text:
    Randolph W. Matteson and Harvey L. Boyer, Trading as Randolph W. Matteson & Company, Appellant, v. Charles C. Walker, Appellee.
    Gen. No. 32,452.
    Opinion filed June 20, 1928.
    Bernstein, Zolla & Bernstein, for appellant.
    Cassels, Potter & Bentley, for appellee; Kenneth B. Hawkins, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The plaintiff, a firm of real estate brokers in Chicago, sued the defendant for a real estate commission for having produced a purchaser ready, willing and able to purchase the property of defendant, numbered 172 North Michigan Avenue, Chicago, averring that the employment was duly authorized by defendant’s agent, one Cyrus Bentley.

The defendant moved to strike plaintiff’s statement of claim from the record and to enter judgment for the defendant. The motion to strike was allowed; the motion for judgment was not allowed, and plaintiff was ruled to file an amended statement of claim within five days. No amended statement of claim was filed, as plaintiff elected to stand on its original statement ordered stricken by the court. Thereupon plaintiff’s suit was dismissed for failure to file such amended statement with a judgment for costs against plaintiff. Plaintiff prayed and perfected an appeal from said judgment to this court, and the record is now before us for review.

The agent of defendant Walker, Cyrus Bentley, wrote to plaintiff on August 14, 1925, a letter which reads:

“In order that there may be no misunderstanding I am writing what I said to you the other day; Mr. Charles C. Walker will pay to you a 3% commission on the sale to Berman of the property at 172 North Michigan Avenue if the sale is actually consummated but not otherwise; if the deal falls through and the sale is not made, whatever the reason may be, Mr. Walker will pay no commission. Will you kindly sign the receipt at the bottom of the carbon copy which accompanies this original letter.

“Mr. Barry Gilbert of this office will act for me in the matter referred to during my absence.”

Plaintiff accepted the terms of said letter in the manner as therein indicated. Plaintiff set forth in its claim that by the terms of said letter they were authorized by defendant to sell defendant’s property therein described, and they aver that they procured a purchaser for the property, named Phil Berman, who was ready, willing and able to purchase the property and pay therefor the sum of $285,000, and plaintiff further alleges that defendant authorized Bentley to prepare a contract; that Bentley did prepare such a contract, which Berman signed and deposited $10,000 as earnest money; that defendant refused to sign the contract or to sell the property to Berman, and further averred that the amount of commission rightfully due them was $8,550, being 3 per cent of the purchase price above named.

There is but one point for decision, and that arises under a construction to be placed upon the contract encompassed within the letter of Bentley to plaintiff, dated August 14,1925. There is no dispute concerning plaintiff’s having produced a purchaser within the terms named in the Bentley letter. The nub of the contract for our decision rests in.the following words: “if the deal falls through and the sale is not made whatever the reason may be, Mr. Walker will pay no commission.” It is not disputed that plaintiff would have been entitled to the commission but for the foregoing clause. The words of the contract are not at all ambiguous. It gave defendant the right to refuse to approve any sale made in virtue of the terms stated in the letter. Under the Bentley letter the commission was only payable upon the consummation of a sale, and while it may seem arbitrary for defendant to refuse to carry out the sale negotiated by plaintiff, yet the parties must be bound by their contract and the right to recover such commission is not confined to the negotiation of the sale, but there must be something more than that under the terms of the contract. There must be an actual consummation thereof, and there was no consummation of the sale. The provision is explicit that “if the deal falls through and the sale is not made whatever the reason may be, Mr. Walker will pay no commission.” It is not disputed that the sale alleged to have been negotiated by plaintiff was not consummated, and that it did fall through by reason of defendant’s refusal to sign the contract of purchase procured by plaintiff and signed by Berman.

Plaintiff made the contract of his own volition, free and untrammeled, with defendant, and by its terms both parties thereto are bound. There is no ambiguity in the language used to express the intention of the parties, and therefore there is nothing left for construction. It may be an unfortunate contract for plaintiff, but nevertheless, it is binding. Even a court of equity would not, if applied to, make a new contract for the parties in the absence of a charge of fraud, as held in Ziegler v. Illinois Trust & Savings Bank, 245 Ill. 180. Courts will enforce contracts according to their terms. No rights can be adjudicated which are not covered by the express terms of the contract. Plaintiff well knew that the contract provided that before commissions were payable the sale should be actually consummated, and that if it was not actually consummated no commissions were payable. Under the contract defendant was given the right for any reason to refuse to carry out its terms. As no sale was made binding on defendant, he is not liable to pay the commission demanded by plaintiff. Plaintiff was aware of the conditions and the law will presume that he intended to be bound by them. There is no charge of mala fides in obtaining the contract, so that there is no reason why plaintiff should be allowed to escape from its binding terms. When plaintiff entered into the contract the risk that defendant would not execute a contract of sale, and thereby become bound to pay the commission, was one arising from the terms of the contract executed by plaintiff. Under the averments of the statement of claim plaintiff does not state a cause of action against defendant for commissions. Tackett v. Powley, 130 Ill. App. 97, cited by plaintiff in which the court said, “unless there is some provision in the agreement or contract of employment to the contrary, a broker is entitled to his commission” etc., fails to sustain what plaintiff claims for it. However it is in point as sustaining the contention of defendant, for the reason that there is a provision to the contrary in the contract between the parties set forth in plaintiff’s statement of claim. The only excuse defendant has for not executing the contract of sale produced by plaintiff is the express terms of the agreement between the parties set out in plaintiff’s statement of claim.

Plaintiff’s counsel stigmatize the action of defendant as arbitrary. This may be true, but the right to be arbitrary is reserved to him by the express terms of the contract. Much more might be said to demonstrate that the ruling of the learned trial judge was without error, but enough has already been said to demonstrate the correctness of the judge’s ruling.

For the foregoing reasons the judgment of the municipal court is affirmed.

Affirmed.

Wilson and Taylor, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    Frederick H. Meyer, Individually and as Conservator of Adolph W. Meyer, Appellant, v. Ethel Levy et al., Appellees.
    Gen. No. 32,519.

      Opinion filed June 20, 1928.
    Rehearing denied July 5, 1928.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellant.
    Nathan Shefner and Silber, Isaacs, Silber & Woley, for appellees; Martin J. Isaacs, of counsel;
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Complainant Frederick H. Meyer, individually and as conservator of Adolph W. Meyer, filed on October 5, 1927, his bill against Ethel Levy and Abe Levy, her husband, to foreclose a trust deed to secure the sum of $47,916.70, evidenced by 26 principal notes dated May 12,1927, payable to bearer, notes numbers 1 to 24, both inclusive, being for the principal sum of $416.66, each due respectively on or before one to 24 months after May 23, 1927, note No. 25 being for the principal sum of $21,250.86 and note No. 26 being for the principal sum of $16,666, both by their terms being due June 23, 1929, with interest at 6% per cent per annum from May 23, 1927, until the maturity of each note, payable monthly.

The trust deed sought to be foreclosed was made and executed by the defendants and conveyed to the Chicago Title & Trust Company, as trustee, the following described premises, situated in the City of Chicago, County of Cook and State of Illinois, viz.:

Lots 1 to 6 inclusive and Lot “A” in Neill and Mahnke’s Subdivision of Lots 7 to 10 inclusive, in Block 4 in Gardner’s 55th Street Boulevard Addition in the North West Quarter of Section 16, Township 38 North, Range 14, East of the Third Principal Meridian, hereinafter for convenience designated as Parcel A; also

Lots 1 to 11 inclusive and Lots “A” and “B” in Neill and Mahnke’s Second Subdivision of Original Lots 1 to 6 inclusive in Block 4 in Gardner’s 55th Street Boulevard Addition in the North West Quarter of Section 16, Township thirty-eight North, Range 14, East of the Third Principal Meridian, hereinafter for convenience designated as Parcel B; with the improvements thereon, etc.

The trust deed was made subject to a prior mortgage, securing the payment of $195,000. Among other covenants contained in the trust deed is the following :

“And the grantors Do Further Covenant and Agree that in the event default be made in the payment of said notes, or the interest thereon, at the time and in the manner above specified for the payment thereof, or in case of a breach of any of the aforesaid covenants or agreements, the whole of the indebtedness hereby secured shall thereupon, at the option of the legal holder' or holders thereof, without notice, become immediately due and payable, and with interest thereon from said time at seven per cent (7%) per annum shall be recoverable by foreclosure hereof, or by suit at law, or both, * *

There was a rider inserted between the first .and second pages of the trust deed, which reads as follows:

“This rider is attached to and expressly made part of that certain trust deed, dated May 12, 1927, by and between Ethel Levy and Abe Levy, her husband, as ‘ Grantors ’ and Chicago Title and Trust Company, as ‘Trustee,’ conveying certain premises in Chicago, Cook County, Illinois.

