 30 days from date of invoice, sidewalk delivery. We are to give you the benefit of any reduction in price which the mill makes during the fife of this contract.
“Tour signed acceptance hereto constitutes a contract .between us.”
At the foot of the letter are the words, “Accepted M. P. Ginzburg. Date 4/6/21.”

Appellant urges, first, that no action can be maintained on the alleged contract because it is indefinite and uncertain with respect to the price at which the paper was to be sold.

With respect to this point there may be some doubt. If the accepted letter merely provided for a “maximum price,” we would have no hesitancy in sustaining the point under appellant’s authorities cited in support of it. But if the phrase “reduction in price which the mill makes” can be shown to have an established meaning in the trade of dealing with such paper, the price, which would otherwise be indefinite, might be capable of ascertainment. But if the phrase has no such meaning, then we are of the opinion that other evidence aliunde would be inadmissible to explain the patent ambiguity, and that the price cannot be definitely ascertained from the contract.

Assuming, however, the contract to mean that any deduction in price was to be made from the maximum price of 5% cents as an unvarying factor, yet it is altogether indefinite what was the intended standard for determining the amount of the reduction, whether from the price of a particular mill, or any mill plaintiff might deal with, and whether it was to be made to the full extent of that made by the mill; also whether the price of the first shipment was to be determined solely by plaintiff, not exceeding 5y2 cents per pound, or by comparing the price of the mill at that time with some previous price.

It would seem, therefore, that unless the phrase providing for a reduction has a generally recognized and established meaning among the trade, the absence of any definite standard for fixing the prices of the different shipments, including the first, renders the contract too indefinite for enforcement.

Several cases are referred to in Williston on Contracts, vol. 1, sec. 41, where the contract attempted to fix or define the price of goods sold, but too indefinitely for enforcement, among them United Press v. New York, Press Co., Ltd., 164 N. Y. 406, where the. price for news reports was to be a sum “not exceeding $300” a week. The court held that as the contract merely stated a limit which the price to be paid each week must not exceed, no price was fixed at which the defendant was bound to take and pay for the news reports, and the element of mutuality in that respect was lacking, and no price being fixed by contract, it was something more than an ambiguity and could not be supplied by parol.

Somewhat similar cases in principle, with varying , states of facts unnecessary to recite here, will simply be referred to. (Sun Prtg. & Pub. Ass’n v. Remington Paper & Power Co., 235 N. Y. 338; National Importing & Trading Co. v. Clark, 270 Fed. 54; Gaines & Sea v. R. J. Reynolds Tobacco Co., 163 Ky. 716.)

It is next argued that even if the contract were enforceable by its terms without parol evidence, the burden of proof was on plaintiff to show performance of its contract, as alleged in the declaration, and therefore, under its own theory of the price of the different shipments, to show whether any reduction of price was made by the mill, and, if so, what. The declaration expressly alleged that plaintiff gave defendant the benefit of the reduction made by the mill. The plea of general issue put this averment in issue, and required plaintiff to prove it. The onus rested on plaintiff to show that it had complied with the terms of the contract with respect to price as in other respects. Price is one of the elements of the cause, necessary to prove. Surely there can be no question as to this elementary proposition. But no such proof was made, as was necessary if the contract is enforceable.

But, if it is enforceable, then as to other points made by appellant, we think it enough to say for guidance in another trial, that there was sufficient evidence upon which the court could, on proper proof of prices, have found a liability for all the shipments including those taken to the warehouse, and its charges for storage. Whether, however, there can be any recovery on the contract itself must be determined from the facts as made to appear on another trial.

As plaintiff in its proof relied solely on the special count, based on the alleged contract, and made no proof whatever under the common counts pleaded (which, we observe, did not include a stated account), the judgment must be reversed, the court having erred in its conception of the law and refusal to arrest the judgment, and the case will be remanded for a new trial.

jReversed and rema/nded.

Gridley and Fitch, JJ., concur.


