author: Gary, J.

text:
    W. J. Hammond & Sons (Limited) v. The Cragin Manufacturing Company.

      Sales—Damaged Iron—Correspondence—Uncertainty as to Meaning of —Eviden ce—In st ruction s.

    1. Upon a contention involving the meaning of certain correspondence relating to the sale of a lot of damaged iron, this court holds that the instructions given in behalf of plaintiff touching the intention of t.he parties in interest were less favorable than they were entitled to, and that proper instructions as to damages were not given.

      2. The meaning of correspondence is a question for the courf, unless it appears that the words used are to be considered in other than the ordinary sense.
    [Opinion filed May 29, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Abba JST. Waterman, Judge, presiding
    Mr. L. S. Hodges, for appellant.
    Mr. W. A. Montgomery, for appellee.
   Gary, J.

In July, 1887, as this record shows, the appellants, at Pittsburgh, Pa., had on hand a quantity of sheet iron and steel that had been damaged by a fire that consumed their mill.

The manager of the appellees negotiated with them to buy it. It was not in good shape to be examined, being among the ruins of the mill, except a small part that had been removed to a shed, but he examined it as carefully as he could. He asked the appellants if they had any memoranda, and they said they had a memorandum on which they computed their insurance. They could not give him a copy, but permitted him to have a copy made at his own expense, and a representative of the appellants assisted him in comparing the copy with the original. He testified that he then made to the appellants an offer of one and one-fourth cents per pound, delivered in Chicago, for the entire lot of iron, as per that memorandum; and told them he would- hold the offer open forty-eight hours. There was a reservation of some iron, but no notice of that need now be taken. It does not affect the questions to be decided. Then followed this correspondence :

Copy of telegram:
Pittsburgh, Pa., July 29, 1887.
To W. P. Cragin:
Care Cragin Mfg. Co., Chicago, Ill.
We accept your offer for the sheet iron and sheet steel we named you. Will commence shipping immediately by B. <Sz O. road. Send formal order.
W. J. Hammond & Sons (Limited).
Copy of letter:
Pittsburgh, July 29, 1887.
W. P. Cragin, Esq.:
Acc’t Cragin Mfg. Co., Chicago, PI.
Dear Sir:—We have just telegraphed to you the following: viz.: We accept your offer for the sheet iron and shéet
steel we named you. Will commence shipping immediately by B. & O. road. Send formal order.” Which we now confirm. Please remit for the goods as rapidly as we ship them.
Tours truly,
W. J. Hammond & Sons (Limited).
By S. M. Reynolds.
■ In answer to which appellees wrote:
Chicago, July 30, 1887.
Hammond & Sons:
Pittsburgh, Pa.
Gents:—Ship us to Chicago all the sheet iron and steel that is bundled, as per your mem. given our W. P. Cragin. Price (1J) one and one-quarter cents, delivered in Chicago. Terms 10,000 cash, balance notes. Our bank says we can probably have about all cash if it does not go over $15,000. We are not to have' any of the iron that had not been annealed, or bundled. We may telegraph you • to ship it to our factory, but we can alter that of first cars after we get the bills of lading .here. We have not-got-storage fully arranged yet. If it can be arranged send a gauge in a car, but be sure and promptly send exact mem. of contents of each car. We have received your telegram accepting this offer.
Tours truly,
Cragin Meg. Co.
W. P. Cragin, Pres’t.

The appellees claimed that as the appellants accepted and shipped upon this letter; the terms of it constituted the contract between them; that under that contract the appellees were entitled to all that the memorandum said was bundled and that the quantity shipped fell short 251,258 pounds; that it was worth in Chicago two and seven-tenths cents per pound and they had lost thereby $3,434.75.

On the part of the appellants it was claimed that under the letter from the appellees, the appellees were not bound to accept, and could not claim any that had not been “bundled ’■’ in fact, however it might be represented upon the memorandum, and gave evidence that they sent all of that, except a trifling quantity shipped by mistake to another party, about which it is fair to suppose there would never have been any trouble between these parties.

The briefs on both sides agree that “bundled” means several sheets put together with two or three iron bands around the whole; that, in fact, it is what Webster defines a bundle to be—a number of things bound together. The sentence in the letter, “We are not to have any of the iron that had not been annealed or bundled,” must have had some meaning when it was written, which the writer supposed the receiver would understand. It was written with reference to what had passed through a fire, presumably destroying the apparatus by which annealing was done. “ That had not been annealed or bundled,” when? Before some event, manifestly, which the appellants would understand that phrase to refer to. By it the appellees excepted from the general words of the first two lines of their letter, all that the memorandum showed to be “bundled,” which, in fact, had not been so treated. And appellees’ letter did not refer to any verbal preceding negotiations. Its concluding words are, “We have received your telegram accepting this offer ”—not any former offer. The case was tried in the Circuit Court upon the theory that the appellants were bound—considering the correspondence as containing the contract, as was no doubt correct —to deliver to the appellees all that was “ bundled as per your inem.,” disregarding the exception in the subsequent sentence. The appellants sued for the unpaid balance for what had been shipped, $4,442.01, which the appellees admitted to be correct.

The appellants asked these instructions:

1. The jury are instructed that the word “bundled,”as used in the defendant’s letter of July 30, 1887, must be held to have been so used in its plain, natural and obvious meaning, unless the jury shall find from the entire evidence in this case that the plaintiff and defendant both intended to use it in a limited, or technical and special sense.

2. The jury are instructed that the letters and telegrams set out in the defendant’s bill of particulars did not require the plaintiff to deliver to the defendant any iron which had not then been actually bound in bundles, unless the jury shall find from all the evidence in this case that the word ‘‘bundled,” as used in said letter of July 30th, was intended by both plaintiff and defendant to be so used in a limited and technical sense. Therefore, if the jury find from the evidence that the plaintiff did deliver to defendant, as agreed, all the iron which had been so bound in bundles, then in the absence of proof that the word “bundled” was intended by plaintiff and defendant to be used in a limited and technical sense, the defendant can not recover in this action.

3. The court instructs the jury that if they find from the evidence that the plaintiff agreed to deliver to the defendant certain iron which was “ bundled,” they must interpret the word “bundled” in its plain, natural and ordinary sense, unless they find from all the evidence in the case that it was intended by both plaintiff and defendant that the word “ bundled/’ so used, should bear a different and special or technical meaning; therefore, if they find from the evidence that plaintiff did deliver, as agreed, all the iron that was “bundled,” in the ordinary meaning of the word, in the absence of proof that it was mutually intended to use the word in a limited or technical sense, the defendant can not recover.

There was no evidence upon which to leave to the jury that “ bundled ” iron meant anything else than iron in bundles, nor any dispute that the mode of putting it in bundles was to put together several sheets and put two or three iron bands around them.

The instructions were less favorable than the appellants were entitled to. The meaning of the correspondence was a question for the court, unless there had been evidence of words being used in a sense differing from the common one. The jury should have been told that the appellees were not entitled to any damages for the non-delivery of any iron that had not been in fact 'bundled before the letter of July 30tli was written. The appellees were allowed upon their theory all the damages they claimed, and the appellants only recovered the difference.

From that judgment they appealed. The judgment must be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Moran, J.

license: Public Domain

text:
    Chicago, Burlington & Quincy Railroad Company v. Frank Mehlsack.

      Railroads—Personal Injuries—Relation of Passenger—Standing upon Platform—Stealing Ride—Practice—Opening Address—Discretion.

    1. This court will not reverse the finding of a jury unless satisfied that it is against the manifest weight of the evidence, or is the result of passion or prejudice, or unless some error of law has intervened.
    2. The failure of a trial court to require counsel for plaintiff to make an opening address to the jury after the evidence is closed and before counsel for the defendant makes his argument, can not be complained of, in view of the diverse practice in this regard.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. George Willard, for appellant.
    Messrs. Joseph S. Kennard, Jr., and Brandt & Hoffman, for appellee.
   Moran, J.

This is an appeal from a judgment rendered against appellant for injuries received by appellee while riding on the steps of a car of one of appellant’s passenger trains.

The first point argued by appellant is that the verdict is against the evidence and law of the case. It is claimed that the evidence shows that appellee jumped upon the steps of the car for the purpose of stealing a ride; that he did not, and did not intend to pay his fare, and therefore that the relation of passenger was not created between himself and the company, and it is further said that if he was a passenger, he was guilty of a lack of ordinary care for his own safety in standing upon the platform or the steps; that if he had been inside the car, he would not have been injured.

There is, no doubt, support in the evidence for the inference that appellee intended to steal a ride, but he testified that he was ready and willing to pay his fare, and expected to do so, but that the conductor did not come to him for it. As to his standing on the platform, he testifies that the car was crowded, that there was no room to stand inside and that several others besides himself were obliged to stand on the platform. It was for the jury to pass on this conflict and to draw the correct inference from all the facts and circumstances in evidence, and when their conclusion as to the facts has received the approval of the trial judge, an appellate court can not reverse the finding unless satisfied that it is against the manifest weight of the evidence, or is the result of passion or prejudice on the part of the jury, or unless some error of law has intervened.

Appellant contends that there are errors of law in the record. After a careful examination of all the rulings on evidence and the instructions given and refused, and consideration of counsel’s argument and authorities cited, we are of opinion that no error of law was committed which authorizes this court to reverse.

