text:
    The City of Galena, Appellee, v. F. A. Altfillisch, Appellant.
    Gen. No. 7,763.
    1. Highways and streets — negligence m driving on icy street as jury question. In an action by a city against a truck line owner for breaking a street light, the negligence of the truck driver in driving without chains on a street of the icy condition of which he had full knowledge and in trying to make stops thereon in doing which he slid his truck against the light, held a question for the jury.

      2. Highways and streets — duty of city in regard to icy streets. A city has no duty to remove from its streets ice and snow accumulated thereon by the elements, unless hillocks or ridges or other obstructions to travel are thus formed.
    3. Highways and streets — city liability for placing street light. A city, ordinarily holding the fee of its streets, can hardly be guilty of trespass in placing a street light nor liable for it as an obstruction unless a nuisance be shown.
    4. Municipal corporations — ordinance for street lights as not requiring repeal of one against street obstructions. An ordinance providing for a city’s installing ornamental street lights may be operative without in terms repealing a prior ordinance forbidding street obstructions.
    5. Highways and streets — city’s power to light. Under Cahill’s St. ch. 24, H 65, subd. 11, cities and villages have the power to light their streets.
    6. Highways and streets — when street lights not nuisances. An ornamental street light, which was not out on the street where travelled and did not obstruct in any way the usual travel thereon, held not to constitute a nuisance.
    7. Appeal and review — plat annexed to brief as not part of record. A defendant’s contention against a city’s claim for damage from a broken street light, that the light was not properly located under the ordinance, as shown by the city plat, should have been presented at the trial by introducing the plat there and not by appending a copy to his appeal brief.
    Appeal by defendant from the Circuit Court of Jo Daviess county; the Hon. Harry Edwards, Judge, presiding. Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed September 24, 1927.
    Quentin H. Blewett, for appellant; Paul Kerz, of counsel.
    Louis A. Nack, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

Suit was instituted before a justice of the peace of Jo Daviess county by appellee against appellant to recover the cost of replacing a boulevard light, alleged to have been negligently struck and damaged by a truck owned by appellant and driven by his employee, one Joseph Keohler. On the trial before the justice a finding and judgment was rendered against appellee. Appellee appealed said cause to the circuit court, where a verdict was returned and judgment was rendered in favor of appellee for $59.50. To reverse said judgment, this appeal is prosecuted.

It is first contended by appellant that the evidence fails to disclose any negligence on the part of appellant’s driver for which said city is entitled to recover.

The record discloses that appellant was engaged in the trucking business, and that Keohler was' in charge of the truck in question at the time of said alleged collision. Keohler testified on behalf of appellee that he had been driving a truck for five years, and had been driving for appellant about a year; that on February 5, 1926, he was driving along Main Street in the city of Caleña, and was intending to make a stop at Altenberg’s cream station. He testified:

“I was almost stopped and the hind end of my truck slid over on account of the ice on the street and I bumped the light and knocked it over. At that time the street was all ice out to the center of the street and I was pulling into the curb and when twelve inches away from the curb, I pulled in and stopped right on the ice which I would judge. was three or four inches thick along there and I was practically stopped when the hind end of the truck slid over about two inches on to the light.

“The street had been in that condition pretty nearly all winter. I had been driving in there before. I had no chains on the truck. The truck was a ton and a half. I was practically unloaded.”

The evidence with reference to how said collision occurred was confined to this witness. He was asked whether or not when he felt the truck slip, he applied his brakes, and answered: “I was practically stopped when my brake was on. I had reached down and pulled on the emergency brake when I felt the truck roll,”

The ice in question having been on this street for a considerable length of time, and the driver of appellant’s truck having had knowledge with reference thereto, it was a question of fact for the jury as to whether, under the conditions there shown, it was negligent to operate said truck and undertake to make stops along the curb without chains. We would not be warranted in holding that the verdict of the jury on this issue was against the manifest weight of the evidence.

It is next contended by appellant that appellee city was negligent in permitting the ice to accumulate on said street. No authority is cited in support of this contention, and we are satisfied that none can be found.

It is not the duty of a city to remove from its streets ice or snow which may have accumulated thereon by the action of the elements, unless it be shown that such ice or snow was piled up in the street in such a way as to constitute an obstruction to the travel thereon, as where ice or snow has accumulated into ridges or hillocks. City of Chicago v. McGiven, 78 Ill. 347-352; City of Quincy v. Barker, 81 Ill. 300-304; Mareck v. City of Chicago, 89 Ill. App. 358-359; City of Chicago v. McDonald, 111 Ill. App. 436-439; Eppley v. City of Chicago, 221 Ill. App. 111-113. The above-mentioned cases, with the exception of Eppley v. City of Chicago, supra, are sidewalk cases, but the rule laid down in those cases would apply with equal or greater force in favor of a city where the condition complained of was in the portion of the street used for vehicles.

It is next contended by appellant that the city was a trespasser in installing along Main Street a system of ornamental lights, one of which was the light here in question. This contention is based on a certain ordinance passed by said city on June 6, 1916, which provided that “no person shall hereafter build, construct or maintain any awning, shed, porch, building or other structure or purpresture, which is made or composed of .wood, iron, cement or other inflexible material, upon, over or across any street, alley, sidewalk which may in any manner interfere with or obstruct the travel or traffic of any street, alley or sidewalk.”

The fee of the streets of a city is ordinarily in the city, so it can hardly be that a city is guilty of trespass as to its own streets. The location of the ornamental light in question, even if it should be held to be an obstruction to the travel in said street, would at most constitute a nuisance.

An ordinance was offered in evidence by appellee, passed in 1925, which provided for the installation of a system of ornamental lights, which included the light in question. Said ordinance did not in terms repeal the provisions of the ordinance of June 6, 1916, but this was not necessary.

Cahill’s St. ch. 24, if 65, subd. 11, specifically gives to cities and villages the power to light their streets. See also City of Quincy v. Bull, 106 Ill. 337-349, and City of Fairbury v. Barnes, 228 Ill. App. 389-394. It will also be observed that the ordinance of 1916 only limits such constructions as “may in any manner interfere with or obstruct the travel or traffic of any street, alley or sidewalk.”

While it is true that cities and villages have no right to place obstructions in their streets which will interfere with the ordinary and usual use of the same by the traveling public, there is nothing in this evidence to show that said ornamental light was out in the traveled portion of the street, or that its location would in any way interfere with or obstruct the ordinary and usual travel on said street. We are of the opinion and hold that said light as located did not constitute a nuisance.

Some contention is made by counsel for appellant that the ordinance establishing the lighting system in question failed to properly designate the place where said lights should be located, but there is no evidence in the record to sustain appellant in this contention. No plat was offered in evidence showing the location of said streets, and while appellant attaches to his reply brief what purports to be a photographic copy of the plat of said city, it needs no citation of authority to the effect that a reviewing court would have no right to consider a plat so attempted to be brought into the record.

No complaint is made of the ruling of the court on the instructions, and it is not contended that the verdict and judgment are excessive.

Other errors were assigned on the record, but were not argued, and are therefore under our rules taken as Avaiyed.

Finding no reversible error in the record, the judgment of the trial court avüI be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Jones

license: Public Domain

text:
    Mary J. Lincke, Plaintiff in Error, v. Moline Board of Education, Defendant in Error.
    Gen. No. 7,725.
    1. Municipal corporations — distinction between voluntary and involuntary. The distinction between involuntary, public, quasi corporations and voluntary municipal corporations is that the former are created by the State to aid in government and are not liable at common law or the law of Illinois for neglect of duty except as expressly made so by statute, but the latter are liable for neglect of duties imposed in return for privileges conferred upon them at their request.
    2. Schools and education — liability of board of education for neglect of duty. A board of education is an involuntary corporation, created by general law of the State to execute governmental duties, without private corporate interests or benefits conferred upon it, and is simply an agency of the State that is not liable for neglect of duty except when made so by statute.

      3. Municipal corporations — liability for neglect of duty. A municipal corporation exercises two functions, one, public or governmental in executing which it is not liable for neglect of duty, and the other, private or proprietary in executing which it is liable for neglect of duty in the same way as private corporations or individuals.
    4. Schools and education — character of school districts. School districts are governmental agencies of the State existing for the sole purpose of maintaining an efficient system of free schools and have only such powers as are conferred by the State expressly or by necessary implication.
    5. Schools and education — grant of use of schools for hire or profit. Under Cahill’s St. ch. 122, U 123, providing for granting the use of school halls and classrooms for public, educational and social interests, school directors and boards of education have no express or implied power to make such grant for hire or profit.
    6. Schools and education — grant of use of schools for social and educational purposes. The permission given to school authorities under Cahill’s St. eh. 122, j[ 123, to grant the use of school rooms for social and educational uses to the public, is for a use harmonious with the objects for which public schools are conducted.
    7. Schools and education — expense charge for public use of schools as exercise of governmental power. A charge by a board of education to the public using school rooms for social purposes, to cover incidental expenses of such use, is within the governmental power of the board which is not liable for neglect of duty on such occasion.
    8. Schools and education — liability for ultra vires act in charging for use of school. A charge for profit by a board of education to a part of the public using school rooms for social purposes is ultra vires on its part and the district cannot be made liable for any neglect of duty on such occasion.
    9. Schools and education — liability for negligence. The fact that school boards have been given the power to sue and be sued and are under duty to repair school houses does not affect the rule they are not liable for negligence in maintaining school buildings.
    Appeal by plaintiff from the Circuit Court of Bock Island county; the Hon. Charles J. Searle, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed September 24, 1927.
    Andrew E. Kopp, for plaintiff in error.
    Wood, MoNeal & Warner, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.

