text:
    George A. Hunter v. John H. Gordon et al.

      Agency—Sales—Warranty — Breach — Correspondence — Meaning of —Evidence.

      In an action to recover upon an alleged breach of'warranty o£ the quality of certain bams, this court holds that the defendant was the agent of the plaintiff in the purchase of the same, not the vendor thereof, and that the judgment against him can not stand.
    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Page & Booth, for the appellant.
    Messrs. John Woodbridge and Dale & Francis, for the appellees.
   Gary, J.

This was a suit by the appellees against the appellant to recover upon a breach of warranty of the quality of hams shipped by the appellant from Chicago, Illinois, to appellees at Glasgow, Scotland.

The evidence as to the condition of the hams when they left Chicago was ail from the appellant, and as to their condition on arrival at Glasgow, all from appellees, and neither side had any opportunity to controvert anything the other asserted upon those subjects. The parol testimony in the case related only to those conditions, and to the meaning of a cipher in which the parties conducted their cable correspondence. Their relations to each other must he ascertained from that correspondence and previous letters. The appellees say they were purchasers of the hams from the appellant; he says he was their agent, buying for and shipping to them, for a commission. It adds nothing to the case of the appellees that they, in their depositions, swear that they bought; that the appellant warranted; for they did not meet face to face. So much of the correspondence between them, before the transactions not in controversy, as the record contains, is as follows :

First: A letter from appellees to appellant, dated September 18, 1884, as follows:

iiDea/r Sir: We should he glad now to have your regular advices about bacon stuffs, as the season is about to begin. Last year you were too long in communieating with us to get properly started.
“ As we understand the terms, you work for one per cent commissions making out the invoices in American money and converted into British money at the exchange you negotiate the drafts at. Please include in your cable offers and quotations one per cent for us.
“Last year we found you were always offering Teufel’s brand, is one which we do notlike. Can you not get into the way of working Moran & Healy’s, which is well liked here?
“Todays values are 60 for L. C. hams, 16, 18, 50 for C. C. bacon, 34 for shoulders.
“We should be glad to learn what the prospects are as to the quantity of hogs in winter and how prices are expected to run.
“ The home supply of bacon is expected to be large this season.
“Kindly write and confirm terms of working that we may get started in proper time.
“We have a small sized code of Cunningham & Hunter’s and suppose this is what you still use.
“Could you buy special bargains at any time if we left discretionary orders for hams and shoulders in your hands?
“What is likely to be the course of market for beef rumps this season?
“We like to get our cables with prices on Tuesday morning.”
Second: A letter from the appellant to the appellees,
dated October 29, 1884, containing the following:
Dear Sir: I have your favor of 16th instant and know
contents.
“ Orders: I thank you for and confirm:
50 boxes L. C. hams, 17, 18 @ 49, shipt all Hov.
100 “ “ “ “ “ @ 49, Tobey & Booth’s.
50 “ “ “ “ “ 16 @ 48, shipt. all Hov.
Plankington & Armour, Milwaukee.
“ These have my best attention.
“Prices: You may rest assured that you get the lowest. I put them in cif. because I think better for you to have a definite price, so that you know exactly what you are doing. On the first three lots I sold you, the way freights and exchanges are, I will not have one-half per cent commission. The first lots I cabled prices without any return to you, as no arrangement had been suggested, but all others bear one per cent return.
“ Markets have been easier but not for hams. I can not duplicate the sales made to you. I have been trying hard to get Tobey & Booth and Moran & Healy to come down, but so far I can not move them. In fact my offer of the 27th inst. was given without authority, though I knew I could get them to accept. M. & H. are at the same price, forty-nine cents. I will get averages as light as possible. Tobey’s will not be over seventeen pounds. I expect Moran’s probably eighteen pounds. I will advise you regularly, and hope that business will continue good.” * * *

Third: A letter from appellees to appellant, dated February 7, 1885, as follows :

Dear Sir: We have your favor of 26th ult., but you write us far too seldom; you should give us a market report once a week. You write that you have bought the rumps, but never say the brand; how can we sell to arrive without knowing this. We must beg of you to write of tener. We never feel sure what you have actually done until we get the invoices, sometimes weeks after.
“What is the cause of the scarcity of rumps? Do you mean they can not be had at any price ? and will the higher prices not bring them on the market again ?
“ Mr. Lipton once told us that he had an arrangement with his Chicago broker that for an extra one per cent he took risk of allowances for taints in beef shipments during the summer. Would you be prepared to do this ?
“ Hams are very dull; we are offering your last shipment of Moran & Healy’s, 16 Ls. at 47, 3 box weights landed, and have not made a sale. If it were not for Lent beginning in a fortnight, we think hams would improve, as arrivals would be lighter, but we do not know how Lent may affect the demand.
“Shoulders are lower 27,1, box weights most obtainable; these last Botsfords are not very nice; too salt, and very dark in the meat.”
The next communication shown throwing any light upon this case, is a cablegram, July 10, 1886, from the appellant to the appellees, which, when translated, reads: “I offer long cut hams 18 to 20 lbs. average, at 50 shillings 9 pence cif. 100 boxes Barnes-Cherry brand, quality very good. Only offer July. Market firm; difficult to buy at quotations.”

“Cif” meant cost of merchandise with freight and insurance to Glasgow added. To this appellees answered : “We order 50 boxes long cut hams at 45 shillings per cwt. cif. under 19 pounds July,” and appellant replied, “I renew cable offer of 10th.” July-16th the appellees cable, “We order 50 boxes L. C. hams, 18 to 20 pounds, average, at 49 shillings and 6 pence per cwt. cif. offer L. C. hams, 16 pounds, Moran’s, prompt shipment.” Appellant replied, “ Can not execute your order unless you increase limits one shilling. I offer 50 boxes Plankington’s long cut hams, 16 pounds average, at 53 shillings per cwt. cif. shipment next month.”

Then appellees cable, “Buy long cut hams, 16 pounds average, Plankington’s, at 53 shillings per cwt. cif. next month, 25 boxes, shipment first half of August. We order 25 boxes long cut hams 18 to 20 pounds, at 50 shillings and 6 pence per cwt. cif.” Then appellant cables, “1 have bought and am shipping 25 boxes long cut hams 18 to 20 pounds, at 50 shillings and 6 pence per cwt. cif. I offer 50 boxes long cut hams, 16 pounds, Plankington’s, shipment next month, at 55 shillings and 3 pence per cwt. cif.”

Then appellees cable, “We order 25 boxes long cut hams, 18 to 20 pounds average, at 50 shillings and 6 pence per cwt. cif. Telegraph immediately if order for 25 boxes long cut hams, 16 pounds Plankington’s, at 53 shillings, 25 boxes long cut hams 18 to 20 pounds, at 50 shillings and 6 pence, given in our cable of yesterday, has been executed.” To which appellant replied, “ Have bought altogether 50 boxes long cut hams 18 to 20 pounds average, at 50 shillings and 6 pence per cwt, cif.”

The present controversy relates wholly to the hams mentioned in this last cablegram, and the only question the court is called upon to decide is, whether the appellant is a vendor of the hams to the appellees, or their agent buying for them under their instructions or orders. Turning back to the first letter of appellees, it is clear that by that letter the relation between the parties was not that of vendor and purchaser, but of ¡principal and agent. “ You work for one per cent commission.” “ Could you buy special bargains at any time if we leftdiscretionary orders for hams and shoulders inyour hands? ” If a meaning is to be studied out of the sentence, “please include in your cable offers and quotations one per cent for us,” it is probable that the appellees desired that the cablegrams should represent the cost “ cif.” to be one per cent higher than it really would be to themselves, for some purpose undisclosed.

There is some difficulty in reconciling the words, “ on the first three lots I sold you ” in the letter of the appellant with the theory that he was an agent and not a vendor; but the hurried correspondence of busy merchants is not to be construed by rules applicable to the leisurely essays of a Macaulay. The same sentence concludes “the wavfreights and exchanges are, I will not have one-half per cent commission.”

In the last letter of appellees they propose to the appellant an extra one per cent if he would take some sort of risk for taints, but there is no hint in the evidence that any arrangement upon that subject was ever made between them. It should be borne in mind in reading the cablegrams, that the appellant was not a manufacturer of the product in which he dealt; that he kept no stock on hand; that the order he filled was received before the goods were bought; and that the whole tenor of the correspondence, whether by letter or cablegram, shows that the appellees knew his relation to the products. His first cablegram concludes, “ difficult to buy at quotations.” In one of theirs they say, “ buy long cut hams.” True, his language relates to other hams than those in controversy, but it would be a mere pretense to say that there was any difference between one transaction and another, as to the relation of the parties to each other.

As to the first twenty-five boxes of the fifty in controversy the appellees cabled, “ we order,” etc., and the defendant replies, “I have bought and am shipping.” As to second twenty-five boxes they next cabled, “ we order,” etc., and “ telegraph immediately if our order * * * given in our cable of yesterday has been executed.” To this appellant replied, “Have bought,” etc. The hams were shipped by the appellant under bills of lading making them deliverable to his own order at Glasgow, and this is regarded by the appellees as conclusive that he was a principal and vendor and not an agent. But the course of business made this necessary.

The appellant was not in funds from the appellees with which to buy; funds with which to pay for the hams here were raised from banks, by the sale of drafts on the appellees, with bills of lading and policies of insurance attached, and the freight followed the goods. Ho other course of business was practicable, if he was an agent, but without funds, to buy. It is not necessary to review the subsequent correspondence between the parties; it is not inconsistent with the position of either party as to the relations of the appellant and appellees.