It would serve no useful purpose to discuss the various points in detail. Upon the point that the counsel for plaintiff should have been required to make an opening address to the jury after the evidence was closed, before counsel for defeniant made his argument, the writer is in sympathy with the contention of appellant. I am of opinion that plaintiff’s counsel should be compelled to make his main speech to the jury (if he desires to argue his case at all) at the close of the evidence, and that if he makes any address after defendant’s counsel has made his argument, he should be confined substantially within the limits of reply. This seems to me to be the natural, as it is manifestly the fair course to pursue. The just test of an argument in support of the affirmative is to submit it to the criticism and analysis of a negative argument, and as the object of all discussion before the jury is, or ought to be, to arrive at the truth, the order of argument ought to be such as would best promote that end. In practice there has been and is no uniform rule, at least in Cook county, upon this subject, the matter being left to the discretion of the trial judge; and, while I think the court should have required plaintiff’s counsel to open to the jury, and should have confined him in his closing address to a reply to the argument of defendant’s counsel, still, in view of the diverse practice, it is impossible to say that the course pursued by the court was an abuse of discretion.

There is no error in the record, and the judgment will therefore be affirmed.

Judgment affirmed.

Gaby, J., takes no part in determining this case.


text:
    Marie A. Youngs v. Phineas R. Youngs.

      Divorce—Intoxication—Morphine Habit—Cruelty—Sexual Intercourse —Immoderate Requirement—Condonation.

    1. Proof of the immoderate and habitual use of morphine will not sustain the charge of habitual drunkenness in a bill for divorce.
    2. The compulsory participation by a wife in excessive sexual intercourse will not amount to cruelty unless the persistence of the husband is against her will, he knowing that her bodily health will suffer therefrom.
    3. Upon a bill by a wife for divorce upon the ground, among other things, of extreme and repeated cruelty, this court holds, that the acts complained of were condoned by her.
    [Opinion filed May 29, 1889.]

      Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. C. F. Loesoh and George Driggs, for appellant.
    Messrs. A. J. Hopkins, H. J. Aldrich and F. A. Thatcher, for appellee.
   Moran, J.

This is a hill for divorce. Two statutory grounds for divorce are alleged in the bill. Habitual drunkenness and extreme and repeated cruelty.

The evidence introduced in support of the first ground was, that appellee was in the habit of taking morphine by hypodermic injections, and that he would become stupid and helpless from the effects of it, and appear like one intoxicated, and conduct himself in a drunken manner, and that he persisted in the use of the drug, and while he tried to reform, seemed unable to do so.

The word “drunkenness” used in our statute is commonly and generally understood to mean that intoxication which results from the excessive drinking of alcoholic liquor, and to show one guilty of habitual drunkenness it must be proved that drinking to excess is indulged in so frequently as to become a fixed habit with him. Words used in a statute must be taken in their plain, ordinary and usual sense. The intoxication which results from the excessive use of opiates, is not understood or described by the word “drunkenness” in the divorce law, hence proof of the immoderate and habitual use of morphine, was not sufficient to sustain the charge of habitual drunkenness made in the bill. Barber v. Barber, 14 Law Reporter, 75; 1 Bishop on Mar. & Div., Sec. 813.

In support of the charge of extreme and repeated cruelty there is evidence of striking and harsh treatment, hut the acts of violence seem to have occurred when the appellee was under the influence of morphine, and usually in resisting the efforts of appellant to take the drug away from him.

There is also evidence tending to show that ho sometimes treated the child cruelly by beating it, but the proof does not show that this was done for the purpose of annoying or maliciously harassing appellant. As further evidence of cruelty appellant complains that she was compelled by appellee to submit to excessive sexual intercourse. This will not amount to cruelty unless it is shown that it is persisted in by the husband against the will of the wife, and when he knows that the act is injurious to her bodily health. Shaw v. Shaw, 17 Conn. 189.

As to the acts of personal violence and cruel conduct toward appellant, perhaps if they had continued until the separation, and she had been compelled to leave for such violence, there might be enough to warrant a divorce; but we are of opinion that the proof in this case shows a condonation of said acts of cruelty, and that the chancellor was right in so holding.

The last act of cruelty appellant testifies occurred in December, 1886, and she continued to live and cohabit with appellee till March, 1887. There is no evidence of subsequent abusive treatment or ill usage. 2 Bishop on Mar. & Div., 50, 51; Farnham v. Farnham, 73 Ill. 500.

The dec.ee of the Circuit Court will be affirmed.

Decree affirmed.


text:
    Henry Siegel et al. v. Chicago Trust and Savings Bank.

      Negotiable Instruments—Notes—Consideration—Failure of—Assignment.

    This court holds a certain instrument calling for the payment of money to an advertising company to be a promissory note, in so far as to enable an assignee taking the same for value before the time for the consideration to commence had arrived, and with no notice that it was likely to fail, to recover thereon.
    [Opinion filed May 29, 1889.]

      Appeal from the Circuit Court of Cook County; the Hon. Hollín S. Williamson, Judge, presiding.
    Mr. John C. Richberg, for appellants.
    Messrs. Frank J. Smith & Helmer and Frank Ives, for appellee.
   Gary, J.

The single question in this case is whether instruments in this form— are promissory notes, so that an assignee may recover on them, though the consideration failed; the assignee having taken them before the time for the consideration to commence had arrived, for value, and with no notice that the consideration was likely to fail.

“Form 8. Dalziel’s Railway Advertising.
“$300.00. Chicago, March 5,1887.
“On July 1, 1887, we promise to pay D. Dalziel, or order, the sum of three hundred dollars for the privilege of one framed .advertising sign, size............one end of each of 159 street cars of the North Chicago City Railroad Co., for a term of three months, from May 15, 1887.
“No....... Siegel, Cooper & Co.”

As an original question, if there were no authority, it would seem clear that business interests would require that the mass of commercial paper made for the purpose of procuring capital for conducting business, by way of advances upon consignments made or to be made, or upon contracts to be performed, should be, when such paper is in ordinary forms, held valid and effectual for the purpose for which it may have been made, although parties taking it for value before maturity, and before any failure of consideration, had notice of why it had been made. What authority there is upon the subject supports that principle. State National Bank v. Cason, 39 La. Ann. 865; Davis v. McCready, 17 N. Y. 230.

Why should it make any difference whether that notice of what the consideration of the paper is, comes to the assignee on the face of the paper, or extrinsically? The cases, Goodloe v. Taylor, 3 Hawks. (N. C.) 458, and Stevens v. Blunt, 7 Mass. 240, (the latter approved upon another pointin McCarty v. Howell, 24 Ill. 341,) hold, that notes, payable at a certain day, or when the payee has completed a building, are, in the hands of the assignee, absolutely payable when the day arrives, whether the building is done or not. Though the cases do not discuss the question whether from such language the consideration appeared on the face of the notes, it would seem to have been taken for granted that it did.

But where a similar instrument was payable at a day fixed, upon completion of,” etc., it was properly held that it was only a contract to pay when the work was done; the word upon ” introduced a condition. Chandler v. Carey, 31 N. W. Rep. (Mich.) 309; and in Considerant v. Brisbane, 14 How. Pr. 487, that the instrument payable July 1,1856, “for which I am to receive stock,” was only an agreement. In that case the delivery of the consideration and the payment were to be simultaneous acts, which may be sufficient to distinguish it from the present, where the consideration covers a period of three months, and the payment is to be made before that period has elapsed.

There could have been no motive for making this paper to Dalziel or order, two months and ten days before the consideration was to commence, unless that he might use it in his business in some way, and the most ready way to use it was to discount it or pledge it as collateral. The use of the words “or order” adds nothing to the legal effect of the paper, but they do serve to show what the parties thought was the legal effect. There is nothing in the parol testimony affecting the question at issue. The ruling of the Circuit Court that the instruments are promissory notes, was correct.

Judgment affirmed.


author: Garnett, P. J.

text:
    Jacob Conrad v. Bernard Kloepfer. August Trapp v. Same.

      Practice—Trial by the Court.

    1. The finding of the trial court upon evidence heard orally should have as much weight as the verdict of a jury.

      2. In such case the fact that the evidence was conflicting will not warrant this court in awarding a new trial.
    3. Error can not be assigned upon rulings which had no influence in producing the findings of the court.
    [Opinion filed May 29, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. Millard F. Higgle, for appellants.
    Messrs. John A. Murphey, Jr., and Lyman & Jackson, for appellee.
   Garnett, P. J.

On simple issues of fact, the trial judge, to whom these cases were submitted without a jury, found adversely to appellants, who were plaintiffs below.

By a uniform rule, the finding of the court, upon evidence heard orally, as in this case, should have as much force as the verdict of a jury. Wood v. Price, 45 Ill. 435; Baker v. Rockabrand, 118 Ills. 370; Nimmo v. Kuykendall, 85 Ill. 476.

On the issue of fact, nothing more favorable to appellants can be said, than that the evidence is conflicting, which does not warrant this court in awarding a new trial.

It is clear that the evidence admitted over plaintiffs’ objection had no influence in producing the findings of the court, and the rulings can not, therefore, be assigned as error. Thompson v. McLaughlin, 66 Ill. 407. The judgment in each case is affirmed. Judgment affirmed.


text:
    James Kernan v. Richard B. Moore.

      Injunctions—Trespass—Ejectment—Actions of—Boundary Line—Homestead.

    Upon a bill to enioig^actionj) of trespass and ejectment for the encroachment upon theTañTW^moffefTErougirThe erection of a building, the boundary line, which proved to be incorrect, having been agreed upon beforehand by both owners, this court modifles the decree in behalf of the plaintiff, perpetually enjoining the prosecution of such actions in so far as to have the injunction continue only .so long as the building^JLn question remains upon its préseñTHte. '*’
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Mr. M. J. Dunne, for appellant.
    Messrs. Abbott, Oliver & Showalter, for appellee.
   Gary, J.

This case leads toward danger. It contravenes the wise policy of the statute of frauds.

The preponderance of the evidence is, and the Superior Court has so found, that in November, 1885, the appellee, being about to build upon a lot adjoining the lot of the appellant, on which he had a dwelling within a few inches of the boundary, they agreed upon a line, to show which pegs were then standing, as the true line; and, relying upon that agreement, the appellee built and encroached upon the lot of the appellant, though not quite to the line so agreed upon, which was several inches out of the way.

