text:
    David E. Ginsburg, Appellant, v. John Warczak et al., Appellees.
    Gen. No. 43,659.

      Opinion filed November 20, 1946.
    Rehearing denied December 4, 1946. Released for publication December 5, 1946.

      Harry E. Kopald, of Chicago, for appellant; Morris K. Levinson, of Chicago, of counsel.
    Philip A. Fleischman and Maurice L. Davis, both of Chicago, for appellee; Maurice L. Davis, of Chicago, of counsel.
    Mayer Goldberg, of Chicago, for certain appellees; Leonard L. Levin, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On March 26,1945, David Ginsburg filed a complaint in the circuit court of Cook county against John War-czak for an injunction for damages and for other relief grounded upon a written contract between them for the sale of corporate stock and good will in a piano-graph business. Plaintiff alleged that he was induced to sign the contract upon fraudulent oral representations by defendant that he (defendant) would not enter into competition for one year with the business he (defendant) was selling, nor solicit the business of the customers, nor employ or entice the employees of the business for that period. By amendment plaintiff also asked for reformation of the contract to include two paragraphs embracing the alleged oral provisions. These had been “deleted” at the time of the signing of the written contract. Plaintiff alleged that defendant orally agreed to abide by the deleted provisions before and at the time of the signing of the contract. A motion to strike the complaint was denied. Defendant answered, admitting the written agreement, denying the allegations of fraud and denying any oral agreement. Defendant asserted that plaintiff was not entitled to injunctive relief, or to have the agreement reformed. The court granted a temporary injunction as prayed. The case was referred to a master in chancery, who, after hearing testimony, reported that plaintiff sustained the material allegations of his complaint and recommended the entry of a decree granting the relief prayed. The court sustained exceptions to the master’s report and entered a decree dissolving the temporary injunction, allowing defendant 20 days in which to file suggestions for damages, retaining jurisdiction to consider such suggestions, discharging a rule to'show cause why defendant and seven other persons should not be punished for contempt of court, arid dismissing the complaint for want of equity at plaintiff’s costs. Plaintiff appealed.

Plaintiff was 80 years of age. Defendant is, to quote the master, “much younger and very aggressive.’’ As partners, they engaged in the planograph business for 16 years. The partnership was dissolved and a corporation formed to take over the business. The corporation, known as the Chicago Aligraphy & Lithographing Company, Inc., was formed about five years before the complaint was filed. The corporation took over the business formerly operated by the partners. The total capital stock issued consisted of 500 shares and each former partner owned 250 shares. One of plaintiff’s sons had been in the employ of the corporation. He went into the military service. There was evidence that before going into the service this son had threatened to “put defendant out of business.” For this reason, and also because the son would quarrel with the employees, defendant refused to permit him to return as an employee of the corporation on being discharged from the army. The refusal of defendant to permit the re-employment of plaintiff’s son brought on quarrels between plaintiff and defendant. Defendant also wished to have the right to sign checks on the corporate bank account. Plaintiff refused to permit this. There were other differences between them. As a result, discussions took place between them about buying out each other’s interest in the corporation.

About the middle of September 1944 defendant offered to either pay plaintiff $25,000 for plaintiff’s shares in the corporation, or to sell his own shares to plaintiff for $22,500. Plaintiff elected to purchase. In the middle of October 1944 plaintiff’s then attorney, at plaintiff’s direction, prepared a seven or eight page agreement between the parties covering the sale of defendant’s stock. The agreement, as drawn, included a provision forbidding defendant from going into the same line of business as the corporation for a period of three years. Plaintiff testified that the parties had not discussed any three year limitation prior to the preparation of the agreement. He also testified that he told defendant that he would not buy defendant’s shares unless defendant agreed, for a three year period, not to do any ‘1 dirty work.” Defendant refused to sign the agreement. On the morning of October 30, 1944 plaintiff and defendant again discussed the sale to plaintiff of defendant’s shares. Defendant was ready to sell. At plaintiff’s direction, plaintiff’s attorney prepared an agreement covering the transaction to be effected between the parties, for execution. There was then no discussion between the parties as to the terms of the agreement. The price of $22,500 was that which had been agreed upon two weeks before. Plaintiff’s attorney had practiced law since 1926. He had known plaintiff for 37 years. Defendant, at the meeting with plaintiff and the latter’s attorney, when the agreement was presented to defendant for execution, was unable to get in touch with his own attorney; was told he did not need an attorney; but insisted on taking the agreement to Mr. McLeod, an official of the Northern Trust Company, where the corporation maintained its bank account, in order that the agreement might be read to defendant. Defendant wished someone who understood the agreement to read it over. The record is silent as to whether Mr. McLeod was an attorney. The agreement, as drafted by plaintiff’s attorney, provided for the sale by defendant to plaintiff of 250 shares of stock of the corporation, together with all of the property, good will, assets, accounts receivable, profits and bank accounts of the corporation, at a price of $22,500. The proposed agreement also provided that all past due dividends on the stock were to belong to plaintiff; obligated plaintiff to effect-the discharge of the current debts of the corporation and state and federal taxes payable by the corporation; provided that defendant’s position as an officer and director of the corporation be at once terminated; provided that defendant would not interfere with the good will of the corporation, and would not, for one year, solicit the business of customers of the corporation; and further provided that defendant would not employ any of the present employees of the corporation, or engage in business competitive to that of the corporation, for a period of one year. After Mr. McLeod read the draft of the agreement aloud to defendant, the latter stated that he would not sign it unless two paragraphs were stricken out, these being the paragraphs which provided that defendant would not interfere with the good will of the corporation, or solicit the business of its customers, or hire its employees, or engage in a competitive business. Mr. McLeod struck out the two paragraphs which were objectionable to defendant, wrote the word “deleted” opposite each such paragraph, and both plaintiff and defendant wrote their signatures under the word “deleted” in each of the two places where the word was written. The agreement was then executed by the parties.

Plaintiff’s witnesses testified that defendant, prior to the time of the execution of the agreement and at the time of its execution, orally agreed that he would not do the things forbidden by the two paragraphs which were deleted from the agreement at defendant’s insistence. These witnesses were the plaintiff, the attorney for plaintiff in the transaction, and Ada Saho, plaintiff’s daughter, who furnished him with $10,000 towards the purchase. Defendant denied making’ the oral agreement. In this denial he was corroborated by his brother-in-law, Clarence Haack, who was present when the transaction was closed. The attorney for plaintiff testified that he had included the two deleted paragraphs in the agreement as drafted by him because he considered them important, and that plaintiff would not have purchased defendant’s stock without defendant’s agreement not to engage in a competitive business. This attorney admitted he was familiar with the parol evidence rule at the time defendant made his supposed oral agreement to perform the deleted parts of the written agreement. About two months after the sale defendant commenced looking for space in which to engage in the planograph business and entered into such business no later than January 1,1945.