They sent to him an account of their loss, in ambiguous phrase as to whether they looked to him for reinbursement, or for such exertions as would procure it from the packers; they claimed he was habitually a negligent correspondent, even in previous years, as their letters already copied show, an 1 his continued negligence isno admission of any claim upon him.

On the whole case it is the judgment of this court, that whether the parties occupied the relations of vendor and vendee, or agent and principal, is a question to be settled by a review of what passed between them before, and contemporaneously with, the dealings under consideration; and from that review the appellant was the agent of the appellees and the finding and judgment against him are erroneous, and should be reversed.

Reversed and remanded.


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    Seth F. Hanchett et al. v. Joseph F. Ives.

      Trespass — Attachments — Successive Levies—Priority—Sheriff—Constable.

    1. The possession of property levied upon, in the hands of a custodian, is the possession of the officer so placing it, and he can maintain trespass against one who removes the same.
    2. The levy upon personal property of an attachment issued by one judicial authority to one officer, takes precedence of an execution against the same defendant issued by another judicial authority, to another officer, although the execution was in the hands of the latter before the levy of the attachment.
    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Abbott & Baker, for appellants.
    Messrs. Abbott, Oliver & Showalter, for appellee.
   Gary, J.

The facts upon which the question of law in this case arise are, that the appellant, Hanchett, was the sheriff, and the appellee, Ives, one of the constables, of Cook County. The sheriff held unlevied, an execution; while he so held it, attachments subsequently perfected by judgments were issued by a justice of the peace of the county, and the writs placed in the hands of Ives. He levied them upon a horse which, under Ives’ levy, was left in the possession of Price, a stable keeper. Hanchett claiming a prior lien by virtue of the execution in his hands, took the horse from Price, who voluntarily surrendered him upon being paid the charges that had accrued. For that taking the attorney for the attachment creditors, by Ives’ authority, commenced this action for trespass for the benefit of those creditors to the extent of their judgments, and for Ives’ benefit as to some costs. On the trial in the Superior Court, after the appellants had entered upon their defense, they presented a stipulation signed by Ives, to dismiss the suit, and while the appeal has been pending here, a confession of errors signed by him has been presented to this court as a ground for reversing the judgment. The Superior Court and this court have both refused to permit Ives to control the case.

The reasons justifying such refusal have been stated, under circumstances involving the same principle, in Cohen v. Smith, 33 Ill. App. 344. The possession of the horse by Price was the possession of Ives, on which Ives could maintain trespass against a wrong-doer. Brownell v. Manchester, 1 Pick. 232; cited as authority in Cannon v. Kinney, 3 Scam. 9; Thorp v. Burling, 11 John. (N. Y.) 285; Root v. Chandler, 10 Wend. 110; Grose, J., in Gordon v. Harper, 7 Term. 9.

The general question of permanent interest in the case is as to the priority of the execution and the writs of attachment. In the Superior Court, by the pleadings and evidence, the appellee relied upon an alleged agreement between the parties interested in the several writs, that the writs of attachment should have priority, and that in pursuance of such agreement the sheriff had,before he took the horse into his possession, indorsed on his execution a levy subject to the attachments. It is not necessary to take that matter into consideration, holding, as this court does, that the levy upon personal property, of an attachment issued by one judicial authority to one officer, takes precedence of an execution against the same defendant, issued by another judicial authority, to another officer, although the execution was in the hands of the latter officer before the levy of the attachment. That this holding is contrary to what has been generally understood, and in Rogers v. Dickey, 1 Gilm. 636, was declared to be the law of this State, must be admitted. That case, however, did not involve the question. The contest there was between the bailiff executing a distress after the lien of an execution had attached, and the sheriff holding the execution. The fact that the bailiff was a constable was an immaterial circumstance. The distress warrant did not issue from a court; it was the command of a private individual. The constable was not, in executing it, exercising any official power or performing any official duty. All the statute law that was then in force in this State upon the subject of distress for rent, was the one section which is copied in Penny v. Little, 3 Scam. 301, and which was Sec. 6 of the act of 1827, concerning landlords and tenants. All that is said, therefore, in Rogers v. Dickey, as to the priority of writs in the hands of different officers, was outside of the case before the court. That part of the opinion is supported by no authority cited, except the case of Wells v. Marshall, 4 Cowen, 411, in which the whole opinion is: “Curia. The case of Lambert and others v. Paulding, is decisive that the fi. fa. must take preference.” In that case the contest was between an attachment issued by a justice of the peace, and levied by a constable after an execution was in the hands of the sheriff; but Lambert v. Paulding, 18 Johns. (N. Y.) 311, was a contest between two executions issued out of the Supreme Court of Row York, which, by their system, was one and the same court in all the counties of the State, and there is no allusion in the case to the question now here, though the execution was issued in different counties, and the property had been moved from one county to another. The only English case cited in Rogers v. Dickey which in principle has any resemblance to this, is Payne v. Drewe, 4 East, 523, in which it was decided that the sheriff was liable for a false return, by surrendering goods he had levied upon, and returning a fi. fa. nulla hona, because he was informed of a sequestration out of chancery to commissioners against the same defendant, which sequestration was, for the purpose of that decision, assumed to be a lien. It was there held that “where there are several authorities equally competent to bind the goods of a party when executed by the proper officer, they shall be considered as effectual, and for all purposes bound by the authority which first actually attaches upon them in point of execution, and under which an execution shall have been first executed.” True, this might mean the execution under which there had been a sale, but that is not the true meaning. “ Property once levied upon remains in the custody of the law, and it is not liable to be taken by another execution, in the hands of a different officer.” McLean, J., in Hagan v. Lucas, 10 Pet. 400. “The officer who succeeds in making the first levy, thereby obtains priority for his writ, and secures it the right to be first paid out of the proceeds of the sale.” Freeman Ex., Sec. 196. Ho case to the contrary, except Wells v. Marshall, 4 Cow. 411 (since changed in Hew York by statute—Ray v. Harcourt, 19 Wend. 495), and Rogers v. Dickey, 1 Gilm. 636, where the question was not before the court, has been cited by counsel or found by the court. In the condition of affairs here, with process from Federal courts to the United States Marshal, from the State courts of record to sheriffs and coroners, and from justices of the peace to numerous constables, it is surprising that so little inconvenience has, in forty-five years, been the result of the extra judicial declaration in Rogers v. Dickey. Being extra judicial, no disrespect is shown to the Supreme Court in not following it; and being contrary to the almost unbroken current of authority, it ought not to be followed. Crocker’s Law of Sheriffs, Sec. 415; 3 Field’s Briefs, Sec. 433.

These views dispose of the case and the judgment being right upon the undisputed facts, it is affirmed.

Judgment affirmed.

Garnett, P. J., dissents from the conclusion as to the priority of the writ.


author: Garnett, P. J.

text:
    Thomas Mackin v. Thomas O’Brien, for use, etc.

      Master and Servant—Building Contractor—Balance Due—Recovery of —Superinte)tdence—Evidence—Custom.

      1. Between merchants an account rendered and not objected to within a reasonable time becomes a settled account which is conclusive between them, unless fraud, mistake, omission or inaccuracy is shown.
    2. The admission in evidence of accounts rendered, which have not been objected to within such time, without the production of the original entries or books from which they were taken, can not be complained of.
    8. This court will not consider objections to the introduction of evidence primarily raised herein.
    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Robert- Hervey and C. Stuart Beattie, for the appellant.
    Messrs. Rich & Stone, for appellee.
   Garnett, P. J.

During the years 1879 and 1880, appellee was engaged by contract with appellant in furnishing labor and materials for the plastering of certain houses. Written statements of accounts taken from O’Brien’s books were delivered by appellee to appellant every two weeks, showing the materials furnished, the names of the mechanics and laborers employed on the work, and the time and prices charged for them. These statements were kept by Mackin, no objection being made thereto, and payments on account were, from time to time, made by him to O’Brien. The last statement was rendered April 2,1881, and this suit was begun October 26, 1884, to recover the balance due O’Brien. The serious dispute between the parties arises on a charge by O’Brien for superintending the work. He testified that Mackin agreed to pay him a reasonable compensation for superintendence, and evidence was introduced tending to prove what such services were reasonably worth. Mackin testified that there was no such agreement, but that the work was to be done by O’Brien at as low a price as it could be done. With this direct contradiction in the evidence, (plaintiff’s version of the contract being corroborated by defendant’s failure to object to the accounts rendered,) the issues of fact were submitted to the jury, and we are not prepared to say that the finding in O’Brien’s favor on the question of superintendence is not fairly sustained by the evidence. The admission in evidence of the accounts rendered, against the objection of the defendant, is assigned as error. These documents are said to be secondary evidence and inadmissible until the books from which they were copied were offered. A sufficient answer is, that the objection made to their introduction was general, and not based on the fact that they were of the nature of secondary evidence. Had this specific objection been raised it might have been removed, but it is too late to assert it for the first time on appeal. 1 Thompson on Trials, Sec. 693; I. & St. L. R. R. Co. v. Estes, 96 Ill. 470; Howell et al., Ex’rs, v. Edmunds, 47 Ill. 79.

But the statements were clearly admissible, under the circumstances stated, without production of the original entries or books from which the statements were taken. Between merchants, an account rendered and not objected to within a reasonable time, becomes a settled account, which is conclusive between the parties, unless fraud, mistake, omission or inaccuracy is shown. And, though an account rendered and not so objected to, may not have that conclusive effect between others than merchants, it is held to be evidence of an implied admission of the correctness of the account. McCord v. Manson, 17 Ill. App. 118.

The plaintiff’s cause of action having been thus prima, facie established, the burden of proof shifted to the defendant, without any showing that the items in the account were incorrect. Bucklin v. Chapin, 1 Lans. (N. Y.) 447.