Mary J. Lineke, plaintiff in error, instituted this suit in the circuit court of Eock Island county against Moline Board of Education, defendant in error, to recover damages which she alleges were occasioned by falling upon an outdoor landing in the steps of the sidewalk on the high school grounds, leading from the street to the school building". The declaration alleges that by reason of the defective construction of the said landing ice accumulated thereon rendering it slippery and dangerous; that defendant in error let out the auditorium of the building to a church society for $25 for an entertainment as hire, reward, revenue and profit; that she paid in advance to the society the admission price for the entertainment, and while on her way to attend the same, at the invitation of defendant in error, she fell on the landing and was injured through its alleged negligence; and that defendant was acting in a proprietary capacity for revenue and profit at the time of the invitation and injury. The defendant filed a general and special demurrer to the declaration. The court sustained the general demurrer and plaintiff in error having elected to stand by her declaration, judgment was entered against her.

The question involved in this case is whether a school board is liable in damages under such circumstances as are alleged in the declaration. It is urged that defendant in error is a municipal corporation and by statute is capable of suing and being sued; that it was acting in a proprietary capacity and is therefore liable.

There is definite distinction between the liability of voluntary municipal corporations, such as cities created for their own benefit, and involuntary quasi corporations established by law as civil divisions of the State. At common law, actions for a dereliction of duty were maintainable against the former, but the latter, existing only as an agency of the State, were not liable. Such is the rule in Illinois. (Town of Wal tham v. Kemper, 55 Ill. 346.) The ground of distinction is that public, involuntary, quasi corporations are mere political divisions of the State created by general laws to aid in the general administration of the government and are not so liable, while those that are liable have privileges conferred upon them at their request, constituting a consideration for the duties imposed upon them. (Bradbury v. Vandalia Levee & Drainage Dist., 236 Ill. 36, 46.)

In regard to public, involuntary, quasi corporations, the rule is that there is no implied liability imposed upon them. These, such as counties, townships, school districts, road districts and other similar quasi corporations exist under general laws of the State, with territory apportioned into local subdivisions for the purposes of civil and governmental administration. In such organizations the duties, and their correlative powers, are assumed in invitum and there is no responsibility to respond in damages in a civil action for neglect in the performance of duties, unless a right of action is given by statute. (Elmore v. Drainage Com’rs, 135 Ill. 269; Haines v. State Board of Agriculture, 184 Ill. App. 191.)

A board of education is a corporation or quasi corporation created nolens volens, by the general law of the State to aid in the administration of the State government, and charged, as such, with duties purely governmental in character. It owns no property, has no private corporate interests and derives no special benefits from its corporate acts. It is simply an agency of the State having existence for the sole purpose of performing certain duties, deemed necessary .to the maintenance of an “efficient system of free schools” within the particular locality of its jurisdiction. The State acts in its sovereign capacity, and does not submit its action to the judgments of courts and is not liable for the torts or negligence of its agents, and a corporation created by the State as a mere agency for the more efficient exercise of governmental functions is likewise exempted from the obligation to respond in damages as master, for negligent acts of its servants to the same extent as is the State itself, unless such liability is expressly provided by the statute creating such agency.

Plaintiff in error urges that defendant in error was exercising an authorized proprietary function under section 115 of the School Law (Cahill’s St. ch. 122, If 123). It is elementary that the powers and duties of municipal corporations, such as cities, are of two kinds: 1st, public or governmental, and 2nd, private or proprietary. They are not liable for negligence when exercising governmental functions. ' When performing proprietary functions they are chargeable with the same duties and obligations as private corporations and ordinary individuals. School districts derive their existence and all their powers from the legislature and have no inherent powers. (City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 269.) They have only such powers as are conferred expressly or by necessary implication. (24 R. C. L. Schools, sec. 7.) School districts are charged with duties purely goveriimental in character and are agencies of the State, existing for the sole purpose of performing duties in connection'with the maintenance of an efficient system of free schools (Kinnare v. City of Chicago, 171 Ill. 332), and differ from cities and other municipal corporations which have power to function in certain private capacities.

It is urged by plaintiff in error that the provisions of section 115 of the School Law delegates a proprietary function to school directors and boards of education and that the declaration therefore states a cause of action within its terms. That section provides for granting the use of assembly halls and classrooms when not otherwise needed, including light, heat and attendants, for public lectures, concerts and other educational and social interests, under such provisions and control as they may see fit to impose, and to conduct or provide for the conducting of recreational, social and civic activities in the school buildings under their control; but it does not expressly nor by necessary implication authorize a grant for hire, reward, revenue or profit as charged in the declaration. Any different construction would be utterly at variance with the single purpose for which school districts are created and maintained, as expressed in the constitution and the statutes and as limited by repeated decisions of the courts of this State. The use of school property for such purposes is not out of harmony with the object for which schools are conducted, but stimulates and fosters the interest of the pupils and patrons and promotes the efficiency of public schools.

It matters not whether the charge of $25 was for the use of the auditorium and a mere incidental charge to reimburse the Board of Education for light, heat, etc., or whether it was purely for profit. If it was the former, we think it was within the power of the Board in connection with its governmental function. If it was for the latter, then it was beyond the power of the School Board. In either case no liability would attach to the Board of Education on account of the injury to plaintiff in error. Where governing bodies of municipal corporations engage in unauthorized enterprizes, the corporation cannot be made liable for resulting damages. (Tollefson v. City of Ottawa, 228 Ill. 134.)

The fact that there is a provision in the statute that a school board may sue and be sued does not change the rule of their nonliability in tort actions of this kind. (24 R. C. L. Schools, sec. 60; Town of Waltham v. Kemper, supra; Daniels v. Board of Education of City of Grand Rapids, 191 Mich. 339, L. R. A. 1916 F 468.) Nor does the fact that boards of education are charged with the duty of making repairs and improvements to schoolhouses affect such rule. (Kinnare v. City of Chicago, supra; Freel v. School City of Crawfordsville, 142 Ind. 27, 37 L. R. A. 301.)

The declaration in this case did not state a cause of action and the demurrer was properly sustained. The judgment of the circuit court is accordingly affirmed.

Judgment affirmed.


text:
    Anna Mallory, Administratrix of the Estate of Gertrude Mallory, Deceased, Appellee, v. Day Carpet and Furniture Company, Appellant.
    Gen. No. 7,778.
    1. Master and servant — liability of master to one invited onto premises by servant. A master is not liable for injuries caused by a servant to those invited onto his premises by a servant unless the latter is the alter ego of his master or has exclusive control of the premises or his negligence in causing the injury was wilful and wanton.
    2. Negligence — care owing to licensee. The owner of premises owes to one who enters thereon for his own business with no intent to transact business with the owner no higher duty to protect him from injury than he would to a trespasser.
    3. Negligence — care owing to invitee. The owner of premises owes to one who comes thereon through implied invitation to transact business of mutual interest a duty of using reasonable care for his safety.
    4. Master and servant — liability of master for acts of servant. The master is not liable for injuries caused a third party by his servant’s act done outside the scope of the latter’s employment.
    5. Master and servant — master’s silence as not consent making him liable for servant’s act. A servant’s informing his immediate superior of his helping in the master’s garage outside his scope of employment and not being told to discontinue does not make the master liable because of such silence for injuries to a third party invited into the garage by the servant.
    6. Master and servant — when master not liable for injuries to licensee on his premises. A master is not liable for the death of a-third party by the act of his servant, not alleged to be wilful and wanton, occurring in a garage to which said party was invited by a second servant without authority while acting outside the scope of his employment.
    Appeal" by" defendant from the Oircuit Court of Peoria county; the Hoñ. Joh-n-M. -Niehatjs, Judge, presiding. Heard in this court at the April.:term",. 1927.,
    ...lieversed.
    Opinion filed September 24, 1927.
    Todd, Morgan, Pendarvis & Arber, for appellant.
    Victor P. MicHELyfor-appelleer- -
   Mr. Justice Jones

delivered the opinion of the court.

■Anna- Mallory, as administratrix of the estate of CertrAdei-liallor-y," deceased, in an action of case obtained a judgment for $4,000 against'appellant, Day Carpet and Furniture Company, on account of the death of appellee’s intestate, and an appeal has been prosecuted to this court.

• At the close of the evidence on behalf of appellee, a motion was made by appellant to direct a verdict in its favor. The motion was overruled and appellant offered no evidence. Several grounds of reversal are urged but it is only necessary to consider whether the deceased was an invited guest, a mere licensee, or a trespasser in the garage of appellant at the time she'was injured.

Appellant operated a store in Peoria, and in connection therewith used several automobiles. In the rear of the store was a one-story frame garage, about 20 feet wide and 75 feet long, in which 6 or 7 of these c'ars were kept. The garage was in charge of Willard Kóch, an employee, whose duty it was to take care of the cars, see that they were properly supplied with oil and grease and to look after them generally. Inside the garage was a barrel or two of motor oil and a barrel, of wood alcohol. Outside of it and buried in the ground' was a gasoline tank connected with a pump on the inside. The garage was heated by a furnace, set-on the floor with no jacket around it.