text:
    William F. Fisher, Jr., Appellee, v. Harold F. Johnson et al., on appeal of F. A. MacNutt, Appellant.
    Gen. No. 29,904.
    1. Highways and streets — driver of automobile charged with knowledge of rules of the road. The driver of an automobile is chargeable with knowledge that the right of way must be given to a vehicle coming to an intersection from one’s right.
    2. Highways and streets — disregarding right of way of approaching automobile at intersection as want of due care. Even if an automobile coming to an intersection from the right, and thus having the right of way, was a few feet farther from the intersection than an automobile on the intersecting street, the driver of the latter machine could not rightfully claim the exercise of due care, by assuming without looking, that because of that fact the driver of the other machine would not assert his right of way, coming as he was from the right.
    3. Negligence — imputation of negligence of automobile driver to passenger. Where two friends were accustomed to ride daily to their place of business in the automobile of the one or the other, as they usually determined the night before, and there was no division of expense, each bearing expense of keeping and maintaining his own automobile, and where, in a collision with another car, one of the two friends sustained injury and instituted suit against the driver, the negligence of such driver was not imputed to plaintiff on the theory that the two were engaged in a joint enterprise.
    4. Negligence — imputation of negligence of automobile driver to passenger. The negligence of the driver of an automobile could not be imputed to one driving with him, on the theory of joint enterprise, merely because the two had an arrangement to alternate day by day in the use of their respective automobiles, where the driver was in sole charge and the other occupant neither directed nor controlled the movement of the car or the method of driving.
    5. Highways and streets — when contributory negligence of plaintiff injured in automobile collision is question of fact under evidence. A directed verdict on the ground of failure to prove due care by the plaintiff was properly refused, where in an action by a guest riding in an automobile, against the driver, there was no direct evidence of the use of due care by the plaintiff who was unable to speak for himself, but where it appeared that the mechanism of the car was such that it was impossible for him to have done anything in the way of controlling the car, and there was further evidence that he was a careful man in his habits, and in the absence of evidence to indicate that plaintiff could see the colliding car from where he sat before it came close, and the claimed fact that plaintiff might have been speaking to the driver at the time of the collision, could not be regarded as proof of contributory negligence.
    6. Damages — excessiveness of verdict for personal injuries. A verdict for $10,000 was held not excessive, where plaintiff was rendered unconscious and remained so until gradually restored to consciousness after operations on the skull and brain and spine, and where he was in the hospital for a month, and thereafter required medical attention and nursing, and was not entirely clear mentally for a considerable time, and where at the time of the trial he was still far different mentally and physically than before the accident, and his injuries were permanent, and his earning capacity was affected.

      7. Harmless error — when erroneous description of statute in instruction not reversible. Where an instruction set forth a "portion of the Motor Vehicle Act in force January 6, 1922, the time of the accident in question, and one of the counts of the declaration was based on the repealed Act of 1911, the erroneous description of the act was held not to be cause for reversal, as long as the count stated facts that brought the cause of action within the statute then in force, the two acts being substantially identical in respect to the violation charged.
    8. Instructions — indentation of quotation from statute as giving undue prominence thereto. A contention that the quoted part of a statute set forth in an instruction was' indented from the rest of the instruction, and in that respect gave the statute undue prominence, was held hypercritical.
    9. Instructions — giving abstract proposition of law as error. The giving of an instruction stating an abstract proposition of law was not error where the jury could not have been misled.
    10. Harmless error — propriety of instruction referring jury to declaration for issues. The giving of an instruction which was faulty in referring the jury to the declaration for the issues instead of defining them was not error where the jury were not misled and the defendant was not prejudiced.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 14, 1925.
    Cassels, Potter & Bentley, for appellant; Ralph F. Porter, Kenneth B. Hawkins and Barry Gilbert, of counsel.
    Ela, Grover & March and Justin K. Orvis, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court:

Defendant MacNutt appeals from a judgment for $10,000 rendered against him in a personal injury suit. The case was tried on two counts of the declaration, one charging negligence by each of two defendants in the management of their respective automobileg, and the other, their negligent driving and operation of the same at an excessive rate of speed, whereby the automobiles collided and as a result plaintiff was injured. The jury found the other defendant, Harold F. Johnson, not guilty.

Fisher and MacNutt were intimate friends, living as neighbors in Oak Park, Illinois, and being employed by the Western Electric Company at its plant about six miles from their homes, to which they were accustomed to ride daily in the automobile of one or the other, as they usually determined upon the night before, consulting sometimes the convenience of the family of one or the other in requiring the use of an automobile on the following day. This arrangement continued for a long space of time. There was no division of expenses, each bearing the expense of keeping and maintaining his own automobile the same as if they had no such arrangement, which resulted in their practically alternating in the driving, Fisher taking MacNutt in his automobile one day and MacNutt taking Fisher in his car the next.

Pursuant to an understanding of that kind MacNutt called with his car for Fisher at his home on the day of the accident to drive with him to their place of business. When driving south on Lombard street his car collided with that of defendant Johnson at its intersection with Erie street, on which Johnson was driving east. The impact carried MacNutt’s car to the southeast corner to which also Johnson’s skidded, where Fisher was hurled out receiving injuries of a severe character.

These three were the only eyewitnesses of the collision. But the evidence with regard thereto was confined to the testimony of the two defendants, MacNutt and Johnson, as Fisher could not recall the facts on account of retrograde amnesia resulting from his injuries.

MacNutt’s version was that he was driving at the rate of 15 miles an hour, according to his best judgment; that when he was about 30 or 40 feet north of Erie street he noticed Johnson’s car 120 feet or more west of Lombard; that he then looked to the east, and when he looked again to the west he “caught the flash” of Johnson’s car as it struck his in the right rear. He drew the inference from these circumstances that Johnson was driving at the rate of 35 miles an hour. He did not recall that he sounded his horn or heard Johnson’s.

Johnson’s version was that he was going about 15 miles an hour and MacNutt 15 to 20; that he did not moderate his speed, knowing he had the right of way, until, realizing the danger of a collision just immediately before he crossed over the west line of Lombard street, he put on his emergency brake and turned his car to the south and the left fender of his car came in contact with the right fender of MacNutt’s; that when he first observed MacNutt the latter was about 40 feet north of Erie and he about 30 feet west of Lombard; that he sounded his horn and MacNutt did not, and did not change his direction. There was also evidence of statements by MacNutt to the effect that he “miscalculated” and seeing the danger was imminent “stepped on the gas” to pass in front of Johnson’s car. The jury evidently accepted Johnson’s version of the accident.