The appellant commenced, after the buildings of the appellee were completed, an action of ejectment and another of trespass for such encroachment, and the bill in this case is to enjoin those actions. The decree is that the appellant be perpetually enjoined from prosecuting the pending actions or any others on account of the encroachment, and awards the appellant i¡j25.,as the value of the land encroached upon. Whatever may be the effect of such an agreement as to boundary (see Bloomington v. Cem. Ass’n, 126 Ill. 221, and cases there cited), the injunction ought not to be perpetual. In equity and good conscience the appellee should be protected only so far as he has acted under tha^agreement. He has built a brick dwelling in front and a (shed in the rear. The latter is probably, though the character of "it does not very plainly appeal', a slight structure, easily removed. The injunction should be modified so as to continue only so long as the dwelling does. If, by casualty, that should be out of the way, the appellee, or those succeeding him, can then confine his or their occupation to the right side of the line.

Ho question of homestead can be brought into this case. Ho such defense is set up in the answer. Jenkins v. Greenbaum, 95 Ill. 11.

So far as the decree makes the injunction perpetual, and only so far, the decree is reversed, and the cause is remanded with directions to modify the injunction so that it shall stop actions for the encroachment so long as the dwelling remains only. The appellant will recover his costs in this'court.

Reversed in part and remanded.


author: Cart, J.

text:
    Stephen Monroe v. Edgar M. Snow et al.

      Agency—Sale of Beal Estate—Commission—Becovery of—Change in Price—Entry in Cipher—Evidence—Introduction of Books—Res Gestae— Bill of Exceptions.

    1. A bill of exceptions should clearly show the facts in a given case, and the exceptions taken, and if defective through ambiguity, uncertainty or omission, must be construed most strongly against the party who prepared it.
    2. In an action by real estate brokers for the recovery of commissions the contention being as to whether the price of the land in question had been raised by its owner, this court declines, in view of the evidence, to interfere with the verdict for the plaintiffs.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Nelson Monroe and Leonard Swett, for appellant.
    Messrs. Abbott, Oliver & Show alter, for appellees.
   Cart, J.

This was an action by the appellees to recover commissions as real estate brokers, on a sale made by them of the property of the appellant. The sale was made February 27, 1886, for $90,000. There is no contest about the fact that the sale was made, and that the purchaser was ready to complete it by paying the purchase money and accepting a conveyance.

It was admitted by appellant as a witness on the trial that at one time the appellees were his agents for the sale of the property at that price, if they could get it, and in a letter of March 3, 1886, in reply to a telegram from them informing him of the sale, he says: “I told you in the fall I would take that price.” It is not certain, upon his version of what took place between the parties, that this expression does not refer to the contents of letters written by him in December, 1885. There were two points on which there was a direct conflict between the parties; first, whether the appellant was in the office of the appellees October 31,1885; and second, whether, February 13, 1886, the appellant raised the price to $100,000. In reality the only alleged error for this court to consider arises upon the evidence as to the first point. As to all the conflict of evidence upon the other point, the verdict of the jury is an end of the controversy, and the affidavits as to newly discovered testimony, so far as material, only state that Snow, when negotiating the sale, said that at the last interview between the parties, which is fixed by them as February 13, 1886, the appellant had given him verbal authority to make the sale, and that in reply to a suggestion by the purchaser to telegraph appellant, Snow said, “ I tell you we have full authority to make this sale, and if we should telegraph to Monroe, he might change his mind.” This statement in the affidavit as to verbal authority given February 13, 1886, is not irreconcilable, if it is at all inconsistent, with the version by the appellees of that interview.

As they narrate the conversation it was conducted upon the assumption that such authority was then existing and amounted to a ratification or repetition of it., And the supposed possibility or probability that if telegraphed to, the appellant might change his mind, only shows that the object of the appellees, in conducting a real estate brokerage business, was not benevolent, but the selfish one of earning commissions upon terms previously agreed upon. Whether such evidence would have any influence with another jury can only be a matter of conjecture ; it certainly is not evidence of that conclusive character, to let in which, new trials are granted. Laird v. Warren, 92 Ill. 204.

And now as to the supposed error on the admission of evidence : First. The facts and the exceptions must be clearly shown by the bill of exceptions. The rule laid down in Rogers v. Hall, 3 Scam. 5, that “ the bill of exceptions is not to be considered as a writing of the judge but is to be esteemed as a pleading of the party alleging the exceptions, and if liable to the charge of ambiguity, uncertainty or omission, it ought, like any other pleading, to be construed most strongly against the party who prepared it,” has never been departed from, but often reiterated, in terms or effect, in subsequent cases, both civil and criminal. Myers v. People, 26 Ill. 173; Lee v. Mound Station, 118 Ill. 304; Johnson v. Glover, 19 Ill. App. 585, are a few among many. This record shows that on the trial Snow testified that in the latter part of December, 1884, the appellant called at the office of the appellees, and asked them to sell the property ; that the appellees entered it upon a book which he called by the various names of “record book” “book of original entry ” and “sales record book.” That entry was read to the jury without objection. It contained a description of the property; price $100,000. And in parenthesis, $95,000 in a private mark of the appelleesThe witness then said, “ that entry was posted into our sales fecord book.” Then follows:

“ Question. Examine this book if you please and identify the place ” (handing the book to the witness). To which the defendant then and there objected, which objection was overruled; to which ruling of the court the defendant thbn and there excepted.
“ Question. That is your original entry, you say, in this blotter (referring to the original book) ?
“Answer. Tes, sir.”

Now upon this exception, it is quite uncertain what book was handed to the witness, whether the same one that had been read without objection or another; and if it was another it seems to have been immediately abandoned, and nothing done by the appellees under the ruling to which exception was taken.

The next exception appears in this way. Snow testified that the appellant came again to the office of the appellees, October 31, 1885, and directed them to change the price from $95,000 to $90,000; that the appellees entered that change upon their “sales record book,” and then follows:

“Question. Is that the book?
“Answer. Tes, sir (handing the same to the witness).
“ Question. Will you turn to the place where you entered it?
“ Answer. I may say that this book is frequently used as a book of original entry to which Mr. Evans refers. (Note the record shows that Mr. Evans was one of the counsel of appellees.)
“The Court: He can refer to it to refresh his memory.”
Defendant’s counsel thereupon excepted to the ruling of the court.
“Question. From anything you see there can you testify the date of his call?
“Answer. Tes, sir.
“ Question. State the date that he called.
“ Answer. From a memorandum which I made here which I dated, I find it was on the 31st day of October, 1885.
“ Question. State in regard to the price at that time, if you have anything there.
“Answer. I have here a memorandum stating that at the time the price named was $90,000, which he directed us to sell the property for.
“ Question. State when that memorandum was made.
“Answer. The memorandum was made on the 31st day of October, 1885.
“ Question. What is the character of that memorandum ?
“Answer. It is in private marks, sir.
“ Question. In regard to it being original, or secondary or what?
“Answer. It is the original entry.”

Nothing follows qualifying what is recited. Now, if the witness had stated that he remembered the interview, but that either the date or the new price had been forgotten, and that he made a note of these particulars at the time, which he then knew to be true, the ruling of the court would have been technically correct. 1 Gr. Ev., Sec. 437; Hayden v. Hoxie, 27 Ill. App. 533.

The witness, however, had not so stated, nor was the book used for the purpose for which the court ruled that it was admissible. He was.at once questioned, without objection, not as to what he remembered, with or without the aid of the book, but as to what the book itself showed, which, unless the book was admissible on the rule of res gestee, would have been erroneous, if objected to, but being permitted to pass without exception, all objection is waived.

Subsequently, on the cross-examination of the same witness, the appellant offered the book itself in evidence. It was then incorrectly assumed by both court and counsel that it was already in, and it rather vaguely appears that it was so used by the appellant.

In the further progress of the case, the appellant put in a postal card, addressed to the appellees, and on the other side stating that “ some time having elapsed since we were advised as to the price and terms of the property hereinafter mentioned, will you kindly insert below any change you desire to make, and return this to us,” signed by the appellees.

This was dated February, 1886, and stated the price of the property at §100,000. The appellant testified that Snow wrote and gave this card to him at the interview of February 13, 1886. It was very satisfactorily proved that in fact it was written, under general instructions embracing two or three thousand cards, by a clerk of the appellees, after February 22, 1886. On the card were some characters which seemed to be the figures 13112, but which in the handwriting of that clerk were the letter B, and the figures 112, and which were interpreted by testimony, as being a reference to the book in which the §90,000 in private marks was.

This card was put in by the appellant as corroborating the appellant and contradicting the appellees, that February 13, 3886, the price was, or was not, changed from §90,000 to §100,000. It was therefore competent for appellees to show such circumstances, if any there were, as took from the card that appearance of contradiction of their testimony. Merely showing that the account given by the appellant was incorrect, was not enough for that purpose, for the card would still remain as one going out, in the course of business, from them, and therefore evidence against them that the price at which they might sell was §100,000. To explain away the apparent contradiction, the clerk testified that he took his figures from the figures on the book, and at that time he did not know the meaning of the private marks. The use that the appellant made of this card, rendered it competent for the appellees to show that the clerk made the card, under general instructions applicable to thousands, from such data as he understood, and that the same book then contained private instructions from the appellant, according with their testimony on the trial, and of which no notice was taken by the clerk in writing the card. If, therefore, at the time the book first appeared in the case, an error in regar¡d to it had been committed, and an exception saved, the later phase of the case by which the same evidence became competent in rebuttal would have cured the error. But as res gestee, things done, the book was original competent evidence. Whether Snow told the true story about it, was a question of fact for the jury; but in all questions as to the competency of evidence, that it may be true, must, in the nature of things, be assumed.