Plaintiff knew, prior to January 1, 1945, that defendant had gone back into the planograph business. Plaintiff continued the operation of the corporation until the time of the hearing of the suit, and still operates such business. After plaintiff learned that defendant was back in the planograph business, plaintiff did not communicate with defendant, and has not talked to defendant, or directed anyone to talk to him, from then until the time plaintiff testified. Plaintiff did not at any time go to defendant with the shares of stock he had purchased and ask for his money back and did not offer the stock to defendant. On July 11, 1945 an order of temporary injunction was entered on plaintiff’s motion, restraining defendant from engaging in the planograph business; from employing persons who had been employed by the corporation; from soliciting business from the customers of such corporation; and from communicating with such customers. This injunction was modified on July 14,1945 so as to omit the restraint upon defendant from engaging in the planograph business, but preserving substantially the remaining provisions of the order of July 11,1945.

On July 25, 1945 plaintiff filed a petition for a rule to show cause, directed against defendant and Phillip K. Mendelson, Clarence Haack, Steve Antczak, Stella Budney, George Levin and Mary Melek. In his petition plaintiff charged that defendant still continued in the planograph business, solicited the business of customers of plaintiff’s corporation, and employed persons who had been employed by such corporation. Defendant, answering, stated that he was not present in open court when the order was entered; that he was not served with the writ of injunction; that he had on July 13, 1945 sold his interest in his plano-graph business to Clarence Haack, his brother-in-law, who, at that time, was his partner in such business and operated under the name of Mutual Planograph Company. As to the other respondents, the petition alleged that they had actual knowledge and notice of the entry of the injunctional order of July 14, 1945; that they wilfully and knowingly violated the order in that they continued to solicit the customers and business of plaintiff’s corporation and continued to maintain their employment with defendant. Respondents filed answers in which, among other allegations, they set up that they were not parties and that no injunction was directed against them.

Plaintiff contends that defendant agreed, orally, when executing the written agreement, that the provisions of the two paragraphs which were deleted therefrom, at the time it was executed, would remain in full force and effect as a binding oral agreement. Under the provisions of the deleted paragraphs the defendant would be burdened with the additional obligation of not interfering with the good will of the corporation, of not engaging in the same line of business as the corporation for one year, of not soliciting the business of customers of the corporation, and of not hiring any of the employees of the corporation for a period of one year. Plainly, the oral undertaking would vary and add to the terms of the written agreement, in that defendant would be obliged to do more, by the oral agreement, than the written agreement provided. Where a written agreement shows a complete legal obligation, without any uncertainty or ambiguity as to the object and extent of the engagement, it is conclusively presumed that the whole agreement of the parties is included therein. Parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular term to which the parol evidence is directed. All conversations and parol agreements between the parties prior to the written agreement are so merged therein that they cannot be given in evidence for the purpose of changing the agreement, or showing an intention or understanding different from that expressed in the written agreement. Decatur Lumber & Mfg. Co. v. Crail, 350 Ill. 319, 323; Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 106. Evidence of the alleged oral agreement would not be admissible, as such oral agreement would be inconsistent with the written agreement of the parties and would impose burdens on defendant not contemplated by the written agreement.

Defendant pleaded want of consideration for any oral agreement between the parties. If plaintiff contends that the alleged oral agreement is a separate or collateral agreement between the parties, it must be founded upon a consideration in order to be valid. We agree with defendant that plaintiff has neither pleaded nor proved such a consideration. The record shows that the two paragraphs deleted from the written agreement were intended by them to be deleted. To restore these paragraphs would not he a reformation, but the making of a new contract. On the record presented plaintiff did not show any right to a reformation of the contract. We agree with defendant’s contention that plaintiff is precluded from rescission of the contract because he failed to return the consideration received by him under the agreement and that he elected to affirm the agreement by procuring injunctive relief predicated upon the existence of the agreement. We agree with defendant that the record shows no relationship of trust and confidence between the parties. In making the agreement they dealt at arm’s length. Plaintiff was represented by an attorney. There was a full and frank discussion of the transaction. The parties knew what they were doing. The fact that defendant insisted on deleting the two paragraphs and that they were deleted, shows that he did not wish to be bound by such paragraphs.

We agree that neither defendant nor the other respondents committed any act in violation of the temporary injunction. The answers (to the rule) filed by defendant and the other respondents were ample support for the action of the court in discharging the rule. There is nothing in the record to show that the answers to the rule are untrue. For the reasons stated the decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Lews, P. J., and Kilby, J., concur.


source: Caselaw Access Project

author: Mr. Justice Kiley

license: Public Domain

text:
    Walter Hoffman et al., Appellants, v. Carlo Monaco et al., Appellees.
    Gen. No. 43,590.

      Opinion filed November 20, 1946.
    Released for publication December 5, 1946.
    John O. Wagner, of Chicago, for appellants.
    Reuben Stiglitz, of Chicago, for appellees.
   Mr. Justice Kiley

delivered the opinion of the court. This is an action for damages arising out of an alleged breach by the landlord of a covenant in a lease. Defendants counterclaimed for damages to the demised premises. The trial court dismissed the counterclaim and entered judgment for defendants on plaintiffs’ complaint. Plaintiffs have appealed.

The parties orally agreed September 20, 1943 to the lease by defendants to plaintiffs of the store premises at 6046 South Pulaski Road, Chicago, Illinois, to be occupied for the purpose of a delicatessen business. September 21, 1943 a form lease, filled in by one of the plaintiffs, was executed covering a one year term from November 1, 1943, with an option to plaintiffs to renew for a period of two years. October 14th, plaintiffs, having paid three months rent in advance, entered into possession. November 1, defendants installed radiators and a boiler for-the store premises and began to furnish heat. Several disputes arose thereafter with reference to the adequacy of, and the liability for, the heating. Defendants denied responsibility for furnishing heat. January 7, 1944, according to the plaintiffs, the temperature in the store was 16 degrees and a good deal of perishable merchandise was frozen. The refrigerator was damaged. The frozen merchandise plaintiffs destroyed and the balance they moved to their other store on Archer avenue. A few days later plaintiffs filed a two count complaint, in the first of which they sought, in equity, a reformation of the lease and in the second, in law, damages on account of injury suffered as a result of breach of the lease by defendants.

A chancellor found in favor of plaintiffs on Count I and a decree was entered July 6, 1944. The pertinent parts of the decree were the findings that the parties orally agreed that defendants should supply adequate heat; that the parties intended when the lease was executed that paragraph 9 of the lease should apply so as to require defendant to furnish heat at reasonable hours when the weather required it during the period from October 1st to April 30th; that the heating facilities installed by defendants proved inadequate and adequate heat was not furnished despite the frequent complaints of plaintiffs; that December 21, 1943 the parties learned that paragraph 9 of the lease had not been made applicable as they had intended; that thereafter defendants refused to supply heat and on January 3, 1944 plaintiffs made an unsuccessful demand on defendants for a reformation of the lease to carry out the intention of the parties; and that the defendants since December 21, 1943 have failed, neglected and refused to furnish heat. The decree ordered that the lease should be reformed to require the furnishing of heat, according to the terms of paragraph 9 thereof, by the lessor.