It is the alleged negligence of MacNutt only that we are to consider, and it might well be inferred from his own testimony.

Knowing, as he must, that the right of way must be given to vehicles coming to an intersection from one’s right, he should not have deferred a second glance towards Johnson’s automobile until the very moment a collision would take place if at all. Even if Johnson was a little further away from the intersection, that would not excuse him from looking again to see whether Johnson might not assert claim to the right of way, approaching as he was from the direction given preference under the law. The jury, too, may well have concluded that the relative position of the two cars to the intersection at the time the drivers came into one another’s vision, may not have been accurately estimated by MacNutt, in view of his subsequent statements, and that the distances therefrom were about the same, as Johnson testified, and that Johnson was therefore entitled to the right of way. There was room in the evidence for that conclusion, and that MacNutt was guilty of negligence in the operation of his car, regardless of any question of speed. Even if Johnson was a few feet farther from the intersection, MacNutt cannot rightfully claim the exercise of due care by assuming, without looking, that because of that fact Johnson would not assert his claim to the right of way, coming as he was from MacNutt’s right.

But it is urged that upon the above state of facts, if MacNutt was negligent, his negligence would be imputed to Fisher. The theory of such contention is that Fisher and MacNutt were at the time engaged in a joint enterprise. We do not think the arrangement can be so regarded. To be sure it was one for their mutual accommodation, a day to day affair, but it involved no common financial interest, no partnership, no relation of master and servant, or principal and agent, and no right of either to direct or control the other in the management of his car. The parties being neighbors and social friends, engaged at the same place of business, evidently regarded it unnecessary because of such relations to drive two automobiles to their place of business and leave them there all day unused, when one would suffice, and the other could be left for the use of the owner’s family. Such a scheme of mutual accommodation did not clothe the arrangement with any characteristic of a joint enterprise, to which the doctrine of imputable negligence may be applied.

Referring to cases of joint enterprise it was said in Robison v. Oregon-Washington R. & Nav. Co., 90 Ore. 509:

“In all of them there runs a vein of common financial interest indicating a quasi partnership entailing the usual joint control. This would seem to furnish the ultimate distinguishing characteristic of joint venture in such cases, which is none other than the fight, either express or implied, to direct the movement of the vehicle employed in the transportation connected with the venture. This must be so, because fault in the operation of the vehicle is charged as negligence.”

The court went on to say that if the control is outside the scope of the joint, scheme or is vested exclusively in one of the members of it, imputed negligence in operation will not arise.

The right to direct or participate in the control of the vehicle claimed to be used in a joint enterprise has frequently been applied in testing whether the negligence of the driver could be imputed to his companion, and the rule, as above stated, is supported by the greater weight of authority. (See Shultz v. Old Colony St. R. Co., 193 Mass. 309; 8 L. R. A. [N. S.] 597; Wagner v. Kloster, 188 Iowa 174, 175 N. W. 840; Hollister v. Hines, 150 Minn. 185; Kokesh v. Price, 136 Minn. 304, 161 N. W. 715 [16 N. C. C. A. 1050]; Bryant v. Pacific Elec. Ry. Co., 174 Cal. 737.) Discussing the subject in Huddy on Automobiles, the author says:

“Parties cannot be said to be engaged in a joint enterprise unless there is a community of interest in the objects or purposes of the undertaking and an equal right to direct and govern the movement of each other with respect thereto.” (Section 811, p. 900, 7th ed.) '

From examination of the authorities cited and others we have no doubt that the author has stated the correct rule. And we might add, in the language of Nonn v. Chicago City Ry. Co., 232 Ill. 378: “There has not been a scintilla of evidence pointed out which indicates that appellee could direct or control the movements of the wagon (automobile) or the method of driving. The driver was in sole charge. This being the state of the record, we cannot agree with appellant’s contention that the negligence of the driver, if any, would be imputed to appellee.”

We regard the circumstances in no different light than if on each occasion when one drove the other in his car to and from their place of business it was upon an express invitation from the former to the latter to be his 'guest, and therefore negligence could not be imputed to the latter on the theory that because they were accustomed to exchange courtesies and ride together they were engaged in a joint enterprise or undertaking.

Cases cited by appellant where there was unquestionably a joint enterprise need not be discussed.

It is further urged by appellant that there was no evidence legally tending to prove the cause of action . alleged, and therefore the court should have directed a verdict for MacNutt.