Walter Smith was employed by appellant as an assistant carpet layer. He delivered no goods but used a truck to carry his tools and materials, which truck was kept in this garage. His hours of employment were from 8:30 in the morning until 5:30 at night, when his services ended. For about six months prior to the accident, he had been in the habit, after his day’s work was done, of going once a week to the garage and assisting Koch in taking care of the cars. He did this work voluntarily and without the knowledge of appellant.

On the evening of January 21, 1926, he went to the garage and for about two hours helped Koch fill the cars with gasoline and oil. About ten o’clock he left the garage in his car and went to the Appollo Theatre where he met the deceased and they drove back to the garage. The night was cold; they left their car outside and both entered the garage. There was a fire burning in the furnace. Smith straightened up the work bench, put away some tools and cleaned up generally. Koch started to put some oil in one of the cars and as he did so there was a flash or explosion; the garage was filled with flames; all three were severely burned, and Gertrude Mallory died three days later.

The first, third and fourth counts of the declaration allege that the deceased was in the garage as an invitee of one of the servants of appellant. The second alleges that she was rightfully in the garage. All counts allege that one of the servants of appellant was engaged in filling the tank of one of the cars with gasor line, a high and dangerous explosive; and that said servant so carelessly and negligently handled and poured said gasoline that.the same ignited and exploded. The third also alleges that because the gasoline was a high and dangerous explosive, it was the duty of appellant to exercise the- highest degree 'of care and diligence to keep the same from igniting and injuring the deceased. The fourth count alleges that it was the duty of appellant to use reasonable care and diligence in handling said gasoline to prevent it from igniting and injuring the deceased. No count alleges wilful and wanton misconduct, or a wilful or wanton injury to the deceased. Appellant filed the general issue and two special pleas denying that deceased was rightfully in the garage, or was in the garage as an invitee.

Under the doctrine of respondeat superior, a master’s liability to persons invited by his servant to come upon the premises of the master depends upon the authority of the servant to extend the invitation. Except where the servant is an alter ego of the master, or has been placed in exclusive management and control of the premises of the master, he has no implied authority to invite persons to be on the premises and the master is not liable for injuries which such persons may sustain through the negligence of the servant, unless the injury is wilful and wanton. (39 C. J., sec. 1499, page 1300.)

In Pauckner v. Wakem, 231 Ill. 276, on page 279, the court said:

“In a strict and legal sense there is a well defined distinction between a mere licensee and one who comes upon the premises of another by invitation, express or implied. In its general sense, one upon the premises of another by invitation is a licensee, and if sued for a trespass his defense would be ‘leave and license’ of the owner; but in a strict and somewhat technical sense, to come upon premises under an implied invitation means more than a mere license, — means that the person is there for a purpose connected with the business in which the occupant is engaged or which he permits to be carried on. (Plummer v. Dill, 156 Mass. 426, 31 N. E. 128; Illinois Cent. R. Co. v. Hopkins, 200 Ill. 122.) It will be found that the distinction between a visitor who is a mere licensee and one who is on the premises by invitation turns on the nature of the business that brings him there, rather than on the words or acts of the owner which precede his coming. Permission involves leave and license but it gives no right. If one avails himself of permission to cross another’s land, he does so by virtue of the license and not of right. The permission of license is a justification for his entry, and while he is not technically a trespasser, yet the duty of the owner to guard him against injury is governed by the rules applicable to trespassers. (Watts v. Jensen, 46 L. R. A. 58 [86 Fed. 658], and cases cited in note.) One who enters a mine or factory by the permission of the owner, merely to inspect the premises and the work there being carried on, for purposes of his own and not with a view of transacting any business with the owner, is a mere licensee, and the owner owes him no higher duty to protect him from injury while upon the premises than he would if he were a trespasser. The duty to one who comes thereon by the owner’s invitation to transact business in which the parties are mutually interested is to exercise reasonable care for his safety while on that portion of the premises required for the purpose of his visit. Under such circumstances the party is said to be on the premises by implied invitation of the owner. (Kennedy v. Chase, 119 Cal. 637.) ”

In Johanson v. William Johnston Printing Co., 263 Ill. 236, on page 240, the rule is stated as follows: “The general rule is that a party injured by the negligence of another must seek his remedy against the person who caused the injury, since such person is alone liable. To this general rule the case of master and servant is an exception, and the negligence of the servant while acting within the scope of his employment is imputable to the master, but to bring a case within this exception it is necessary to show that the relation of master and servant exists between the person at fault and the one sought to be charged for the result of the wrong, and the relation must exist at the time and in respect to the particular transaction out of which the injury arose. Outside of the scope of his employment the servant is as much a stranger to his Piaster as any third person, and an act of the servant not, done in the execution of service for. which he was engaged canot be regarded as the act of the master. If -the sérvant steps aside from his master’s business for some purpose wholly disconnected with his employ - pient, the relation of master and servant is suspended. The act of the servant during such interval is not to be charged to his master. This doctrine is established by substantially all the authorities. (Higgins v. Western Union Tel. Co., 156 N. Y. 75, 50 N. E. 500; Standard Oil Co. v. Anderson, 212 U. S. 215.) The same rule has. often been recognized by this court. (Pawlak v. Smith, 233 Ill. 401; Kehoe v. Marshall Field & Co., 237 Ill. 470; Harding v. St. Louis Nat. Stock Yards, 242 Ill. 444 ) ”

In Cullen v. Higgins, 216 Ill. 78, the injured person was a waitress employed by the defendant and roomed on the third floor of the hotel of the defendant. There were two doors to the elevator. She went to the door back of . the elevator operator. A bell boy, who had nothing to do with the operation of the elevator, opened the door and she started to enter. The elevator operator started the elevator and she was injured. It was held that the bell boy had nothing to do with the operation of the elevator,- and that his act was not the act. of the defendant which made the defendant liable for. the injury. In Northwestern El. R. Co. v. O’Malley, 107 Ill. App. 599, a boy was injured by being struck by a piece of iron which fell from the elevated railroad then being constructed. There was some evidence that children had been invited by the workmen to go-under the elevated, tracks to pick up chips. The preponderance .of the evidence showed that no chips were made or. thrown down on the day of the accident. It was held that there could be no recovery because of an invitation by any of the workmen not growing strictly out of the discharge of their duties.

In Formall v. Standard Oil Co., 127 Mich. 496, the defendant owned a barn which was in charge of a servant who hired and discharged his assistants. A laborer who had no authority on the premises, except as a laborer, invited certain children to come upon the premises and help around the barn. While in the barn one of the children was killed. It was held that the laborer had no authority to extend the invitation and that the defendant was not liable for the death.

In Ridley v. National Casket Co., 161 N. Y. Supp. 444, the plaintiff paid a friendly visit to an employee of defendant who was working on the premises. The employee took his friend upstairs and as the visitor started to leave the premises he was injured. It was held that the defendant was not liable for the reason that the visitor was a mere licensee.

In Butner v. Broion Bros. Lumber Co., 180 N. C. 612, it was held that a common laborer, whose duty it was to attend a machine in a mill, had no implied authority on behalf of his master to invite into the mill a child who wanted to get some strips of wood cut by the machine, where it was contrary to the rules of the mill to permit children in the mill, and that there could be no recovery for an injury sustained.

In the case at bar, Walter Smith was employed by appellant to lay carpets. That was his sole duty. Incident thereto he used a truck to carry his tools and merchandise. He made no deliveries and was in no way a truck driver. His hours of labor ceased at 5:30 p. m. He testified that he sometimes worked an hour later when he could finish the job he was engaged upon. After his labors were over his time was his own to be used as he saw fit. He was under no obligations to appellant after his day’s work was over and he received no pay from appellant for anything done in the evening. It is apparent that his work at the garage was a mere accommodation to Koch. His duties did not call him there and he was not employed or paid by appellant during those hours. Smith testified that he told his immediate superior that he was helping in the garage and was never told to discontinue doing that kind of work. The information thus given to his immediate superior did not make Smith the servant of appellant with authority to invite the deceased into the garage so as to bind appellant. Smith chose to go to the garage as a mere volunteer or visitor. Appellant might have denied him that right but was under no obligations to do so in order to escape liability.

The undisputed evidence shows that Smith was not the servant of appellant with authority to invite the deceased into the garage. If Gertrude Mallory was not an invitee, then the only duty which appellant owed her was not to wantonly and wilfully injure her. The declaration contains no charge of wilful and wanton injury and no recovery can be had on that ground.

Under the evidence as introduced, appellee failed to make out a cause of action under any count of the declaration and the court should have directed a verdict for appellant.

For the reason that there can be no recovery in this case under the facts, the judgment will be reversed but the cause will not be remanded.