Count II was tried without a jury before a law judge. The plaintiffs introduced in evidence the lease and the decree, in addition to testimony of plaintiffs and other witnesses with respect to damages. Defendants introduced evidence bearing upon the obligation to heat the premises. Plaintiffs objected. The court admitted the testimony subject to plaintiffs’ objection. At the close of the evidence the court overruled plaintiffs’ motion to strike the testimony on the ground that the decree was not binding in the law case and that there was a question of fact to be decided as to which party was obliged to furnish the heat. The trial court found that the plaintiffs had that obligation and further found that plaintiffs made no effort to furnish heat for themselves following January 7, 1944; made no attempt to carry on the business; and had failed to prove any substantial damages.

We think the trial court was clearly in error. The parties in both actions were the same. The issue decided in the equitable action was the vital issue in the law case. We think the introduction by plaintiffs of the decree was sufficient to determine that issue in the law case. The trial court should have sustained plaintiffs’ objection to any testimony with reference to the obligation to furnish heat. Following the introduction of the decree in evidence there was only one further issue and that was as to damages.

Proof of damages is not satisfactory. It may not be possible upon a remandment of this case for the trial court to compute plaintiffs’ damages from the record which has been made. We do not believe it is our function to do so. Plaintiffs are entitled to recover damages for whatever injuries they suffered following the breach of the lease by defendants in failing to furnish heat. This included the spoilage of the merchandise, damages to the machinery and loss of profits. Chapman, et al. v. Kirby, 49 Ill. 211; 32 Amer. Juris. pp. 249, 250.

Plaintiffs did not occupy the premises after January 7, 1944. On that date Walter Hoffman locked the store. He returned about once a week during January, February, March and in April found the store unheated. After the entry of the decree in July, they sought without success to have defendants furnish heat. In October, still finding the store unheated, plaintiff Walter Hoffman moved all of the goods from the store.

Defendants’ obligation was to furnish heat, according to the terms of the lease, during the period from October to April when the weather required heat. It is our view that any recovery for loss of profits should be limited to those terms.

• Plaintiffs contend that they should be permitted to recover for loss of profits during the two years succeeding the end of the term of the written lease. They had an option for those two years. The lease required no notice of election to exercise the option. There is nothing in the record to indicate any conduct of plaintiffs’ which showed an intention to exercise the option. As a matter of fact plaintiffs, having left the merchandise undisturbed during several months when there was no obligation on the part of defendants to furnish heat, vacated the premises during the last month of the lease. This conduct in our view negatives any intention to exercise the option.

The trial court expressed the opinion that the obligation to furnish heat began with the entry of the decree in July of 1944. This was erroneous. The obligation existed from the beginning and the decree merely expressed the obligation by ordering the lease corrected.

The defendants introduced evidence on their counterclaim of damages arising from harm to the premises. No evidence was introduced by the plaintiffs, counter-defendants, to rebut the testimony. The record shows that in an endeavor to expedite the trial plaintiffs and counter-defendants were precluded from introducing testimony to meet that of the counter-plaintiffs. On a retrial ample opportunity should be given to the parties to introduce testimony on the issues presented by the counterclaim.

For the reasons given the judgment is reversed and the cause is remanded for a new trial.

Reversed, and remanded.

Lews, P. J., and Burke, J., concur.


text:
    Johann Vidon, Appellant, v. Rosa Roberts, Appellee.
    Gen. No. 43,708.

      Opinion filed November 20, 1946.
    Rehearing denied December 4, 1946. Released for publication December 5, 1946.
    Clarence W. Shaeffer, and David H. Kraft, both of Chicago, for appellant; David H. Kraft, of Chicago, of counsel.
    Eckert & Peterson, of Chicago, for appellee; William U. Bardwell and Melvin L. Gibbard, both of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court. This is an action in chancery, filed May, 1940, to, among other things, cancel certain deeds and for an accounting. There is a cross-complaint for foreclosure based on one of the deeds sought to be canceled. The main point raised* however, is that the trial court erred in holding plaintiff was bound by the terms of a stipulation contained in a court order. Plaintiff sought to appeal to the Supreme Court. The appeal was transferred here.

In the trial court the cause was referred to a master who reported his findings and conclusions. The parties, however, stipulated in an order entered October 27,1944, that a decree should be entered requiring each party to perform certain acts in settlement of their controversy. -A decree was entered November 9. A verified petition was filed December 1, in plaintiff’s behalf by substituted counsel, asking that both the order of October 27 and the November 9th decree be vacated or in the alternative, should the court refuse to grant that request, the decree be set aside and a new decree be entered in conformity with the stipulated order. December 11, a new decree was entered vacating the decree of November 9 and conforming to the stipulation. Plaintiff objected to the entering of this decree. December 28, he moved to strike the alternative prayer from his petition of December 1; to vacate the decree of December 11 and the order of October 27; and to restore the proceeding to its status prior to October 27 so that he might argue exceptions to the master’s report, etc. These several motions were denied. Plaintiff asks for reversal of all the orders and the decree of December 11th.

In his complaint plaintiff alleged his ownership of Real Estate Parcels #1 and #2; his conveyance by Warranty Deed of both parcels to Hedwig Knoll-mueller, deceased, to secure a $7,000 loan and an $1800 loan; her written agreement witnessed by defendant to reconvey to him after payment of the sums borrowed ; his further loan from decedent of $1500 and his pledge of a $2700 Green note as security; his benefit of only $5,450 of the $7,000 loan and decedent’s agreement to reduce interest rates from 6 to 1 per cent in consideration of his waiving the balance of that loan; decedent’s devise of both parcels, and conveyances of Parcel #1 to her cousin, defendant, with the latter’s knowledge of fraud upon plaintiff and her holding of title since; collections by decedent and defendant of income from real estate in excess of loans; collections on the collateral note in excess of loan secured; and his offer to pay whatever should be found due from him to defendant Roberts. In her answer defendant charged laches and put plaintiff on proof of allegations in the complaint. She filed her counterclaim to foreclose on plaintiff’s deed to Parcel 2, given to secure payment of the $1800 loan.

While the master’s report and exceptions thereto were pending in the trial court, the order of October 27 was entered. It recites that the motion for the order is by attorneys for both parties who, having 11 amicably” settled all matters in controversy between them, were present at the time in person and by counsel. The order continued the cause to November 9, 1944 without further notice for entry of a decree providing “among other things,” (a) that defendant should pay plaintiff $500 and dismiss her suit on plaintiff’s $1500 note; (b) defendant should pay any further master’s fees; (c) plaintiff to execute and deliver whatever documents necessary to vest title in defendant; (d) parties to execute mutual releases; and (e) the decree to find that plaintiff had no interest in the Green note. The order bears the O.K. and signature of plaintiff and defendant.

The decree of November 9, did not conform to the order. It purported to be entered upon a hearing of the pleadings, report and exceptions thereto. It made; findings in conformity with the report, overruled exceptions thereto, and contained in decretal orders recommendations of the master. It ordered defendant’s counterclaim dismissed, gave plaintiff the right to redeem the real estate upon paying defendant approximately $17,000 and found he had no interest in the Green note. We have already recited the events leading to the entry of the December 11 decree ordering performance in accordance with the stipulation.