. This contention is based on the claim that no direct evidence was introduced by plaintiff, on whom the burden rested, to show that he was in the exercise of due care, and the claim that there was evidence to the contrary. It is true that no direct evidence on the subject was offered, Fisher being unable to speak for himself. As a guest, however, having no control over the car or its management, he was not called upon to exercise care for himself by any affirmative act unless it was to caution MacNutt of any danger he had an opportunity to discover in the position in which he was placed. There was nothing in the evidence of either MacNutt or Johnson to indicate that Fisher saw or could see Johnson, from his position in the car, at least in time to say or do anything that would have averted the danger. It was winter weather, and the car was inclosed by curtains on the sides and a glass shield in front. They sat in the front seat, the driver at the left and Fisher at the right. The front seat was somewhat elevated by reason of a gasoline tank underneath it. As Fisher was a tall man, 6 feet 4 inches, it brought his head up to the hood, which sloped in front, and his eyes about 7 inches above the isinglass windows in the curtain at his right, which was fastened to the shield in front so that he could see only a short distance in front, and to his right only a few feet from the car. The evidence tended to show that under these circumstances he was hardly in position to see a car coming to the crossing from his right until close to it. And had he seen the car, inasmuch as MacNutt said he “stepped on the gas” to pass in front of it, as he got close to it, it is hardly within reason that Fisher could by any warning have averted the accident. The evidence shows too that the mechanism of the car was such that it was impossible for him in his position to have done anything in the way of controlling the car. There was also evidence tending to show that Fisher was a careful man in his habits and not disposed to take risks.

Because Johnson, who was called by the plaintiff, said that he asked MacNutt immediately after the accident if he did not see him, and that MacNutt replied, “Fisher was talking to me,” it is claimed there was affirmative proof of the latter’s negligence. Even if Fisher could be said to be bound by that testimony, yet the mere fact that he spoke to MacNutt cannot be regarded as proof of contributory negligence. For aught that appears to the contrary what Fisher said may have been in the nature of a warning.

We do not think it can be said that the evidence as submitted to the jury lacked any element of the cause of action, or that the court would have been justified in directing a verdict against plaintiff.

It is claimed that the damages awarded are excessive. Plaintiff was rendered unconscious, and remained so, until gradually restored to consciousness after surgical operations on the skull and brain and the lumbar region of the spinal column. He was in the hospital for about a month, where his case required much medical attention and nursing, and was not entirely clear mentally after his return home when he still required medical treatment for considerable time. His injuries have left him a far different man physically and mentally than before the accident. He still suffers from them in various ways and they are such as render him less efficient, both physically and mentally, and in his earning capacity, and they are deemed permanent. Without a detailed statement of his sufferings, ills and other lesser injuries, we think it enough to say that we do not regard the damages awarded as excessive.

Complaint is made of rulings on instructions. No. 8 set forth a portion of the Motor Vehicle Law as in force January 6, 1922, the time of the accident.

The eighth count (one of the counts on which the case was tried) pleaded a violation of the Motor Vehicle Act with respect to speed, in negligently driving at a greater rate of speed than 10 miles per hour, after referring to and setting forth the Motor Vehicle Act of 1911. That act was repealed by the Motor Vehicle Act approved June 30, 1919, in force January 1, 1920, and at the time of the accident. While the two acts vary in different respects, the express provision upon which the count predicates the cause of action is practically the same in both acts, and under either act is applicable to a vehicle of the kind in question, and to the same conditions. The substance of appellant’s contention is that the instruction suggested to the jury a ground of recovery not alleged in the declaration. If we disregard as surplusage the unnecessary reference to and setting forth in hcec verba the particular act described as violated, and consider the only material matter alleged, viz., the particular respect in which the statute in force was violated, the jury could not have been misled by the instruction. As long as the count stated facts that brought the cause of action within the statute then in force, that was enough (Wagner v. Chicago, R. I. & P. R. Co., 277 Ill. 114,120), and an erroneous designation or description of the act, which did not affect the cause of action as set forth, would be disregarded.

Complaint is made that the quoted part of the statute set forth in the instruction was indented from the rest of the instruction, and in that respect gave the statute undue prominence. The contention is hypercritical.

Two other instructions are alleged to be erroneous, one because it gives an abstract statement of the law, but which we think could not have misled the jury in any way, and the other because it refers to negligence in the operation of the automobile “as charged in the declaration or some count thereof.” The complaint of the latter instruction is based mainly upon appellant’s theory that the eighth count above referred to does not state a cause of action, a theory with which we do not agree.

While the instruction is faulty in referring the jury to the declaration for the issues, instead of defining them, we fail to see that the jury were in anywise misled, or defendant MacNutt prejudiced by the law as stated in the instruction.

We think the judgment should be affirmed.

Affirmed.

Gridley and Fitch, JJ., concur.