It may be incompetent on the ground that it is not of the character least likely to be untrue, as by parol of the contents of writing, but when the best that can be, of the matter to be shown, is offered, it is no objection to its competency that the witness may tell an untrue story. How if, in fact, the appellant did, October 31, 1885, tell Snow to sell the property for $90,000, and if Snow then had before him a book in which the property had been before entered under former instructions from the appellant, and Snow then in the presence of the appellant put into the book a new date, and a new minimuni price, though in cipher, it is a reasonable, if not a necessary, inference, that such entry was made in the natural course of business, as a prudent precaution against forgetfulness of either the price or the date of the instructions, and as to price, in cipher, that persons who had no right to know, might not know, the lowest price for which the owner would sell. It is in principle the same as Stark v. Corey, 45 Ill. 431, “a fact which transpired at the time, giving character to the transaction,” by the showing which the book made, if true, to one who understood it, that October 31, 1885, the appellant authorized the appellees to sell his property at the minimum price of $90,000, as in the case cited, the check stub, if true, showed that the check was issued on account of the firm named on it. There is no error in the record.

Judgment affirmed.

Moran, J. I do not concur in so much of the opinion of Hr. Justice Gary as regards res gestee.


text:
    Edward A. Stevens et al. v. St. Mary’s Training School et al.

      Municipal Corporations—Misapplication of Public Funds—Sectarian Object—Injunction—Sec. 8, Art. 8, Constitution—Practice—Appeals—Sec. 88, Chap. 110, U. S.

    1. This court dismisses for want of jurisdiction an appeal from an order dissolving an injunction, it being sought to restrain the payment of public funds to defendant on the ground of its being a sectarian institution under church control.
    2. Appeals in such cases are granted only to the Supreme Court.
    [Opinion filed May 29, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. O. H. Horton, Judge, presiding.
    Mr. Francis C. Russell, for appellants.
    Messrs. Smith & Pence, for appellee.
   Garnett, P. J.

The decree in this case, as well as the assignment of errors and the argument of appellants, involve the construction of Sec. 8, Art. 8, of the Constitution of the State. Appeals in that class of cases are granted to the Supreme Court only, by Sec. 88, Chap. 110, Rev. Stat. County of Cook v. Industrial School for Girls, 125 Ill. 540.

The appeal is dismissed for want of jurisdiction.

Appeal dismissed.


text:
    Edward C. Huling v. Simeon Farwell et al.

      Partnership—Dissolution—Accounting—Reference to Master—Report of—Exceptions to—New Exceptions—Amendments.

    In proceedings touching the dissolution of a co-partnership, this court holds that the exceptions of the parties to the suit to the master’s report were bad for uncertainty, and declines to interfere with his finding that a sum named was due the complainant.
    [Opinion filed May 29, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
    Messrs. Hoyne, Follansbee & O’Connor, for appellant.
    Messrs. Flower, Remy & Holstein, for appellee.
   Gary, J.

October 18, 1884, the appellant, with the appellees, Henry S. Farwell and Stephen Lasky, entered into partnership as merchants in Chicago, under the firm name of Farwell, Huling & Go. In the following summer dissensions arose in the firm, and after proceedings not necessary to state here, on a bill for an accounting filed by the appellant, there was a reference to a master, who reported October 28, 1888. In that report the master found that the firm had made a total loss of $8,234.79, and that the value of the interest of the appellant in what, for want of a better name, the master called the good will of the business, was $5,000.

For the purposes of this opinion it is hot necessary to present the other items of the account as he stated it. His result was, that there was due from the appellees to the appellant $1,596.70. Before the master, the appellant filed these objections :

“ First. The said master found that the value of Mr. Huling’s interest in the good will of the firm was $5,000 on July 29, 1885, whereas he should have found his interest therein at the time was $25,000.
Second. That said master took into consideration in making up his report, testimony of witnesses taken before the court on behalf of said defendants, as to the value of the good will of the business at the date of the dissolution, and prior thereto, based upon certain figures which were afterward found by the court expert to be incorrect.
Third. That the master permitted in evidence fragmentary statements gathered from the books of the firm by the defendants themselves.
Fourth. That said report is against the weight of evidence.
Fifth. That the master considered statements taken from the books of the firm by said defendants which were unreliable, uncertain, inaccurate and utterly untrustworthy.
Sixth. That said master erred in the admission of testimony on behalf of said defendants.”

And among others the appellees filed this:

“ First. That the master found that the complainant was entitled to be credited on his account with the sum of $5,000 as the value of his good will in the firm, when, in fact, said good will had no value.”

Before the court afterward each party filed exceptions to the master’s report, in the same form as their respective objections before the master, and after the final decree, by consent of the counsel for the appellees, the counsel for the appellant filed nunc fro tunc, as of the date of hearing the exceptions,,this : “Complainant further excepts to the master’s report on the ground that whereas, the master has found that there was a loss in the business of said firm on the 29th of July, 1885, he should have found that there was a gain and profit in said business on that date, and he excepts to the finding of the master that there was a loss of $8,234, and insists that he should have found that there was a gain of $1,285.13 on that date.

The court overruled all of the exceptions but that one of the appellees before copied, the result of which was, according to the arithmetic there, to bring the appellant in debt to the appellee Henry S. Farwell, $3,403.29, for which a decree in his favor against the appellant was entered.

It is a rule of chancery practice as vigorously enforced in this State as anywhere, that in matters of account, if at all complicated, “ the cause must be referred to a master to render a concise and accurate statement of the accounts, so that the same may be readily comprehended, and any objection taken, passed upon understandingly,” quoted in French v. Gibbs, 105 Ill. 523, from Moss v. McCall, 75 Ill. 190, and many cases cited. “ It is a labor that counsel will not be permitted by stipulation or otherwise to impose on an Appellate Court. French v. Gibbs, supra. And if the Circuit Court assumes to perform it, the decree will be reversed because “ it is impossible for the court, in any reasonable time, to pass understandingly on the objections to the findings of fact by the court in its decree.” Ibid. The same rule was followed in the still more recent case, Beale v. Beale, 116 Ill. 292.

The rule that the matter which is the ground of the exception to the report must first be made the ground of objection before the master that he may reconsider his rulings, as announced in Pennell v. Lamar Ins. Co., 73 Ill. 303, and Prince v. Cutler, 69 Ill. 267, and cases there cited, was followed in this case, except as to the last exception of the appellant; but another rule, without the observance of which the whole practice of requiring reports of masters in cases of accounts is wholly useless, has been utterly disregarded by both parties in forming their objections and exceptions.

In Story v. Livingston, 13 Peters, 359, some of the exceptions were :

Second. The master has erred in not allowing to the defendant the $1,000 with interest, paid to Morse, or some part thereof.
Fourth. The master in making his estimates and calcula- • tions has not pursued the mandate of the court.
Fifth. It appears from the master’s report, that the stores were rented from November to November; and he erred in assuming the first of April as the period of payment of annual rent.
Sixth. A reasonable allowance should have been made to Story for the cost and risk uf collecting rents.
Seventh. The master erred in all his charges against the defendant; and he failed to allow the defendant his proper credits.
The court say: All these exceptions are irregularly taken, and might be disposed of by us without any examination of them in connection with the master’s report. They are too general, indicate nothing but dissatisfaction with the entire report and furnish no specific grounds, as they should have done, wherein the defendant has suffered any wrong, or as to which of his rights have been disregarded.” * * * “Exceptions to a master’s report must state, article by article, those parts of the report which are intended to be excepted to.” So in Emerson v. Atwater, 12 Mich. 314, where the exception was “for that the commissioner has credited to complainant the sum of $9,210,371, for amount Atwater has received on sales of lots and interest thereon, to May 5, 1860, whereas he should have credited a less sum,” the court say : “ But this exception is too indefinite and uncertain to admit the raising of such an objection under it. It points to noth ing. It is aimless. It finds fault with the report, without giving any reason for it except the common one always given by the vanquished party, viz., the decision is wrong and that great injustice has been done to him.” See also case of “ Commander in Chief,” 1 Wall. (S. C.) 43.

Foster v. Goddard, 1 Black, 506, may be read as trenching upon this rule, but it does not appear in that case that the court was called upon to do more than review the principles of law upon which the master had acted, or the construction he had given to writings between the parties, and the court was not required there, as in this case, to embark on a voyage of discovery through 800 or more typewritten pages, without chart or compass, to ascertain whether the master had made right conclusions of fact from the evidence. Stanton v. A. & C. R. R. Co., 2 Woods, 506.

The reasons for requiring a report assigned in Moss v. McCall, 75 Ill. 190, are no reasons at all, if by general exceptions the court may be required to search the whole evidence and determine whether, upon all of it, the master has reached right conclusions of fact. All of the exceptions on both sides should have been overruled, as they only showed the dissatisfaction of the parties with particular findings of the master but gave to the court no. clue to the data upon which the master acted.

The decree will be reversed, and the cause remanded with directions to the Circuit Court to overrule the exception sustained as well as the others, and enter a decree for the appellant against the appellees for $1,596.70 with costs of the cause. Bo new exceptions or amendments of the present ones would be admissible, as only objections before the master can be exceptions before the court.

Reversed and remanded with directions.


text:
    Joseph Fish et al. v. John V. Farwell et al.

      Practice—Costs—Retaxation of—Witness Fees—Non-suit—Sub. 5, Sec. 16, Chap. 25, R. S.—Attendance—Mileage —Travel,' outside the State.