“It is further covenanted and agreed by and between the parties hereto that the grantors, their administrators, successors and assigns, shall, upon the payment of the sum of Fifteen thousand dollars ($15,000.00) to the holder or holders of principal note No. 26 hereby secured, which sum is to be applied pro tanto toward the payment of said principal note No. 26, be entitled to have released from the lien of this trust deed the premises hereinabove described as Parcel B, provided said grantors * * * shall upon such date not be in default in any of the terms, covenants and conditions in this trust deed contained on their part to be kept and performed.

“It is further covenanted and agreed by and between the parties hereto that the grantors * * * shall have the right to deposit with said Trustee herein said sum of Fifteen thousand dollars ($15,000.00) to be applied toward the payment pro tanto of note No. 26, and upon such deposit being made with said Trustee herein said Trustee shall be authorized and empowered to release from the lien of this trust deed the premises hereinabove described as Parcel B.

“It is further understood and agreed that the grantors, * * * anything in the trust deed contained notwithstanding, shall have the right to demolish or remove the improvements now located on Parcel B, without accelerating the maturity of the indebtedness by this trust deed secured; Provided, However, that said grantors * * * shall not, and they hereby covenant and agree not to commence the erection of any new structure oil or the excavating of said Parcel B until there shall have been paid to the holder or holders of said principal note No. 26 hereby secured the sum of Fifteen thousand dollars ($15,000.00) which is to be applied pro tanto toward the payment of said principal note No. 26.”

The bill, inter alia, avers a breach of the conditions of the rider to the trust deed in that the defendants without paying the sum of $15,000, as in said rider provided, did wreck the building thereon and excavate the land on Parcel B; that on September 5, 1927, defendants entered into a contract with a mason contractor for the plain and reinforced concrete and cement and brick work for a new building for the contract price of $63,000; the excavation work in said contract he sublet to a third party; that all the foregoing was done without the consent of complainant and without any notice of the doing thereof to him, and without making the payment of $15,000 provided to be made in said rider before excavating for a new building.

Defendants answered the bill admitting the execution of the notes and trust deed and the wrecking of the old building on Parcel B, and that the final wrecking of the building was completed about September 20, 1927, and averring that complainant was aware of defendants’ intention to wreck the old building and was informed of the steps taken by defendants for carrying out that purpose; that plans of the new building were exhibited to complainant who was informed that defendants had procured á construction mortgage of $210,000, and that complainant knew and was informed by defendants that the excavating for the new building had commenced, .and that he did not object to the work being done.

The answer further admitted the receipt of the notice that complainant had elected to declare the whole of the indebtedness immediately due and payable under the terms of the trust deed, which notice was as follows:

“Chicago, Illinois, September 26th, 1927.
“Ethel Levy and Abe Levy,
5107 North Ridgeway Ave.,
Chicago, Illinois.
“Dear Madam and Sir:
“The undersigned has just learned that you have caused to be commenced the excavating of the following parcel of land, situated in the City of Chicago, County of Cook and State of Illinois:
“Lots One (1) to Eleven (11) inclusive and Lots ‘A’ and ‘B’ in Neill and Mahnke’s Second Subdivision of Original Lots One (1) to Six (6) inclusive in Block Four (4) in Gardner’s 55th Street Boulevard Addition in the North West Quarter of Section Sixteen (16), Township Thirty-eight (38) North, Range Fourteen (14), East of the Third Principal Meridian.
“As you know, the trust deed from yourselves to the Chicago Title and Trust Company, as Trustee, dated the 12th day of May, A. D. 1927, and recorded in the Recorder’s office of Cook County on the 13th day of May, A. D. 1927, as Document No. 9650904, in Book 24618 at Page 436, conveying the above described and other property, provides among other things that you shall not, and you covenant and agree, not to commence the erection of any new structure on or the excavating of the parcel above described until there shall have .been, paid the holder or holders of Principal Note No. 26 secured by said trust deed, the sum of Fifteen Thousand Dollars ($15,000.00).
“You are hereby advised that by reason of your default in failing to comply with the above provision, the undersigned has elected to, and does hereby declare the whole of the indebtedness secured by said trust deed immediately due and payable, and unless the whole of the indebtedness secured by said trust deed is paid three days from the date hereof, foreclosure proceedings will be instituted to foreclose said trust deed.
Very truly yours,
Fred H. Meyer,
Individually and as Conservator of Adolph W. Meyer,
By Sonnenschein, Berkson, Lautmann & Levinson,
jHis Attorneys

Beplication was filed to the answer. On November 4, 1927, the bill was taken as confessed as to the defendant Chicago Title & Trust Company, and the cause referred to Boswell B. Mason, master in chancery, to take the proofs of the parties and the testimony of witnesses and report to the court said testimony together with his conclusions of law and fact thereon within 15 days.

On December 6, 1927, the master filed his report, after overruling objections made thereto by defendants, in which he reported inter alia that on May 12, 1927, defendants being indebted in the principal sum of $47,916.70, executed their 26 principal promissory notes, as set forth in the trust deed and the bill of complaint, note No. 25 being for the principal sum of $21,250.86 and note No. 26 being for the principal sum of $16,666, both due June 23, 1929, with interest, etc.; that each of said notes had in it the following "provision:

“This note is one of a series of twenty-six notes of similar tenor and effect except as to number, denomination and time of maturity thereof, amounting in the aggregate to the principal sum of $47,916.70. The payment of this note as well as all of the other notes of said series is secured by a trust deed bearing even date herewith to Chicago Title & Trust Company, as Trustee on real estate in the County of Cook in the State of Illinois, and it is agreed that if default be made in the payment of principal or interest on this note or on any of the notes of said series of which this is one at the time and place when and where the same become due and payable, or in case of default in the performance of any of the other terms, covenants, conditions or provisions in said trust deed contained, then at the election of the legal holder or holders hereof the principal of this note together with the accrued interest thereon shall at once become due and payable at the place of payment aforesaid; said election to be made at any time after such default, without notice.” That notes Nos. 1 to 4, each for the sum of $416.66, had been paid and canceled, and that the complainant was the owner and holder of the remainder of said principal notes, viz., from 5 to 26, both inclusive; that complainant was indebted to the owner and holder of notes Nos. 5 to 26 and that' complainant, individually and as conservator of Adolph W. Meyer, is the holder and owner of note No. 26; finds that the defendants executed the notes and the trust deed securing the same in the bill of complaint set forth, setting forth the several covenants and conditions of the trust deed, together with the rider attached thereto; that the title to Parcels A and B were in the defendant Ethel Levy; that in May, 1927, defendants employed an architect and had plans prepared for a new building on Parcel B and that they started demolishing the building on Parcel B in July, 1927; that the demolition of the old building was not entirely completed on September 9, 1927; that the walls were left standing and much debris from the old building remained on Parcel B on September 9, 1927; that on July 26, 1927, Mrs. Levy arranged a loan of $210,000 on the proposed new building, and that thereafter and sometime in the last part of July, in August and early in September, defondants or one of them had several interviews with complainant, who lived some miles from the property-in- question, the last interview being September 7, 1927; that at these interviews complainant was told by the Levys of their intention to erect a new building on Parcel B, and of their proposed new loan, and he was shown the plans of the building.