Judgment reversed.


author: Mr. Presiding Justice Barnes

text:
    City of Chicago, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 31,479.
    1. Street railways — deductions of Federal taxes from, gross revenue in fixing amount of revenue payable to city. The actual or constructive knowledge of designated officers or agents of a city of the books and accounts of a street railway company disclosing deductions of large sums of money for Federal income and excise taxes from the gross revenue, in ascertaining in a long series of years the annual amount of net revenue upon which the company is required by a unification ordinance and agreement annually to pay a percentage thereof to the city, and the acquiescence therein of said officers or agents, must be deemed knowledge and acquiescence on the part of the city, and a contemporaneous and practical construction of the right to treat such taxes as deductible items as being included within the provision allowing deduction of “taxes and assessments levied and imposed on the real and personal property of the companies including all capital stock or franchise taxes. ’ ’

      2. Contracts — practical construction by the parties. A practical construction given to a contract by the parties thereto is entitled to great, if not controlling, weight in determining its proper interpretation.
    3. Accounts stated — yearly settlement statements of payments to city under unification agreement as stated accounts. TJnder a unification ordinance and agreement for a street railway company annually to pay a percentage of its net revenue to the city, as determined by deducting, among other items, “taxes and assessments levied and imposed on the real and personal property of the companies including all capital stock or franchise taxes, ’ ’ yearly settlement statements in which Federal income and excise taxes are treated as proper deductions are stated accounts binding upon the city, where the annual statements are made under the contractual arrangement whereof their accuracy is to be determined through agencies in which the city is expressly represented, and whereby the statements are not accepted until so audited and approved, and which are accepted through a long series of years without objections until suit is begun by the city disputing the deduction of the Federal taxes.
    4. Internal revenue — Federal excise tax as a capital stock tax. The Federal excise tax provided for in the Revenue Act of September 9, 1916, and in subsequent acts, is based on a fair average value of the corporation’s capital stock, and is officially and otherwise referred to as a capital stock tax, although, strictly speaking, a capital stock tax is a tax on the property of the corporation and not on the shares.

      5. Taxation — nature of franchise tax. The State corporation franchise tax is not a tax on the property of a corporation but, properly speaking, is imposed on the corporation for the privilege of carrying on its business and exercising the corporate franchise granted by the State.
    6. Internal revenue- — nature of Federal excise taxes. Federal excise taxes are analogous to and often referred to ás of the same nature and character as the State corporation franchise tax.
    7. Street railways — deduction of Federal excise tax from gross revenue in fixing amount payable to city. The Federal excise tax paid by a street railway company under the Revenue Act of September 9, 1916, and in subsequent years, held to be in its nature such a tax as was contemplated to be a deductible item under the ordinance and operating agreement of a unified street railway with a city, in which a percentage of net revenue is annually paid as ascertained by deducting from the gross revenue, among other items, sundry taxes “including all capital stock or franchise taxes,” irrespective of whether the Federal excise tax is called a specific excise tax or a franchise tax.
    8. Street railways — deduction of Federal income tax from gross revenue in fixing amount payable to city. The Federal income tax of a street railway company, being a tax upon property, is within the language of ‘' taxes upon the real and personal property of the companies, ’ ’ authorized by a unification ordinance and agreement to be deducted from the annual gross revenue in ascertaining the net revenue of which a percentage is to be paid by the company to the city.
    9. Tender — right of creditor to interest on refused tender. The fact that, after a city refused to accept the money tendered by a street railway company in payment of a percentage of its annual net revenue as provided by a unification ordinance and agreement, the company deposited the money in a bank and received interest thereon until the sums were accepted by the city, does not entitle the city to receive interest on the tendered money between the dates of refusal and acceptance.
    10. Tender — right of debtor to use tendered money that is refused. The ownership of money tendered to but refused by the creditor remains in the debtor with the right to its use, provided the debtor continues to keep the tender good by being always ready, willing and able to tender the debt.
    11. Tender — beeping of identical money in beeping tender good. In order to keep good a tender of money which is refused it is not necessary to keep the identical money at all times ready to make good the tender.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Charles F. McKinley, Judge, presiding. Heard in the seepnd division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed October 4, 1927.

      Francis X. Busch, Corporation Counsel, C. M. Doty, Assistant Corporation Counsel, and William H. Holly, Special Assistant Corporation Counsel, for appellant.
    Harry P. Weber, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment dismissing the suit and for costs against plaintiff on striking of plaintiff’s statement of claim, as finally amended, and is consolidated with an appeal from like action in case No. 31480, City of Chicago v. Chicago Rys. Co., post, each presenting on like facts the question whether the stricken pleading states a cause of action.

The city seeks to recover $1,034,273.01 in this action, and $1,304,323.72 in the other. What is said herein will be applicable to both.

Each suit is.based on various ordinances of the City of Chicago pertaining to franchises granted to said companies — and other companies embraced in the system of one of them, unnecessary to mention — for operating street railways, and an “operating agreement” entered into between the companies for the unification of their systems as required by one of said ordinances, which are set forth in the statement of claim.

It will not be necessary to state their various provisions, the principal one involved, over which the main controversy arises, being that which requires each of said companies to pay annually to the city 55 per cent of its “net income” to be ascertained by deducting from the gross income all operating expenses (including maintenance, repairs and renewals and amounts paid out by way of damages for injuries to persons and property), all.amounts paid out for “taxes and assessments levied and imposed on the real and personal property of the companies including all capital stock or franchise taxes,” also an amount equivalent to 5 per centum of the cash purchase price the city would be obligated to pay, and certain other items of expense. Only the quoted provision calls for construction, particularly the phrase we have italicised.

The statement of claim is predicated on two contentions: (1) That in computing the amount due the city each year appellee improperly deducted Federal income and excise taxes; and (2) that the city is entitled to interest on amounts tendered by the companies but refused by the city in each of the years 1920, 1921, 1922 and 1923 when due, from the times of such tenders to October 20, 1923, when having abandoned its claim of forfeiture of franchises on which it based such refusals, the city accepted the sums tendered subject to verification as to amount and to any claim for interest on the same the city might have.

Under the first contention counsel for the city urge that neither the quoted language in question, nor any of the terms of the ordinances or agreement, authorized the deduction of Federal income and excise taxes, and that the Federal income tax is not á tax on real or personal property; that the Federal excise tax is not a franchise or capital stock tax, and that neither is "included in the words ‘operating expenses.” On each of these contentions appellee takes issue, and in addition urges that in treating Federal taxes as deductible items for nearly 17 years both parties have given contemporaneous and practical construction to the provisions in question, and the city is barred from asserting such claim on principles of estoppel and stated account.

From the statement of claim it appears that said companies have been operating continuously under original ordinances passed in 1907-8-9, and later ordinances, one of which authorizes unified operation of the city’s surface traction lines by a board of operation, under the designation 1 ‘Chicago Surface Lines,” in accordance with a prescribed form of agreement which was subsequently entered into between the companies and the city.

Said agreement after setting up the deductible items in accordance with the ordinances and fixing a basis of division of the “residue receipts” between the companies, requires said board of operation-to make and file with the city comptroller an annual report on or before April 10 of each year'for the preceding year ending January 31, in detailed form as prescribed by the city comptroller, of the business done by the companies, and the amounts of receipts and expenses from operation. These reports were so made and filed yearly from 1916 to 1925, inclusive, setting forth in itemized form the earnings, expenses and division of residue receipts of the surface lines for the previous fiscal year.

Included in the classification of expenses, as shown in said reports, were items designated as “taxes” or “general taxes” paid by the companies, which included the Federal excise and income taxes paid by the companies respectively for those years. Said books and accounts were kept in the form prescribed as required by a board of supervising engineers representing the city and said companies, approved' by the city comptroller, and examined and audited by certified book accountants selected jointly by the city and said board of operation, and a report of the audit was filed with and approved by the comptroller yearly except for the years 1920 to 1923, inclusive, the period the city claimed a forfeiture of the franchises. But in July, 1924, after the city abandoned that claim the books and accounts for those years were audited in the same way as before that time. Provision was made for complete access to said books and accounts by the city to determine their accuracy, and each year, except as aforesaid, it accepted its share of the “net” or “residue receipts” as thus shown and verified, apparently without protest or question of the right to deduct said Federal taxes until it filed its amended statement of claim.

While the statement of claim avers that the city was not informed, and did not know of the deductions of said Federal taxes until August, 1925, the averment is inconsistent with the knowledge it necessarily acquired prior to that time through the examinations and audits, thus made by its designated officers or agents, Their actual or constructive knowledge of the books and accounts which disclosed such deductions aggregating hundreds of thousands of dollars, and their acquiescence therein must be deemed knowledge and acquiescence on the part of the city, and a contemporaneous and practical construction of the right to treat such taxes as deductible items.

While the statement of claim omits to refer to the Federal taxes levied prior to the year 1916, probably because of the running of the statute of limitations, it will be taken most strongly against the pleader, under well-recognized principles of pleading, that the Federal taxes for the prior years were also treated and acquiesced in as deductible items. As frequently held such practical construction given to the contract by the parties thereto is entitled to great, if not controlling, weight in determining its proper interpretation. (Merle v. Beifeld, 275 Ill. 594, 620; Gillett v. Teel, 272 Ill. 106, 114; 13 C. J. 546; 4 Page on Contracts, § 2014; Chicago v. Sheldon, 9 Wall. (U. S.) 50; City of New York v. New York City R. Co., 193 N. Y. 543, 548.)

Besides, these yearly settlement statements having been made under contractual arrangements whereby their accuracy was to be determined through agencies in which the city was expressly represented and whereby they were not to be accepted until so audited and approved, and having been accepted through a long series of years without objection until after this suit was begun, we think, under the reasoning of the Supreme Court in State v. Illinois Cent. R. Co., 246 Ill. 188, 246, 249, they were stated accounts by which the city was bound. The facts, of this case, as above recited, supporting such conclusion, are more persuasive than those in the cited case, for, while in that case knowledge on the part of the State was implied from the duty imposed upon the governor to examine the submitted accounts of the railroad and the presumption of the performance of that duty (though expressly challenged), here the accounts were admittedly examined and approved by authorized agents of the city pursuant to contract requiring them to determine their accuracy before making the yearly settlements.