    1. Mileage for travel outside the State can not be taxed as costs in civil causes.
    2. The fact that a certain witness was not examined at a given term does not. warrant the withholding of his fees.
    3. A witness may file his affidavit at each term of court, or wait till the term at which the judgment is rendered and then do so, showing therein the number of days he attended at each term, in which case the clerk is authorized to make up and enter the costs in the fee book.
    [Opinion filed May 29, 1889.]

      Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    Messrs. Moses & Newman, for appellants.
    Messrs. Tenney, Driggs & Hawley, for appellees.
   Moran, J.

This is an appeal from the order of the Superior Court, refusing to retax costs in said case. By stipulation between the attorneys the cause was set for trial before Judge Gary on the 25th day of June, 1888.

The defendants prepared for trial on that day, and had their witnesses in attendance, but the court was engaged in the trial of another case, and defendants had to beep their witnesses in court, awaiting the calling of the case, until July 2d, when, by agreement, the case was continued over the summer vacation, and set for trial in September before the same judge. After the trial when entered upon in September had progressed for two days, plaintiffs took a non-suit, and judgment was rendered against them for costs, and the clerk taxed against them the attendance of defendants’ witnesses in June, though the said witnesses did not claim their attendance till the judgment was rendered at the September term. It is contended that this is in violation of Sub. 5, Sec. 16, Chap. 25, R. S., which provides that the clerk shall keep “a fee book, in which shall be distinctly set down any item under the proper title of the cause and heads, the costs of each suit, including clerk’s, sheriff’s and witness’ fees, stating the name of each witness having claimed his attendance during the term, with the number of days he attended at each term.”

The point is not well taken. We think the proper construction of the entire clause is that a witness may file his affidavit claiming his fee at each term, or may at the term at which judgment is rendered, file his affidavit showing the number of days he attended at each term, and that the clerk is then authorized to make up and enter the costs in the fee book. And such, as we understand, has been the practice.

The fact that the witnesses were not examined at the June term constituted no ground for denying them attendance. It was the duty of defendants to have their witnesses in court when they were in constant expectation of entering upon the trial, and the costs incurred in so doing are properly taxable against the plaintiffs.

The clerk in taxing costs allowed to one witness mileage for 700 miles, and to another mileage for 1,240 miles. We have no statute which authorizes the allowance or payment of mileage for travel outside the State to witnesses in civil cases. Costs were not given at common law, and are not taxable or recoverable when not awarded by statute.

Appellant’s counsel have cited us to a number of cases in which the question of the allowance as costs of the mileage of witnesses for travel outside the State has been considered, and in all of them it is decided that such mileage can not be taxed as costs. Melven v. Whiting, 13 Pick. 184; White v. Judd, 1 Met. 293; Howell v. Blackwell, 7 Ga. 443; Kingfield v. Pullen, 54Me. 398; Howland v. Lenox, 4 Johns. 311; Gunnison v. Gunnison, 41 N. H. 121; Crawford v. Abrahams, 2 Ore. 165.

Those decisions we deem sound. 'The law provides for taking the depositions of witnesses by commission, and the bringing the witnesses from great distances and from beyond the limits of the State, ought not to be encouraged. We think the court erred in refusing to strike out the allowance for mileage for said witnesses outside the State, and in not directing a re-taxation of the costs so as to relieve appellant from said charge for mileage.

The order appealed from must be reversed and the matter remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Judge Gaby takes no partin this case, having tried it in the Superior Court.


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    William C. Goudy v. The City of Lake View.

      Municipal Corporations—Streets—Private Property—Condemnation of— Damages—Limitations—Evidence—Instructions.

    This court declines to interfere with a verdict omitting to make any allowance for the alleged injury to land remaining after a certain portion needed was taken under condemnation proceedings for street purposes by a municipality.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gaby, Judge, presiding.
    Mr. A. W. Green, for appellant.
    Mr. H. H. Anderson, for appellee.
   Moran, J.

The city of Lake View condemned part of the lot of appellant for a public highway. The highway was laid out on the west line of Lincoln Park, and took fifty feet off the east line of the lot in question, so that after the opening of the street the lot abutted thereon instead of upon the park. Appellant had by consent of the Lincoln Park commissioners a private entrance from the said lot to the park which he had maintained and used for some seventeen years. Ho complaint is made as to the value allowed by the jury for the part of the lot actually taken, but it is contended that the verdict is against the evidence on the question of damage to the remainder of the lot by reason of the improvement, for which no allowance was made.

The evidence on the question consisted of the conflicting opinions of real estate experts and property owners living in the neighborhood, each witness sustaining his opinion with reasons more or less plausible. The conclusion that the remainder of the lot suffered no damage by reason of the improvement, is clearly supported by the evidence. It is true that the verdict would have been supported by the evidence if the contrary conclusion had been reached, but the question as to which set of opinions were best supported by reasons and entitled to the most weight was manifestly for the determination of the jury, and under the circumstances the court is without authority to interfere with the result which the jury reached from consideration of the evidence. It is contended that the court erred in instructing the jury that the permission given by the park commissioners to appellant to enter the park from his lot by the private entrance was revocable and might be withdrawn at any time, and that the statute of limitations did not run against said commissioners and in"favor of appellant in respect to said private entrance. ¡No authority is cited in support of appellant’s contention in this regard, and we are aware of no principle of law which sustains it. In our opinion the law was correctly stated by the court in the instructions complained of.

There is no error and the judgment will be affirmed.

Judgment affirmed.

Gaby, J., having tried this case in the Superior Court, takes no part in this decision.


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    Marcus C. Stearns v. Patrick Reidy.

      Master and Servant—Vice Principal—Negligence of—Personal Injuries—“ Missed Hole ” in Quarry—Explosion—Pleadings—Proof—Variance—Amendment—Limitations—Damages—Evidence—Instructions.

    1. A servant, who, in ignorance of the danger, obeys an order given by a superior servant who is aware that almost certain death will result from compliance therewith, is entitled to damages for injuries suffered thereby.

      2. In an action by a servant for the recovery of damages for injuries suffered through obeying the orders of a superior servant, this court holds that the defendant can not rely upon a variance between the pleadings and the proof, which but for his opposition would have been removed.
    3. In the case presented, this court sustains a judgment in behalf of the plaintiff for $9,030 for injuries received by him in an explosion in a stone quarry, the same resulting in total blindness.
    [Opinion filed May 29, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Messrs. Gregory, Booth & Harlan and A. B. Jenks, for appellant.
    Mr. L. K. Dorr, for appellee.
   Gary, J.

Six juries have been impaneled in this case; four have found verdicts, one for the appellant, before me, which I set aside, not upon any ground touching the merits of the case, but upon an erroneous instruction, and three since for the appellee.

There is but one point upon the facts, in dispute between the parties. The appellee was injured and made blind by the explosion of a charge of dynamite in a “missed hole” in the quarry of the appellant, at which hole the appellee, being in the service of the appellant, was at work under the order of the foreman of the quarry. The only dispute is as to what was the order given by the foreman. He knew that the place was a “missed hole,” that is, a hole charged with dynamite which had failed to explode, and the evidence on the part of the appellant is, that the order to the appellee was to clean out a missed hole with a scraper. On the part of the appellee it is, that the order was to drill a hole in a stone. The brief of the counsel of the appellant, after reciting special questions put to the jury, and their answers thereto, says: “ It thus "fairly appears by the special findings, that the jury reached the conclusion that this accident happened through a direction given to the plaintiff to drill a hole in a rock.” This concession makes it unnecessary to demonstrate the same conclusion.

The jury, then, having found the one point in dispute on the facts in favor of the appellee, and the liability of the appellant following from the fact found and the other facts undisputed, there is no need to examine the instructions, for there is no ground in the record on which to claim, and it is not claimed that any instruction tended to influence the jury in that special finding.

By instruction on the part of appellant, but not by evidence, some question was made whether the appellee knew, or by the exercise of ordinary care could have known, that he was drilling a hole, and to questions upon that matter, the jury have answered, no. If, in fact, the foreman gave an order to the appellee which the foreman knew it was almost certain death to obey, and the appellee without knowledge of the danger, was injured in obeying it, his right to recover is clear. C. & A. R. R. Co. v. May, 108 Ill. 288. And what are the facts, the verdict of the jury, upon conflicting evidence, settles.

But there is a great stumbling block in the case. There are four counts in the declaration, and each one alleges that the order of the foreman to the appellee was to clean out “a certain hole, which had before that time been drilled,” and the instructions for the appellee base his claim to a verdict upon the same hypothesis, while the testimony of the appellee himself, as well as the finding of the jury, is that the order was not to “clean out,” but to “drill” a hole, so that there is a clear variance, one form of the order being to make a hole, the other to clean out one already made. The accident occurred in October, 1881. The last trial was in October, 1888. In October, 1887, the appellee, by leave of the court, added to h.is declaration a count alleging the order of the foreman to him to have been “to drill a hole.” To that count a plea of the statute of limitations was held to be a bar. After the present verdict was rendered, and before judgment, he asked leave to amend the first count of the present declaration to the same effect. This leave was denied. Whether, being the exercise of discretion, the refusal of leave to amend the first count be error or not, the granting it would not have been. Ind. Order Mut. Aid v. Paine, 122 Ill. 625; Tomlinson v. Farnshaw, 112 Ill. 311; McCollon v. Ind. & St. L. R. R. Co., 94 Ill. 534; Cogshall v. Beesley, 76 Ill. 445.

But the overruling of the demurrer to the plea of the statute of limitations, was error. The cause of action which the appellee claimed, was injury by negligence of the appellant, by the application of the rule respondeat superior.

One recovery against the appellant for that injury, whatever might be the allegations of the declaration, would bar all further litigation, though perhaps a judgment for the appellant might not be a bar to a new action, upon a declaration stating the circumstances leading to the injury in a different manner. This does not settle the question.