author: Mr. Justice Fitch

text:
    Fred P. Jacobitz, Appellee, v. Pamela G. Thomsen et al., Appellants.
    Gen. No. 29,843.
    1. Escrows — when note not binding for want of delivery. A note which was placed in escrow to be delivered upon the completion and acceptance of certain buildings never became a binding obligation on the defendants where, at the time of obtaining its delivery by the depositary in escrow upon a replevin writ, there was a dispute as to whether the buildings were ever completed.
    2. Negotiable instruments — prematurity of action to enforce note before effective delivery thereof. An action upon a promissory note endorsed in blank was commenced prematurely, and a motion for a directed verdict for the defendants the makers, was improperly denied, where it appeared that the note had been placed in escrow to be delivered upon the completion and acceptance of certain buildings, and that the escrow party delivered the note to the sheriff under a replevin writ, while there was a pending dispute as to whether the buildings were ever completed, and at the time of the hearing on the merits the replevin suit was still pending.
    3. Appeal and error — judgment on reversal. On appeal from a judgment against the makers of a promissory note, entered in an action ’ which was prematurely commenced, the judgment was reversed without remanding where no recovery could be had under the pleadings and the uncontradicted facts, but the reversal was without prejudice to institute another suit upon the note in case a pending suit on which the right of recovery was dependent should terminate favorably to the holder of the note, and without prejudice to the holder’s right to sue upon a quantum meruit under proper circumstances.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Michael L. McKinley, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Reversed.
    Opinion filed July 14, 1925.
    Cooney & Verhoeven, for appellants.
    Frank H. Partridge, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment by confession upon a note for $3,000, signed by defendants, payable to the order of one Thullen and by him indorsed in blank. Upon defendants’ motion, they were given leave to plead to the merits, the judgment to stand as security. They filed pleas alleging a failure of consideration for the note; that plaintiff acquired it after maturity ande subject to all defenses against the same; and that the note was never, in fact, delivered to the payee by defendants, but was placed in escrow with a bank, to be held until Thullen completed certain buildings which he was erecting for the defendants and to be then delivered upon the joint order of Thullen and the defendant Thomsen; that some of the buildings were never completed, and that Thomsen gave no order for the delivery of the note, but that Thullen obtained possession of it by a writ of replevin, after which he pretended to assign it to the plaintiff. Replications were filed to these pleas and there was a jury trial which resulted in a verdict for the plaintiff.

The only witnesses who testified upon behalf of the plaintiff in chief were Thullen and the cashier of the bank which held the note in escrow. Thullen testified that the note was placed in escrow to be delivered upon the completion of the buildings; that the buildings were thereafter completed; that Thomsen found fault with one of them in small matters, which the witness remedied and told Thomsen he was going to the bank to get his note, to which Thomsen did not reply, but the bank refused to deliver it, whereupon he secured possession of it in a replevin suit, which is still pending. The cashier of the bank, called by the plaintiff, testified that the note was left with the bank “in escrow, to be delivered when the buildings were completed and accepted by the Dolton estate, on instructions from Thomsen,” and that Thomsen never directed him or the bank to turn the note over to Thullen, but that the bank delivered it to the sheriff on the replevin writ.

At the close of the plaintiff’s evidence, a motion was made for a directed verdict in favor of the defendants, which was denied and exception taken. We are of the opinion that it was error to deny that motion. If the escrow agreement was to the effect stated by plaintiff’s own witness, the cashier of the bank, it is clear that the note was never delivered. If the escrow agreement was as stated by Thullen, still, as it appears that there was a dispute as to whether the buildings were ever completed, there could be no delivery until the dispute was settled, in the replevin suit or elsewhere. In either case, the note never became an obligation binding, as such, upon the defendants. When the judgment was opened up and leave to plead given, the declaration was not changed, so that it still stands as a declaration upon the note and upon no other cause of action. Under these circumstances and in this state of the record, this action is clearly premature. There was no judgment in the replevin suit and Thullen did not obtain any title to the note, nor the right to assign it to the plaintiff, merely by seizing it upon a replevin writ. The question of right of property in the note is still to be determined in that suit.

For the reason stated, and only for that reason, the judgment of the superior court is reversed, and because such reversal is necessitated by an error of law and not one of fact, the cause will not be remanded. Upon the pleadings and the uncontradicted facts, there can be no recovery in this suit. The reversal in this case, however, will be without prejudice to the right, if any, of the plaintiff to bring another suit upon the note if the replevin suit shall hereafter be decided in favor of Thullen, and without prejudice to any right Thullen may have to recover from defendants whatever sum, if any, may be due from them under the terms of the original contract between them, or the value of work, labor and materials furnished, such causes and rights of action, if any, not having been claimed in the plaintiff’s declaration or adjudicated in this suit.

Reversed.

Barnes, P. J., and Gridley, J., concur.


text:
    Gallagher & Speck (corporation), Appellee, v. Chicago Title & Trust Company, Appellant.
    Gen. No. 29,852.
    1. Agency — when judgment against trustee as undisclosed principal erroneous. Where work was done and materials furnished in the installation of a steam plant on certain premises, title to which stood of record in the name of defendant as trustee under the provisions of a certain unrecorded trust agreement, and it was admitted that plaintiff did not deal with such trustee in any manner whatever, and that the trustee had no knowledge that the work was being done by plaintiff on the beneficiary’s order or otherwise, and no subsequent ratification by defendant was shown, and the beneficiary was not held out as the defendant’s agent, a judgment . for the value of the work and labor and materials holding said trustee as an undisclosed principal was erroneous, where it appeared that the recorded deed recited that the interest of the beneficiary was to be personal property only, and the unrecorded trust agreement gave to the beneficiary the management and control of the property and the selling, renting and handling thereof, and the rents and the proceeds of sales were his own property.
    2. Notice and record oe title — recorded deed to trustee as constructive notice of undisclosed beneficiary’s interest. A recorded deed to one as trustee under a certain trust agreement was constructive notice to the public that while the grantee held the title someone else named in the unrecorded trust agreement in question was the beneficial owner of the rents and earnings and the proceeds of any sale.
    3. Agency — when agency relation between beneficiary and trustee not shown. No relation of principal and agent was created between a grantee as trustee and the beneficiary named in an unrecorded trust agreement from the mere fact that the recorded deed did not disclose the name of the beneficiary, nor would the insertion of the name of the beneficiary in the deed, as the owner of the rents and proceeds of a sale, have created such agency, but the relation would merely have been that of trustee and cestui que trust.