The master further reports that there is some difference in the testimony of the parties as to just what was said at these interviews, but that it is perfectly clear from the evidence that neither Mr. nor Mrs. Levy told defendant that the erection of a new structure on Parcel B or the excavation therefor had been commenced ; as a matter of fact the excavation for the new structure was not commenced until September 9, and the erection of the new structure was not commenced until September 19; that on September 5, 1927, Mrs. Levy entered into a contract with one P. J. Cullinane for the plain and reinforced concrete work and brick work on the new building on Parcel B; that the contract was dated September 2, 1927; that Cullinane sublet the work of removing debris and excavating for the foundations of the new building to George Callaghan Sons Company; that the latter firm began work on September 9,1927, with workmen and steam shovel; that they stopped work on September 10, and did not work on September 11 to 14, 1927, but that they resumed work on September 15 with workmen and steam shovel, and completed all the work of removing the debris from the old building, and the entire excavation for the new building on September 17; that the excavating included the excavation of a space 75 feet long by'90 feet wide that had been used as a court for the old building and had never been excavated before; that the subcontractors performed their excavation work, and Cullinane went to work on September 19, 1927, with 12 or 14 men, and continued thereafter for four weeks filling in the concrete foundations for the new building; that no payment or tender of $15,000 was made by the defendants prior to the doing of the above excavating and foundation work; that the complainant was never told by defendants that the excavating had been commenced, or that the erection of the new structure had been commenced on Parcel B; that the complainant did not waive any of his rights under the trust deed in any way, and he is not estopped to insist on his rights thereunder; that complainant did not make any statement or do any act that induced defendants to employ an architect, or to have plans drawn for a new building on Parcel B, or to finance a new loan, or to let contracts for the new building, or to wreck the old building on Parcel B, or to have Parcel B excavated or to correct a new building thereon ; that complainant never said he would wait, nor led the defendants to believe that he was willing to wait, for the payment of the $15,000 until the latter part of September or first part of October; that on September 24, 1927, complainant learned for the first time, from a third party, that the excavation of Parcel B had been completed, and the foundation work had been done on the new building on Parcel B; that September 24,1927, was a Saturday, and that on the following Monday complainant called upon one of the attorneys who represent him and advised him that the defendants had started the building, and that they had made no proffer of the amount due him under their contract; that his attorney told him that he would write defendants immediately; that on September 26, 1927, the attorneys for complainant sent the defendants the notice heretofore recited; that the notice was received by defendants September 27, 1927; that at that time defendants had already incurred on their new building about $14,000 architect’s fees, about $18,000 cost of proposed new loan, and had let contracts amounting to over $160,000 for the new building; that on September 30, 1927, there was a meeting at the office of the attorneys for complainant, at which meeting there were present the defendants and their attorney, and the complainant and one of his lawyers; that at this meeting complainant’s attorney asked for $47,000; that the defendants’ attorney said “No,” and made a tender of $15,000; that complainant’s attorney refused to accept this and said that he would accept the entire amount; that on October 1, 1927, Mrs. Levy tendered the complainant $15,000 which he would not accept; that on October 1, 1927, Mrs. Levy tendered the Chicago Title and Trust Company as trustee $15,000, which tender was refused upon the objection of complainant’s attorney; that thereafter the money was deposited in the Bank of America for the benefit of complainant; that tender was again made to complainant in open court on October 13, 1927, and again refused, and a monthly payment and interest aggregating $667.30 was tendered to complainant on October 23, 1927, and refused by complainant.

The master further found that commencing and completing the excavation for the new structure on Parcel B, and the foundation work done therefor, heretofore described, without paying the $15,000 provided to be paid in the trust deed, was a clear violation of the provisions of said trust deed, a breach of its covenants, and a default in the performance of its provisions; that complainant elected by his notice to declare the whole indebtedness secured by the trust deed immediately due and payable; that he had the right so to elect; that the whole of the unpaid indebtedness secured by the trust deed became on September 26, 1927, immediately due and payable; and further that the making out and sending of the notice by the attorneys for the complainant was within the scope of their authority, and the entire unpaid indebtedness secured by the trust deed is now and has been ever since September 26, 1927, due and payable, with interest thereon at the rate of 7 per cent per annum from September 26, 1927; that the tenders above described made by defendants availed them nothing, and that complainant is entitled to maintain this foreclosure suit; that a reasonable, customary and usual fee for the services of complainant’s attorney is the sum of $3,500.

The master then stated the account and found that, with complainant’s solicitor’s fees, there was due and owing to complainant the sum of $50,368.62; and further found that complainant, individually and as conservator of Adolph W. Meyer,-has a lien upon all of the premises above described for said last-mentioned sum and interest on the sum of $47,866.62 at the rate of 5 per cent per annum from December 2, 1927, together with Ms costs of suit, subject and subordinate only, first, to the lien of a trust deed on Parcel A for the amount unpaid on that indebtedness; and second, to the lien of a trust deed on Parcel B in said report described; and the master further found that the defendants are personally liable to complainant for the payment of the said sum of $50,368.62 with interest and costs.

To this report defendants filed objections, which the master overruled.

And in conclusion the master found the equities were with complainant, and that a decree of foreclosure and sale should be entered in accordance with the master’s findings.

Defendants filed their exceptions to the master’s report before the chancellor, which exceptions were sustained, and on December 17, 1927, the chancellor dismissed the bill for want of equity, and complainant brings the record here by appeal for our review.

Complainant argues for reversal that defendants’ breach of the covenant against commencing the excavating for or the construction of the new building without paying the sum of $15,000 entitled complainant to accelerate the payment of the balance due upon the mortgage, and that the acceleration clause contained in the notes and trust deed is valid and enforceable ; that the notice of September 26, 1927, electing to declare the entire balance immediately due and payable sufficiently evidenced complainant’s intention to declare the balance of the mortgage due, and that his statements and conduct were iii consonance with that intention; that complainant in no way waived the requirement in the trust deed that $15,000 be paid before the commencement of excavating and construction; that defendants were not entitled to any release of Parcel B, for the reason that they were in default in the performance of the covenant to pay $15,000, and that the trust deed and rider must be construed as an entirety and their provisions read together.

We have noted the evidential facts found by the master, and on a careful reading and study of all the proofs we see no reason to disturb the conclusions to which the master arrived or his recommendation that complainant was entitled to a decree of foreclosure in accordance with the prayer of his bill and such findings.

The record discloses that the master heard the testimony of all the witnesses, which the chancellor did not, and therefore the master was better able, than are we or the chancellor, to determine the credibility of the testimony of the several witnesses, and where such testimony was in dispute the master was better able to judge as to which witnesses were more worthy of credit and to give credit accordingly. The chancellor and this court have but the cold and unresponsive record upon which to come to a conclusion as to the credibility of the several witnesses, and a chancellor as well as a court of review should be slow in disturbing the conclusions of the master upon the facts, unless it can be said that the master’s conclusions were clearly contrary to the probative force of the evidence.

In the instant case in many vital particulars there was a contradiction between the testimony of complainant and the defendants, and it was therefore the burden and the master’s duty to determine to which witnesses he would accord the greater credit, and it certainly cannot be said from this record that the findings of the master on the crucial and decisive points in the case are not supported by the believable evidence, or that the master’s findings are manifestly contrary to the probative force of the evidence. It is clear that defendants designedly deceived complainant in regard to the wrecldng of the building and making the excavation for the erection of the contemplated structure without giving complainant either notice or tendering the sum of $15,000, to which complainant was entitled under the terms of the rider in the trust deed, and it is quite apparent that defendants by their conduct designedly kept their actions in this regard secret from the complainant and that the complainant learned of the conduct of defendants in this regard incidentally from a third party, a stranger to the controversy; that complainant did nothing whatever to mislead defendants to do the things which they did contrary to the covenant in the trust deed, and that complainant ■ is not estopped by any act of his from enforcing both in spirit and in law the conditions of the trust deed. De Proft v. Heydecker, 297 Ill. 541; Powers v. Wells, 244 Ill. 558. There was no act done by complainant which would work an estoppel in pais. Noble v. Chrisman, 88 Ill. 186; First Lutheran Church of Pontiac v. Rooks Creek Evangelical Lutheran Church, 316 Ill. 196, in which the court said:

“An estoppel by matters in pais may be defined as an indisputable admission, arising from the circumstances, that the party claiming the benefit of it has, while acting in good faith, been induced to change his position by the voluntary, intelligent action of the party against whom it is alleged. His action must have been of a character to result in substantial prejudice were he not permitted to rely on the estoppel.”

There is no conduct imputable to complainant in this record which would under the foregoing definition work an estoppel in pais.

Furthermore, the trust deed with its accompanying rider is one document, and with all its covenants and conditions must be construed as such. It is patent from all the proofs on the subject that the defendants were exerting themselves to evade their obligation of paying $15,000 to complainant before wrecking the old building and excavating for the new, and, aside from the testimony of defendants regarding some verbal conversations with complainant, every act of defendants points to this one solution of their conduct.

It is the duty of a court of equity to enforce the contract made by the parties and not to depart therefrom, unless good and sufficient reason clearly appears from the proofs for so doing, and it is without contradiction that the defendants as a condition precedent to wrecking the building and excavating the land for the purpose of erecting thereon a new building were by their contract obligated to pay the sum of $15,000. That agreement was deliberately entered into and it is the duty of courts of chancery to enforce such contracts when applied to for that purpose. These covenants the defendants deliberately violated and for so doing they cannot expect to find any favor in a court of conscience.

For the failure of defendants to pay the $15,000 in apt time, as above mentioned, complainant had a right under the terms of the trust deed to accelerate the payment of the indebtedness in the manner in which he did. Brown v. McKay, 151 Ill. 315.