Ho effort was made by defendant to impeach the accuracy of the statements, nor was any evidence offered to explain Mackin’s silence concerning them, and it is a fair presumption that at the time he received them he was satisfied they were not open to any well founded objection. The record discloses no ground for interference with the judgment, and it must be affirmed.

Judgment affirmed.


author: Moran, J.

text:
    Samuel Williams and Edward N. Hurlbut v. Noel Boyden, for use, etc.

      Replevin—Suit upon Bond—Sureties—Dismissal of Suit—Judgment for Return—Failure to do so—Pleading.

    1. In pleading at law, every traversable al legation which is not traversed is admitted.
    2. An issue settled by the pleadings in a given case must be taken as conclusive.
    3. In an action against the sureties upon a replevin bond, it being alleged that the defendants in the suit had judgment for return of the goods in question, and that the same had not been returned, this court holds that the introduction therein of the record of a judgment in the replevin suit, from which it did not appear that a judgment for return had been rendered, would not estop a recovery, for the reason that the averment in the declaration of a judgment of return not having been traversed, the same was admitted, and no proof in support thereof was required.
    [Opinion filed September 11, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Cratty Brothers & Ashcraft, for appellants.
    Mr. C. S. Beattie, for appellee.
   Moran, J.

This was an action on a replevin bond against appellants, who were sureties thereon. The declaration averred the execution and delivery of the bond, and the taking of the goods under the replevin writ; that afterward the replevin suit was dismissed, and that the defendants in said suit had judgment for return of the said goods and chattels, and that the same had not been returned. Appellants pleaded nil debet, and a special plea alleging that there was no trial of the merits in the replevin suit, and that at the time of the commencement of said replevin suit and at the time of the trial thereof, appellants were the owners, and entitled to the possession of said goods and chattels. The plea of nil debet was demurred out, and the case went to trial on the issues presented by the special plea. Appellees proved their case in the usual manner, except that they unnecessarily introduced the record of a judgment in the replevin suit, from which record it did not appear that a judgment for return of the goods and chattels in question had been rendered by the court, Appellants introduced no evidence, and there was a verdict against them and a judgment for the penalty of the bond and for damages—$270. From this judgment appellants appeal, and urge that appellees proved, by the record of judgment in the replevin suit, that no judgment for the return of the property was rendered, and no judgment should be against appellants upon the -bond, and Vinyard v. Barnes, 124 Ill. 349, is relied on to support this conclusion. It does not appear from that case what distinct issues were made by the pleadings.

If the declaration averred a judgment of retorno, and the plea put such averment in issue, it was of course incumbent on the plaintiff to prove his allegation, as the Supreme Court said the onus was on the plaintiff to show a judgment awarding a return of the property, and having failed to make his proof, he could not have his judgment. Here a different question is presented. The declaration avers a judgment of return, and the plea not having traversed that allegation, it stands admitted on the record, and no proof in support of such allegation was required. In pleading at law, every traversable allegation which is not traversed is admitted. Capital City Mutual Fire Ins. Co. v. Detwiler, 23 Ill. App. 656; Bacon’s Abr., title, Pleas & Pldg., p. 459; Hanchett v. Buckley, 27 Ill. App. 159.

If, then, no record of the judgment had been introduced, the, fact that a judgment of retorno had been rendered stood conclusively proved for the purpose of the trial. Was the condition changed by the plaintiff’s introducing a transcript of a judgment order, which did not show a judgment of retorno? We think not; non constat that such judgment of retorno was not entered during the term. But further, the jury were bound to find that issue as it was admitted by the pleadings, or rather, that issue having been settled by the pleadings, must be taken as conclusive, and the jury had no authority to find upon it, no matter what the evidence was. “ Whatever has been admitted on both sides in the pleadings can not be contradicted, either in the subsequent pleadings, or even by the verdict.” Gould on Pleadings, Sec. 167-168, Chap. 3. “ If the jury find one thing contrary to some other thing that is confessed, or not denied, in the pleadings, the verdict is as to so much, bad, because the jury had nothing to do with that which is confessed, or not denied, in the pleadings.” Bacon Abr., title, Verdict W. P. 353.

The authorities are in conflict with appellant’s contention. The judgment is correct and must be affirmed.

Judgment affirmed.


text:
    Lake Shore & Michigan Southern Railway Company v. Philip Bodemer, Administrator, etc.

      Eailroads—Negligence—Excessive Speed—Personal Injuries—Eight oj Way—Ordinance—Evidence—Instructions—Trespassers.

    1. Wilful or wanton injury to a trespasser is actionable, and it cuts no figure if in such case the person injured was guilty of contributory negligence.
    2. A defendant who states the substance of a municipal ordinance in his opening and admits the breach thereof, can not complain of the reading of the same after the evidence is all in, in behalf of the plaintiff, as a part of his argument to the jury.
    3. In an action brought by an administrator to recover from a railroad company for the death of his intestate, the same being alleged to have been caused through its negligence, this court holds that the train in question was moving at a reckless rate of speed when the accident occurred, that defendant was guilty of wanton negligence in this regard, and declines to interfere with the verdict for the plaintiff.
    [Opinion filed September 11, 1889.]

      Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    Mr. Pliny B. Smith, for appellant.
    The court admitted improper testimony.
    The court admitted, over the objection of defendant’s attorney, testimony that people frecpieutly walked upon and across the railroad tracks at the point where the accident occurred. This was clearly error.
    It is the doctrine of this State that the frequent use by the public of railroad tracks as a footpath does not impose any duty toward the people so using the tracks or change the relations of the parties in any way. I. C. R. R. v. Godfrey, 71 Ill. 500; I. C. R. R. v. Hetherington, 83 Ill. 510; Blanchard v. L. S. & M. S. Ry., 18 N. E. Rep. 799.
    In Godfrey’s case, the plaintiff was struck and injured on defendant’s right of way, while using the tracks as a footpath. The evidence was that the tracks were frequently used by the public for that purpose. The defendant asked an instruction that “ such use should not relieve the plaintiff of the legal duty of extraordinary care and caution at a place of danger, and such use by plaintiff was none the less negligence on the part of the plaintiff because it may have been frequent.” This instruction was refused, but the Supreme Court reversed the judgment for plaintiff, and held that the instruction, with other instructions, should have been given. The court say: “ There was nothing to exempt him from the character of a wrong-doer and trespasser in so doing, further than the supposed implied assent of the company, arising from their noninterference with a previous like practice by individuals. But because the company did not see fit to enforce its rights, and keep people off its premises, no right of way over its ground was thereby acquired. It was not bound to protect or provide safeguards for persons so using its grounds for their own convenience. The place was one of danger, and such persons went there at their own risk, and enjoyed the supposed implied license subject to its attendant perils. At the most, there was here no more than a mere passive acquiescence in this use. A mere naked license or permission to enter or pass over an estate, will not create a duty or impose an obligation on the part of the owner to provide against the danger of accident. * * * The second instruction given for the plaintiff (and the sixth and seventh are liable to the same objection) is erroneous, in intimating the idea that the use of defendant’s road by citizens, to walk back and forth upon without hinderance or objection by defendant, constituted the same a public thoroughfare for people to walk upon.”
    In Hetherington’s case, the decedent was injured under the same circumstances. The Supreme Court reiterated the doctrine of Godfrey’s case,and furthermore said: “ The fact that persons residing in the locality where the accident occurred had been in the habit of traveling upon the right of way of the defendant, and no measures had been taken to prevent it, did not change the relative rights or obligations of the deceased or the railroad company.”
    The principle is expressly laid down that frequent use of the tracks by the public as a footpath does not change the relative rights of the parties.
    In Blanchard’s case the Supreme Court expressly re-affirm the Godfrey and Hetherington cases.
    It consequently follows, necessarily, that the admission of this evidence was error, and it could not but prejudice the defendant, because, the testimony being admitted, the jnry would naturally believe, and have a right to believe, that it had a bearing on the case, and did change the relative rights of the parties. This action of the court was, therefore, prejudicial error.
    The court furthermore admitted in evidence, over the objection of defendant, the ordinances of the city of Chicago regulating the speed of trains and the ringing of locomotive bells in said city.
    These ordinances were set up in the third and fourth counts of the declaration. It was claimed, however, by defendant, that these ordinances had no application to the ease of a trespasser upon the right of way; and this is held in Godfrey’s case just quoted.

      The court, however, withdrew these counts from the consideration of the jury, and instructed the jury that there could be no recovery under them. There was, therefore, no evidence admissible, save such as was properly admissible under the fifth count. The ordinances were not set up in this count, and municipal ordinances are not admissible in evidence, unless pleaded. I. C. R. R. Co. v. Hetherington, 83 Ill. 510; Blanchard v. L. S. & M. S. Ry. Co., 18 N. E. Rep. 790.
    In Godfrey’s case, it was alleged in the declaration that no bell or whistle was sounded before the engine passed the crossing, and that the engine ran at a great rate of speed, the ordinances of the city being introduced in evidence. On the argument, negligence in the management of the engine was also urged. The Supreme Court, however, said: “ But the defendant, under the circumstances of this case, is clearly chargeable with no such negligence as this. It is only for wanton or wilful injury that the defendant is here chargeable, or such gross negligence as evidences wilfulness.”
    If in the case of a trespasser it is held that the railroad company is not liable for excessive speed, or failure to sound the bell or whistle, even though these acts are alleged in the declaration, how much less shall a railroad company be held liable for such acts, when they are not even pleaded? The admission of this evidence was therefore error on the grounds both that they were not pleaded and that they could not in any event be made the basis of a liability.
    Messrs. Joseph S. Kennard, Jr., and Brandt & Hoffman, for appellee.
   Garnett, P. J.