    4. Agency — burden of proof of undisclosed, agency. The liability of an undisclosed principal does not depend solely upon the fact that the agency was undisclosed but the fact of agency must also be established, and, if denied, the burden of proving it is upon the party asserting the existence of the agency.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.

      Oertiorari denied by Supreme Court (making opinion final).
    Reversed.
    Opinion filed July 14, 1925.
    Timothy J. Fell, for appellant; Sherman C. Spitzer, George Gillette, Thomas J. Hoban and Frederick O. Floberg, of counsel.
    Maddock, Jaffe & Green, for appellee; C. Van Alen Smith, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

Defendant appeals from a judgment against it for $1,321.50 for work and labor done and materials furnished in installing a steam heating plant in certain premises in Chicago, the title to which of record stood in the name of defendant, as trustee. The work was done under a contract consisting of a written proposal made by plaintiff to E. J. Kelley, and a verbal acceptance thereof by Kelley. It is admitted that plaintiff dealt only with Kelley and not at all with defendant. The theory of plaintiff’s claim, and apparently of the judgment rendered by the court, upon a trial without a jury, is that upon the undisputed facts shown by the evidence defendant was liable, as an undisclosed principal, upon Kelley’s contract.

The premises in which the heating plant was installed cover five lots. Prior to the date of Kelley’s acceptance of plaintiff’s proposal, the former owners of such lots conveyed the same to defendant/‘as Trustee, under the provisions of a trust agreement dated the 12th day of September, 1916, and known as Trust Number 6624.” The habendum clause reads: “To have and to hold the said premises with the appurtenances upon the trusts and for the uses and purposes therein set forth.” All these deeds are in the same form, and none of them gives the name of the beneficiary. These deeds were recorded. The trust agreement, mentioned therein, “known as Trust Number 6624,” was not recorded.

By the terms of the recorded deeds, the trustee is given power to improve and manage the property, to sell, subdivide, mortgage, lease, exchange and convey the same or any part thereof, “and to deal with said property and every part thereof in all other ways and for such other considerations as it would be lawful for any person owning the same to deal with the same, whether similar to or different from the ways above specified.” Each of said deeds also provides that “the interest of each and every beneficiary hereunder and of all persons claiming under them, is hereby declared to be personal property, and to be in the earnings, avails and proceeds arising from the disposition of the premises, the intention hereof being to vest in the said Chicago Title and Trust Company the entire legal and equitable title in fee in and to all of the premises above described.”

The unrecorded agreement, “known as Trust Number 6624,” is in the form of a declaration of trust and is signed only by defendant. It certifies that defendant will hold the title of the premises “for the ultimate use and benefit of Edward J. Kelley”; that “the interest of any beneficiary hereunder shall consist solely of the right to receive the proceeds from rentals or from sales of said premises, and that such right in the avails of said property shall be deemed to be personal property and may be assigned and transferred as such”; that the beneficiary shall have no right, title or interest in the real estate as such, but only an interest in the proceeds thereof, “it being the intention of this instrument to vest the full legal and equitable title to said premises in said trustee”; that while the trustee is the sole owner of the real estate, and, “so far as the public is concerned, has full power to deal with it,” it is agreed that the trustee “will deal with it only when authorized to do so, in writing, and that it will, on the written direction of Edward J. Kelley,” or such person as may be the beneficiary at the time, “make deeds for or otherwise deal with the title to said real estate.” The agreement further provides that the beneficiary “shall have the management and control of said property, and of the selling, renting and handling thereof, * * * and said trustee shall not be called upon to do anything in the management or control of said property” except on the written direction of the beneficiary and after the payment to it of all money necessary to carry out his instructions. A very small fee is provided for the services of the trustee for accepting the trust and taking the title, and a small annual fee for holding it.

There is no evidence that in the making or performance of plaintiff’s contract Kelley used the name of the defendant in any manner or for any purpose, or assumed to act as an agent for it, or to act for anyone other than himself. There is no evidence that defendant had anything whatever to do with that contract, or knew of its existence, or knew that any work was being done or had been done by the plaintiff, on Kelley’s order or otherwise; nor is there any evidence that when plaintiff performed its contract with Kelley, it had any knowledge that defendant held the legal title of record to the premises in which the work was done. Nor is there any evidence tending to prove a subsequent ratification by defendant of Kelley’s contract, or any acceptance of the benefits thereof, with knowledge of the same. In the absence of such evidence, it is clear that if there was any relation of principal and agent between defendant and Kelley, such relation was created by, and must be found in, the recorded deeds to defendant and the unrecorded trust agreement number 6624. We find nothing in them to support the plaintiff’s claim of agency.