A judgment for a defendant may be because of a variance, and therefore no bar, while a judgment for a plaintiff extinguishes the cause of action, even if wrongfully described. All the damages which can by any possibility result from a single tort, form an indivisible cause of action. Freeman on Judg. 241. The new count “was merely another mode of telling the same story.” Blanchard v. L. S. & M. S. Ry. Co., 126 Ill. 416; North C. R. M. v. Monka, 107 Ill. 340; see also Mitchell v. Mulholland, 106 Ill. 175; Dickson v. C., B. & Q., 81 Ill. 215; I. C. R. R. v. Cobb, 64 Ill. 128.

Now if the error on that count had not been committed, or if the leave to amend the first count had been granted, which, consistently with denying the motion for a new trial, would seem to have been regular, the variance now existing and which is a ground of objection by the appellant, would have been removed.

Shall the appellant have any advantage of a variance which but for his opposition would have been removed ?

There is absolute good sense in the concluding sentence of the opinion in Pearson v. Zehr, 125 Ill. 573. “ Undoubtedly an appellate court, where proper exceptions have been taken, and errors are properly assigned, may disregard certain errors, upon the ground that they would have been immaterial had the court properly ruled on other questions;” though in the connection in which it is found, it is not applicable as authority in this case. See also Bensley v. Brockway, 27 Ill. App. 410, where that rule would have been acted upon if it had been found to fit-the case.

In The People v. Utica Ins. Co., 15 Johnson (N. Y.), 358, the chief justice thought it ungracious, though not ,an estoppel, to set up the objection that quo warranto would not lie, when the defendant had gone away from the court of chancery on the ground that it would; but in Powell v. Ross, 4 Cal. 197, the Supreme Court of California enforced the sensible rule that the defendant could not urge in the Supreme Court the non-joinder as a co-plaintiff of one whom he had driven out of the court below. All the evidence accessible to either party as to the whole transaction has been put in; on the disputed point the jury have found specifically for the appellee. If that finding is right, his right to recover is clear, and justice has been done.

The damages, $9,000, are large. If measured only by pecuniary loss, excessive. But the appellee goes sightless to his grave, and after a very protracted litigation, gets a poor equivalent for the constant deprivation he endures. Without sharing in the indignation of Judge. Breese in Ross v. Innis, 35 Ill. 487, something of his argument applies here. The other questions in the case are of minor importance. The judgment will be affirmed.

Judgment affirmed.


author: Gart, J.

text:
    Edward Kramer v. Joseph Imhoff.

      Chattel Mortgages—Foreclosure—Injunctions—Removal of Property by Mortgagee—Evidence.

    This court declines to interfere with a decree of foreclosure of a chattel mortgage, and holds that the property alleged to have been taken away by the mortgagee was not identified with the property named therein; that at the time of such taking, the mortgagor acknowledged that the same was not covered by the mortgage, and that by arrangement with the mortgagee and on his credit other property of like description was procured by the mortgagor to take its place.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Mr. Charles A. Fanning, for appellant.
    Mr. James Lane Allen, for appellee.
   Gart, J.

The appellant filed his bill to enjoin the foreclosure of a chattel mortgage, upon the alleged ground that the mortgagee had caused a large part of the mortgaged property to be taken away from the mortgagor, and refused to account for the value thereof.

The appellee answered denying, and filed his cross-bill for a foreclosure. The decree was in favor of the appellee for all he asked. There is no principle of law or equity involved in the case; nothing but questions of fact; and a recital of the evidence, with comments upon it, would be of no use to anybody. It is enough to say, that of the property said to have been taken away, there is no identification of any specific articles with the property described in the mortgage, and that at the time it was taken, the appellant seems to have acquiesced in the claim that it was not part of the mortgaged property, and by arrangements with the appellee, the appellant supplied its place, it being furniture of some rooms—by procuring other furniture upon the credit of the appellee. The decree must be affirmed.

Decree affirmed.


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    The Bogue-Badenoch Company v. Noel B. Boyden, for use, etc.

      Replevin Bond—Suit upon—Errors of Trial Court—Failure to Assign—Rule 15.

    This court will not consider an appeal where no errors are assigned upon the record or attached thereto as required by rule 15.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Prank Baker, Judge, presiding.
    Messrs. Thornton & Chancellor, for appellant.
    Mr. G. W. Plummer, for appellee.
   Gary, J.

This is a suit upon a replevin hond by the late coroner of Cook county, for the use of the judgment creditors upon whose execution the property was in the hands of the sheriff, at the time it was replevied by the appellants. The merits were not tried in the replevin suit, and were, therefore, open to inquiry in this. The record has been examined by the court and there is no error in it.

It is unnecessary to go through the various objections made by appellants’ brief. "Mo errors are assigned upon the record or attached thereto in accordance with rule 15. A loose paper, unsigned, unentitled either as to case or court, with no file mark upon it, is found among the printed matter which came to the hands of one of the judges when the case was being examined in conference, which says some judgment is wrong, but it is mere conjecture that it has anything to do with this case. The judgment is affirmed.

Judgment affirmed.


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    Samuel S. Chisholm v. The Beaver Lake Lumber Company.

      Evidence—Competency—Deposition—Telegrams—Copies.

    This court holds as incompetent and immaterial, portions of a certain deposition introduced in evidence after the case presented was remanded to the trial court, and that the additional evidence, introduced at the second trial, did not materially change the facts as presented by the former record.
    [Opinion filed June 14, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. Jesse Cox, for appellant.
    Messrs. Frank J. Smith & Helmer, for appellee.
   Moran, J.

This case was before this court at the October term, 1885, and was then reversed because the trial court admitted in evidence certain copies of telegrams, which were attached to the deposition of one Olson, read on the trial, there being no proof in the case which made the copies competent evidence, and it was said by this court “ that without the telegraphic messages attached to the deposition the plaintiff’s evidence would have been insufficient to support the verdict.”

After the case was remanded to the Superior Court, appellees struck out of the deposition all references to the telegrams which were held incompetent, and thereupon appellant moved to suppress the remainder of the deposition, as it appeared from it that statements which it contained were not made upon the knowledge of the witness, and because he clearly evaded (in answering cross-interrogatories), stating the means of his knowledge.' The court overruled the motion and allowed certain portions of the deposition to be read, to the reading of which proper exceptions were saved.

There is in the deposition no statement which, standing by itself, or taken in'connection with anything else in the record, is competent and material; the additional evidence introduced at the last trial does not materially change the facts as presented by the former record.

The theory of appellee seems to be that it should have judgment unless appellant proves that he does not owe the debt. There is no competent evidence to sustain the verdict and the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Chicago & Eastern Illinois Railroad Company v. Edward E. Blagden, for use, etc.

      Garnishment—Answer of Garnishee—Objections—Collusion—Payment in Advance—Evidence.

    1. The answer of a garnishee until contradicted or disproved must he considered as true. If judgment is demanded upon the answer it must appear therefrom that the garnishee is chargeable, or he will be discharged.
    2. An employer may, after the service of the writ, properly pay the wages of a servant in advance, in order to prevent the same from being reached under garnishment proceedings.
    [Opinion filed June 14, 1889.]
    Appeal from the Superior Court of Cook County; the Hon, John P. Altgeld, Judge, presiding.
    Mr. W. H. Lyford, for appellant.
    Messrs. E. B. King and F. W. Becker, for appellee.
   Moran, J.

This was a proceeding by garnishment against appellant to reach wages coming to said Edward It. Blagden. The attachment was commenced before a justice of the peace; and the writ was served on appellant as garnishee on the 18th day of June, 1886.

Appellant’s answer was filed on June 26th, in which it was stated that it had in its possession and control at the date of the service of the writ, the sum of $6 and no more, of wages due or belonging to said Blagden. The case was continued from time to time until September 2d, when objections to the garnishee’s answer were filed, and such proceedings were afterward had, that a judgment was entered by the justice against the garnishee for $103, and costs, being the amount of the judgment recovered against the defendant, Blagden, in the attachment suit. From this judgment the garnishee appealed to the Superior Court of Cook County, and in said court plaintiffs filed by leave of the court further interrogatories to the garnishee on October 19, 1888, which were answered by the garnishee, again stating that it had not in its possession, at the service of the writ or at any time, up to the filing of the answer, any -sum of money, chose in action, etc., etc., due, or that might in the future become due to said Blagden, saving and excepting said sum of $6.

The sixth interrogatory was as follows: “Was said Blag-den in your employment at the date of the services of said writ, or since, and if so, what salary did he receive, and how long was he in your employ after said service?” This was the answer:

“To the sixth interrogatory, the said railroad company, garnishee, answering, says that said Edward B. Blagden was in its employ from the date of the service of the writ in this cause continuously until the 13th day of February, A. D. 1888; that during all said time his salary was at the rate of $60 per month; that said salary was for each month due and payable after the first day of the following month; that on the date of the service of the writ in this cause, to wit, the 18th day of June, A. D. 1886, this garnishee advanced to said Blagden the sum of $24; that on the first day of July, 1886, said garnishee advanced to said Edward B. Blagden the sum of $30; that thereafter on or before the fifteenth, and likewise on or before the first day of each and every month up to and including the first day of February, 1888, said garnishee advanced to said Edward B. Blagden a like sum of $30, whereby there was not any time between said 18th day of June, 1886, and the date hereof, to wit, the 19tli day of October, 1888; any sum of money due or owing from said garnishee to said.. Edward B. Blagden. On the contrary, this garnishee avers that there is now due and owing from said EdwardB. Blagden to said garnishee the sum of $4 advanced by said garnishee to said Blagden on the first day of February, 1888, which this garnishee claims as set-off to be deducted from said sum of money, to wit, $6, leaving $2 subject to the order of this court in this case.”

There were some additional interrogatories and further answers, but the question on which the case must be decided fully appears from what has been set forth.