Philip Bodemer, Jr., a boy about nine years of age, was killed September 8, 1889, by one of appellant’s trains, on its track, between 25th and 28th streets, in the city of Chicago, and appellee brought this suit against appellant to recover damages therefor, alleging that the deceased came to his death through gross and wanton negligence of appellant. There was a verdict and judgment against appellant, which it now seeks to reverse.

Just before the fatal occurrence, the deceased and his brother, the latter about twelve years of age, were on the east side of the tracks, between the two streets named, and a freight train was then moving south on one of the tracks. When it had passed, the boys walked upon the tracks, the elder being in front, and reaching the west side of them in safety. The deceased, however, was struck and killed by a passenger train going north on another of appellant’s tracks running parallel and close to the track on which the freight train passed.

The speed of the passenger train was from twenty-five to forty miles per hour. Twenty-five miles per hour was the lowest rate of speed stated by any witness. The bell on the engine was not rung, but just before the boy was struck, the whistle gave two short, sharp blasts.

The tracks of appellant between 25th and 26th streets are in a populous part of the city, and are not guarded in any way to prevent the passage of teams and foot passengers over them.

On each side of them is a space used as an alley or roadway, and just west of the west alley are buildings used for business purposes, fronting the tracks. Passing over the tracks at that place had been a common practice with people living or doing business in that vicinity. Appellant’s tracks are laid there over its own private property, but the strip of ground on which the tracks are built connects at the north end thereof with Clark street, so as to make it, apparently, a continuous street to a point south of where the boy came to his death. Appellant contends that as the collision happened on its private property, the deceased was a trespasser, and it is not liable in damages for causing his death. Whether that is a defense depends on circumstances. It has not, in all cases, been held sufficient to exonerate the party causing the injury to the trespasser. In C., M. & St. P. Ry. Co. v. Yando, 26 Ill. App. 601 (affirmed in 127 Ill. 214), the deceased was a trespasser on defendant’s track when she was killed, but she was apparently unaware of her danger, and as the engine driver saw her and understood her danger a sufficient distance from her to have stopped his engine by the exercise of ordinary care, the defendant company was held to be guilty of gross, wilful and culpable negligence, and the verdict of the jury was sustained. See also, C. & A. R. R. Co. v. Gregory, 58 Ill. 226; C., M. & St. P. Ry. Co. v. West, 125 Ill. 320; same case, 24 Ill. App. 44.

It seems to be the uniform rule that wilful or wanton injury even to a trespasser, is actionable. Ror is it material in such cases that the person injured was guilty of contributory negligence. The rule is stated in Cooley on Torts, 810. “Where the conduct of the defendant is wanton and wilful, or when it indicates that degree of indifference to the rights of others which may justly be characterized as recklessness, the doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of such injury. That is the rule in this State. Litchfield Coal Co. v. Taylor, 81 Ill. 590; C. & N. W. Ry. Co. v. Donahue, 75 Ill. 107. As there was no instruction given to the jury in this case, except one informing them that there could be no recovery on the first four counts of the declaration, we must presume, in support of the judgment, that the facts alleged in the remaining count were found by the jury as unfavorably for the appellant as the evidence would warrant, and we think the evidence fully justified the belief that the train which caused the death, was moving at a reckless rate of speed, through a populous part of the city, the tracks being unguarded, and with surroundings of the character already described. Was the jury authorized from these facts in finding defendant guilty of wanton negligence? We think they were. As the court said' in Gregory’s case, supra, “ The train was running with great speed, which it did not slacken as it passed through the town. We consider this, of itself, great negligence.” In Yando’s case, 26 Ill. App. 601, it was considered a material fact that the engine driver saw the deceased a sufficient distance from her to have stopped his engine by the exercise of ordinary care. The result must have been the same if he had recklessly turned his back, or placed something over the window in the engine cab, so he could not see. If the injury is caused, in a place like that described in the case at bar, by putting the train in such rapid, motion that it can not be checked in time to avoid a collision, which might have been averted if the speed had been only reasonable, the negligence is as culpable as though the engine driver saw the danger and could have prevented the injury, but failed to do so. In the one case, before the danger actually presents itself, he wilfully puts it out of his power to prevent the injury; in the other, he sees the danger and has the power to prevent the injury, but refuses to do so. If there is any degree of difference in culpability in the two cases, we think the law does not recognize it.

On the trial there was offered in evidence by appellee two sections of the city ordinances, one limiting the speed of passenger trains within the city to ten miles an hour, and the other requiring the bell on the locomotive to be rung continually while running within the city. The record does not show that either section was read to the j ury as evidence, and counsel for appellant admits that they were not read until after the evidence was all in, and counsel for appellee was addressing the jury. Then the section limiting the speed was read as a part of the address, and was objected to by appellant; the objection was overruled and appellant excepted. The only injury, if any, to appellant from this source, must arise from the reading of the one section in the hearing of the jury, and that must be regarded as harmless, because, in his opening address to the jury, before any evidence was given, that section of the ordinance was stated in substance by appellant’s counsel, and he then admitted that the train which caused the death of the boy was at the time running more than ten miles an hour. The opening address of appellant’s counsel must still have been fresh in the minds of the jury and the effect thereof would have been as unfavorable to appellant as though the section had never been read.

The instructions requested by appellant and refused by the trial court are too numerous for separate discussion. Many of them were in conflict with the rule above quoted from Cooley on Torts, others were misleading, and we think no material error was committed in refusing any of them.

The' general verdict of the jury, as we have seen, was based upon the fact of wanton negligence, and with that fact the answers to the special interrogatories are entirely consistent. The judgment is affirmed.

Judgment affirmed.

Gaby, J., took no part in this decision.


text:
    Daniel J. Hubbard, Impleaded, etc., v. R. Hall McCormick and William H. Beebe.

      Landlord and Tenant—Rent—Recovery of—Set-off—Pleading—General Issue—Evidence.

    In an action brought for the recovery of rent, the defendant has the right under the general issue to show payment, accord and satisfaction, and with few exceptions, any other matter which wholly or partly extinguished the cause of action.
    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Franklin P. Simons, for appellant.
    Mr. E. A. Sherburne, for appellees.
   Gary, J.

The appellees demised to the appellant and Carrie L. Metcalfe, two office rooms, for a term of two years, ending April 30, 1886, the rent being $25 per month, payable monthly in advance. She occupied the rooms part of the firstyear, when one Clark succeeded her in the possession. The case is not very clearly presented by the record, but it seems to show that Clark left on or before May 1,1885. January 25, 1886, the appellants commenced this suit in assumpsit against the lessees. The appellant alone was served and defended. The declaration alleged that $225 of the rent was due and unpaid when the suit was commenced. The finding of the court, trying the case without a jury, was for the appellees,$265. This amount could not be made up by accruing interests, and the discrepancy can only be disregarded by the application of the rule stated in Thomas v. Bo osa, 7 Johns. (1ST. Y.) 461, that the court will intend that the damages could not have been given if a good breach of the contract to pay had not been shown. On the trial the appellant testified that Clark had the rooms furnished in fine style, and enumerated a number of articles which must have been of considerable value, and offered to prove the actual valúe, and that one of the appellees told the appellant that they had taken the furniture on account of the rent. This offer wras rejected, upon the ground that a set-off could not be admitted under the general issue.

But it was not a set-off. If taken on account of the rent, it was satisfaction of the rent to the extent of its value, if no price was agreed upon; or to the extent of the price, if agreed upon. Under the general issue the appellant had the right to show payment, accord and satisfaction, and, with few exceptions, any other matter which wholly or partly extinguished the appellee’s cause of action. 1 Ch. Pl. 478, Ed. 1844.

The refusal to admit this testimony was erroneous, and being excepted to, and now assigned as error, the judgment ought to be reversed. But the case, Nason v. Letz, 73 Ill. 371, stands in the way. There, as here, proper evidence was excluded; there, as here, the bill of exceptions did not show a motion for a new trial denied, and upon that the court say: “We are prohibited from inquiring into the question whether the court erred in rejecting this evidence. It was only ground for a new trial if erroneous, and should have been so urged; and on overruling the motion, it should have been preserved in a bill of exceptions, before error could be assigned on that decision of the court.” That case has been twice cited since by that court in volumes preceding Vol. 120. Whether in later onescannotreadily be ascertained. It has not been criticised. The report of that case, however, does not show that the action of the court in rejecting the 'offered evidence was excepted to at the time. It is a probable inference that it was, but not certain. It seems unnecessary that a court should commit the same error twice before it can be corrected.

The reasoning and the authority to the contrary in Levenberger v. Paul, 25 Ill. App. 480, is satisfactory and convincing. Gauche v. Mayer, 27 Ill. 134; Lowe v. Moss, 12 Ill. 477.

Reversed and remanded.


text:
    Theodore Kolb, by his Next Friend, etc., v. Chicago Stamping Company.

      Master and Servant—Minor Servant—Duty to Instruct and Protect— Machinery—Failure to Guard—Request “ to hurry"—Personal Injuries— Contributory Negligence—Evidence.

    1. In an action brought by a servant to recover from his employer for injuries alleged to have been suffered through his negligence, this court holds, that the risks attending the use of the machine in question were obvious and assumed by the servant as incident to bis employment, and that failure to guard the treadle in question did not constitute negligence on the part of the defendant.
    2. Evidence in such case that other boys had been injured by similar machines in the same shop, should not be considered.
    [Opinion filed September 11, 1889.]
    Appeal from the Circuit Court of Cook County the Hon. Julius S. Grinnell, Judge, presiding.
    Messrs. Allan G. Story and Fred W. Story, for appellant.
    Mr. JR. S. Thompson, for appellees.
   Moran, J.