Plaintiff’s counsel contend that notwithstanding the use of the word “trustee” in the recorded deeds and the unrecorded trust agreement, the full equitable and legal title was conveyed to defendant, who thereby became, not merely a trustee, but the actual owner of the property, so far as the public was concerned. This contention is only partially correct. The recorded deeds, of which the public must take notice, provided that while the full legal and equitable title was conveyed to the defendant, such title should be held in trust under the provisions of an agreement which left the cestui que trust an interest in the “earnings, avails and proceeds arising from the disposition of the premises.” This was constructive notice to the public that while defendant held the title to the premises, someone else named in the unrecorded trust agreement was the beneficial owner of all the rents and earnings of the property and the proceeds of any sale of the same. But if it were true that all the instruments taken together made defendant the actual owner of the property instead of a mere trustee, it would not follow that defendant is liable in this action for work done under a contract with Kelley, without proof that Kelley was defendant’s agent with authority to make such contract. There is no such proof. The fact that the recorded deeds did not disclose the name of Kelley as the beneficial owner of the property has no tendency to prove that Kelley was defendant’s agent. If Kelley’s name had been inserted in the recorded deeds as the beneficial owner of the rents and proceeds of the real estate, no relation of principal and agent would be shown thereby, but the relation shown would be that of trustee and cestui que trust. Agency differs in many respects from a trust. (1 Mechem on Agency, 2nd ed., sec. 42.) A trustee may be an agent but in such case the cestui que trust is the principal. (2 Corpus Juris, p. 425.) If it were possible to construe any relationship of principal and agent from the language used in these documents, Kelley would be the principal and defendant the agent, instead of the reverse, as claimed by plaintiff’s counsel.

Counsel for plaintiff also contend that by the terms of the unrecorded agreement “Kelley was in writing appointed the authorized representative or manager of defendant.” This is a misconception. The unrecorded agreement provides that the beneficiary shall have the management and control of the property and of the selling, renting and handling thereof; but it does not say that the beneficiary shall manage and control the property and collect rents for the defendant or as its agent, and there is nothing in the language of the trust agreement which can be so construed. By the terms of the deeds and also the trust agreement, the rents, avails and proceeds of the property belong to the beneficiary; and the trust agreement expressly provides that the trustee shall not be called upon to do anything in the management or control of the property except on the written direction of the beneficiary. Kelley’s authority to manage and control the property and collect and retain the rents and proceeds of the same was not derived from any appointment by defendant, but such “rents, avails and proceeds” were his own property, reserved to him in and by the terms of the deeds to defendant, as well as in the trust agreement executed at the same time.

Plaintiff’s counsel seem to contend that the mere fact that the provisions of the trust agreement were “secret,” in the sense that the agreement was not recorded, makes a difference in the rights of the parties. But the liability of an undisclosed principal does not depend solely upon the fact that the agency was undisclosed. The fact of agency must also be established, and, if denied, the burden of proving it is upon the party who asserts such agency to exist. In this case, there is no proof that Kelley ever was or ever pretended to be defendant’s agent, and no proof that defendant ever held him out as its agent, to plaintiff or anyone else.

The judgment of the superior court is reversed, and as there can no recovery upon the undisputed facts in the record, the cause will not be remanded.

Reversed.

Barnes, P. J., and Gridlby, J., concur.


text:
    Sheffield Steel & Iron Company, Appellee, v. The Jos. Joseph & Brothers Company, Appellant.
    Gen. No. 29,907.
    1. Sales — materiality of letters showing cause of failure to deliver goods sold. Where the defendant, in an action for damages for nondelivery of material, had made a bid on material owned by the government, and took from plaintiff an option to sell to it the same material, and where after the acceptance of the bid a formal contract was entered into, in which plaintiff agreed to buy “approximately” a stated number of tons, and where the government delivered a smaller quantity than such stated tonnage, it was error to refuse to admit letters from the Ordnance Department showing that the government had no more to deliver than was delivered to plaintiff, on the ground that the facts therein stated were not material, no objection being made that the letters were incompetent because they were not the best evidence.
    2. Damages — when buyer not entitled to recover damages for nondelivery of goods sold. Where the defendant in an action for damages for nondelivery of material sold had made a bid on material owned by the government, and took from plaintiff an option to sell to it the same material, and where after the acceptance of the bid a formal contract was entered into, in which plaintiff agreed to buy “approximately” a stated number of tons, and where the government delivered a smaller quantity and never delivered the remainder, plaintiff was not entitled to recover for the quantity not delivered, if it had knowledge that defendant’s only source of supply was the material purchased from the government, and that the contract was made on that basis, calling for the delivery to plaintiff as the same should be shipped by the government, of the same “approximate” quantity of the specified material which defendant had purchased from the government, since in such case the contract was a conditional one.
    3. Damages — liability of seller to refund freight charges paid by buyer on rejected goods. In an action for nondelivery of material under a contract, and for freight paid by plaintiff on certain cars of rejected material, plaintiff could not in any event recover the freight to a point other than that designated in the contract for delivery, even assuming that through mistake of the defendant or the party shipping the material plaintiff was required to pay charges at all.
    4. Discontinuance, dismissal and nonsuit — proof of failure of corporation to pay franchise taxes. Proof of the failure of plaintiff corporation to pay its franchise charges on a certain date was not a cause for dismissing the suit in question, since they may have been paid since that date, the objection only being good under the statute, Cahill’s St. ch. 32, f 128, until they have been paid in full.
    5. Dis continuance, dismissal and nonsuit — nonpayment of franchise taxes by corporation plaintiff as grounds for dismissal. A suit could not be dismissed for the failure to pay franchise taxes, it could only be continued until the taxes were paid.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Aleas M. Ebebhabdt, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Reversed and remanded.
    Opinion filed July 14, 1925.
    Herbert J. Friedman and Herbert A. Friedlich, for appellant; Franklin R. Overmeyer, of counsel.