Bo evidence was introduced at the trial, but the court gave judgment against appellant for $103 and costs, upon the answer. “ The answer of the garnishee, until it is contradicted or disproved, must be considered as true. If judgment is demanded upon the answer, it must clearly appear therefrom that the garnishee is chargeable, or he will he discharged.” The People v. Johnson, 14 Ill. 342; C. & St. L. R. R. Co. v. Kellenberg, 82 Ill. 295.

It is plain that the foregoing settled rule was disregarded by the court below, in rendering judgment against the garnishee in the case. The answer clearly states that at the service of the writ there were $6 due from the company to Blagden and no more, and the facts set forth show that there was never a time from the service of the writ to the filing of the last answer when it was indebted in any further sum to said Blagden.

Bo evidence was introduced to controvert these statements of the answer, and it is not perceived how, taking them as true, they warrant a judgment against the garnishee for more than $6. It is suggested in support of the judgment, that the answer shows that the salary “ for each month was due and payable after the first day of the following month,” and therefore the loan or advance made by the company was the inauguration of a new system of payment to defeat the garnishment.

The answer does not state that Blagden was employed to serve for any definite period, but merely that he had continued in the'employ of the company at a salary of $60 per month. While, under such an arrangement, the company could not be compelled to pay till the end of the month, we are aware of no principle of law which would prohibit its doing so. What rule is there that would make it improper for the company to loan or advance money to Blagden, on an understanding or agreement that he would pay in services thereafter to be rendered.

Collusion,by the company with Blagden to prevent the plaintiff from obtaining anything that the services of the writ upon the garnishee entitled him to, is, to say the least, not necessarily to be inferred from the facts set up in the answer. Such inference is, as it seems to us, in fact negatived. Blagden was not obliged, so far as appears, to continue in the employ of the company after the service of the writ, and if he did, then there was nothing to prevent the company from paying him in advance, even though the very purpose of such advance payment was to prevent the wages from being reached under the garnishment.

In Alexander v. Pollock, 72 Ala. 137, it appeared from the answer that the party whose wages it was attempted to reach had been in the service of the garnishee for some time prior to the services of the writ; that immediately after such service an arrangement was entered into that the wages should be paid each week in advance; that the employment continued, under said arrangement from the service of the writ to the making of the answer, upward of a year, and that the contract to pay in advance was made with the intention of defeating the garnishment.

The court held the contract to pay the wages in advance to be free from legal objections, rightfully made, and that “its terms and conditions .can not be interfered with, interrupted or changed in any manner, through operation of garnishment proceedings.” See also Phelps et al. v. The A. T. & S. F. R. R. Co., 28 Kansas, 165.

No fraud being shown, appellee could recover nothing from the garnishee that Biagden himself could not recover in an action at law in his own name. It is clear that he could recover no judgment against the company for services rendered after the service of the writ under the facts set up in the answer, there being nothing due him for such services.

The Superior Court erred in giving judgment against the garnishee for more than $6, and the judgment must .therefore be reversed and the cause remanded for such further proceedings, as the.parties may desire to take.

Reversed and remanded.


author: Per Curiam.

text:
    George P. Barton v. William Treutler.

      Master and Servant—Building Contractor—Architect's Certificate— Waiver of—Balance due—Extras—Evidence—Special Findings.

    In an action for the recovery of a balance claimed to be due under a building contract and for certain extras, this court, in view of the evidence, declines to interfere with a verdict for the plaintiff.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Messrs. Frank H. McCulloch and Charles H. Aldrich, for appellant.
    Mr. C. M. Hardy, for appellee.
   Per Curiam.

This was an action to recover against appellant for a balance alleged to be due on a contract for carpenter work, and for certain extras. There were several points of contention between the parties, and the record is quite voluminous.

We have carefully examined and considered all the points made, and we are of opinion that no material error is shown to have been committed on the trial. It would serve no useful purpose to follow counsel for appellant in an opinion, and discuss and decide in detail, each of his contentions. As to the disputed questions of fact, the verdict of the jury is conclusive.

The answers given by the jury to the special interrogatories submitted to them by the court at the request of appellant, are all consistent with the general verdict, and serve to show that each issue of fact made by appellant was considered.

The answer to the 15th question, finding that appellant waived the production of a certificate from the architects, being supported by evidence in the record, takes out of the case appellant’s principal contention, to wit, that the production of such certificate was a condition precedent to maintaining this action.

We find no error and the judgment must therefore be affirmed.

Judgment affirmed.


author: Per Curiam,.

text:
    George W. Hinckley v. Joseph Horazdovsky.

      Master and Servant—Vice Principal—Negligence of—Personal Injuries—Recovery for—Damages—Evidence—Instructions.

    1. In an action by a servant for the recovery of damages for personal injuries alleged to have been occasioned through obeying the orders of a superior servant, this court holds that the general instruction, given in lieu of those requested, properly and fully stated the law governing the case, and that the evidence, though conflicting, sustains the verdict for the plaintiff.
    2. Where the evidence is conflicting, this court has no authority to set aside a verdict unless the same is shown to be manifestly against the evidence or to have resulted from passion or prejudice.
    [Opinion filed June 14, 1889.]

      Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. M. L. Raftree, for appellant.
    Messrs. Jones & Lusk, for appellee.
   Per Curiam,.

This action was brought to recover for injuries received by appellee, a boy of twelve years of age, while in the employ of appellant.

It is alleged that appellee was directed by the foreman of appellant to oil, while it was in motion, a planing machine, about which he was at work, and that in doing as he was directed, he was caught in the machine and severely injured. Appellant claims that the court erred in the matter of giving and refusing instructions. The court refused all the instructions asked, and gave a general instruction prepared by-the judge himself in lieu of those requested. We have examined said instruction and. considered the criticisms of appellant’s counsel thereon, and we are of opinion that the same fully and fairly stated the law to the jury on all the questions in the case, and that there is no error in that regard. It is strenuously contended that the verdict is against the evidence. There is a direct conflict in the evidence upon several of the issues of fact which arose upon the trial, but a careful examination of the evidence in the record leads us to the conclusion that on every material issue the evidence fairly supports appellee, and that the verdict as a whole can not be said to be manifestly against the weight of the evidence.

Where the evidence is conflicting, the verdict of a jury is conclusive, and this court has no authority to set aside the verdict unless it is shown to be manifestly against the evidence or to have resulted from passion on the part of the jury.

We find no error in the record and the judgment will therefore be affirmed.

Judgment affirmed.


text:
    Frank Hahn v. James Maxwell et al.

      Sales—Promise to Pay by Third Person—Agreement for Belay—Consideration--Lien—Evidence.

    In a suit brought to recover from third persons the contract price of a lot of stone sold to another, this court declines, in view of the evidence, to interfere with a judgment in behalf of the defendants.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Rolltn S. Williamson, Judge, presiding.
    Messrs. Goldzier & Rogers, for appellant.
    Mr. S. M. Meek, for appellee.
   Gary, J.

The appellant furnished stone to one Hayes to be used by him in erecting buildings for the appellees.

There was testimony that the appellant, some two weeks after the delivery of the last stone, presented his bill to the appellees, they having taken the contract for erecting the buildings away from Hayes, and they promised the appellant that if he would wait a month, they would pay it.

He waited the month, during which time the forty days in which the appellant might, under Sec. 31, Chap. 82, R. S., have served a notice to secure a lien on the buildings expired, and then the appellees refused to pay. On demurrer to the evidence, the Circuit Court rightly held that the appellant had no cause of action against the appellees. The debt was the debt of Hayes. The evidence does not show that there was any release or promise of forbearance to him. Giving time to the appellees in which to pay what they were not liable for, was of no moment. If there had been a promise in writing, in the terms of this parol promise, it would have been of no legal effect for want of a consideration to support it. And if the appellant, relying upon the promise, refrained from serving the notice alluded to, it was his voluntary act, not in performance of any agreement that he should so refrain. And the promise, not being in writing, was void under the statute of frauds, if there had been a consideration. Eddy v. Roberts, 17 Ill. 505, contains a sufficient exposition of the law applicable.

There are no circumstances in this case to bring it within the principle of Borchsenius v. Canutson, 100 Ill. 82, and Power v. Bankin, 114 Ill. 52. The judgment must be affirmed.

Judgment affirmed.


text:
    Jacob Rosenberg et al. v. Sidney H. Hart.

      Malicious Prosecution—Probable Cause—Instructions—Compromise— Bill of Exceptions—Restoration of Part of.

    1. No recovery can be had in an action for malicious prosecution against several defendants, where one of them only is found guilty.
    2. Nor where the prosecution did not terminate in an acquittal.
    3. Nor where the same comes to an end through a compromise between the parties.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Bichard S. Tuthill, Judge, presiding.
    Messrs. Lawrence C. Cooper, and Duncan & Gilbert, for appellants.
    “ Where a person has an unblemished character and the prosecuting witness is aware of the fact, it necessarily requires more evidence to create a reasonable belief of guilt, than where the accused has a bad character; and where the prosecution is based on belief, this character of evidence is proper.” Skidmore v. Bricker, 77 Ill. 166.

      To maintain his action appellee was bound to prove affirmatively :
    1. Want of probable cause.
    2. Malice.
    3. Voluntary dismissal or abandonment of the prosecution by the appellants or that the merits had been determined in appellee’s favor. Emery v. Ginnan, 24 Ill. App. 65.

      “ When the proceeding is dismissed or abandoned by the procurement of the party prosecuted, by settlement or compromise with the prosecutor, it is not, it seems, such a termination of the proceeding as that a suit for malicious prosecution can be maintained.”