In Curran v. Houston, 201 Ill. 442, the court said:

“Parties may by contract make the time, given for payment of the principal debt, depend upon the prompt payment of the several installments of interest when due, providing, either in the note, or mortgage semiring the same, that a failure to make payment of any installment of interest shall work a forfeiture of the credit, and make the entire debt due at once. Such stipulation, that the whole sum shall become due and payable upon default in the payment of the principal or interest is universally held to be legal and valid. It is not objectionable as being in the nature of a penalty or forfeiture, but will be sustained in equity as well as at law. (Hoodless v. Reid, 112 Ill. 105; 1 Jones on Mortgages, — 5th ed. — sec. 76; 1 Pomeroy’s Eq. Jur., sec. 439; Kramer v. Rebnan, 9 Iowa, 114; Ottawa Northern Plank Road Co. v. Murray, 15 Ill. 336.)”

This case is equally applicable to the instant case. The right to accelerate payment of the indebtedness given by the trust deed, and of which complainant availed, is neither penalty nor forfeiture. It is an attempt to collect a debt which has matured under the terms and conditions of the contract between the parties, viz., the trust deed. King v. King, 215 Ill. 100; Robinson v. Miller, 317 Ill. 501.

Defendants attack the validity of the notice accelerating the payment of the debt and declaring the whole of it due for breach of the provision of the trust deed regarding the payment of the $15,000 before wrecking the building and excavating for the new structure for the reason, as they argue that the notice was not signed by complainant personally, but by his attorneys for him. The object of a notice is that the parties notified shall receive it and know of the demand therein made. The defendants do not deny they received such notice on September 27, 1927. The evidence shows without contradiction that the attorneys signing the notice for complainant did so with authority from complainant so to do, and that thereafter complainant ratified the action of his attorneys in this regard. Therefore the notice was effective for the purpose for which it was given, and furthermore no one but complainant under the circumstances of this case could challenge the authority of complainant’s attorneys to sign the notice with his name, and furthermore we agree with the master that the making out and signing of the notice by complainant’s attorneys was within the scope of their authority. The act of the agent when authorized, or if unauthorized subsequently ratified, becomes the act of the principal and binding upon all parties concerned.

For the errors indicated in this opinion the decree of the circuit court is reversed and the cause is remanded to that court with directions to approve the master’s report, and to enter a decree of foreclosure in accordance with the master’s findings and recommendations in that report.

Reversed and remanded with directions.

Wilson and Taylor, JJ., concur.


text:
    Cerny Pickas & Company, Appellee, v. Alexander C. Dallach and Daisy L. Dallach, Appellants.
    Gen. No. 32,565.

      Opinion filed June 20, 1928.
    Rehearing denied July 5, 1928.
    B. W. Rosenstone, for appellants.
    Walter Truc and James S. Wight, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The complainant corporation filed its bill in equity against the defendants seeking an accounting and also a mechanic’s lien for the amount claimed to be due by complainant under the contract entered into by it with the defendant Alexander C. Dallach, which involved the furnishing of iron, etc., for defendant Dallach’s theatre at La Grange, Illinois. The items claimed in the bill totalled $15,000 and were claimed to be due for iron work under the contract, overtime work by agreement $1,500, extra or additional work as per account rendered totalling $3,986.34, and defendants are given a credit payment of $12,000 and a credit memorandum for $340, making a total credit of $12,340, leaving the balance due as claimed by complainant of $8,246.34.

Defendants answered the bill denying every item of complainant’s claim. On issues joined the cause was referred to a master who sustained the complainant’s contentions and found that there was due from defendants to complainant the sum of $8,796.09 with interest at the statutory rate from March 1, 1925. Objections to the master’s report were filed before the master, and were overruled. There were exceptions filed before the chancellor to the master’s report, which upon a hearing before the chancellor were all overruled and a decree entered against defendants in favor of complainant for the sum of $9,566.96. From that decree defendants prosecute this appeal.

In this appeal defendants contend and argue for reversal that they are entitled to a deduction from the claim of complainant of the following accounts:

Bonus for prompt delivery............$1,500.00
Allowance for paint on steel after erection ............ 800.00
Allowance for metal doors not furnished 645.00 Allowance for 17,897 pounds of material
at 8%c per pound................... 1,521.25
Allowance for overcharge of 6,545 pounds
of steel at 3c....................... 196.35
•Extras not authorized or ordered by
Dallaeh ............................ 1,021.94
The total of the foregoing items is $5,684.54

and they request that this court reverse the decree and modify it by allowing the credit claimed of $5,684.54. None of the rulings of the master or the court on the remainder of the account is challenged. We shall therefore confine our review to the correctness or not of the foregoing items in the account.

It appears from the master’s report that Alexander C. Dallaeh acted as his own general contractor; that one Edward M. Kralovee, the treasurer of complainant, was in charge of the work for it, and superintended the fabrication and erection of all of said work, both in the shop of complainant and upon the theatre premises; that William J. Sloan was foreman of complainant in charge of installing the iron and steel work upon the theatre building; that by reason of delays caused by Kline, defendants’ structural engineer, in approving shop drawings, delivery by complainant under the contract was delayed; that defendant Alexander C. Dallaeh volunteered to pay an additional sum of $1,500 provided the steel was on the premises on August 27, 1924, and the master further found that the steel work was completed on August 25, 1924, but was not delivered immediately because there was not sufficient unloading space upon the theatre premises to make such deliveries, and for that reason defendant, Alexander C. Dallaeh, waived the actual delivery at that time; that by reason of the excavation having been made “rather early” the setting of° the trusses was delayed until the making of a certain support, and that there was no substantial or further delay in setting the steel work; that complainant kept a sufficient force upon the building as conditions would warrant; and further funds that complainant began work on the contract during the week ending August 2, 1924, and finished the same during the week of November 14, 1924, and that the work was all completed on the last-mentioned date, but that the architectural and ornamental iron work and certain extras were not completed on November 14, 1924, but that the contract work and all extras were furnished by January 7, 1925; that by reason of the change of the elevation of the second floor, the fire escape was necessarily raised and that such necessary adjustment was made by complainant; that this adjustment was completed by complainant on January 30, 1925, and that on that date all of the contract work and extras had been completed by complainant.

And the master further found that complainant had substantially complied with and completed the contract and extras in accordance with the plans and specifications; that the testimony shows inter alia that neither Rupert, defendants’ architect, nor Dallaeh ever made any complaint about the work or material, and that Dallaeh was at the building almost every day; and also found that the $12,000 payment made to complainant on November 15, 1924, was the only payment that was made after completion; and further found that Kralovee requested Rupert to give a final certificate; that Rupert refused to issue a final certificate without the defendant Alexander O. Dallaeh’s consent, and that such consent not being forthcoming no certificate was issued; further found from the evidence that defendant Alexander C. Dallach had arranged with the architect not to issue any certificate or certificates, but to pay out money as authorized by him.

The master also found that the contention of Dallach that the $1,500 additional was not earned because deliveries were not promptly made by complainant, was not well taken; and further found that complaint was not warranted on the facts, and that deliveries were promptly made so far as consistent with conditions created by defendant Alexander C. Dallach or his agents; that as to defendants ’ contention that the steel was not painted after erection, it was not well taken, but on the contrary found that the preponderance of the evidence showed that in the interest of time saving and for the purpose of expedition, it was agreed that certain structural steel was to be painted twice in the shop, thereby eliminating the painting after erection; and further found that in that connection there was no evidence that defendant Alexander C, Dallach had the steel in question painted since erection, but on the contrary the evidence showed that Dallach used the same ever since its erection as prepared and furnished by complainant.

And the master further found that defendant Alexander C. Dallach voiced his appreciation of the work done and deliveries made by complainant by a certain letter, the terms of which were not in conformity with his contentions to the contrary, and as to Dallach’s testimony that complainant failed to furnish metal doors, found that such contention was not justified from the evidence; and to the last contention of defendants that the extras were not warranted and an overcharge was made for the same, the master found such contention was not justified by the testimony nor the facts, and that all extras were properly ordered either by the defendant Dallach or his duly authorized agent or agents, and were warranted by the contract, and that the prices charged were the usual, reasonable and customary charges as shown by a preponderance of the testimony.

The master further found that the complainant sustained the material allegations óf its bill by a prepon- • derance or greater weight of the evidence, and the master recommended that a decree be entered in the • usual form, and that such decree should award to complainant the sum in said report found due, together with interest, and that complainant be given a mechanic’s lien upon the premises in question, together with the usual relief incident thereto, etc.

We have diligently examined all the proofs found in the record and we are in accord with the findings and recommendations of the master and concur in the reasons which he has assigned therefor. It is clear from the proofs that the departures from the letter of the written contract were made by agreement between the complainant and the defendant Alexander C. Dallach; and that the failure of complainant to receive the architect’s certificates, as provided by the contract, was occasioned by, and as the result of the actions of Alexander C. Dallach and Rupert, the architect, that no such certificates should be issued. Such conduct will not be tolerated by a court of equity as a cloak to deprive complainant of the sums justly due it under the contract.