With these conclusions we might perhaps dispense with consideration of the real nature of the Federal taxes so deducted, although counsel have devoted over 350 pages of their briefs to a critical analysis and discussion of many cases in various jurisdictions, Federal and State, touching this subject. To follow them into the intricacies of the subject and into their various distinctions would extend this opinion beyond reasonable limits.

The subject has arisen under various forms for interpretation and elucidation, and much space has been devoted to its discussion. We can only undertake to refer generally to conclusions without noting the specific facts on which they were based or discussing the nice distinctions they involve.

The first time the question could arise under the Settlement Ordinances was when in 1909 Congress imposed upon every corporation “a special excise tax” of 1 per cent of its net income over and above $5,000. In 1913 this law ivas repealed and an income tax imposed in lien thereof. The Revenue Act of September 9, 1916, restored the excise tax and provided that on and after January 1, 1917, every corporation organized for profit and having capital stock represented by shares “shall pay annually a special excise tax with respect to the carrying on or doing business by such corporation.” (Title IV, Miscellaneous Taxes, 407.) This tax was increased in 1918 and continued until changed in 1924 to apply to “every domestic corporation. ’ ’

The Federal income tax has been imposed on corporations in varying amounts since October, 1913.

The excise tax provided for in the 1916 and subsequent acts is based on a fair, average value of the corporation’s capital stock, and is officially and otherwise frequently referred to as a capital stock tax. Strictly speaking, a capital stock tax is a tax on the property of the corporation and not on the shares of stock. (Illinois Cent. R. Co. v. Carr, 302 Ill. 172,179.) A franchise tax is not a tax on the property of the corporation but, properly speaking, is imposed on the corporation for the privilege of carrying on its business and exercising the corporate franchise granted by the State (37 Cyc. 817; Beale on Foreign Corporations, p. 663; Maine v. Grand Trunk Ry. Co. of Canada, 142 U. S. 217; State v. Clement Nat. Bank, 84 Vt. 167, 78 Atl. 944; State ex rel. Marquette Hotel Inv. Co. v. State Tax Commission, 282 Mo. 213, 221 S. W. 721; Tremont & Suffolk Mills v. City of Lowell, 178 Mass. 469, 59 N. E. 1007; People ex rel. United States Aluminum Printing Plate Co. v. Knight, 174 N. Y. 475, 63 L. R. A. 87; City of Newark v. Tunis, 81 N. J. L. 45), and Federal excise taxes are analogous to and often referred to as of the same nature and character as the State corporation franchise tax. 0 (American Can Co. v. Emmerson, 288 Ill. 289.)

Discussing the nature of the Corporation Tax Law of 1909, designated therein as a special excise tax, the court in Flint v. Stone Tracy Co., 220 U. S. 108, said: “The intention is expressly declared to impose a special excise tax with respect to the carrying on or doing business by such corporation, * * * it is a tax upon the doing of business with the advantages which inhere in the peculiarities, of corporate or joint stock organization- * * *” (p. 145). And again on page 162: “ * * * the tax is laid upon the privileges which exist in conducting business with the advantages which inhere in the corporate capacity of those taxed, * * *. It is this distinctive privilege which is the subject of taxation.” It seems to be immaterial, therefore, what designation is given to the Federal excise tax, whether it be called a specific excise tax or a franchise tax, as it is in its nature such a tax as was evidently contemplated to be a deductible item under the ordinances and operating agreement.

But the Federal income tax, being a tax upon property, comes within the language of “taxes upon the real and personal property of the companies,” authorized to be included among deductible items. Holding that the proposed tax on incomes derived from intangible personal property is a tax on property, it was said in In re Opinion of the Justices, 220 Mass. 613,108 N. E. 570: “A tax upon the income of property is in reality a tax upon the property itself. * * * It does not matter what name is employed. The character of the tax cannot be changed by calling it an excise and not a property tax. In its essence a tax upon income derived from property is a tax upon the property.” (p. 624.) There was a like ruling in State v. Pinder, 30 Del. 416, 108 Atl. 43; Lining v. Charleston City Council, 1 McCord (S. C.) 345, and Eliasberg Bros. Mercantile Co. v. Grimes, 204 Ala. 492, 86 So. 56. The last-named case repudiates a reasoning somewhat different in the main authorities cited and relied on by appellant. We shall not undertake to distinguish them.

Beaching the conclusion we have we shall not discuss whether or not the Federal income and excise taxes are deductible as “expenses of operation,” as contended by appellee. While there is plausibility in the contention in view of certain language employed in various parts of the ordinances and operating agreement, we deem it unnecessary to discuss it.

The city bases its claim to interest on the amounts so tendered, first, because such amounts were not the full amounts due the city; and, second, because after the refusal of the city to accept the amounts tendered the companies, as alleged in the statement of claim, deposited said moneys in certain banks and received interest thereon until the sums were accepted by the city October 20, 1923. The interest so claimed in the two suits amounts to $794,372.91. In view of our holding that the Federal taxes were properly deductible items, it is not necessary to discuss the first contention, and the second ground we think is untenable. From the allegations that the tendered money was kept on interest in certain banks, the tender was kept good. By the great weight of authority it is laid down generally as an established principle that while a refused tender does not discharge the debt the ownership of the money tendered remains in the debtor with the right to its use, provided the debtor continues to keep the tender good by being always ready, willing and able to tender the debt. (Stowell v. Read, 16 N. H. 20; Terrell v. Walker, 65 N. C. 91; Curtiss v. Greenbanks, 24 Vt. 536; Colby v. Stevens, 38 N. H. 191; Birmingham Paint & Roofing Co. v. Crampton & Tharpe (Ala.), 39 So. 1020; Woodruff v. Trapnell, 12 Ark. 640; Am. & Eng. Ency of Law [2d Ed.], vol. 28, pp. 14, 40; Lawson on Bights, Bemedies and Practice [1890], vol. 5, p. 4181; 26 B. C. L. 649; 38 Cyc. pp. 162-3; Page on Contracts, vol. 5,.p. 79.)

And keeping the tender good does not require keeping the identical money at. all times ready to make good the lender; for “the debtor may use it as his own without destroying the effect of the tender, if he is ready at all times to pay the debt in current money when requested. But if by making use of the money he is not ready to pay the debt at any time when he may be required to do so, the effect of the tender is destroyed.” (28 Am. & Eng. Ency. of Law, supra, p. 40.) The averment that the money was kept on interest does not, however, indicate that it was used.

And this principle is in accord with the rules of pleading. The plea of tender “is a material averment to which the plaintiff may reply a subsequent demand and refusal; and this, if established by proof, will avoid the tender. It is therefore unnecessary that the person making the tender should always hold himself in readiness to meet a demand for the money or thing tendered. * * * But this principle * * * does not impose upon the person making the tender the duty of having the money about his person or in his actual possession at all times and in all places. It would be sufficient to have it in readiness, * * * ' if a large sum, in some safe and convenient, place of deposit.” (Town v. Trow, 41 Mass. 169; 2 Chitty on Contracts [7th Am. Ed.], p. 1197.)

We concur in what is said in Woodruff v. Trapnall, 12 Ark. 640: “It may safely be assumed upon principle that a legal tender always stops interest and costs, because where the party who contracts to pay, or is adjudged to pay, offers and tenders that which his obligation or the judgment of the court under the law requires of him, he is no longer in default, and cannot be taxed with either interests or costs, for these only arise in consequence of default.” While there may be found expressions in Aulger v. Clay, 109 Ill. 487, and Rankin v. Rankin, 216 Ill. 132, supporting appellant’s contention as to the right to interest, we think it apparent that the cases were decided on another principle, namely, the right to interest on the purchase price of land where the purchaser has taken and retained possession of it. Later decisions of the Supreme Court in Glos v. Ambler, 218 Ill. 269, and Thompson v. Crains, 294 Ill. 270, seem to be in accord with the doctrine above stated. Under the alleged facts, therefore, we must reach the conclusion that the tenders having been properly made and kept good, there was no liability for interest on the moneys tendered. As said in Allen v. Woodruff, 96 Ill. 11: “It is a well settled rule, recognized alike by courts of law and equity, that a tender properly made and kept good is a complete answer to any claim for interest.” Accordingly the judgment is affirmed.

Affirmed.

Cridley and Wells, JJ., concur.


text:
    Katherine I. Blade, Appellee, v. Site of Fort Dearborn Building Corporation et al., Appellants.
    Gen. No. 31,530.
    1. Buildings and building restrictions — applicability of res ipsa loquitur to charge of builder’s negligence. A declaration for personal injury from negligent building construction must charge the negligence generally to make the doctrine of res ipsa loquitur applicable.
    2. Buildings and building restrictions — charging results of negligent construction as not specifying wherein negligent. A declaration for personal injury by building construction negligence, which does not state how the instrumentality of the injury was negligently constructed, even though stating results thereof, charges negligence with sufficient generality to apply the doctrine of res ipsa loquitur.