This action was brought by appellant by his next friend, to recover damages from appellee for the loss of the fingers of his right hand in a stamping machine owned by appellee, and at which appellant was working.

At the close of plaintiff’s case the court instructed the jury that the evidence was insufficient to sustain a verdict for the plaintiff, and that they should find for the defendant. This ruling of the court is the error assigned on the appeal. The evidence shows that appellant, who was at the time something over sixteen years of age, applied to appellee’s superintendent for employment in the stamping shop, and was taken by the superintendent to a foreman, who was told to set the boy to work on a press. The foreman took him to a machine impressing bottoms for coal hods.

The stamp which did the pressing was operated by steam and was set in motion by the operator pressing a treadle with his foot. The scuttle bottom to be shaped was laid on the die and iron clamps closed around it, which clamps have handles by means of which the operator holds the bottom in such manner that when the die descends it presses the bottom into a new shape with a projecting lip over the top of the rim of the clamps. When the treadle was pressed by the foot, the die came down, and then returned to its place and remained there till the treadle was again pressed. The foreman stood by appellant while several bottoms were pressed, and as he operated the machine all right, left him, and appellant worked at the machine the remainder of the day, and the next day, and the third day till about four o’clock, when the accident, which caused the injury, occurred. About half an hour before the happening of the accident the foreman came around, and finding appellant sitting resting and the press idle, told him to hurry up and go to work, that he wanted to get rid of that die and put another in its place, and appellant resumed work and continued for a while and then sat resting again. The foreman returned and found him idle, and said to him that he must hurry up, that if he could not do better than that they would have to put another man in his place; that they did not want such men in the shop as he was.

Appellant began work and in a few moments one of the bottoms stuck on the die. While endeavoring to remove the bottom or pan he leaned forward on the high stool on which he was sitting and his foot pressed down on the treadle bringing the punch down on his hand and cutting off his fingers. There is no evidence in the case that the machinery was not all in perfect repair, and in good working order, or any evidence tending to show that the appliances for doing the work were not of the usual kind or that they lacked any safeguard that was in use on such machines, or that its operation was attended with any danger not plainly apparent, and not easily avoided by ordinary attention. Counsel for appellant strenuously argues that it was negligence not to have the treadle boxed, but there was no evidence introduced to show that it could be boxed or that it was usual or customary to box treadles on such machines. The case in this respect differs materially from that of Rummel v. Dilworth, 111 Post. 343, cited and relied on by counsel. In that case the court say that there was evidence tending to show that closing the gate was attended with danger that the operator was liable to be caught in the cogs.

There is evidence also, that this difficulty was easily obviated by the extension of the guard rail to cover the point of danger, and that this appliance was -reasonably necessary for the safety of the operator, but that in fact the rail was wanting where most required.

The offer to show that other boys had been hurt by similar machines in the same shop was not competent; non constat, that they were not injured entirely by their own fault or carelessness. The admission of such evidence would require the trial of their cases in this suit. So far as we can gather, all danger attending the operation of this machine would be - perfectly obvious to any boy of ordinary capacity, of appellant’s age or even much younger. He knew that a pressure of the foot upon the treadle brought down the upper die or stamp, and he knew that the pressure of such stamp on the lower die would crush whatever was beneath it, and employers are not required to instruct or protect against such obvious dangers. ' Taking all the evidence introduced by appellant, with all the legitimate inferences which can be drawn therefrom, we are unable to perceive that appellees were guilty of any wrong or negligence which could be made the basis of a verdict in favor of appellant.

Unless we should be prepared to hold that an employer is liable for every accident that happens to a boy in his employ, though caused by the boy’s own negligence or want of ordinary care, and when the employer is guilty of no negligence, we can find no ground on which a verdict in favor of appellant could rest.

We think there was no evidence to sustain appellant’s case, arid that the court properly instructed the jury to find for the defendant.

Judgment affirmed.


author: Per Curiam.

text:
    Fanny Bernauer and Valentine Ruh v. Hartman Steel Company.

      Master and Servant—Negligence of Servant—Master's Liability—Independent Contractor—Evidence.

    in an action brought by a tenant against his landlord for the recovery of damages for injury suffered through the overflowing of a tank, caused by the negligence of the employes of a plumber engaged in making certain repairs in the building in question, this court holds that the said plumber was not an independent contractor, and declines to interfere with a judgment in behalf of the plaintiff.
    [Opinion filed September 11, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Arnold Tripp and Eugene Ehrlich, for appellants.
    If there is any liability at all it is for actual damages, and this must be proven. In this case one witness only testified on this point, and that was Mr. Williams. The total damage was about $400. “1 can not tell in detail how much the damaged goods were sold for;” this is all the evidence offered as to damage. Bow we submit that the rule as to damages is not about a given sum but such damages as were sustained actually; and about $400 may moan only $395 or even less; such evidence should not have been considered, and if considered, does not furnish a measurement from which the court can find any amount.
    As to the law in the case : The evidence shows that Buh was employed as a plumber to do a specific job. He employed the man who did it; he assumed entire control of the work, gave the necessary directions, took possession of the premises at the time of doing the work, and did the job according to his own skill and judgment, in a good, workmanlike manner, without any interference or suggestion from the owner or her ag -nt. Buh was an independent contractor, and not a servant. Quarman v. Burnett, 6 Mees. & Wel. 499; Milligan v. Wedge, 12 Adol. & Ellis, 737; Butler v. Hunter, 7 Hurlstone & Norman, 826; DeForest v. Wright et al., 2 Mich. 369; Stone v. Codman, 15 Pick. 297; Shearman & Redf. on Negl., Sec. 74-76 and 77 (2d Ed.); Harrison v. Collins, 86 Pa. State, 153; Scammon v. City of Chicago, 25 Ill. 361; Hale et al. v. Johnson, 80 Ill. 185.
    The owner of fixed property is not liable for wrongs of an independent contractor, or his servants. 2 Thompson on Negl., 899; Hoit v. Whately, 51 Ala. 569; Shaw v. Crocker, 42 Cal. 435; Harrison v. Collins, 86 Pa. 153; Linton v. Smith and others, 8 Gray, 147; Wharton on Negl., Sec. 181; Corbin v. American Mills, 22 Conn. 274; Prairie State L. & T. Co. v. Doig et al., 70 Ill. 52; Scammon v. City of Chicago, 25 Ill. 434; Shearman and Redfield on Negl., 100; Hole v. Railway Co., 6 Hurlstone & Norman, 497.
    The evidence establishes the fact that the plaintiff’s goods would not have been damaged if a certain faucet marked “B” had not been left open in the night. The trial court must necessarily have found that Bull’s workman left it open, and did not notify anybody not to turn it different from the way he left it. This finding was contrary to the evidence. But supposing that such was the fact, the' act which caused the damage did not result from the authority of the defendant, Fanny Bernauer. The authority under which the plumber who did the work acted was that of his master. He could not have two masters at the same time. Hull was his master; he hired him ; he directed him what to do. The agent of the owner was not present at any time during the progress of the work. Fanny Bernauer did not do the act which caused the mischief. It was not done by one acting under her command or request, it was not done by one over whose conduct she had the efficient control, whose operations she might direct, whose negligence she might restrain. She can not be held liable, unless upon the general proposition that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do. The law does nut impose so broad a responsibility. Rapson v. Cubitt, 9 M. & W. 710 (1842); De Forrest v. Wright, 2 Mich. 368; Hilliard v. Richardson, 3 Gray, 349; City of Chicago v. Robbins, 2 Black, 418.
    Messrs. E. H. & N. E. Gary, for appellee.
    The plumber was grossly negligent in many respects. He failed to notify appellee of the change, so as to permit its officers to protect its property; he failed to close and tighten stop-cock H; he failed to notify any one about the premises of the danger, or how to prevent damage, and closing the waste-pipes was not only unnecessary but a most bungling job; he left the premises at 3 o’clock in the afternoon. There was ample time that day before the water rose to put in a piece of pipe in pipe A, thus closing the gap and preventing damage. Even if the water had come through the sink and the faucet had been left open, or the surplus water had gone through the branch pipe in which stop-cock B was located, and the stop-cock had been opened and left open by an unknown person, still the negligence of the plumber was the proximate cause of the damage, and appellants would be liable.
    As to the amount of the damages, the manager of appellee testified that the damages for which claim was made, were about $400. That there were other items of expense, but he did not have the details and made no claim for them. Extra effort was made by appellee to preserve the property and make the loss as small as possible. Cross-examination would have brought out further details if they were desired.
    Upon the question of the liability of the owner, Bernauer, little need be said. The plumber was not an independent contractor, nor in possession or control of the property. He was simply an employe, a servant, subject to the orders and control of his employer.
   Per Curiam.

The judgment in this case is based on the negligence of appellants by which a certain water tank was overflowed and damage thereby caused to the stock of hardware of appellee in the building where the tank was situated.

The case was tried by the court without a jury, appellants found guilty and the damages assessed at $400. It is one of the class of cases in which appeal is so often made to this court to reverse, on the ground that the finding or verdict is contrary to the, evidence. A reading of the evidence leaves a conviction on the mind that the theory of appellee is probably correct, and the finding of the trial court in conformity with the most reasonable deduction that can be made' from the evidence will not be set aside here. Bull, one of the defendants, was a plumber who was employed by the owner of the building, Fanny Bernauer, to make some changes and repairs in the plumbing, and his employe’s negligence in performing the work caused the injury to appellee’s goods. Appellants now insist that Buh was an independent contractor, for whose neglect Bernauer was not liable. The terms of the employment of Bull are not given and it must, therefore, be assumed that no special térras were agreed on. He was employed generally to do the required work, and was for that purpose the agent or servant of his employer. Possession or control of the building or plumbing or any part of it was not given to him. His employer had the right to control and direct the entire work, and might have discharged Buh from the employment if he refused to obey her instructions.