Counsel for complainant cite authorities under the headings :

“Parties are bound by a construction which they have themselves given to a contract by their conduct.”
• “The owner is liable in any event for extras furnished with his knowledge and consent.”
“A party who does not himself observe the requirement provided in the contract of a formal written order for extra work, waives such requirement.”
“The architect’s certificate is waived when withheld by collusion between architect and owner, or if the architect does not fulfill his duty in issuing it.”

Defendants in their reply brief refer to complainant’s brief in which it says: “The appellants have raised.in this Court only questions of fact,” and they insist that they failed to argue the questions of law, and the authorities cited, and that under the rules of' this court such points and authorities not being argued must be treated as waived. Although we do not wish" to be understood as disagreeing with the points and authorities cited by complainant, yet as they utterly failed to argue any of them, they must be treated as waived under the rules of practice of this court.

In their main brief defendants cite no authorities regarding the law to support their contentions, but in the reply brief for the first time they cite one authority, which they contend requires that complainant must observe the written contract in its entirety and cannot depart therefrom, and that the procuring of the architect’s certificate under the terms of the contract cannot be dispensed with. The case referréd to is Board of Trustees of the Illinois and Michigan Canal v. Lynch, 10 Ill. 521, and they quote therefrom the following language:

“The contract between the parties, so far as the record shows, was voluntarily and fairly entered into. Neither party is at liberty to disregard it, nor can the Court make for the parties a contract different from that which the parties have made for themselves. By the terms of the contract under which the work was done, the determination of the chief engineer as to the amount or quantity of work done, is made final and conclusive. In an action for work done under the contract, the estimate of the chief engineer furnishes the only evidence of the amount of work done, and neither party is permitted to show such estimate to be erroneous, or to impeach it, except for fraud. If the Board of Trustees should unreasonably refuse to cause the work to be estimated by their chief engineer, the contractor would then have the right to resort to other evidence to show the amount of work done. Hotham v. East India Co. 1 T. R. 639. But neither party can resort to such other evidence while the other observes and insists upon the contract.”

The Lynch case, supra, is really an authority supporting complainant in its inability to furnish the architect’s certificate, caused by the demand of defendant Alexander C. Dallaeh that the architect refrain from issuing it. When defendant Dallaeh procured the architect not to issue such certificate, both he and the architect were guilty of fraud in so doing, which clearly brings this case within the exception above quoted, where the court said that “neither party is permitted to show such estimate to be erroneous, or to impeach it, except for fraud. If the Board of Trustees should unreasonably refuse to cause the work to be estimated by their chief engineer, the contractor would then have the right to resort to other evidence to show the amount of work done. ’ ’ In this regard defendants did not observe their duty under the contract.

We see no reason to disturb the decree of the circuit court, and it is therefore affirmed.

Affirmed.

Wilson and Taylor, JJ., concur.


author: Mr. Justice Taylor

text:
    In re Estate of William R. Moorhouse, Deceased. Dorothy E. Stull, Claimant, Appellee, v. Daniel J. Schuyler and Sybil Moorhouse Schuyler, Executors of the Last Will and Testament of William R. Moorhouse, Deceased, Appellants.
    Gen. No. 32,317.

      Opinion filed June 20, 1928.
    Rehearing denied July 7, 1928.
    Schuyler, Weinfeld & Parker, for appellants; Wm. C. Graves, John C. Bichert and Carl J. Appell, of counsel.
    SoNNENSCHEIN, BeRKSON, LaUTMANN & LEVINSON, for appellee; J. B. Hugg, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

On April 16, 1926, Dorothy E. Stull, filed a claim for the sum of $14,750.00, in the probate court of Cook county, against the estate of William B. Moorhouse, deceased, and, on July 9, 1926, it was allowed in the sum of $10,646.20. An appeal was taken by the executors of the last will and testament of William B. Moorhouse, deceased, to the circuit court. In the circuit court there was a trial de novo before the court, with a jury, at which there was introduced in evidence on behalf of the claimant (hereinafter called Mrs. Stull), the testimony of Eugene L. Garey, Pearl Lillian Mordue, Julius Schwill, John E. May, and O. Bay Anderson; also certain exhibits.

At the close of the evidence on behalf of the claimant, Mrs. Stull, counsel for the executors moved the court to exclude from the consideration of the jury all the testimony, and instruct the jury to find the issues in their favor. That motion was overruled. Counsel, for the executors then stated that they rested their case. Counsel for the claimant then moved that the jury be directed to find the issues for the claimant, Dorothy E. Stull, and to assess her damages at the sum of $10,783.21. That motion was objected to by counsel for the executors, on the ground that even if the contract in question was not on its face a gambling transaction, it still was a question for the jury to determine, under the facts and circumstances, and evidence introduced, whether or not the parties entered into the agreement for the purpose of carrying out a gambling transaction. The court overruled the objection and allowed the motion on behalf of the claimant, and, accordingly, on January 27, 1927, the jury, pursuant to the court’s instruction, returned a verdict in favor of the claimant and against the executors in the sum of $10,783.21; and on June 25, 1927, judgment was entered against the executors in the total sum of $10,962.93, being the amount of the ver-, diet, together with the sum of $179.72, interest thereon. This appeal is from that judgment.

The following is the theory of the claimant, Mrs. Stull: That some time in the spring of 1925, (Moorhouse died on August 17, 1925) she entered into a “deal” or contract with Moorhouse to the following effect: That from time to time she would get information from one Garey, a New York lawyer, (who had business relations with a certain dairy company and a so-called Nizer Corporation, and was general counsel for the original banking houses of both of those concerns), concerning the stocks of those companies; that he, Moorhouse, entered into “a joint account” with her in the purchase of some dairy and Nizer B stock; that (showing evidence of the contract or of a joint venture) Moorhouse told Garey, “I have agreed to put up half the money — I have agreed to put up the money —and buy these stocks, and share half the profits with her”; that Moorhouse asked Carey about the companies, and he told Moorhouse as to their earnings, and that he was working on the purchase of certain other companies, and told him what the technical position of the stock was in the market; that he told Moor-house who the purchasers of the stock were, and what individuals and banks were involved; that he answered a great many questions that Moorhouse asked him, and gave him all the information he could; that on April 1, 1925, Moorhouse bought, through his brokers in Chicago, with whom he had been dealing for many years, 500 shares of dairy company stock, at $52.00 a share, and through them thereafter, and prior to his death, bought various other amounts of dairy company stock and Nizer B stock, and also sold the same, and the profits on those transactions were approximately $22,000.00; that G-arey talked to Mrs. Stull and gave her information concerning the stocks, and that she asked him, Carey, to inform Moorhouse, which he did; that he, Carey, gave Mrs. Stull information as to when to sell certain Nizer B stock; that some time in July or August, he talked to Mrs. Stull and told her that the dairy company stock had gone up fourteen or fifteen points, and advised her to sell at that price; that she asked him to give that information to Moor-house, which he did; that on one occasion Moorhouse told him that he understood that Mrs. Stull was getting information from him, and asked him to confirm it; that he, Carey, repeated the information he had given her to him, and told Moorhouse that he would let Mrs. Stull know when, in his, Carey’s opinion, the stock should be sold; that he gave no information to Mrs. Stull that he would not, under the circumstances, have given to anybody else who asked for it; that it was not confidential information; that what he gave out was, to some extent, a mere matter of opinion; that further evidence of the contract is shown by the testimony of the witness, Mordue, sister of Mrs. Stull, to the effect that in May, 1925, she heard Moorhouse say, “Dorothy and I have entered into a stock deal. I have some securities lying idle at my broker’s and Dorothy was at that time and still is getting information from Cene Carey concerning the National Dairy Products Corporation stock, so we agreed sometime ago to enter into this stock deal together; I to purchase the stock and Dorothy to furnish the information when to buy, which we are going to obtain from Mr. Carey, and we are going to split the profits fifty-fifty;” that in the latter part of July, she, Mordue, heard Moorhouse say to Mrs. Stull, “You must get in touch with Cene. The stock is going up, and we want to know what to do;” that her sister then telephoned to Carey in New York, and then told' Moorhouse that Carey said the stock was going on up; that Moorhouse then said, “All right, I am going to buy some more;” that she then heard Moorhouse call up his broker in Chicago and order more stock; that on August 7, she heard Moorhouse say to Mrs. Stull that she had better call Carey on the long distance telephone and find out whether they had better sell then; that her sister got Carey on the telephone and then said to Moorhouse that she wished him to talk to Carey; that he did so, and after the conversation, he, Moorhouse, called up his broker in Chicago, and he said he was going to follow Carey’s instructions, and sell the stock; that she heard Moorhouse put in a call for his broker, and heard him say, “Sell me out at the opening of the market Monday morning;” that she heard Moorhouse say, on one occasion after selling the stock, “I am very glad to have made this extra money for my estate. I have lost rather heavily on other stocks; ’ ’ that further evidence of the contract is the testimony of one Schwill, who stated that Moorhouse said to him, “Dorothy and I are in this deal 50-50. She gives me the information — gets it from New York. I put up the financial end of it, and if there is money made, it is 50-50. If there is any lost, I take it.”