    3. Buildings and building restrictions — necessity of special plea to deny builder’s control of structure causing injury. In an action for personal injury from negligent building construction, the control by defendants of the structure causing the injury is deemed admitted unless denied by special plea.
    4. Buildings and building restrictions — error of refusing builder’s plea of not controlling injurious structure. In an action for personal injury from negligent building construction, it was abuse of discretion for the court to refuse defendants permission to file a plea denying their control of the scaffolding by which plaintiff was injured, which plea would not apparently prejudice plaintiff and was defendants’ main defense.
    5. Buildings and building restrictions — general issue as denial of building injurious structure. In an action for personal injury from building construction negligence, a plea of the general issue is broad enough to cover a denial that the defendants constructed the instrumentality of plaintiff’s injury.
    6. Buildings and building restrictions — how builders should plead they ivere not jointly Háble for injurious structure. In an action for personal injury from negligent building construction, the general issue is the proper plea to a charge of joint liability by builders not guilty thereof.
    7. Buildings and building restrictions — defendants’ exclusive control of injurious structure as precedent to application of res ipsa loquitur. A declaration for personal injury from negligent building construction, which shows that the cause of the injury was not under the exclusive control of the defendants makes inapplicable the doctrine of res ipsa loquitur.

    8. Buildings and building restrictions — admissibility of evidence to show defendants not jointly liable for injurious structure. In an action for personal injuries from negligent building construction, evidence showing that servants of some defendants were acting for independent contractors, though offered for other purposes, should have been admitted to show the defendants were not jointly liable for the instrumentality of plaintiff’s injury, under their special plea that they were not in control of the lumber used in such instrumentality.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Charles A. Williams, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed October 4, 1927.
    P. L. McArdle, Max F. Allaben and Kirkland, Patterson & Fleming, for appellants; Weymouth Kirkland and William H. Symmes, of counsel.
    Clarence S. Darrow and William H. Holly, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment for $25,000 for injuries received by plaintiff from being struck, while on the street, by a plank or board which she alleged and claimed fell from the scaffolding of a building, known as the London Guarantee & Accident Building, then in process of construction.

The case was submitted to the jury on the first two counts of the amended declaration. Two other counts were dismissed on plaintiff’s motion before the case was so submitted. They named additional defendants who were never served and were dismissed out of the case on the day of the trial. The third count set up the relationship of the several defendants, designating two of appellants as stone contractors on the building and one of them as. subcontractor, and the two dismissed defendants as subcontractors on the work involving the construction and use of said scaffolding.

Appellants pleaded the general issue and a special plea denying possession or ownership of, or handling the board or plank causing the injury, and later were denied leave to file an additional special plea denying that plaintiff constructed, used or had possession or control of the scaffolding.

Plaintiff relied on the doctrine of res ipsa loquitur. Appellants contend that the doctrine is not applicable either under the pleading or proof, not under the former because there are specific allegations of negligence in the-declaration, and not under the latter be^cause it is not shown that defendants had exclusive control of the instrumentality which caused the injury.

In arguing these points appellants relied in part upon the allegations in the two counts that were dismissed. But the first point must be tested by the two counts on which, the case was submitted, and the second, by the proof. There was proof, however, apd" rejected offers of proof, tending to show either divided responsibility or that some of the defendants had no control of said scaffolding or timbers.

Plaintiff having proceeded in the case on the theory of presumptive negligence under the doctrine of res ipsa loquitur, tlie first question arising is whether the declaration charges negligence generally or seeks recovery on specific acts of negligence. It is unquestioned that to apply the doctrine the charge must be of general negligence, but if specific, it cannot be availed, of upon the trial. (Crawford v. Chicago Union Traction Co., 137 Ill. App. 163, and cases there cited.)

The first amended count charges that defendants "were engaged in the construction of a building on land adjoining certain highways in the city of Chicago, namely River street and Michigan boulevard, and in the course of such construction “had constructed certain scaffolding upon such building,” a part of which scaffolding projected into and over said boulevard and said street, “and so carelessly and negligently constructed said scaffolding so that the timbers thereof were loose and insecurely fastened, by reason whereof certain of the timbers thereof then and there became unfastened from said scaffolding, and fell from said scaffolding to and upon the street there, ’ ’ striking the plaintiff and causing the injuries complained of.

The second count charges construction of the scaffolding in substantially the same language and adds as the ground of negligence that defendants carelessly and negligently permitted it to become and remain in bad and unsafe repair and condition, so that the timbers thereof • were loose and insecurely fastened, by reason whereof, etc., as alleged in the first count.

It is difficult to see how the character of the negligence could be stated more generally with'respect to the instrumentality complained of than is done in these two counts. The gist of the first count is negligent construction of the scaffolding, and does not attempt to specify in what particular or particulars. Stating the resultant conditions that the-timbers became loose and insecurely fastened, or the consequence that certain of them fell, does not disclose in what respect there was negligent construction, nor -in what particular it needed repair to render the construction safe. No one could tell from the allegations in what particular the construction was defective or negligently made, or, if not, in what particular it needed repair to render it" safe. We think, therefore, that the charge of negligence is sufficiently general to state a case of presumptive negligence and so one within the doctrine of res ipsa loquitur, if such instrumentality or scaffolding was under the control of the defendants against whom judgment was rendered, which under the ruling in Chicago Union Traction Co. v. Jerka, 227 Ill. 95, and subsequent cases, would be deemed admitted unless denied by a special plea.

Defendants pleaded not only the general issue but a special plea that “they, or either of them, were not possessed of, or handling the timber mentioned in plaintiff’s declaration,” and that said plank “was not the property of said defendants, or any or either of them, nor was said plank used or handled by said defendants, or any of them,” or by their servants, etc. The court held that neither plea denied the construction of the scaffolding by defendants, and that under said rule its construction by them was expressly admitted. If the allegation that defendants constructed the scaffolding be deemed one indicating the character and capacity in which they were sued, or as involving possession or control of it, the rule might be technically applicable. But as the question of its applicability is at best uncertain and arose at the time of making the opening statements to the jury and was then passed on adversely to defendants ’ construction of the pleadings; and counsel for defendants then asked leave to file a further plea stating specifically that they, or any or either of them, did not construct or use any scaffolding as is alleged in plaintiff’s declaration, and were not in possession or control of any such scaffolding, and as denial of such leave operated under the court’s rulings to deprive defendants of their main defense, namely, that they did not construct the scaffolding, or have possession or control thereof, and as it is not apparent that plaintiff would have been prejudiced by granting such leave, we think it was an abuse of discretion to deny the leave asked. It was so held under very similar circumstances in Clark v. Wisconsin Cent. Ry. Co., 261 Ill. 407, 412, and Carlson v. Johnson, 263 Ill. 556, 562. Defendants manifestly undertook to come within the rule laid down in the Jerka case, by denying in the special plea on file that they were possessed of or handled the timbers in question or that they were the property of defendants. If they did not possess, own or handle the timber, plank or board, alleged to have struck plaintiff, it would be a legitimate inference that they did not possess, own or handle the scaffolding from which the timber is alleged to have fallen.

We think, too, the denial of “negligent construction” under the plea of general issue was broad enough to deny the alleged construction of the scaffolding. The distinction made by the court’s ruling was at least so narrow as to justify a more liberal ruling in the interests of justice. As said with respect to a like ruling in the Carlson case, supra, “The discretion of the court should be exercised in furtherance of justice, and not in such a way as to cut off substantial rights of parties who have not been guilty of some improper conduct.” (563.)

We have held, too, that where the charge is joint liability the proper plea for those not guilty is the general issue, and that it is unreasonable to stretch the rule in the Jerka case to include the charge of joint liability. (McHale v. McQuigg, 236 Ill. App. 295, 299.)

In the third count dismissed at the close of all the evidence and after defendants had moved for a directed verdict, it was alleged that defendant, Site of Fort Dearborn Building Corporation, had entered into a contract with two other defendant, corporations to erect said building, and that they sublet the contract for cutting the stone for said building and that the scaffolding was used for said stone. If these allegations were true the case was not one to. which the doctrine of res. ipsa loquitur could be applied. It is necessary for the application of that doctrine that the defendants’ control of the immediate cause of the injury be exclusive (Hart v. Washington Park Club, 157 Ill. 9; Bjornson v. Saccone, 88 Ill. App. 6), and it cannot be invoked without some evidence tending to prove that the injury complained of was caused by some one under defendants’ control (Dawson v. Allen, 191 Ill. App. 399); nor where there is divided responsibility. (Laurent v. United Fuel Gas Co., 101 W. Va. 499, 133 S. E. 116.) While it cannot be said in view of the dismissal of the third count that plaintiff , is bound by the allegations therein inconsistent with the exclusive control, of the scaffolding or instrumentality which caused the injury, nevertheless the fact of control was put in issue by the special plea that defendants were not possessed of or handled the timber, etc. It was error therefore to reject offers of proof by defendants to show that one of the witnesses “was a carpenter foreman for one of the defendants who was one of the contractors ’ ’; and that another witness was the superintendent of construction for defendant George B. Archer “who had a stone setting contract for the construction of the London Guarantee & Accident Building.” In fact there was some evidence tending to show a relationship inconsistent with joint control of the construction. One witness testified that he was the superintendent of construction on the date in question for one of the defendants, Dwight P. Robinson & Company (designated as a contractor on the building in the third count). While these offers were made in connection with an offer to prove either the nonuse of scaffolding in the stone work or the locatioii of the scaffolding on a different part of the building than alleged in the declaration or as testified to by plaintiff’s witnesses, yet proof tending to show the relationship of some of the defendants as contractors or subcontractors in the construction involving the use of scaffolding on the building was at least material so far as it tended to show that all of the defendants were not in control of the instrumentality causing the injury, and not jointly liable.