Plaintiff contends the court abused its discretion in enforcing the stipulation. He says the stipulation was incomplete in failing to make specific the term “among other things”; uncertain in failing to specify what documents plaintiff was to execute to vest title in defendant; vague as to the time each party should perform; and vague as to how the parties had amicably settled the matter in controversy. Plaintiff does not claim that “other things” meant provisions or matters not included in the decree of December 11. We have no way of knowing what the term meant. The parties used it and were apparently satisfied with it. We assume it was certain enough for them at the time and infer it meant whatever other provisions the court might include in a decree in addition to those stipulated. We agree with defendant that “necessary documents” was not an uncertain term. The specific documents could not very well have been foretold. We think the statement about the parties settling their differences needs no explanation. It was not necessary for the stipulation to designate the times of performance. This would be the function of the decree and the December 11 decree did specify the times of performance.

Plaintiff says that defendant by failing to answer the petition of December 1, admitted the allegations therein, in the face of which the Court should not have refused to grant the prayer of the petition. The petition alleged that defendant had repudiated by failing to pay plaintiff the $500. There was no decretal order yet to pay. It charged that plaintiff could not decipher, and did not understand, the order; was advised by counsel and believed he was obliged to convey only Parcel #2; and was, therefore, misled and his approval of the order induced by mistake. This petition was not answered by defendant. We think the record was sufficient answer to the material allegations. While the order was written in a poor longhand, we experienced but a little difficulty in reading it. Moreover, plaintiff O.K. ’d the order and should not be heard to say that he did not understand it. He does not say counsel for defendant misadvised him. Defendant is not responsible for the action of plaintiff’s counsel.

The petition also charged that the order of October 27 “lapsed and expired” through failure of a conforming decree of November 9. The decree of November 9 was contrary to the stipulation. There is no explanation made in the briefs for its entry. It contained matter the stipulation was intended to obviate. It purports to have been entered after consideration of plaintiff’s exception to the master’s report. It is not denied that exceptions were not heard. Plaintiff alleged that for the reasons stated in this and the foregoing paragraph the stipulation in the order of October 27 was “abrogated and rescinded,” and “lapsed and expired.” He claims benefit of the charge, since there was no answer of defendant to deny it. Defendant’s failure to answer the petition did not admit these conclusions of law.

In support of his theory plaintiff refers us to Gage v. Commercial National Bank, 86 Ill. 371. There the court held that an agreement between plaintiff and one defendant to waive a jury was set aside by subsequent dismissal of the other defendant from the suit and the filing of virtually a new suit against the one who made the agreement. That is a different situation than confronts us. It is not disputed that parties may abrogate a stipulation by conduct in “virtual disregard” thereof. (60 C. J. p. 90.)

Plaintiff prayed in his petition for vacation of the order of October 27 and the decree of November 9 and for a restoration of the cause to its status prior thereto so that exceptions could be argued. In the alternative, should the first prayers be denied, he prayed for entry of an appropriate decree in accordance with the stipulation. The second decree in conformity with the stipulation was entered December 11, over plaintiff’s objection. Plaintiff on December 28 moved to strike the alternative prayer of his petition. The' motion was denied. The trial court stated it did not enter the decree upon the alternative prayer, but upon the stipulation which it felt was binding on the parties.

Though Stovall v. Breedlove [79 Okla. 24], 191 Pac. 180, cited by plaintiff, is much different factually from the instant case, a rule (36 Cyc. 1297A) is referred to which we believe is decisive of this point. Under that note we find what appears to be the leading ease in Illinois on the subject. Coultas, Impl. v. Green, 43 Ill. 277. Under the rule the parties hereto having stipulated as they did in the order of October 27, lost further power over the case. There was nothing further to be done but enter the appropriate decree under which the parties would carry out this agreement. The court finding the November 9, decree inappropriate, vacated it and entered an appropriate one. The court’s action was discretionary. There was no proper showing of any reason for setting the stipulation aside or for relieving plaintiff from its terms. We see no merit to the point that the stipulation expired November 9 when the decree was entered and the court was powerless thereafter to vacate that decree and enter the decree of December 11. In the case of In re Robinson [116 Me. 125], 100 Atl. 373, cited by plaintiff, a judgment to be entered by stipulation at the April term was not entered until September term. In Keiser v. Morris & Co., 179 N. Y. S. 582 no judgment was entered within the time specified by the stipulation. Cases having to do with improvident and fraudulent stipulation, cited by plaintiff, have no bearing in the situation before us. We are unable to find that the trial court abused its discretion by vacating the decree of November 9th and entering the one of December 11.

Having reached this conclusion we shall not consider argument of plaintiff referring to the fairness of the terms of or consideration in the stipulation, nor any evidence or findings before the master. Plaintiff filed exceptions. He stipulated away his right to argue them. They were not passed on by the trial court and are not before us.

We believe we have given consideration to all points and matters necessary to a proper disposition of this appeal. We believe the trial court acted properly and that the decree of December 11 should be and it hereby is affirmed.

Affirmed.

Lewe, P. J., and Burke, J., concur.


author: Mr. Presiding Justice Wolfe

text:
    Kathryn C. Schwartfager, Appellee, v. Florence I. Schwartfager, Administratrix of Estate of Harold A. Schwartfager, Appellant.
    Gen. No. 10,064.

      Opinion filed December 12, 1946.
    Released for publication December 30, 1946.
    George D. Carbary and Paul M. Hamilton, both of Elgin, for appellant.
    Charles G. Seidel and Ernest W. Akemann, both of Elgin, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Harold A. Schwartfager died in 1937, in Kane county, Illinois, leaving a widow and two minor children. His widow, Florence, was appointed administratrix of his estate, on October 5,1937. In August 1938, appraisers were appointed to fix the widow’s award, which was fixed at $5,000, and for each of the minor children $200, or a total award of $5,400. The probate court on the same day approved the award. To satisfy the award, the widow selected certain personal property, and on July 9,1941, filed her final report. The inventory filed shows the only assets of said estate were 175 shares of stock in the Elgin Flour and Feed Company.

On April 29, 1938, Kittie C. Schwartfager filed her claim against the estate, which was allowed for $2,000 on October 3, 1940, as a sixth class claim. On October 3, 1940, Kittie Schwartfager filed a petition in the probate court of Kane county to revise the widow’s award. On February 19, 1942, the probate court entered an order reducing the widow’s award from $5,000 to $2,500, and from that order the widow, as administratrix, perfected an appeal to the circuit court.

The cause was heard in the circuit court on a stipulation of facts that the only assets of the estate were 175 shares of stock in the Elgin Flour and Feed Company, appraised at $30 per share, and the testimony of the attorney representing the claimant, to the effect they had discussed on numerous occasions, with the attorney for the administratrix, the possibility of a settlement of the claim, and for that reason, the claim of Kittie C. Sehwartfager was permitted to rest.

At the conclusion of the hearing, the circuit court, on July 18, 1945, entered an order dismissing the appeal, and entered judgment in favor of the appellee. It is from this judgment that the appeal to this court has been prosecuted.