The character of his employment bears no resemblance to that of an independent contractor. Glickauf et al. v. Maurer, 75 Ill. 289; Cooley on Torts (2d Ed.), 643.

There is nothing in the lease from appellant Bernauer to appellee which exempts her from claims for damages caused by the neglect of herself or employes in making repairs on the plumbing in the building. We think there is evidence which supports the finding as to the measure of damages.

The judgment is affirmed.

Judgment affirmed.


text:
    Edward T. Singer, Assignee, v. Michael B. Leavitt.

      Insolvency—Assignment—Contract of Insolvent—-Assumption of by Assignee—Theatrical Troupe—Guaranty—Evidence—Order of County Court.

    1. The County Court may properly order the payment of debts incurred under duly authorized contracts entered into by an assignee for the purpose of preserving the property involved, and rendering it available to the creditors.
    2. This court affirms an order of the County Court directing the payment of a certain balance claimed to be due the manager of a theatrical troupe who entered into a contract with the proprietor of a theatre to play therein a season of one week upon a certain guaranty, said contract having been assumed by the assignee of such proprietor, who subsequently made a voluntary assignment for the benefit of his creditors.
    [Opinion filed September 11, 1889.]
    Appeal from the County Court of Cook County; the Hon. E. H. Gary, Judge, presiding.
    Messrs. Hanecy & Merrick, for appellant.
    Messrs. Gentleman, Richolson & Nolan, and Case, Judson & Hogan, for appellee.

      An order of a court such as is referred to in this case, implies consent that all expenses in connection with carrying the same into effect shall be paid out of the first moneys on hand. Beach on Receivers, p. 299.
    Since it is impossible for the assignee to operate a theatre without incurring expenses, it is entirely reasonable that the property to be benefited by his management shall bear the cost of it. It is equally reasonable that his necessary expenses in operating and managing the theatre shall constitute a lien in preference to all other obligations. Wallace v. Loomis, 97 U. S. 286; Miltenberger v. Logansport R. R. Co., 106 U. S. 286; Taylor v. P. R. R. R. Co., 7 Fed. Rep. 377; Atkins v. Petersburg R. R. Co., 3 Hughes, 307.
    The courts go further and hold that where the best interests of all concerned demand the continuance of a business, or the operating of a railroad, that “ the debts incurred thereby have priority over the incumbrances.” Gilbert v. W. C. G. T. R. R. Co., 33 Gratt. 586.
    There is no doubt that the assignee had the power to make such a contract, and that whatever loss may have arisen under such contract, should be payable out of either the income of the property in his hands or out of the estate itself. If the court, through the assignees, sees fit to operate a theatre with the honest intention of thereby enhancing the value of the estate and security of the numerous creditors, then it does not lie either in the mouth of the assignee or the creditors to object to the payment of such claim, in the event of a loss, inasmuch as they would have been benefited had the theatre made money. Under such an agreement as was made by the assignee in this case, we are satisfied beyond any question whatever, that the claim of the appellee is a first lien upon the property in the hands of the assignee, superior and paramount to all others, and should be paid as one of the charges incident to the management and control of the theatre while in the hands of the assignee as the representative of the court. The following authorities we think will fully sustain our position: Cowdrey v. R. R. Co., 1 Woods, 330; Cowdrey v. R. R. Co., 93 U S. 352; Fosdick v. Schall, 99 U. S. 235; Union Trust Co. v. Illinois Midland Co., 117 U. S. 455; High on Receivers, Sec. 395; Noyes v. Ritch, 52 Me. 115; Blumenthal v. Brainard, 28 Vt. 402; Gilbert v. R. R. Co., 33 Gratt. 586; Southern Law Review, Vol. 4 (N. S.), page 29; American Law Review (1883), page 832.
   Moran, J.

Appellee, who was the manager of a theatrical company, on the 18th of July, 1888, entered into a contract with Baker, the owner of a theatre at that time being built on Wabash avenue in Chicago, to play a certain season of one week with his company at said theatre. The time first fixed in the contract for beginning the season was April 7, 1889, but it was afterward changed at the request of Baker to December 10, 1888. Bv the contract appellee was to furnish the stage representations, etc., and was to receive seventy per cent of the gross receipts of each performance, and the said owner of the theatre guaranteed that appellee’s share should reach the sum of $2,500 for the week. Before the time came for the commencement of the engagement, Baker, the owner of the theatre, made a voluntary assignment for the benefit of his creditors, of the theatre and other property, and the assignee petitioned the court for leave to keep the theatre running, representing that such course would be for the best interests of the property, and in order to do so asked leave to go forward with the engagement made with appellee, and thereupon the court ordered the assignee to operate said theatre until the further order of the court, unless cause should be shown, to the contrary within five days. Thereupon the assignee indorsed the contract between appellee and Baker as follows:

“ Pursuant to the order of the County Court in re Baker et al., I hereby ratify the within contract.
“ W. W. Charles, Assignee.”
“Chicago, Dec. 2, 1888.

Thereupon appellee commenced his engagement at said theatre at the time fixed in said contract and played for one week, and afterward filed his petition in the County Court stating the foregoing facts, and that there was due to him under the terms of the said contract, $1,019.80, which the court ordered the assignee to pay out of any money in his hands after paying all expenses of administration, and all expenses of the said business as carried on by the assignee; but the court reserved the question whether or not said claim should be paid out of a sale of the property owned by the insolvent at the time of the assignment. From this order the appeal is prosecuted.

As we understand this order, it has relation to the payment of an indebtedness incurred in managing and conserving the property in the hands of the assignee, and if it be admitted that the court has power and authority, and that it is the duty of the court to pursue such course with reference to the property which comes to its hands as will best preserve its value and render it most available to the creditors, as to which it seems to us there can be no doubt, then it must follow that the court is to exercise a reasonable discretion as to its operation and management. It was impossible in the nature of things for the assignee to operate the theatre without incurring expenses and making contracts, and it would be certainly unjust for the court to authorize the incurring of an expense for the benefit of the property, and then turn the one who, on the faith of such order, furnished services, over to seek remuneration by sharing with ordinary creditors in the final distribution of the assets. What is done to preserve the estate to the creditors may well be done at the cost of the estate. Appellee does not come in making a claim against the estate as a general creditor. He is merely seeking pay for what he has done for the estate after it came to the hands of the assignee, with the assent of the assignee and the approval of the court.

There is nothing in the record tending to show any abuse of discretion on the part of the court, and the order appealed being one of discretion, can only be reviewed for manifest abuse of the court’s power.

Order affirmed.


author: Gaby, J.

text:
    William R. Hamilton v. Ira R. Harvey.

      Master and Servant—Services Rendered—Recovery for—Real Estate Broker—Ordinance as to. Secs. 1 and 3—Licenses.