Regardless, therefore, of whether the court correctly applied the rule of pleading laid down in the Jerha case, or whether it abused its discretion in denying leave to file the additional special plea, it was certainly error to exclude evidence tending to rebut presumptive negligence on the part of all the defendants, and tending to show they were not jointly liable.

One of the defenses defendants undertook to prove was that the accident was due to vis major. The evidence as to the character of the windstorm at the time of the accident was conflicting, defendants claiming it was extraordinary and unusual, and plaintiff that it was ordinary and such as might be anticipated in that locality. Defendants offered proof of wreckage by the storm in other parts of the city, one place about three blocks from the scene of the accident. The proof was rejected. It is doubtful whether the offers were sufficiently complete in any event to show that the windstorm in the other isolated parts of the city came within the description of vis major, or that the offered proof had a legitimate tendency to show the character of the windstorm at the place of the accident.

But in view of the conclusions we have already reached requiring reversal of the judgment, it is unnecessary to consider these offers in detail or other alleged errors. The judgment must be reversed and the cause remanded.

Reversed and remanded.

Gtbidley and Wells, JJ., concur.


text:
    Louis Bregman, Appellee, v. Oscar J. Friedman, Appellant.
    Gen. No. 31,546.
    1. Sales — inability to purchase as admitting proof of waiver of tender. In action to recover on defendant’s agreement to repurchase stock bought of him, a showing that defendant put off plaintiff’s repeated efforts to secure repurchase by stating he was unable to do so at the time but would later, would admit proof either of defendant’s waiver of tender of the stock or that defendant’s attitude excused such tender.
    2. Sales — inability to purchase as excusing seller’s tender. In an action to recover on defendant’s agreement to repurchase stock bought of him, the defendant’s repeated recognition of his duty to repurchase and at the same time his professed inability to do so made tender of the stock a useless act and excused plaintiff from making it before demanding the price of the stock.
    3. Sales — inability to purchase equivalent to refusal. In an action to recover on defendant’s agreement to repurchase stock bought of him, the defendant’s manifestation of his inability to repurchase put him in the same position as a refusal to perform or a leading of the plaintiff not to tender, shows he himself is not ready, able and willing to perform, and excuses plaintiff from making tender of the stock before demanding the purchase price.
    4. Sales — definition of tender. In an action to recover on defendant’s agreement to repurchase stock bought of him, a “tender” of the stock to defendant means the plaintiff was ready and willing to hand over the stock provided the defendant was ready and willing to pay for it.
    5. Sales — necessity of proving ability to tender at demand for purchase. In an action to recover on defendant’s agreement to repurchase stock bought of him, if plaintiff was required to prove his ability and willingness to tender the stock, he was bound to prove his said ability existed at the times he was seeking to put defendant in default by demanding repurchase of the stock.
    6. Sales — necessity of traversing ability to tender, in an action to recover on defendant’s agreement to repurchase stock bought of him, defendant’s failure to traverse the sufficiency of the statement of claim in respect to plaintiff’s readiness and implied ability to return the stock at the time he made demand for repurchase forbids defendant’s raising the question of failure of proof thereon.

      7. Apeal and error — traversing material facts of statement of claim in municipal court. In absence from the record on appeal of any different rule of the municipal court of Chicago, the general rule of pleading that in order to raise failure of proof on a traversable fact in the statement of claim defendant must duly traverse it, will control.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Edgar A. Jonas, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1926.
    Affirmed.
    Opinion filed October 4, 1927.
    Herbert J. Friedman, for appellant; Claude A. Roth, of counsel.
    West & Eckhart, for appellee; William M. Klein and William L. Bourland, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

On the trial of this case without a jury both parties rested at the close of plaintiff’s evidence, and defendant then moved for a finding that the evidence was insufficient in law to support the cause of action. This appeal is from the denial of the motion and entry of judgment for plaintiff.

On July 21, 1919, plaintiff purchased from defendant 20 ¿hares 0f stock in the Anthracite Coal Company for $1,000 cash, and on the same day defendant gave plaintiff a written promise “that if within one (1) year after date you care to sell the same [stock in question] to me at the price you paid for it, I will gladly take it off your hands. ’ ’ That this constituted a legal promise is not questioned.

In a letter to defendant May 14, 1920, referring to the transaction and to said written promise, plaintiff notified defendant that he did not want the stock and ivanted plaintiff to return the $1,000, and asked for defendant’s check “as soon as possible.”

Both before and after May 14, 1920, plaintiff also verbally notified and requested defendant to repurchase said stock and in response defendant said that he did not have the money with which to repurchase it, but as soon as he could obtain the money he would repurchase the same.

Neither the allegations nor proof of these facts is questioned. The statement of claim contains the further allegation that at all times since May 14, 1920, defendant has failed and refused to repurchase said stock or to pay plaintiff said sum, and that plaintiff is and at all times has been ready to deliver to defendant the certificate for said stock, and that defendant has waived any necessity for any tender thereof.

Defendant’s affidavit of merits denied repudiation of the contract or refusal to repurchase the stock, and avers that defendant had always kept the contract alive and stood ready, willing and able to perform and earry;out its terms had plaintiff tendered the stock for repurchase, but. that plaintiff never made any tender thereof or offered to return the same. It did not, however, deny or take issue on plaintiff’s readiness and ability to perform.

Defendant’s- argument for reversal is based on the absence of any proof of a refusal by defendant to repurchase the stock, or of a tender thereof, or express offer to return the same, and upon the failure of plaintiff to prove, that he was ready, willing and able to perform his part of the contract at the time or times he seeks to put defendant in default.

While plaintiff charged but did not prove an express refusal by defendant to comply with his contract, he did not rely on an express refusal but on defendant’s professed inability to perform as manifested in his repeated replies to plaintiff’s requests for payment, in substantially these words: “You shall have your money as soon as I get it; I am hard up; I can’t give it to you now; the first money I get you shall have it. ’ ’ Upon such statements plaintiff claims he was excused from the necessity of a formal tender, and that defendant’s position was tantamount to a waiver thereof.

Whether the facts so pleaded and proven show waiver of tender or a position taken by defendant that excused it, is. of little consequence as proof of either would be admissible under the statement of claim and support the cause of action.

■ Defendant can hardly question the import and natural consequences of his own undisputed words. They recognize his obligation and import his inability to perform the same at the time of such requests. So long as defendant maintained the position of asserting . and thus manifesting inability as an excuse for nonperformance, a formal tender was a useless act, “a vain and idle ceremony,” and would be excused. (13 C. J. pp. 663-664.) A tender would obviously have produced no different result, and the law does not compel the doing of a useless act. (Shultz v. Hamilton, 223 Ill. App. 64-70; Osgood v. Skinner, 211 Ill. 229-234; Kopeyka v. Woodstrom, 305 Ill. 69-72.)

■ Nor, on a principle of fundamental justice, could defendant take advantage of the failure of a formal tender his language would naturally induce plaintiff not to make (2 Williston on Contracts [1920], § 677, p. 1305); and “a manifestation of inability to perform has the same effect” as where the promisor leads the promisee to stop performance or where there is a refusal to perform. (Id. sec. 767, pp. 1463-1464.) He certainly could not have expected plaintiff to deliver over the stock without being paid therefor, as they were to be concurrent acts, or that plaintiff accepting his replies would undertake the useless act of tender. Nor can his language be construed as tending to show his own ability, readiness and willingness to perform had a tender been made. It put him in the unequivocal position of being unable to perform his part of the contract and as dispensing with the necessity of tender.

Defendant has cited certain language in Osgood v. Skinner, supra, to the effect that the defendant in that case could not be put in default by plaintiff’s merely proving he was ready and willing to transfer to defendant the stock the latter agreed to purchase. We do not think what was there said militates against what we have said with respect to the non-necessity of making a tender under the circumstances of this case. The language of the court was appropriate to the particular facts of that case, where there was an actual offer made and its sufficiency questioned. But the court said that ‘1 an actual tender is unnecessary where the seller is ready, able and willing to perform on his part and the tender would be a mere useless form.” It also said in Manistee Lumber Co. v. Union Nat. Bank of Chicago, 143 Ill. 490: “The word ‘tender’ as applied to the case of mutual and concurrent promises means readiness and willingness to perform, provided the other party is ready and willing to perform.”

But it is urged that plaintiff did not prove that he was able, ready and willing to perform his part of the contract at the time he seeks to put defendant in default. After the court overruled defendant’s objection to a question as to whether plaintiff had been at all times ready to return the certificate of stock if defendant had paid him the $1,000, his counsel, instead of requiring an answer to the question, put another as follows: “You are willing to return this certificate for 20 shares of stock to him if he returns to you the $1,000, are you?” To which defendant answered: “Yes, sir; I made that demand on him several times.” It can hardly be said that this answer constituted proof of plaintiff’s ability to deliver the stock at the time or times he requested payment for it. The mere fact that he had it and introduced it in evidence at the time of the trial is not inconsistent with his not having it or not being able to produce it at the time he made such requests. If plaintiff was bound to prove his ability and readiness to perform it should have been shown as of the time or times during said period of one year aforesaid that he sought to put defendant in default.