It has been repeatedly held both by the Supreme and Appellate Courts of this State, that in appeals from the probate court to the circuit court, the hearing is a trial de novo, and the appeal acts to set aside any order that might have been rendered in the probate court. The circuit court does not sit as a court of errors, but should try the case the same as though it had never been tried before, which on further appeal to the Appellate or Supreme Court, the judgment should be reviewed as that of the circuit court and the view of the probate court is of no importance in passing on that judgment. Barnes v. Earle, 275 Ill. 381; In re Estate of Murray v. Appeal of Murray, 310 Ill. App. 121; In re Estate of Schwarts, 286 Ill. App. 310, and In re Estate of Noel v. Noel, 228 Ill. App. 569.

We are of the opinion that the effect of prosecuting the appeal from the judgment of the probate court reducing the widow’s award, was to vacate the judgment of the probate court, and it was the duty of the circuit court to pass upon the merits of the case. It should have tried the case de novo, and upon such a» appeal, it was without jurisdiction, either to affirm, or reverse the judgment of the probate court, but only to try the case de novo, Wesemann v. Foley, 231 Ill. App. 104.

The judgment of the circuit court dismissing the appeal is reversed, and the cause remanded to the said court to proceed and try the case de novo. Upon the merits of the case, we express no opinion.

Reversed and remanded.


text:
    Katherine Carroll and John Edward Carroll, Appellants, v. Glen L. Rogers, Appellee.
    Gen. No. 10,082.
    Opinion filed December 12, 1946.
    Released for publication December 30, 1946.

      Horace B. Garman, of Decatur, and Clarence W. Heyl, of Peoria, for appellants.
    Cassidy, Sloan & Crutcher, of Peoria, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The essential allegations of fact in this case appearing in the briefs and abstract submitted herein, are that the deceased, John Edward Carroll, a minor, and resident of the State of Illinois, was injured in Missouri while riding in an automobile driven by the defendant, Glen L. Rogers, also a resident of the State of Hlinois. The deceased died 13 months later in Illinois as a result of the severe injuries sustained in the Missouri accident, and his parents, the plaintiffs herein, are now bringing this suit in this State, under the Missouri wrongful death statute. One of the plaintiffs is a resident of Illinois and the other is a resident of Kansas.

Defendant filed a motion to dismiss the complaint on the ground that it was barred by Ill. Rev. Stat. 1945, ch. 70, § 2 [Jones Ill. Stats. Ann. 38.02]. The circuit court granted this motion and entered judgment thereon from which plaintiffs appeal.

The sole question before this court is whether the circuit court erred in granting the motion to dismiss the complaint.

The second proviso of sec. 2 of chapter 70 of Ill. Rev. Stats, is as follows:

“Provided that no action shall be brought or prosecuted in this state to recover damages for a death occurring outside of this state where a right of action for such death exists under the laws of the place where such death occurred and service of process in such suit may be had upon the defendant in such place.”

Under a literal interpretation of this proviso it would constitute no bar to the proceedings in the instant case where the death occurred in Illinois, for the emphasis in the proviso is clearly and unequivocally on the place of death, and the bar is against actions for death occurring outside of the State. The statute refers to “death occurring outside of this state,” and the “place where the death occurred.”

The defendant, however, contends that by judicial interpretation the proviso does not mean what it says, but means that no proceeding shall be brought where the wrongful act which caused the death occurred outside the State, irrespective of where the death itself occurred. Defendant contends further that inasmuch as the Missouri statutes provide that nonresident motorists make the Missouri Secretary of State their agent for purposes of serving process, the other requirement of the proviso is met, and this action is barred in Illinois.

In support of this theory defendant cites and relies mainly upon three cases: Crane v. Chicago & W. I. R. Co., 233 Ill. 259; Dougherty v. American McKenna Process Co., 255 Ill. 369; Wall v. Chesapeake & O. R. Co,, 290 Ill. 227.

In the Crane case, supra, the accident occurred in Illinois and the injured party was removed to the nearest hospital which was in Indiana and death occurred in Indiana. Plaintiffs sued under sec. 1 of the Illinois Wrongful Death Statute for there was apparently no remedy in Indiana. The proviso in sec. 2 of the statute was, at that time, different from the one before the court in the instant case. It merely stated: “Provided, further, that no action shall be brought or prosecuted in this state to recover damages for a death occurring outside of this state.”

As is readily apparent, the proviso now contains the additional qualifications, to-wit,- “where a right of action for such death occurred and service of a proe-ess in such suit may be had upon the defendant in such place.” If the court in the Crane case had before it the present proviso as amended, recovery could have been permitted without recourse to the strained construction adopted by the court to permit a remedy. However, confronted with the proviso as it read in 1903, the court held:

“We are of opinion the proviso to Sec. 2 from which we have quoted was intended to be considered in connection with Section 1 of the act of which it forms a part and when so considered it must be construed to mean that no action shall be brought in this state to recover damages for a death where the wrongful act causing the death occurred outside of this state.” (Italics ours.)

Defendant argued that this construction is binding on this court in the instant case, and that since the wrongful act occurred in Missouri, recovery for the ensuing death, no matter where it occurred is barred in Illinois.

We believe this contention is untenable. The proviso construed by the court in the Crane case is different from the one involved in the instant case; secondly, the Crane case involved a suit on the Illinois Wrongful Death Statute whereas in the instant case the plaintiffs are suing on the statute of a sister State, i. e., Missouri ; thirdly, the facts are strikingly different for in the Crane case the death did not occur in this State. In the Crane case the court was constrained to effect such an interpretation to permit recovery under circumstances where the parties would otherwise be unjustly deprived of their rights by the sweeping prohibition of the statute as it then existed.

A distinction has been made by the Illinois Appellate Court between the Crane case and one involving circumstances practically identical to the case at bar. In Fitzgerald v. Cleveland, C., C. & St. L. R. Co., 151 Ill. App. 32, the deceased was injured in Indiana and died in Illinois and the administrator brought suit in Illinois under the Wrongful Death Statute of Indiana. The Appellate Court stated with reference to the Crane case:

“The decision in that case has no reference to a cause of action for wrongful death predicated upon the statute of a sister state, and if the courts of this state may entertain jurisdiction of a cause of action based upon the statute of a sister state authorizing a recovery of damages for wrongful death there is nothing in the Crane case which prohibits such recovery. The language employed in the decision of the Crane case must be limited in its application to the precise question which was then before the court, viz: the proper construction to be given to the statute of the State of Illinois authorizing a recovery of damages for wrongful death.”

Subsequent to the Fitzgerald case, supra, the Supreme Court of Illinois decided two cases where suit was brought under the Wrongful Death Statute of a sister State and the proviso of section 2 of chapter 70 was urged as a bar to the proceedings. In both Dougherty v. American McKenna Process Co,, 255 Ill. 369, and Wall v. Chesapeake & O. R. Co., 290 Ill. 227, the wrongful act and the death for which damages were sought occurred outside of the State, and hence under the plain terms of the 1903 proviso the court held that the actions were barred in this State because they were prohibited by a specific law.

It is apparent that neither of these cases constitute a precedent for the instant case, for in those cases the death occurred outside of the State whereas in the instant ease the death occurred in Illinois. Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. Possible, or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere.