Further, it is the theory of . the claimant, Mrs. Stull, that between April 27 and August 17, 1925 (on which latter date Moorhouse died), he bought and sold various amounts of dairy and Nizer B stock upon information furnished by her, that one-half of the net profits which he made on such purchases and sales amounted to approximately $10,646.20, and that she was entitled to a verdict and judgment in that amount.

On the other hand, it is the theory of the executors, that there was no consideration for the alleged contract between Mrs. Stull and Moorhouse; that she neither had any confidential information concerning the stocks in question, nor was she in any better position to acquire it than Moorhouse himself; that the most that her evidence tends to show is that she referred him to Garey for information, who was a lawyer and broker in New York, and a very good personal friend of Moorhouse, and whom Moorhouse'had known longer than he had known Mrs. Stull; that the only information of any value whatsoever that the record shows Moorhouse received was that received from Garey when Moorhouse visited Garey’s office in New York, and on several subsequent occasions when Garey called up Moorhouse’s summer home in Wisconsin; that the nature of the information Garey conveyed was testified to by him in the words, “It was no confidential information”; that Garey’s evidence shows that he gave out the information which affected the rise and fall of the stock market, and in doing so was furthering certain banking interests; that he gave the information to people besides Mrs. Stull; that giving out the information was beneficial to his clients, because it broadened their market; that he relied on each one to tell his neighbor; that the information that Garey gave out was merely such information as a stock broker would be only too glad to give to any prospective purchaser; that owing to the friendly relations between Moorhouse and Garey, it is a fair inference that Moor-house could obtain any pertinent information concerning the stocks from Garey himself; that as a result, if Mrs. Stull referred Moorhouse to Garey for information, she thereby gave him no valuable information and rendered him no service whatsoever that would form the basis of any contract.

It is further the theory of the executors that there is no evidence that Moorhouse made any legal purchases of stock; that there is no evidence that Moor-house made any use of the information in making any lawful stock deals; that the evidence tended to show that none of Moorhouse’s purchases and sales of stock were bona fide investments, but mere gambling transactions, and being such, Mrs. Stull had no basis for any legal claim; that the evidence tended to show that the stocks were bought on a “margin” for speculative purposes; that no time was stated when the stocks were to be fully paid for and the account closed; that Moorhouse never asked for the delivery of the stocks; that they were never tendered to him; that the certificates were never made out in his name, but in the name of the broker; that they always remained in New York, and were never forwarded to Chicago; that when Moorhouse purchased the stock he paid nothing down; that the required margin on the stocks was charged to his general credit with his brokers; that when the stocks were sold, no money was paid to him, but the amount realized was credited on his indebtedness to his brokers; that these transactions were in no way separated from his general account; that the evidence tended to show that it was the understanding and intention of the parties that no deliveries were actually to be made, but that each purchase and sale was to be adjusted upon the mere settlement of the differences; that at no time did either party have any intention of delivering the property to the other; that the question of intention was one for the jury and should have been submitted to it for determination.

We are of the opinion that, although no evidence was offered on behalf of the defendants — which arose, presumably, from the fact that Moorhouse was dead ■ — all the evidence that was put in, that was competent, should have been submitted to the jury for its determination.

Counsel for the claimant urge that the uncontradicted testimony showed the existence of the contract, the performance of it and a profit resulting therefrom, and that that made out a case which with “all the legitimate and natural inferences to be drawn therefrom was wholly sufficient to sustain a verdict for the plaintiff.”

It is true that in Libby, McNeill & Libby v. Cook, 222 Ill. 206, at page 211, the court said:

“A peremptory instruction for defendant should not be given, ‘except where there is a substantial failure of evidence tending to prove the plaintiff’s cause of action or to prove some material fact necessary to establish it,’ ” but in the instant case, the real question being considered was not'whether a peremptory instruction for the defendant should have been given, but whether the evidence in the case was such that it ought to have been submitted to the jury for its determination. If the evidence, although all of it was introduced by the claimant, when reasonably considered, required weighing and balancing, and was not obviously free from doubt as to proving the cause of action alleged by the claimant, and suggested, as certainly some of its elements do, that what was proved as to buying and selling were gambling transactions, then it would seem to be necessary that the evidence should have been submitted to the jury, and that the trial judge erred in concluding that he was entitled to weigh the evidence and direct a verdict without submitting it to the jury.

In Kelly v. Jones, 290 Ill. 375, Mr. Justice Cartwright said:

“There may be such inherent improbability in the testimony of a witness as to justify a court in disregarding his evidence even in the absence of any direct contradiction. If his testimony is contradictory of the laws of nature or universal human experience, so as to be incredible and beyond the limits of human belief, or if facts stated by the witness demonstrate the falsity of the testimony, the court is not bound to believe him. Podolski v. Stone, 186 Ill. 540; Kennard v. Curran, 239 id. 122; People v. Davis, 269 id. 256; Kuehne v. Malach, 286 id. 120.”

And in Larson v. Glos, 235 Ill. 584, the same judge said:

“It is true that a court or jury is not bound to believe a witness when, from all the other evidence or from the inherent improbability or contradictions in the testimony, the court or jury is satisfied of its falsity. * * * The witness in this case was not contradicted or impeached, and the facts testified to were not improbable in themselves or in connection with any circumstances in the case.”

In the instant case, some of the essential facts which were testified to were, in and of themselves, highly improbable, and remained so even when taken in connection with other circumstances in the case.

In Kuehne v. Malach, 286 Ill. 120, Mr. Justice Carter said:

“While it is true the general rule is that positive testimony of a witness, uncontradicted and unimpeached either by positive or uncontradicted evidence, cannot be disregarded, it is also true that there may be such an inherent improbability in the testimony of the witness as to induce the court or jury to disregard it, even in the absence of conflicting testimony. He may be contradicted by the facts he states as well as by adverse testimony, and there may be so many omissions in the account of the particular transactions, or in his own conduct, as to discredit his whole story.”

In Stephens v. Hoffman, 275 Ill. 497, the same judge said, “there may be such an inherent improbability in the statement or testimony of a witness that the court may disregard it, even in the absence of any direct conflicting testimony. He may be contradicted by the facts he states as completely as by direct adverse testimony, and there may be so many omissions or discrepancies in Ms testimony as to discredit him. Quock Ting v. United States, 140 U. S. 417; Podolski v. Stone, 186 Ill. 540; People v. Davis, 269 id. 256.”

In Kavale v. Morton Salt Co., 329 Ill. 445, at page 451, the court said:

“The jury is to judge the credibility of witnesses, and where the testimony of a witness has been disputed in a material matter or is inherently improbable, the jury is not required to believe such witness even though such contradiction of his testimony has not been direct.”

It is frequently difficult to determine whether, as a matter of fact, a certain situation gives rise to a gambling transaction, or to a lawful contract; and it usually occurs because of the difficulty in determiMng, as a matter of fact, the intention of the parties. We think it is quite obvious that different reasonable minds might easily reach different conclusions, from the evidence set forth above, as to whether or not according to the law of this State, the transactions in question were lawful, or in the nature of gambling.

At the close of the trial, and after the executors had rested, the trial judge, in considering the claim of counsel for the executors that it was a question for the jury, said that the claimant had her theory of fact, and that it had been supported by a number of witnesses, and that there was nothing to contradict it, and as a consequence, he would have to ask the jury to find for the claimant. We think, however, a careful analysis of the evidence — bearing in mind the law of this State concerning what constitutes gambling transactions— shows that there are such inherent probabilities that it was the intention of the parties not to buy and sell in what the law considers a legitimate way, but to accomplish a series of transactions, in their nature, as matters of pure hazard and gambling and to settle on differences, that to deprive the executors of their right to have the evidence submitted for the determination of a jury takes away and destroys their right of trial by jury as to controverted questions of fact.