    In an action to recover compensation for services rendered in the city of Chicago in negotiating a lease, this court holds that the acts in question are not within the municipal ordinance touching the necessity for real estate brokers to be licensed.
    [Opinion filed September 11, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Messrs. Miller, Leman & Chase, for appellant.
    We contend:
    1. That the sole purpose of the ordinance in question is to get revenue, and that it does not assume to reach or affect the validity of contracts made by an unlicensed broker; and that such contracts are not affected thereby, or against any public policy, or void, but are valid; and that the cases where contracts of an unlicensed person are held void are where the purpose of the license law is something beyond getting revenue from the license fee, e. g., the protection of the public interests or to carry out a public policy. Smith v. Mawhood, 14 M. & W. 452; Johnson v. Hudson, 11 East (K. B.), 180; Brown v. Duncan, 10 B. & C. 93; Bailey v. Harris, 12 Q. B, 905; Cope v. Rowland, 2 M. & W. 149; Tyler v. Larimore, 2 W. R. 179; Aiken v. Blaisdell, 41 Vt. 655; Griffith v. Wells, 3 Denio, 226; Larned v. Andrews, 106 Mass. 435; Pope v. Beals, 108 Mass. 562; Taliaferro v. Moffett, 54 Ga. 150, 153; Lindsay v. Rutherford, 17 B. Mon. 245; Strong v. Darling, 9 Ohio R. 201; Pangborn v. Westlake, 36 Iowa, 546.
    2. That this contract in question in itself—in its consideration and matter to be performed—is not forbidden by law, but is legal and unobjectionable; and that it does not provide for, or in itself contemplate, a violation of the ordinance. And the fact that the plaintiff has violated the ordinance in something to be done on his part, does not taint the contract with illegality or prevent him from recovering for a breach of it. Wetherell v. Jones, 3 B. & Ad. 221; Story on Contracts, Sec. —.
    3. That the common council of the city of Chicago has no power to pass an ordinance having the effect claimed by appellee for this one, or to prohibit the business of real estate brokerage, or to make the contracts of an unlicensed real estate dealer illegal. That a municipal corporation has no powers except such as are expressly given by the statute, or necessarily implied in or incident to the powers expressly granted. 1 Dillon, Mun. Cor., Sec. 89; Schott v. People, 89 Ill. 195; Cook Co. v. McCrea, 93 Ill. 236. That the statute giving municipal corporations the power to tax and license brokers does not expressly or by fair implication authorize them to make their business or contracts unlawful if license is not taken out. Rev. Stat., Chap. 24, Art. V, Sec. 63, clause 91; 1 Starr & C., 473. That this provision of the statute authorizes such a license ordinance as may affect the person of the broker and not his business or contracts; and that the ordinances in question affect only the person of the broke]1, making him subject to the penalty if it is violated, but does not affect the business or contracts of the broker. That under the ordinance no qualifications are required, and any person who desires to carry on the business of a real estate broker is entitled to the license on payment of the license fee, and the ordinance does not seek to regulate the business; and that there is no public policy violated by the contracts or business of a real estate broker who carries on his business in the city of Chicago without having taken out the license required by the ordinance.
    4. That the question of the violation of the ordinance and its effects is solely a question between the city of Chicago and the broker who violates it; and that a person dealing with such broker has no concern therein nor any right to raise the question in a suit upon the contract between himself and the broker.
    5. That such ordinance is penal, and is to be construed strictly. And that the transaction in question in the case at bar —negotiating a lease—does not come within the definition of a real estate broker contained in the ordinance. And that, therefore, has no application to this case.
    6. That the Circuit Court on the evidence should have held plaintiff entitled to recover. And on defendant’s motion to take the case from the jury and to instruct the jury to find for the defendant, the court should have directed judgment for plaintiff as on a demurrer to the evidence.
    Mr. James Frake, for appellee.
    Whatever other courts may have held, the Supreme Court of this State has decided that, “ When the Legislature prohibits an act or declares that it shall be unlawful to perform it, every rule of interpretation must say that the Legislature intended to interpose its power to prevent the act, and, as one of the means of its prevention, that the courts shall hold it void. This is as manifest as if the statute had declared that it should be void. To hold otherwise would be to give the person or corporation the same right in enforcing prohibited contracts as the good citizen who respects and conforms to the law.” Cincinnati Mut. Health Assurance Co. v. Rosenthal, 55 Ill. 85 (at 91).
    This is likewise true of an ordinance of a town or city. In Mason v. Shawneetown, 77 Ill. 537, the court says: “ When an incorporated town or city has been vested with a power to pass ordinances by the Legislature for the government or welfare of the muncipalitv, an ordinance enacted by the legislative branch of the corporation, in pursuance of the act creating the corporation, has the same force and effect as a law passed by the Legislature, and can not be regarded otherwise than as a law of and within the corporation.”
    To the same effect are Wright v. C. & N. R. R., 7 Ill. App. 438 ; Hopkins v. Mayor of Swansea, 4 M. & M. at page 640; Heland v. City of Lowell, 3 Gray, 408.
    The power of the city to pass this very ordinance has been upheld in Braun et al. v. City of Chicago, 110 Ill. 186.
    Many of the cases decided by our Supreme Court on this question were fully reviewed and approved in the elaborate opinion in the case of Penn v. Bornman, 102 Ill. 532. (See authorities there cited.)
    The same doctrine was again re-affirmed in Banking Co. v. Ratenberg, 103 Ill. 460.
    Our State is not alone in holding that where a statute or ordinance enacts a penalty for carrying on a particular business without a license, no action can be maintained on a contract made by one who violates the statute or ordinance. Beusley v. Bignold, 7 Eng. Com. Law, 188; Downing v. Ringer, 7 Mo. 585; Ætna Ins. Co. v. Harvey, 11 Wis. 412; Williams v. Cheney, 3 Gray, 222; Jones v. Smith, 3 Gray, 500; Wood v. Armstrong, 54 Ala. 150; Dillon v. Allen, 46 Iowa, 299; Ingersoll v. Randall, 14 Minn. 400; Ferdon v. Cunningham, 20 How. Pr. (N. Y.) 154; Best v. Bander, 29 Id. 489.
    In many of the above cases the same point was urged as is urged in this case—-that the object of the ordinance was to raise revenue and did not invalidate contracts.
    In the case of Johnson v. Hulings, 103 Pa. St. 498, the court say, p. 509:
    “The result follows that Johnson, in the transaction in hand, stands in the position of a real estate broker who seeks to enforce a contract which, under the statute, he had no right to make, and by the making of which he subjected himself to the penalty imposed by the statute. But a contract suchas this, op posed'as it is alike to good morals and public policy, can not be enforced. That has been ruled times without number.”
   Gaby, J.

The appellant seeks to recover from the appellee compensation for services rendered in the city of Chicago, in negotiating a lease for the appellee.

The appellant had no license as a real estate broker, as provided by the ordinance copied in Hustis v. Pickands, 27 Ill. App. 270, and the Circuit Court ruled, intending, no doubt, to follow that c:se, that he could not recover.

It is not necessary to review that decision now, though an elaborate argument is made against it, as the definition which Sec. 3 of the ordinance makes of areal estate broker, excludes the kind of service for which appellant claims pay.

If the ordinance had not defined the business, but left the meaning of the words, “real estate broker,” open, then the appellant might have been within them as “one who is engaged for others in negotiating contracts relative to property with the custody of which they have no concern.” Braun v. Chicago, 110 Ill. 186. But the common council must have known that many persons are agents for owners, resident and non-resident; have the care of property, see to repairs, pay taxes, rent and collect the rents, and that all this might be with or without connection with the kinds of business mentioned in Sec. 3 of the ordinance. Consolidating, so far as affects the question here, Secs. 1 and 3, the effect is: “It shall not be lawful for any person to exercise within the city the business of * * * selling of or negotiating sales of real estate be'onging to others * * * without a license.”

An argument might be spun, that the creation of an estate for years carved out of the fee, is the sale of such interest for the price of the rent to be paid, but it would be repugnant to the common understanding.

Holding that the ordinance has no application to the matter in controversy, the judgment is erroneous, and must be reversed and the cause remanded.

jReversed and remanded.


author: Gaknett, P. J.

text:
    Lyman Baird and Francis Bradley v. Elias Shipman, Administrator.

      Agency—Real Estate Agents in Complete Control—Negligence of— Agreement to Putin Complete Repair—Failure to do so—Injury to Third. Person—Damages—Recovery of, from Agent.

      1. If, in the exercise of his duties, an agent is intrusted with the operation of a dangerous machine, to guard himself from personal liability he must úse proper care in its management and supervision so that others in the use of ordinary care will not suffer in life, limb or property. Such duty is a common law obligation, and is neither increased nor diminished by his entrance upon the duties of the agency, nor can its breach be excused by the plea that his principal is chargeable.
    2. An agent in undertaking and entering upon the execution of a particular work, is bound to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts, and he can not, by abandoning its execution midway, and leaving things in a dangerous condition, exempt himself from liability to third persons who suffer injury by reason of his having so left them without proper safeguards.
    3. In an action against real estate agents for the recovery of damages for the death of a third person rightfully upon premises owned by a nonresident and in their charge, it being alleged that the same occurred through the dangerous condition of a stable door thereon, this court declines to interfere with the verdict for the plaintiff.
    [Opinion filed September 16, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, ¿Judge, presiding.
    Mr. L. H. Boutell, for appellants.
    Agents are not liable to third persons for damages caused by their negligence.
    It is an old and well established principle that an agent is not liable to third parties for damages caused by his negligence. He is so liable for misfeasance, but not for non-feasance. The reason assigned is that there is no privity between the agent and third persons. He is so liable to his principal for neglect, and the principal alone is liable to third persons. Story on Agency, Sec. 308; 3 Sutherland on Damages, p. 60; Bell v. Josslyn, 3 Gray, 309.
    An apparent exception to the rule is in the case of contractors, to whom the owner of land, has surrendered its possession and control during the performance of the contract. In these cases it is held that the contractor becomes, for the time being, a substituted principal, and so becomes liable to third persons for the negligence of himself or his employes. But for the same reason that, in this class of cases, the contractor is held liable to third persons for negligence, it is also held that there is no liability on the part of the owner. Scammon v. City of Chicago, 25 Ill. 424; Prairie State L. & T. Co. v. Doig, 70 Ill. 52; Hale v. Johnson, 80 Ill. 185; Kepperly v. Ramsden, 83 Ill. 354.
    But even in the case of a contractor, if the owner retains a supervisory power over the work, it is held that the owner, and not the contractor, is liable to third persons for acts of negligence. Schwartz v. Gilmore, 45 Ill. 455; City of Chicago v. Joney, 60 Ill. 387.
    In the first of these cases it was held that the owner was liable for the negligence of the contractor, because the work was to be done under the supervision of the owner’s architect. In the second case the owner was held liable for the negligence of the contractor, because the work was to be done under the direction of the owner’s engineer.
    In the case at bar, there was nothing in the relation of the appellants, Baird & Bradley, to Goodman, to take the case out of the ordinary rule applicable to principal and agent. They were merely real estate agents, having charge of" this property to rent it for the benefit of the owner. Their duty to Mr. Goodman required them to rent it to the best advantage, and to that end to put it in such repair that it would so rent. They were not in the position of contractors who had the complete control of the property, but were at all times subject to the direction of Goodman the owner. The character of their agency is set forth in the stipulation in this case (Rec. 102) as follows:
    “Baird & Bradley, the other defendants in this case,"are real estate agents in the city of Chicago, doing a general business as such real estate agents therein, and as such were the agents of said Goodman, having the charge of said property as real estate agents, to rent the same for the said Goodman, subject to any directions he might give them from time to time concerning the same.”
    The principles laid down in Schwartz v. Gilmore, and City of Chicago v. Joney, are applicable to the present case. As between Baircl & Bradley and Hr. Goodman, it was undoubtedly the duty of Baird & Bradley to see that the premises when rented were in proper repair. But they did not for this purpose, have such complete possession and control of the premises that Goodman could not interfere with their actions at any time and in any way he saw fit. They never, therefore, occupied the position of substituted principals. They were merely agents, liable to their principal for neglect of duty, but not liable for such neglect to third persons.
    The court was therefore in error when it instructed the jury to find Baird & Bradley guilty, if they found that Baird & Bradley “had full power and authority to make, upon said barn, all necessary and proper repairs, to keep it in good repair and condition without consulting Mr. Goodman, the owner, and that it was their duty, under their employment from Goodman to make such repairs when necessary; in short that they had full control, power and authority over said premises.”
    Messrs. Camekon & Hughes, for appellee.
   Gaknett, P. J.