      Joseph B. Lawler, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

Defendant appeals from a judgment against it for $5,300 obtained after a trial before a jury. Plaintiff’s claim is for damages for the nondelivery of approximately 900 tons of steel billets purchased by the plaintiff from the defendant in 1919, and for freight paid by plaintiff on four cars of such steel which were rejected because the material shipped therein was not according to the contract.

It appears from the evidence that defendant made a bid on a quantity of steel billets owned by the Government, and on August 7,1919, before its bid was accepted, took from the plaintiff a written option to sell the same material to the plaintiff for $27.50 per gross ton, delivered at Biverdale, Illinois. After defendant’s bid was accepted by the Government, a formal contract was entered into between the parties dated August 12, 1919, in which defendant agreed to sell, and plaintiff to buy, “approximately 3200 tons” of “513/16 gothic steel billets, as per description in our letter to you of August 7,1919,” at the price of $27.50 per gross ton, f.o.b. cars at Biverdale, Illinois, “Time of shipment: as made by the Government.” Under this contract about 2,300 tons were delivered to plaintiff and accepted and paid for. The remaining tons were never delivered.

Defendant contends that it was excused from making further deliveries because the plaintiff knew that defendant bought these steel billets from the Government and that the contract recognizes that fact by requiring deliveries to be made to the plaintiff only “as made by the Government.” On this theory, defendant sought to prove that after 2,300 tons had been delivered, the Government notified defendant that it had no more to deliver, and that in fact it did not deliver any more, claiming that defendant’s bid was for “approximate” tonnage only, which had all been shipped. This offered proof was in the form of letters from the Ordnance Department, and, as we understand the record, the trial court excluded them, not because they were letters, but because the facts therein stated were not material. In this the court erred. Of course, the letters are not the best evidence, and are incompetent if objected to on that ground. But apart from the letters there was some evidence tending to support defendant’s theory that plaintiff had full knowledge of the fact that defendant’s only source of supply was the material purchased from the Government, and that the contract between the parties was made upon that basis, calling for the delivery to the plaintiff, as the same should be shipped by the Government, of the same “approximate” quantity of the specified steel billets which defendant had purchased from the Government. If, in fact, the contract between plaintiff and defendant was made upon that basis, — as the contract itself and the letter of August 7, 1919, seem to indicate — and if plaintiff received from defendant all the specified material which was actually delivered to defendant by the Government, defendant is not liable for not delivering the remainder of the “approximate” quantity specified. (Scialli v. Corréale, 97 N. J. L. 165; Wilson v. Clarke [Gil. 318], 20 Minn. 367.) In other words, if such be the facts, the contract as made was a conditional one, in which defendant’s obligation to deliver the specified quantity to the plaintiff was dependent upon the supply in the hands of the Government, and if plaintiff received from defendant all the specified material the Government delivered to defendant, there was no breach of the contract. Defendant offered several instructions on this theory, which it was error for the court to refuse.

As to the claim for freight paid, it is clear from the evidence that defendant is not liable for the full amount paid by the plaintiff. If it be assumed that through the fault of defendant, or the Government, a mistake was made which required the plaintiff to pay such freight charges on the four cars that were not accepted, as were caused by that mistake, there is no evidence that would justify the allowance of freight charges to Kalamazoo, Michigan. There is no proof that defendant ever agreed to pay freight to that point, and no apparent reason why it should.

We are not impressed with the purely technical objections of plaintiff’s counsel as to the consideration of these questions on this appeal. Practically all the contentions made by him are answered by the case of Yarber v. Chicago & A. R. Co., 235 Ill. 589, if not by Miller v. Anderson, 269 Ill. 608.

As to the contention of defendant’s counsel that the court should have dismissed the suit because plaintiff’s franchise tax was not paid, the only proof offered was that plaintiff’s 1920 franchise tax had not been paid in November, 1920. Non constat it may have been paid since. The objection is only good “until such franchise taxes * * * have been paid in full.” (Cahill’s St. ch. 32, sec. 128.) For the same reason the suit could not be dismissed for failure to pay franchise taxes. It could only be continued until the taxes were paid.

For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.

Barnes, P. J., and Gridley, J., concur.