In Jamieson v. Wallace, 167 Ill. 388, the court said, at page 396:

“It is well settled, that, where a contract for the delivery and sale of stocks or other property in the future is not made with the intention that such stocks or property shall be received or delivered but with the understanding, either express or implied, that the transaction shall be settled by the payment of the difference between the contract price and the market price at the time fixed, or at some future time, such a contract is á mere wager or gambling contract, and is void. (Schneider v. Turner, 130 Ill. 28; Pope v. Hanke, 155 id. 617, and cases there cited.) ‘All contracts made between parties, who have no intention of receiving and delivering the property, but intend merely to settle accounts by the payment of the differences, are void and will not be enforced.’ (8 Am. & Eng. Ency. of Law, 1005-1010). In order to invalidate the contract, it must appear that neither party has the intention to deliver the property, and that both parties have the intention of settling the differences only. But the intention of the parties in this regard may be established, not merely by their assertions, but by all the attending circumstances of the transaction. The question of intention is a question for the jury or for the court, to be determined by a consideration of all the evidence. (Pope v. Hanke, supra). The intention of the parties in such cases may be determined from the nature of the transaction, and from the manner and method of carrying on the business. (Irwin v. Milliar, 110 U. S. 507; Gregory v. Wendel, 39 Mich. 327; 8 Am. & Eng. Ency. of Law, 1010; North v. Phillips, 89 Pa. St. 250; Ruchizky v. DeHaven, 97 id. 202; Beveridge v. Hewitt, 8 Ill. App. 467; Griswold v. Gregg, 24 id. 384; Carroll v. Holmes, id. 453; Kennedy v. Stout, 26 id. 133; Miles v. Andrews, 40 id. 155; Pearce v. Foote, 113 Ill. 228; Brand v. Henderson, 107 id. 141; Tenney v. Foote, 95 id. 99; Cothran v. Ellis, 125 id. 496).”

Further, as to the alleged contract between the claimant and Moorhouse, the evidence shows that he was a business man, a commissioner of public works of the city of Chicago, a man of property, and for twelve or fifteen years, at least, had been dealing in stocks, and held stocks to the amount in value of several hundred thousand dollars at a time; so that, notwithstanding the testimony of Carey, Mordue and Schwill, which is not contradicted, it appears as a highly improbable story and, as told, contains many inherent weaknesses. It is counter to ordinary and and conventional experience, so that, even though uncontradicted, we think the evidence should have been submitted to the jury. Whether the evidence proved that such a contract was ever made and whether the evidence showed that it was the intention of the parties to the purchases and sales to settle on differences, and to accomplish merely gambling transactions, involved matter of fact that should have been submitted to the jury.

The evidence is too voluminous to set forth here in such a way as to show fully the inconsistencies, discrepancies and cause for doubt that lead us to the conclusion we have reached. We may say, however, that the testimony of Garey as to his employment and his relations with the banks and others, and his reasons for giving out information and how he got hi's knowledge, is by no means clear and so on its face is a source of perplexity, uncertainty and doubt, and, • further, that the evidence as to the alleged contract between Mrs. Stull and Moorhouse deserved the scrutiny and consideration of the jury.

It is urged on the part of the executors that the trial judge erred in admitting incompetent evidence offered by Mrs. Stull; that the court permitted the witness Carey to testify to certain conversations he had with Mrs. Stull outside of the presence of Moorhouse. The testimony was admitted, apparently, on the theory that they were engaged in something in the nature of a partnership, or a joint venture, and, therefore, that a conversation of one partner was binding upon and admissible against the other. Apparently, from the allegations in Mrs. Stull’s statement of claim, and from what she undertook to prove, she was to furnish Moorhouse certain information, which he might, if he saw fit, make use of in purchasing and selling stock in his own name, and that if, as-a result of the purchases and sales, there was a loss, he was to bear it, and if it proved profitable, he was to pay her one-half of the profits. Evidently, that means that there was a simple contract between them, the consideration on her part being the furnishing of information. In our judgment, it was not a partnership, nor a joint venture. When he bought the stock, he bought it for himself and in his own name, and it was charged to his account, and she was not in any way a party to that transaction; and, likewise, when he sold any stock, the proceeds and profits were credited to his account only. All that she claimed under her alleged contract was the right to be paid a sum equal to one-half of the net profits, as payment for information furnished by her. Furber v. Page, 143 Ill. 622; National Surety Co. v. Winslow, 143 Minn. 66; Fougner v. First Nat. Bank of Chicago, 141 Ill. 124; Reed v. Engel, 237 1ll; 628; Grinton v. Strong, 148 Ill. 587; National Surety Co. v. Townsend Brick Co., 176 Ill. 156.

In our judgment, the testimony of the witness Garey, with regard to conversations with Mrs. Stull outside Moorhouse’s presence was incompetent.

The contention on the part of the executors that the ledger of F. B. Keech & Co., the brokers through whom Moorhouse dealt, was inadmissible, is in our judgment untenable. The entries were made in the regular course of business, and their methods proved to be accurate by those having supervision of them when they were made. First Nat. Bank of Stronghurst v. Vaughan, 240 Ill. App. 50; People v. Small, 319 Ill. 437; Pittsburgh, C., C. & St. L. Ry. Co. v. Chicago, 242 Ill. 178; Cooke v. People, 231 Ill. 9.

Some contention is made on behalf of the executors that the trial judge erred in putting certain limitations on the cross-examination of the witness May, concerning other stocks besides the two in question, in which Moorhouse dealt. In our judgment, that contention is untenable.

For the reasons stated, the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed and remanded.

Holdom, P. J., and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    Nick Mihas, Appellee, v. Chesapeake and Ohio Railway Company, Appellant.
    Gen. No. 32,370.

      Opinion filed June 20, 1928.
    Rehearing denied July 5, 1928.
    William G. Wise, for appellant.
    Joseph D. Ryan, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

This is an action on the case brought by the plaintiff Nick Mihas, for personal injuries sustained on or about March 16, 1926, on the premises of the defendant company, in the city of Peru and State of Indiana. The suit was brought under the Federal Employers’ Liability Act, the plaintiff having been an employee of the defendant at the time of the accident and for a number of years prior thereto, and resulted in a verdict in favor of the plaintiff and against the defendant in the sum of $20,000, and upon this verdict judgment was entered by the trial court and it is from this judgment that this appeal is prayed and is here for consideration.

As a result of the accident in question, plaintiff suffered the loss of an arm and other injuries and, as there is no question raised by counsel for defendant as to the amount of the verdict, it becomes unnecessary. to set out the injuries in detail.

On the day in question it appears that the defendant company was maintaining and operating a certain switch yard, running in an easterly and westerly direction and bounded on the north by Canal street and on the south by the Wabash River. In the vicinity of the point where the accident occurred, the testimony discloses that there were five tracks consisting of a track known as a switching lead which extended east and west on the south side of the yard and that next to and north of this, and running in a parallei direction, was the main track. North of the main track, and running in the same direction, was what was known as the house track, which extended a considerable distance north and south and was connected with the main track at a point considerably west of the point where the accident occurred. North of the house track, and running in the same direction, was house track No. 2, Which curved into and connected with house track No. 1. West of house track No. 2, and running parallel to it and connected with house track No. 1, at a point 270 feet west of the place where the accident occurred was house track No. 3, the track upon which the accident in question happened. The three house tracks Nos. 1, 2 and 3 ultimately switched into and connected with the main line at a point over 1,000 feet west of the place of the accident. Track No. 3, which was commonly known as the team track, and which was the track running along the north side of the yard, was used for the purpose of placing cars which were to be loaded or unloaded by teams which, from the record, appeared to have access to said team track, either at the butt end of Cass street, or at Main street, two streets running in a northerly and south- , erly direction. Just north of the yard was Canal street running in an easterly and westerly direction. Cass street was a butt end street extending into the yard for a short distance and, from the record, it appears to have been used by teams for the purpose of entering upon the premises of the company in order to load and unload at that point. Bast of Cass street was Main street, a north and south street which extended into the switch yard of the defendant and' was used in a similar manner by trucks and teams. In order to place cars upon the team track in question, it appears that the cars were taken along the main track and then switched back in an easterly direction to and upon the team track. This switching point was a considerable distance west of the point of the accident.

At a point just south of Canal street and west of the butt end of Cass street, there was a small frame house or shack which had been furnished by the defendant for the use of Mihas as living quarters and it appears that he was subject to call at any time during the day or night. His employment was that of section hand and his duties required him to take care of the instrumentalities of the defendant which were used in interstate commerce, and it appears to have been stipulated by the parties that the defendant was, at the time of the accident, engaged in interstate commerce, so that no question was raised as to his right to maintain his action under the Federal Employers’ Liability Act.