This is an appeal from a judgment for damages founded on the alleged negligence of appellants, by which the death of Joseph Garnett, appellee’s intestate, is said to have been caused. The place where the injury happened was in a barn situated on premises on Michigan avenue in Chicago, belonging to Aaron C. Goodman, who was then and for several years before, a resident of Hartford, Connecticut. Appellants were his agents for renting the premises during the years 1884 and 1885, and during both years were carrying on the real estate business in Chicago. On the trial, evidence was given tending to show that they had, in fact, complete control of the premises with the residence and barn thereon, repairing the same in their discretion, and there was no proof that in such matters they received any directions from the owner. The property was rented by appellants to Emma E. Wheeler and A. E. Tillman from April 1, 1884, to April 30, 1885, and to Emma E. Wheeler from May 1, 1885, to April 30, 1886. Both leases were in writing and by the terms of each lease the tenant covenanted to keep the premises in good repair. The tenant in the last lease rented the premises to Nellie E. Price, who occupied the same from April 28th, to September, 1885. The evidence tends to prove that when the lease was made to Emma B. Wheeler, the large carriage door to the barn was in a very insecure condition, and that appellants, through one‘Warner, the manager of their renting department, verbally agreed with Mrs. Wheeler to put the premises in thorough repair. Nothing was done to improve the condition of the door, and on June 12, 1885, while the deceased, an expressman by occupation, was engaged in delivering a load of kindling in the barn for one of the parties living in the house, the door, weighing about 400 pounds, fell from its fastenings and injured him to such an extent that he died the next day.

Appellants make two points: 1. That the verdict is clearly against the weight of the evidence. 2. That they were the agents of the owner, Goodman, and liable to him only for any negligence attributable to them. There is nothing more than the ordinary conflict of evidence found in such cases, presenting a question of fact for the jury, and their finding must be respected by this court in deference to the well settled rule.

The other point is not so easily disposed of. An agent is liable to his principal only for mere breach of his contract, but even in the performance of the duties imposed upon him by contract with his principal, he must have due regard to the rights and safety of third persons. He can not in all cases find shelter behind his principal. If, in the course of his agency,he is intrusted with the operation of a dangerous machine, to guard himself from personal liability, he must use proper care in its management and supervision, so that others in the use of ordinary care will not suffer in life, limb or property. Swydam v. Moore, 8 Barb. 358; Phelps v. Wait, 30 N. Y. 78.

It is not his contract with the principal which exposes him to, or protects him from, liability to third persons, but his common law obligation to so use that which he controls as not to injure another. That obligation is neither increased nor diminished by his entrance upon the duties of agency, nor can its breach be excused by the plea that his principal is chargeable. Delaney v. Rochereau, 34 La. An. 1123.

If the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be “the natural consequence of his acts; and he can not, by abandoning its execution midway and leaving things in a dangerous condition, exempt himself from liability to a third person who suffers injury by reason of his having so left them without proper safeguard. Osborne v. Morgan, 130 Mass. 102.

A number of authorities charge the agent, in such cases, on the ground of misfeasance as distinguished from non-feasance. Mecham in his work on Agency, Sec. 572, says: £‘ Some confusion has crept into certain cases from a failure to observe clearly the distinction between non-feasance and misfeasance. As has been seen, the agent is not liable to strangers for the injuries sustained by them because he did not undertake the performance of some duty which he qwed to his principal and imposed upon him by his relation, which is non-feasance. Misfeasance may involve, also, to some extent, the idea of not doing; as where the agent, while engaged in the performance of his undertaking, does not do something which it was his duty to do, under the circumstances; does not take that precaution, does not exercise that care, which a due regard for the rights of others requires. All this is not doing; it is not the not doing of that which is imposed upon the agent merely by virtue of his relations, but of that which is imposed upon him by law as a responsible individual in common with all other members of society. It is the same not doing which constitutes actionable negligence in any relation.” To the same effect are Lottman v. Barnett, 62 Mo. 159; Martin v. Benoist, 20 Ill. App. 263; Harriman v. Stowe, 57 Mo. 93; Bell v. Joselyn, 3 Gray, 309.

A case parallel to that now in hand is Campbell v. Portland Sugar Co., 62 Me. 552, where agents of the Portland Sugar Company had the charge and management of the wharf belonging to the company, and rented the same to tenants, agreeing to keep it in repair. They allowed the covering to become old, worn and insecure, by means of which the plaintiff was injured. The court held the agents were equally responsible to the injured person with their principals.

Wharton in his work on Negligence, Sec. 535, insists that the distinction, in this class of cases, between non-feasance and misfeasance, can no longer be sustained; that the true doctrine js, that when an agent is employed to work on a. particular thing, and has surrendered the thing in question into the principal’s hands, then the agent ceases to be liable to third persons for hurt received by them from such things, though the hurt is remotely due to the agent’s negligence; the reason being th'at the causal relation’between the agent and the person hurt is broken by the interposition of the principal, as a distinct center of legal responsibilities and duties, but that wherever there is no such interruption of causal connection, and the agent’s negligence directly injures a stranger, the agent having liberty of action in respect to the injury, then such stranger can recover from the agent damages for the injury. The rule, whether as stated by Mechem or Wharton, is sufficient to charge appellants with damages under the circumstances disclosed in this record. They had the same control of the premises in question as the owner would have had if he liad resided in Chicago and attended to his leasing and repairing. In that respect appellants remained in control of the premises until the door fell upon deceased. There was no interruption of the causal relation between them and the injured man; they were, in fact, for the time being, substituted in the place of the owner, so far as the control and management of the property was concerned. The princip'e that makes an independent contractor, to whose control premises upon which he is working are surrendered, liable for damages to strangers caused by his negligence, although he is at the time doing the work under contract with the owner (Wharton on Neg., Sec. 440), would seem to be sufficient to hold appellants. The owner of cattle who places them in the hands of an agister is not liable for damages committed by them while they are under control of the agister. It is the possession and control of the cattle which fix the liability, and the law imposes upon the agister the duty to protect strangers from injury by them. Ward v. Brown, 64 Ill. 307; Osborn v. Adam, 70 Ill. 291.

When appellants rented the premises to Mrs. Wheeler in the dangerous condition shown by the evidence, they voluntarily set in motion an agency which, in the ordinary and natural course of events would expose persons entering the barn to personal injury. Use of the barn for the purposes for which it was used when the deceased came to his death, was one of its ordinary and appropriate uses, and might, by ordinary foresight, have been anticipated.

If the insecure condition of the door fastenings had arisen after the letting to Mrs. Wheeler, a different question would be presented, but as it existed before and at the time of the letting, the owner or persons in control are chargeable with the consequence. Gridley v. Bloomington, 68 Ill. 47; Tomle v. Hampton, Supreme Court of Illinois, Opinion filed at Ottawa, June 15, 1889. Neither error is well assigned, and the judgment is affirmed.

Judgment affirmed.


text:
    Horace N. Harris v. Ellen Brain and William E. Brain.

      Trover—Action of—Parties—Husband and Wife—Property in Wife Atone — Practice — Bills of Exception—Insufficiency of—Chattels— Ecchange of—Fraudulent Representations.

    1. Joinder of husband and wife in an action of trover for property belonging to the wife alone, is improper.
    2. Exhibits written on sheets succeeding the signature of the judge instead of being incorporated in the bill of exceptions, constitutes no part thereof.
    3. A vendee has no right to rely upon general words of praise on the part of the vendor.

      [Opinion filed September 16, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Messrs. Turner & Moore, for the appellant.
    Messrs. Long & Hutchinson, for the appellees.
   Garnett, P. J.

Allusion has several times been made in the opinions of the Appellate and Supreme Courts, to the loose practice of referring, in a bill of exceptions, to exhibits, written on sheets succeeding the signature of the judge, instead of incorporating them in the bill, but appellant has not been deterred from pursuing that course, although several cases may be found where a hearing on the merits has been prevented, solely by that practice. The words and figure “Exhibit I, here offered and admitted in evidence,” is not aC) sufficient identification of a document marked, “ Exhibit I,” which precedes the title page to the bill of exceptions, or follows the signature of the judge. Numerous documents were offered in evidence in the trial of this case in the Circuit Court, and all but one of them are identified in that way only. It is needless to say that these constitute no part of the bill of exceptions. If appellant had to rely on these documents, which he has thus ineffectually sought to bring before us, his appeal would necessarily fail. Another error assigned is, however, fatal to the judgment. The action being trover, brought by Ellen Brain and William E. Brain, her husband, it appeared on the trial from plaintiff’s own evidence that the property, alleged to have been converted, was the separate property of the wife, and that the husband had no interest therein. Joinder of the husband and wife in such case is clearly error. City v. Speer, 66 Ill. 154; Hennies v. Vogel, 66 Ill. 401; C., B. & Q. R. R. Co. v. Dickson, 67 Ill. 122; 1 Chitty Pl. 66.

It is charged by appellees, that in a proposed exchange between themselves and appellant, the latter gained possession of the goods in question by means of false and fraudulent representations concerning the property he was to give them in the transaction. We find milling in the representation concerning the property he was to give them in the transaction. We find nothing in the representations exceeding the bounds of commendation which the law tolerates in a vendor. Ho matter of fact was falsely stated, and appellees had no right to rely upon general words of praise.

There may be doubt whether the goods were delivered to appellant under the contract, or merely by way of temporary accommodation, and that question can be fairly submitted to a jury at the next trial, if appellees shall see fit to dismiss William E. Brain out of the case.

The judgment is reversed and the case remanded.

JReversed and remanded.