      “ The termination must be such as does not admit a reasonable cause for prosecution.” “ When the termination of the case is brought about by a compromise or settling between the parties understanding!y entered into, it is such an admission that there was probable cause that the plaintiff can not afterward retract it, and try the question, which by settling he waived.” Emery v. Ginnan, 24 Ill. App. 65.
    Mr. Samuel Baxter Foster, for appellee.
    Probable cause, is such a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice upon the facts within his knowledge, to • believe the person accused is guilty. Ames v. Snyder, 69 Ill. 376; Shaul v. Brown, 28 Iowa, 37; 4 Wait’s Actions and Defenses, 343.
    A voluntary discontinuance is prima facie evidence of a want of probable cause. Nicholson v. Coyhill, 4 Bar. and C. 21; Burhans v. Sandford, 19 Wend. 417, 109 Mass. 158.
    While malice is not a legal presumption from want of probable cause, the jury may from it infer malice, not as a matter of law, but as a conclusion of fact. Roy v. Goings, 112 Ill. 663, and cases therein cited.
    Evidence that the criminal prosecution was an attempt to force a settlement of a private claim, is evidence of a want of probable cause, and of malicious intent. Slomer v. People, 25 Ill. 58; 12 Bans. 109-112.

      And malice is made out by showing that the proceeding was instituted to compel the surrender of property. Cooley on Torts, 185, 189, 190.
    Malice is made out by showing that the proceeding was instituted from any improper motive. Cooley on Torts, 185; Harpham v. Whitney, 77 Ill. 32. Whether malice is proved or not is a question for the jury. Harpham v. Whitney, 77 Ill. 32; 2 Greenleaf on Ev., Sec. 453; 1 Hilliard on Torts, 514.
    The attorney for appellants admits that it is a well established principle of law that the advice of a justice of the peace is no defense to an action for malicious prosecution, but requests this court to say that the advice of a justice of the peace should be allowed by the courts to be. set up as a defense.
    In actions for malicious prosecutions it has heen held to he competent for the defendant to prove, in order to establish the fact of probable cause, that in prosecuting the plaintiff on a criminal charge, he acted on the advice of a regularly licensed attorney, reputable in character; and considered competent to give legal advice on all matters of law. Cooley on Torts, 183.
    Advice of a state’s attorney is not even sufficient, the court saying in Roy v. Goings, 112 Ill. 665 :
    “ We are not prepared to hold that the mere fact that an attorney, holding a commission as state’s attorney, must be held to be an attorney in good standing for skill, prudence and fairness.” And in that case the court refers to the case of Murphy v. Larson, 77 Ill. 172, in which the court uses this language :
    “ There is no reason for enlarging the rule. It would be a dangerous practice, not justified by any public exigency, to permit a party to say, in justification for commencing a criminal prosecution that might injure or destroy the reputation of the party accused, that he acted upon the advice of a person not a lawyer, however honestly the advice may have been given and received.”
    That the advice of a justice of the peace is no protection,see Williams v. Vanmeter, 8 Mo. 339; Oooley on Torts, 184; Burgett v. Burgett, 43 Ind. 79; Olmstead v. Partridge, 16 Gray, 383.
    “ He may take such advice in aid of his own judgment but can not afford him any protection.” Murphy v. Larson, 77 Ill. 172; Cooley on Torts, 184.
   Garnett, P. J.

This was an action for malicious prosecution, judgment being given in the Circuit Court for the plaintiff, and the defendants appeal.

The court instructed the jury that if they believed from the evidence the defendants, or any of them, were guilty of the arrest and prosecution, and that such arrest was malicious and withoxxt probable cause, then vindictive damages might be given. There are two fatal errors in this instruction. Ho principle of law warrants a recovery against three defendants if only one is found guilty from the evidence. Blackman v. Blom, opinion filed in this court April 3, 1889.

The instruction tells the jury that the defendants may be found guilty if the arrest was made maliciously and without probable caxxse. Suppose, however, the prosecution did not terminate in acquittal ? The jury was not informed that an acquittal was one of the conditions of recovery by plaintiff. There was a strong tendency in the evidence to prove that the prosecution came to an end through, a compromise, between the parties. If that was the manner in which the matter was disposed of there can be no recovery, as a compromise is not equivalent to acquittal. Emery v. Ginnan, 24 Ill. App. 65; Fadner v. Filer, opinion filed in this court December 7, 1888.

The errors in this instruction are not cured by anything appearing elsewhere in the record. We think the Circuit Court committed no eiTor in allowing the restoration of a part of the bill of exceptions showing that all of the evidence was embraced therein. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Thomas B. Boyd v. John Dullaghan.

      Agency—Meal Property—Exchange of, for Personalty—Mecor.ery of Commission—Evidence.

    One who attempts to act as "the agent of both parties to a transaction without disclosing that fact to his principals, is precluded from recovering compensation for his services.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Hollín S. Williamson, Judge, presiding.
    Messrs. Cunningham & Kelly, for appellant.
    Mr. M. P. Brady, for appellee.
   Moran, J.

Appellant brought this action to recover commissions for services as a real estate broker, rendered to appellee in and about the exchange of certain hotel and opera house property which was owned by appellee and situated at Portage, Wisconsin.

Appellee placed the property in the hands of appellant to be sold or exchanged, in the latter part of 1885, and appellant proceeded to advertise the property. In January, 1886, one O’Brien, who was in business at Chicago, placed in appellant’s hands a stock of goods to be sold. Appellee arranged to pay appellant five per cent, commission if he sold or exchanged his property, and O’Brien agreed to pay a like commission for a sale of his stock of goods. Shortly after O’Brien placed his stock with appellant to sell, appellant invited appellee to come to Chicago, and when he came in response to the request, took him to O’Brien’s store and introduced him to O’Brien and set them in negotiation for the exchange of their respective properties. O’Brien accompanied appellee to Portage to examine the property, and a contract was finally made between them for an exchange which, however, O’Brien refused to carry out, and the negotiations between them ceased.

In January, 1887, without the knowledge of appellant, O’Brien and appellee came together again and made a different contract, by which appellee exchanged his said property and some other for the stock of goods in O’Brien’s store. The case was disposed of in the Circuit Court by the court striking out appellant’s evidence, and instructing the jury to find for appellee. The action of the court must be sustained. There is no evidence that appellee had any knowledge that appellant was acting as the agent of O’Brien until after the transaction between O’Brien and appellee had been fully closed. One who attempts to act as the agent of both parties to a transaction without disclosing that fact to his principals, is precluded from recovering compensation for his services.

In M'echam on Agency, Sec. 972, it is said: “ To be secretly in service of the opposing party, while ostensibly acting for his principal only, is a fraud upon the latter, and a breach of public morals which the law will not tolerate. If, therefore, each of the parties to a transaction was entirely ignorant of the broker’s relations to the other, such double service on the. part of the broker will defeat his right to recover commissions from either of them. If one of the parties only was ignorant he will certainly be absolved from the duty to pay commission.”

The cases cited by the author, some of which are referred to in the brief of appellee’s counsel, fully support the doctrine of the text. See also Kronenberger v. Fricke, 22 Ill. App. 550, where the rule was applied by this court.

As one good ground is sufficient for the affirmance to rest on, it is unnecessary to discuss other questions argued by counsel in the briefs.

Judgment affirmed.


text:
    Abraham Espen v. Louis H. Roberts et al.

      Negligence—Co-tenants—Damage by Water—■Instructions.
    An instruction, though correctly Stating a proposition of law, should not be given, in the absence of evidence upon which it can be based.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    Mr. Israel Cower, for appellant.
    We assert that there is not a scintilla of evidence showing, or tending to show, that the plaintiff or any of his employes caused the damage complained of, and none will be claimed to exist.
    Under the rules thus far laid down by the Supreme Court, and this court, the giving of an instruction predicated on evidence not in the record, is such an error as will reverse. Tillage of Evanston v. Lynch, 1 Ill. App. 63; Pease v. Catlins, Ill. App. 88; Hunting v. Baldwin, 6 Ill. App. 547; Irwin, Adm’r, v. Atkins et al., 8 Ill. App. 221; Moon v. Jennings, 8 Ill. App. 168; Covert v. Nolan, 10 Ill. App. 629; Champion Co. v. Bradley, Id. 328; Hubner v. Feige, 90 Ill. 208; C., B. & Q. R. Co. v. Harwood, Adm’x, 90 Ill. 425; The Chicago West Division R. Co. v. Mills, 91 Ill. 39; Heir v. People, 102 Ill. 540.
    Mr. F. C. Hale, for appellees.
   Gary, J.

The appellant occupied a part of the second floor of a store. The appellees occupied The whole of the fourth floor. On this floor the appellees had a tank to which a pipe from the city water supply led. There was a stop-cock in the pipe on the appellees’ floor, but it was left open. On the morning of May 6, 1887, it was discovered that during the preceding night this tank had filled and overflowed, and damage been done to the appellant’s goods, for which he brought this action. There is no evidence connecting the appellant, by the remotest allusion, with the management of this water-supply.

The first instruction on behalf of the appellees is: “If the jury believe from the evidence that the damages sustained by the plaintiff were caused by the negligence of the plaintiff or by the negligence of any employe of the plaintiff, the jury must find for the defendants.”

I wish to disavow in the strongest terms any suspicion that the judge of the Circuit Court ever thought of the sinister effect this instruction might have upon the jury. As a proposition of law it is correct, but there is not a scintilla of evidence to base it upon. With no other knowledge of these parties than such as may be inferred from their names, it is reasonably certain that the appellant is a Jew, and the appellees are not. A jury so predisposed, might have taken this instruction as a justification for the verdict against the appellant, because of, and only because of, his race. There is, therefore in this case more than common reason for holding that an instruction, referring to the evidence, when there is none, as the basis for the action of the jury, is erroneous. The cases on that point are very numerous, and readily found in the digests.

The judgment must be reversed and the cause remanded.

Reversed and remanded.