It seems both unnecessary and injudicious to construe the plain and unambiguous words of the present proviso of sec. 2 of chapter 70 of the 111. Eev. Stats, to conform to an interpretation offered in a case where the facts were clearly distinguishable, where the action was brought under a different statute, and where the terms of the proviso itself varied from those presented to the court in the instant case.

Inasmuch as there is no binding precedent to the contrary, the second proviso of sec. 2 of chapter 70 should be interpreted as it is written and should be construed only to bar actions where death occurred outside of this State and not to bar an action for damages for a death occurring within the State, where the parties are residents of this State.

The judgment of the trial court is hereby reversed, and the cause remanded.

Reversed and remanded.


text:
    Harry Fredman, Appellant, v. Sutliff & Case Co., Inc., Appellee.
    Gen. No. 10,092.

      Opinion filed December 12, 1946.
    Released for publication December 30, 1946.
    Cassidy, Sloan & Crutcher, of Peoria, for appellant.
    Bartley, Youngs & Bartley, of Peoria, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This is an appeal from a summary judgment entered by the circuit court of Peoria county in favor of defendant, Sutliff & Case Co., Inc., a corporation, in a proceeding involving the right to possession and damages for the wrongful detention of certain premises owned by the plaintiff, Harry Fredman, and leased to the defendant corporation.

The undisputed facts appearing from the pleadings and affidavits filed in support thereof, disclose that plaintiff is the owner of a store building purchased by warranty deed from defendant in June 1943, and that the plaintiff leased said premises to the defendant for the term of one year, from Oct. 1, 1943, to Oct. 1, 1944. The said lease contained a typewritten clause which provided:

“Provided that party of second part to start Oct. 1, 1943, is renewable from year to year by party of second part by letter of intention to do so, sixty days before expiration of each year term. However, either party hereto can cancel this lease by giving the other notice in writing 60 days before expiration of each yearly term.”

Defendant took possession of the premises under the lease and still retains possession, and has paid rent for the entire time.

On Oct. 30, 1945, defendant received a letter from the Fredman Bros. Furniture Co., stating in substance that the tenancy was' on a month to month basis, and that possession of the premises was demanded by plaintiff on or before Jan. 1, 1946. The defendant however, retained possession and continued to pay the monthly rental which was received and held by plaintiff. Plaintiff herein, seeks possession of the premises and double damages for the wrongful withholding of the premises by the defendant, as well as an additional $12,000 because plaintiff claims defendant knew that plaintiff had a renter for the premises who was willing to pay a substantially higher rental than defendant.

After the hearing on plaintiff’s and defendant’s motions for summary judgment, in which the foregoing facts were set forth by the respective affidavits of the parties, and prior to a decision by the court, plaintiff was permitted to file a supplemental affidavit. It was alleged therein that, in August 1945, when plaintiff failed to receive a notice of renewal from defendant, he assumed that defendant would vacate the premises at the end of the present yearly term. When defendant failed to do so, on Oct. 1, 1945, plaintiff contends that he thought there was a slight delay, and finally, when the check for the October rental, dated Oct. 6, 1945, came to his attention some 21 days after it was written, he thereupon, notified defendant to vacate the premises by Jan. 1,1946.

Plaintiff, moreover, alleges therein, that the delay in the receipt of the check was occasioned by the fact that it was sent to his store at 614 S. Adams St., and that he was at 324 S. Adams St., and that he has never cashed that check, nor the ones sent for the November and December rental.

The circuit court denied plaintiff’s motion for summary judgment, and granted defendant’s motion therefor, and held that defendant was entitled to possession of the premises.

The sole issue presented upon this appeal is whether the defendant corporation held the premises as a tenant from year to year, in which case it would be entitled to the 60 day notice of termination provided in sec. 5 of the Landlord and Tenant Act [Ill. Rev. Stat. 1945, ch. 80, par. 5; Jones Ill. Stats. Ann. 72.05]; or whether defendant held the premises under the lease and was bound by the provision therein, to give notice of intention to renew the lease or otherwise forfeit rights to the premises.

The original lease under which defendant entered possession was for the term of one year, from Oct. 1, 1943, to Oct. 1, 1944. Unless this lease contained a legally operative provision for the renewal thereof, and was actually renewed by the parties, defendant’s holding over and payment of rent after the expiration of the original term, with the knowledge and acquiescence of the plaintiff, would constitute a tenancy from year to year. (Goldsborough v. Gable, 140 Ill. 269, 273.)

It is necessary, therefore, to consider the provision of the original lease and determine the legal effect of the aforementioned typewritten clause. It is obvious that a court would reform the provision to the extent of substituting the word “lease” for the words “party of the second part,” appearing in the first line, for the error is patent, and the intention of the parties is clear.

Even after such reformation, however, the provision is still legally inoperative, since the first clause thereof, is contradicted and rendered void by the second clause. The first clause provides that the lease is renewable by a “letter of intention to do so” submitted by defendant 60 days prior to the expiration of “each year term.” The second clause provides that the lease can be cancelled by either party by giving the other notice in writing 60 days before the expiration of each yearly term.

The implication of the first clause is that the lease expires unless renewed 60 days before Oct. 1, and the implication of the second clause is that the lease continues in operation for the next yearly term unless either party gives notice to cancel 60 days before Oct. 1. There is no more reason to give effect to the first clause, as plaintiff argues, and hold defendant responsible to give notice of intention to renew the lease in August, than to give effect to the second clause whereby plaintiff was under the obligation to give notice of cancellation of the lease in August. It is submitted, therefore, that this renewal clause was a legal nullity; and that the lease terminated by its own terms on Oct. 1, 1944; and that defendant held over under a tenancy from year to year created by law.

Notwithstanding this interpretation, however, even if the clause were construed as operative, and of legal effect, it is doubtful whether the conduct of the defendant and the plaintiff would have constituted a renewal of the lease for the year from Oct. 1, 1944, to Oct. 1, 1945.

Defendant gave no notice of renewal 60 days prior to the termination of the lease, and plaintiff gave no notice of cancellation. Defendant merely held over and paid rent, and plaintiff tacitly accepted such payment, and neither party had any discussion with reference to the renewal provision of the lease. Plaintiff contends, however, that this conduct constituted a renewal of the lease, and in support thereof, cites decisions from other jurisdictions, which are of interest but clearly not binding in matters of local interest, such as landlord and tenant, and one Illinois case, Anderson v. Dodsworth, 292 Ill. 335.

This case involved a provision in a lease for its extension for three different terms, and the issue was whether the tenant by holding over and paying rent extended the lease for the longer or the shorter terms. The court held that the tenant’s holding over would be construed as an election to extend the term of the lease for the shortest period named.

That case is not a binding precedent upon the court in the instant case, inasmuch as it involved the issue of which of several terms the lease was extended by merely holding over, and not whether such conduct constituted a renewal of a lease. Furthermore, the courts of Illinois, along with those of other jurisdictions, make a distinction between provisions to extend a lease and those for its renewal. In Vincent v. Laurent, 165 Ill. App. 397, the court stated at p. 403:

“Upon an examination of the cases cited by counsel we conclude the better doctrine to be, where the lessee has an option to renew a lease, that he should notify the lessor before the term expires whether he elects to renew as the lesser should know when the term expires whether he has or has not a tenant. Am. & Eng. Ency., Vol. 18, 692. In cases giving the lessee the privilege to extend the term as distinguished from a renewal, no notice of the lessee’s election to extend is required in the absence of a stipulation therefor, merely remaining in possession being sufficient notice. (Ibid. 693.)”