But defendant did not deny plaintiff’s averment of readiness to perform or question the sufficiency of the statement of claim in that regard. His pleading, aside from denying repudiation of his contract, merely asserts his own readiness to perform and plaintiff’s failure to tender performance. Plaintiff’s averment of readiness and implied ability presented a traversable fact, and not having been traversed, or even questioned at the trial, under a well-settled rule of pleading it was admitted, and defendant is in no position to raise the question of a failure of proof on that subject. (Capital City Mut. Fire Ins. Co. v. Detwiler, 23 Ill. App. 656, 659; 7 Bac. Abr., Tit. Pl. H. 4; Hudson v. Jones, 1 Salk 91; Gould on Pl. sees. 167, 168, ch. 3.) In the absence from the record of a different rule, if any, of the municipal court, these general rules of pleading control.

On the state of the record, therefore, the judgment must be affirmed. Formal tender was excused and defendant did not traverse the averment that plaintiff was ready, and impliedly able, to carry out performance on his part, to do which he unquestionably indicated his willingness.

Affirmed.

Gridley and Wells, JJ., concur.


author: Mr. Presiding Justice Barnes Q-ridley and Wells, JJ., Mr. Presiding Justice Barnes

text:
    Lamborn & Company, Inc., Appellee, v. John B. Livingston, Appellant.
    Gen. No. 31,576.
    1. Warehouses and storage — goods as “non-existence” at time of issuance of warehouse receipt. Goods which were physically in existence and in the custody of a warehouseman at the time of his issuance of a warehouse receipt, but which goods he cannot deliver to a bona fide holder of the receipt because the receipt was erroneously issued, were not non-existent so as to render the warehouseman liable, under section 20 of the Uniform Warehouse Receipts Act, Cahill’s St. eh. 114, It 255, to the holder of the receipt for "damages caused by the non-existence of the goods.”
    2. Appeal and error — -matters considered on application for rehearing. Counsel applying for a rehearing will not be permitted, after' a decision of a case on appeal on the points they expressly relied on an'd argued, to reargue the case on other points which have been abandoned or clearly waived.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. Walter Bremer, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1926.
    Reversed and remanded.
    Opinion filed October 4, 1927.
    Rehearing denied and additional opinion filed October 17, 1927.
    Scott, Bancroft, Martin & MacLeish, for appellant; Morris L. Johnston and Elbridge Bancroft Pierce, of counsel.
    Fisher, Boyden, Kales & Bell, for appellee; Thomas H. Fisher, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This appeal is from a judgment entered on a verdict of guilty, and assessing plaintiff’s damages at $5,792.14.

The declaration contains four counts, to which the plea of general issue was filed. To sustain the judgment plaintiff relied solely on the last count.

That count charges that defendant, a warehouseman, on or about May 21,1923, issued to Deree & Company his negotiable warehouse receipt No. A304 for 600 bags of fine granulated sugar, to wit, lot 3023, from Lehigh Valley Car No. 87778, and thereafter said receipt was indorsed by Deree & Company, and negotiated for value to plaintiff, a purchaser in good faith, but that defendant, on or about April 8, 1924, informed plaintiff that he did not have possession, custody or control of said sugar, and by reason of its non-existence and by force of the statute (section 20 of the Uniform Warehouse Receipts Act) the defendant became liable, etc.

Said section provides: “A warehouseman shall be liable to the holder of a receipt for damages caused by the non-existence of the goods * * Cahill’s St. ch. 114, H 255.

The applicability of the section depends on whether under the evidence it can be said the goods were nonexistent at the time of the issuance of the receipt.

The sugar was shipped in said Lehigh Valley car to Buffalo by the Franklin Sugar Refining Company to its own order, “Notify Deree & Co.,” and transferred at Buffalo to the Great Lakes Transit Company for water transportation to Chicago. On receiving notification, Deree & Company gave permission to the Transit Company to have the goods stored with defendant, and they were stored for the account of “Franklin Sugar Refining Company, Notify Deree & Co.,” defendant giving the Transit Company receipt for delivery.

The bill of lading had been originally forwarded to the Continental Commercial & National Bank of Chicago with draft attached, and by the bank presented to Deree & Company for acceptance and payment. Said company failed to pay the draft and accept the bill of lading. Both documents were then returned to the shipper, which returned the bill of lading to its exclusive broker, Syme-Eagle Brokerage Company, of Chicago, duly indorsed for delivery to the broker, with instructions to deliver the bill of lading to defendant and obtain receipts covering the goods. -But defendant had already issued warehouse receipts covering the goods in question, including the receipt described above, and sought to recover them when receipts were demanded by the Syme-Eagle Company. Seven of the nine so issued were recovered and Deree, president of Deree & Company, professed to have no record or recollection of where the other two were, one of them being the receipt in question, which he had indorsed and pledged as security with plaintiff about June 21, 1923.

Prior to plaintiff’s accepting the negotiable warehouse receipt as security as aforesaid, his employee telephoned to defendant’s manager and was informed that the goods were there and that it would be necessary in order to get possession of them to present said receipt properly indorsed. On its representative calling at defendant’s warehouse in May, 1924, to ascertain the condition of the sugar, plaintiff learned for the first time that the sugar had been delivered to SymeEagle Company, and defendant for the first time learned the whereabouts of said receipt, which previous inquiries had failed to disclose. Defendant then demanded the return of the receipt, which plaintiff refused to surrender, claiming that it was held as security for Deree & Company’s indebtedness.

"Under this state of facts it must be conceded that the sugar, for which said receipt was issued, was at the time of its issuance in the physical possession of defendant. That defendant erroneously issued such receipts does not alter the fact of the physical existence of the goods they purported to cover. It follows there could be no right of action under section 20 of the Act in regard to warehouse receipts, which manifestly contemplates a state of facts where a warehouse receipt is issued for property that does not actually exist at the time of its issuance, a fraudulent act for which there would be civil liability to the holder under said section 20, and criminal liability under section 25 of the Act to Regulate Public Warehouses, etc. (Cahill’s St. ch. 114, If 225.) But the property here was in actual existence and in store when the receipts were issued.

The evidence was conflicting as to whether plaintiff was any longer entitled to hold the receipt in question as security after discovery of the error in issuing it, as to which fact the finding of the jury was evidently in its favor. But even if plaintiff was so entitled we think it has misconceived its remedy as against defendant, and the judgment is reversed and the cause remanded.

Reversed and remanded.

Q-ridley and Wells, JJ.,

concur.

On Petition for Rehearing.

Mr. Presiding Justice Barnes

delivered the opinion of the court.

In applying for a rehearing in this case plaintiff’s counsel have changed their position. In their brief they said: “The plaintiff relies solely upon the last count in the declaration” (which is the fourth count and is predicated on section 20 of the Uniform Warehouse Receipts Act, Cahill’s St. ch. 114, if 255) and then proceed to discuss every theory of the defense from that point of view. Taking counsel at their word,, we considered the case solely from the point so relied on, regarding such statement as a clear waiver of the issues presented by the other counts. Notwithstanding that statement and their argument in conformity therewith, counsel in the petition for a iehearing attempt to. qualify the statement, and reargue the case, not only on the right of action under said count but in the alternative, in case our decision is correct, on a right of action under the third count which is predicated on section 11 of said Act, Cahill’s St. ch. 114, If 246.

In their brief and argument on which the case was taken, plaintiff’s first point is that “this is not an action in trover for conversion but is an action for non-existence of the goods,” referring to said section 20. On page 12 of their argument counsel for plaintiff admit that under the facts there is no ground for the common-law action of conversion (on which the first two counts are based), saying that “conversion of non-existing goods is an absurdity, ’ ’ and that the evidence “shows conclusively that there never were any goods behind the warehouse receipt issued to Deree & Company, ’ ’ but that they were the property of the shipper" under the bill of lading it held when said receipt was: issued.

Under the second point of their argument, that “plaintiff is entitled to sue without a formal demand,” counsel again reiterated the position taken under their first point.

Under their third point that “defendant is bound either to deliver the goods * * * or pay-damages for failure to do so,” counsel take up appellant’s references to sections 8, 9, 10 and 11, Cahill’s St. ch. 114, fifi 243-246 (on the last of which the third count was predicated), saying section 8 “has no application to the case of non-existence of the goods” (p. 20); that plaintiff is in accord with defendant’s contention as to section 9 which shows “there were no goods behind the warehouse receipts” (p. 20); that counsel are “in complete agreement with the. statement in defendant’s brief” that section 10 “cannot be applied to the in. stant case” (p. 21); and that “the provisions of-sec ■ tion 11 of the act referred by its own terms to the delivery by. a warehouseman of ‘all goods for which-he has issued a negotiable receipt, ’ and it is apparent from what has already been said above that the defendant had not issued a negotiable receipt for any g;oods, and that is the specific ground of complaint on behalf of the plaintiff ” (p. 22); and that plaintiff agrees with defendant that sections 12 and 19, Cahill’s St. ch. 114, fifí 247, 254, do not apply to the case, and counsel repeat their argument that there were “no goods behind the warehouse receipt.”

It is thus clearly manifest that plaintiff abandoned every other claim to a right of action than that under the fourth count, to which alone appellant was invited and attempted to reply. And now we are asked to reopen the case on the theory that if there was no right of action under section 20 of said act there was under section 11. If such a practice were tolerated it would be well-nigh impossible for this court to dispose of the cases brought before it. Counsel should not, after a decision of a case on the points they expressly relied on and argued, be permitted to reargue the case on other points which have been abandoned or clearly waived.

Accordingly the petition for a rehearing must be denied.

Rehearing denied.

Gridley and S canean, JJ., concur.