Mihas was 31 years old at the time of the accident and was a Greek who had been in this country for over 15 years. He started to work for the defendant in 1913, and had worked at the particular employment in which he was engaged at the time of the accident since 1921. He was required to take care of switch lamps and lights along the right-of-way of the defendant for a distance of about four miles. He was receiving, at the time of the accident, $3.60' a day and started to work about six o’clock in the morning, but was required to live upon the premises so that he would be subject to call at night, if necessary. In order that he might carry out his duties he was provided with a small speeder car which had three wheels and was operated by hand and could be lifted up and placed upon the track. This car was kept in a small building called the “Lineman’s Shop,” directly south of the habitation of the plaintiff and between the track known as the lead track at the extreme southerly side of the yard and the Wabash River, so that if the plaintiff proceeded from his house directly to the shop in order to reach his speeder car, it would have been necessary for him to cross the five tracks hereinbefore referred to.

On the morning of the day of the accident plaintiff, according to his testimony, left the small frame house, furnished by the company, where he lived, at about ten minutes to seven and started for his speeder car. This house, where he lived, was situated 25 feet north of the team track and, as he reached this track, he looked both ways and saw cars extending east and west 400 or 500 feet. They were standing still at the time and he observed two men unloading coal from one of them onto a truck. This truck appears to have been located just .north of the team track and at the end of Cass street and very close to the point where the accident occurred. According to plaintiff’s testimony, he looked both ways and saw no engine or cars approaching these standing cars from the west. At a point some distance to the west, the track curved away from him, so that he would not have been able to see the approach of cars with the same advantage as he would have had if he had been standing on the inside of the curve, which would have been on the other side of this particular track. He testified further, that it was customary for the defendant when switching cars in, upon and along this particular team track to send someone ahead in order to notify teamsters that cars were to be placed upon said switch, or so that they could guard themselves against danger by reason of said cars coming in contact with those that were standing upon the team track and were being unloaded. He testified that, seeing no cars approaching and observing the teamsters unloading a car on the other track, he proceeded to cross over a coal car which was standing at a point directly in line between his house and the speeder in order to reach the point where his speeder car was kept and, as he was in the act of climbing up over said car, the cars standing on this track were struck by some other cars switched in and upon the team track and he was thrown from the car and received the injuries in question.

It appears from the testimony that the collision was caused by a flying switch, the cars having been taken down the main track and then propelled with sufficient speed to carry them, by their own momentum, onto the team track, and that they struck the standing cars with considerable violence, so, as a result, the cars standing on the team track were moved some distance and, as testified to by Sam Cretas, one of the witnesses on behalf of the plaintiff, there was a crash and' the coal was flying all over. William Sharp, a witness called on behalf of the plaintiff, testified that he was a sand and gravel contractor and was unloading some coal, at the time in question, onto a truck and that his son was helping him. They had been working on the morning in question unloading the coal since about six o’clock in the morning and had made a trip and had returned to the point in question, and that there were a lot of cars standing east and west from the coal car which was unloading; that he had just started away from the team track, when he heard the crash and had reached a point about 30 or 40 feet from the place where he had been unloading; that it was a couple of seconds after the truck started away that he heard the crash; that it was the uniform custom to notify persons unloading at this point whenever the defendant was about to run cars in and upon said track.

It does not appear from the evidence that there was any notification whatever on the morning of the accident by the defendant that it intended to place additional cars upon said team track.

It is urged as a ground for reversal that from the testimony, the plaintiff, in attempting to cross over the cars in question, was guilty of contributory negligence and that the defendant was not guilty of negligence in making the ■ flying switch in question. In support of this contention it is urged that the plaintiff could have proceeded down Canal street and crossed the tracks at a point several hundred feet to the east and come around the cars to the point of his destination. This would have necessitated his leaving the premises of the company and returning to the same premises, and would still require him to pass over a number of tracks in order to reach the shanty where his speeder was kept. We cannot see any force in the argument, particularly ■ in view of the fact that his house was located on the premises of the defendant, and his daily occupation required him to proceed to the shanty where his speeder was located, which was also upon the premises of the defendant. It seems illogical to say that, where the defendant company had provided a habitation for its employee on the premises, he should be required to leave those premises in order to again return to them for the purpose of obtaining his car, and unless he did so, he was not exercising reasonable care for his own safety.

As to the question as to whether or not the defendant company was negligent in the manner in which they handled the cars in question on the team track, it is sufficient to say that, from the testimony, it appears that the cars must have proceeded over the track onto the team track at a considerable speed so that they struck the standing cars with a great deal more force than was requisite under the circumstances. So far as the public is concerned, and by that we mean people dealing with the defendant in unloading cars at the point in question, we are fully of the opinion that the flying switch, without any warning to those so engaged, was a negligent operation. It is urged by counsel for defendant that this may be true, in so far as the public is concerned, but that it owed no duty to the plaintiff and that, even though there may have been a custom to warn teamsters, there was no obligation to warn plaintiff, as he was an employee of the defendant and not entitled to the same warning to which the public was entitled. It is urged that the'trial court, in permitting evidence as to this custom, was in error. We cannot agree with this contention. An employee in the exercise of ordinary care has a right to rely upon those things which he has learned during the course of his employment and to act upon his general knowledge so obtained. If the plaintiff had been in the custom of proceeding directly from his home to the place where his speeder car was located and he testified that he had never been directed to do otherwise, and was required to cross over all the tracks in the switch yard, in doing so, it would appear to us that he had a right to rely upon the fact that, in crossing the track in question and finding that there were teamsters engaged in unloading a car and knowing that the company was in the habit of sending some one ahead of approaching cars which were to be placed upon said track in order to warn the teamsters, he was not guilty of contributory negligence in assuming that the company would do so on the morning of the accident in question. It would hardly be fair to say that, where a company had created by custom a certain usage, it should be allowed to go free from responsibility where it, in fact, by its servant, had violated the custom which the employee had grown to rely upon. This court in the case of Otstot v. Indiana, I. & I. R. Co., 103 Ill. App. 136, where it was urged that safeguards and precautions were for the exclusive use and protection of the public, said:

“Whether such rules prevail in the various states as claimed, has no influence upon us in determining the issues in this case. The rule is well settled in Illinois, that a servant of a railroad company, though performing menial labor, like that of a section hand, whether in railroad yards or on private right-of-way, is entitled to all the rights offered the public, either by ordinance, statute, or general custom of the company. 1. C. R. R. Co. v. Gilbert, 157 Ill. 354; St. L. A. & T. R. R. Co. v. Eggmann, 161 Ill. 155; E. St. L. C. R. R. Co. v. Eggmann, 170 Ill. 538.”

The Supreme Court of this State in the case of Pridmore v. Chicago, R. I. & P. R. Co., 275 Ill. 386, in its opinion says:

“It is also contended that the deceased, by reason of his being employed as a flagman, did not come within the class of persons protected by the provisions of the statutes and ordinances relating to the speed of trains, headlights upon locomotives and other warning signals. Employees of railroad companies working in private railroad yards or grounds within city limits or on railroad tracks are entitled to the protection of ordinances or statutes regulating the speed of trains within city limits and providing for the ringing of the bell or blowing of the whistle or the carrying of headlights on moving engines. East St. Louis Connecting Railway Co. v. Eggmann, 170 Ill. 538; Illinois Central Railroad Co. v. Gilbert, 157 id. 354.”

It is true in this case just cited the plaintiff was employed by another railroad company, but the language of the decision is broad enough to take in employees of the carrier, responsible for the accident. In the case of Ehrlich v. Chicago G. W. R. Co., 160 Ill. App. 379, the court in discussing at some length the rights of employees to rely upon rules, regulations and ordinances, said:

“It is also true that employees and persons lawfully around tracks and trains have a right to rely upon the rules of the railroad company, as held in C. & A. R. R. Co. v. Kelly, 182 Ill. 267, and C. & A. R. R. Co. v. Eaton, 194 Ill. 441. In Otstot v. I. I. & I. Ry. Co., 103 Ill. App. 136; I. I. & I. Ry. Co. v. Otstot, 113 Ill. App. 37, and C. & N. W. Ry. Co. v. Thomson, 128 Ill. App. 594, we said that workmen upon a railroad right of way had a right to expect the master and its other servants operating trains to observe ordinances and statutes, and also rules and general customs of the company.”

Plaintiff at the time of the accident was engaged in interstate commerce. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146.

We have examined the cases cited by counsel in support of their contention, but are of the opinion that the general rule in this State seems to be that an employee is entitled to consider the rules and customs of his employer in governing his conduct while upon his employer’s premises and has a right to rely upon the observance of such rule or custom by his employer as well as the general public would have such a right, and that the jury had a right to consider the fact that there was such a custom in force in the yards of the defendant company, where the accident occurred, in arriving at the questions as to whether or not the plaintiff, at the time of the accident was, himself, in the exercise of due care for his own safety.

For the reasons expressed in this opinion, the judgment of the trial court is affirmed.

Judgment affirmed.

Holdom, P. J., and Taylor, J., concur.