Defendant cites cases from other jurisdictions where this distinction has been followed, but here again these decisions are not binding upon this court.

The more recent Illinois cases have not, however, discussed this distinction, nor has it been overruled. It is submitted that the distinction is tenuous, but even if it were completely rejected by this court, that would not change the result in this case. For even if defendant by holding over and paying rent, without expressly exercising his option to renew the lease, nevertheless, did renew the lease for the year beginning Oct. 1, 1944, to Oct. 1, 1945, this same conduct the following year beginning Oct. 1, 1945, would constitute a renewal for the yearly term from Oct. 1, 1945, to Oct. 1, 1946.

The allegations of plaintiff’s supplemental affidavit which purports to establish that defendant’s conduct did not constitute a renewal for the yearly term from Oct. 1, 1945, to Oct. 1, 1946, should properly be disregarded and stricken by the court.

Plaintiff alleges therein that when he received no notice from defendant in August 1945, (60 days before the end of the yearly term) he assumed that defendant would move on Oct. 1, 1945; that when defendant did not move plaintiff assumed that there was some delay; and finally, when plaintiff received defendant’s check dated October 6, some 21 days later, he realized defendant was holding over, and sent a letter rejecting defendant as a tenant. The excuse for the delay in the receipt being that it was sent to his store at 614 S. Adams St., and did not come to his attention at 324 S. Adams St., for 21 days.

In the first place, the fact that plaintiff did not receive defendant’s notice of intention to renew the lease in August of 1945, would not constitute evidence of defendant’s intention to terminate the lease in October, any more than did defendant’s failure to give notice to renew the lease the preceding year. If, in August, plaintiff intended to cancel the lease, he was obliged under the terms and provisions of the lease— the same provision which required defendant to give notice to renew — to give defendant 60 days notice of cancellation. Plaintiff’s conduct in maintaining a strict silence and waiting for the lease to expire is no more in accordance with the terms of the lease than defendant’s in failing to give notice of intention to renew. In fact, in view of plaintiff’s waiver of notice to renew, in Oct. 1944, the preceding year, at which time he regarded defendant’s payment of rent and holding over as a renewal of the lease, plaintiff’s conduct in 1945, in allowing the 60 days to go by without giving notice of termination of the lease, and, intending by his own allegations to terminate the lease, is tantamount to fraud.

Secondly, the allegation that the check, dated Oct. 6, did not come to plaintiff’s attention until Oct. 27, since it was sent to one store while plaintiff was at another, is neither convincing as a true fact, nor does it operate to relieve plaintiff of the consequences of defendant’s payment of the October rental. For, there is no allegation that the check was sent to a place different from that to which all defendant’s other checks were sent, hence, the delay, if true, is purely the result of plaintiff’s neglect.

Finally, this affidavit, filed after the hearing on both plaintiff’s and defendant’s motions for summary judgment was in plain contravention to the terms of sec. 57 of the Illinois Civil Practice Act (ch. 110, par. 181, Ill. Rev. Stats. 1945 [Jones Ill. Stats. Ann. 104.057]) which provides:

“ (1) Subject to rules, if, in any action . . . (c) to recover possession of land, with or without rent . . . the claimant shall file an affidavit ... on the affiant’s personal knowledge of the truth of the facts upon which the claim or counterclaim is based, . . . the court shall, upon motion, enter a judgment or decree for the relief demanded, unless the opposing party shall, by affidavit filed prior to or at the time of the hearing on the motion show that he has a sufficiently good defense on the merits to all or some part of the claim to entitle him to defend. . . .”

Therefore, since plaintiff’s additional affidavit was in opposition to defendant’s motion for summary judgment, and since it was filed neither prior to nor at the time of the hearing, as provided by the statute, it should be ignored by the court.

Actually it appears that plaintiff had no intention to terminate the lease until plaintiff secured a renter for the premises who would pay double the rent paid by defendant, and plaintiff thereupon sought to oust defendant by exercising its rights under the first clause of the typewritten provision for notice of renewal and termination of the lease.

From the facts and circumstances it is evident that defendant’s conduct in Oct. 1945, was identical to that of 1944, and if the holding over and payment of rent constituted a renewal of the lease in 1944, as plaintiff contends, it constitutes a renewal thereof in 1945. Plaintiff has not cited a case where a lessor is permitted to waive notice of renewal one year and then rely upon the notice requirement the next year in order to oust the tenant.

It is our conclusion that the renewal provision contained two contradictory clauses and was therefore of no legal effect. "When the lease expired by its own terms in Oct. 1944, and defendant held over and paid rent, defendant became a tenant from year to year for the period from Oct. 1,1944, to Oct. 1, 1945. Inasmuch as defendant did not receive the statutory 60 day notice to quit, prior to the expiration of that yearly term, defendant became a tenant from year to year for another yearly term, beginning Oct. 1, 1945, to Oct. 1, 1946, and plaintiff’s notice to quit, on October 30, 1945, was of no legal effect.

Even if the renewal provision be construed as legally operative, defendant’s conduct in 1944, would not constitute a renewal of the lease, for he gave no notice of intention to renew and did no overt act as required by the Illinois cases to exercise his option to renew. If, however, this court were to overrule the distinction between provisions to extend a lease and to renew a lease, and construe defendant’s conduct as an exercise of its intention to renew the lease in 1944, when it expired, then this same conduct in 1945 should properly constitute a renewal of the lease for that year. Plaintiff cannot rely on the doubtful allegations of an improperly filed affidavit to excuse himself from knowledge that defendant held over and paid rent in Oct. 1945, nor can plaintiff disregard the plain requirements of the typewritten provision — the same one that requires notice of intention to renew — to give notice of cancellation 60 days before the termination of each yearly term.

In the light of the foregoing conclusions, it is the judgment of this court that plaintiff is neither entitled to possession of the premises nor damages, and that the circuit court did not err in granting defendant’s motion for summary judgment. Judgment in favor of the defendant is affirmed.

Affirmed.


author: Presiding Justice Dady.

text:
    Harry L. Barker, Appellant, v. John Monts, Appellee.
    Gen. No. 9,507.
    opinion filed October 25, 1946;
    rehearing denied December 28, 1946; released for publication December 30, 1946.
    Victor Hemphill and Homer D. McLaren, for appellant; no appearance for ap-pellee.
   Opinion by

Presiding Justice Dady.

Not to be published in full.


text:
    Wesley Miller, Appellee, v. Baltimore and Ohio Southwestern Railroad Company, Appellant.
    Gen. No. 9,512.

      opinion filed October 25, 1946;
    rehearing denied December 28, 1946; released for publication December 30, 1946.
    Graham & Graham and Hershey & Bliss, for appellant; Williams A. Eggers, of counsel; Hogan & Coale and Carl H. Preihs, for appellee.
   Opinion by

Presiding Justice Dady.

Not to be published in full.


author: Justice Hayes.

text:
    People of State of Illinois et al., Defendants in Error, v. Lucy Hinton et al., Plaintiffs in Error.
    Gen. No. 9,508.
    opinion filed October 25, 1946;
    rehearing denied December 28, 1946; released for publication December 30, 1946.
    Philip J. Schlagenhauf and Arthur Goldblatt, for plaintiffs in error; John T. Reardon, State’s Attorney, and Harold W. Lewis and Wilson & Schmiedeskamp, for defendants in error; William J. Dieterich, Assistant State’s Attorney, of counsel.
   Opinion by

Justice Hayes.

Not to be published in full.


text:
    William E. Saddler, Appellant, v. National Bank of Bloomington, Appellee.
    Gen. No. 9,513.

      opinion filed October 25, 1946;
    rehearing denied December 28, 1946; released for publication December 30, 1946.
    Branson Wright and Chester Thomson, for appellant; Cassidy, Sloan & Crutcher, for appellee.
   Opinion by

Justice Hayes.

Not to be published in full.


author: Justice Wheat.

text:
    Virgil O. Whipp, Trustee in Bankruptcy of Helen Houghton Grider, Bankrupt et al., Appellees, v. Helen Houghton Grider et al., Appellants.
    Gen. No. 9,498.
    opinion filed October 25, 1946;
    rehearing denied December 28, 1946; released for publication December 30, 1946.
    Giffin, Winning, Lindner, Newkirk & Jones, for appellants; Robert H. Brunsman, Robert F. Hails and George K. Blanchard, of counsel; Henry E. Pond, for appellees.
   Opinion by

Justice Wheat.

Not to be published in full.


author: Justice Scan-lan.

text:
    Denotria Moore, Appellee, v. Alfred F. Sautter et al., Appellants.
    Gen. No. 43,566.
    opinion filed November 19, 1946;
    rehearing denied December 30, 1946; released for publication December 30, 1946.
    Burt A. Crowe, for appellants; Zeamore A. Ader and Walter F. Dodd, for appellee; Zeamore A. Ader, of counsel.
   Opinion by

Justice Scan-lan.

Not to be published in full.


author: Presiding Justice Lews.

text:
    Raymond Koll, Appellant, v. Norman J. Mitchell, Appellee.
    Gen. No. 43,316.

      opinion filed November 20, 1946;
    released for publication December 5, 1946.
    Royal W. Irwin, for appellant; Cassels, Potter & Bentley, for appellee; Kenneth B. Hawkins, of counsel.
   Opinion by

Presiding Justice Lews.

Not to be published in full.


author: Presiding Justice Lewe.

text:
    Mae Sullivan, Administratrix of Estate of Robert C. Sullivan, Deceased, Appellant, v. Union Transfer Company of Omaha, Appellee.
    Gen. No. 43,423.
    opinion filed November 20, 1946;
    rehearing denied December 4, 1946; released for publication December 5, 1946.
    Joseph D. Ryan, for appellant; James J. McKenna, for appellee; Edward A. Dreis, of counsel.
   Opinion by

Presiding Justice Lewe.

Not to be published in full.


author: Justice Burke.

text:
    David S. Jensen, Appellee, v. Baltimore and Ohio Railroad Company, Appellant.
    Gen. No. 43,587.
    opinion filed November 20, 1946;
    rehearing denied December 4, 1946; released for publication December 5, 1946.
    Rawlins & Wright and E. W. Lademann, for appellant; Fay Warren Johnson, of counsel; William H. DeParcq and Samuel Cohen, for appellee; R. J. McDonald and Donald T. Barbeau, of counsel.
   Opinion by

Justice Burke.

Not to be published in

full.


author: Justice Kiley.

text:
    Air Conditioning Training Company, Appellant, v. John Hildebrand, Appellee.
    Gen. No. 43,543.

      opinion filed November 20, 1946;
    rehearing denied December 4, 1946; released for publication December 5, 1946.
    Otto Kralik and Sumner C. Palmer, for appellant; Albert H. Werner, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    Saul Plast, Appellee, v. Metropolitan Trust Company et al., Appellants.
    Gen. Nos. 43,854, 43,875.
    opinion filed November 20, 1946;
    released for publication December 5, 1946.
    Levinson Becker & Peebles, McInerney, Epstein & Arvey and Morris Blank, for appellants; Joseph B. Gilbert, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Justice Bristow.

text:
    Kate M. Dukes, Appellant, v. Spurgeon Mercantile Company, Appellee.
    Gen. No. 10,080.
    opinion filed December 12, 1946;
    released for publication December 30, 1946.
    Monahan & Monahan, for appellant; C. Lysle Smith, for appellee.
   Opinion by

Justice Bristow.

Hot to be pub-

lished in full.


author: Mr. Justice Feinberg

text:
    Victoria Ford, Appellee, v. Thomas J. Friel and Charles C. Renshaw, Trustees, Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,780.

      Opinion filed January 6, 1947.
    Released for publication January 20, 1947.
    James O. Dwight, Erwin H. Wright and Arthur J. Donovan, all of Chicago, for appellants; William J. Flaherty and William S. Allen, both of Chicago, of counsel.
    Joseph D. Ryan and Arthur Ryan, both of Chicago, for appellee.
   Mr. Justice Feinberg

delivered the opinion of the court.

Plaintiff brought suit for personal injuries, resulting from alleged negligence of defendants in the operation of a feeder bus, on which she was a passenger. Trial by jury resulted in a verdict of $15,000, upon which judgment was entered. Defendants appeal.

The liability of defendants is not questioned upon this appeal. The only question presented for review is whether the verdict is excessive.

The undisputed facts are, plaintiff 66 years of age at the time of the accident, June 2, 1944, was thrown from the bus of the defendants, while alighting therefrom, upon the paved surface of the street. She landed on her back, with the upper part of her body on the sidewalk and the rest of it on the street. She was assisted by two men and taken in an automobile to the office of a doctor in the immediate vicinity. He examined her and took x-rays. She complained of injury across the small of her back and extending down through the left hip. The police took her home from the doctor’s office, and with help she was put to bed, where she remained for four days, during which period she was obliged to crawl to and from the bathroom because of her pain. After several days, with difficulty and pain, she was-able to get around the house and do some of her cooking. Some five days after the accident, she was taken by automobile to the same doctor’s office. She complained her pain was so severe, she could scarcely move. She was able to hobble down the stairs to get to a cab. This doctor applied therapeutic treatments on several of her visits to his office, which seemed to relieve her pain. June 29, 1944, additional x-rays were taken, which disclosed that plaintiff had suffered a compression fracture of the first lumbar vertebra, and showed a dense callus area of recent origin. Another x-ráy, taken about a year after the accident, showed most of the dense callus area to have disappeared but disclosed a deformed body of the vertebra, somewhat wedge shaped, and somewhat narrower in front than behind, whereas the normal vertebra is approximately the same height in front as behind. This was testified to by Dr. Vaughan for the plaintiff.

On July 5, 1944, plaintiff consulted another doctor for examination and treatment. She complained of pain over the area of the first lumbar vertebra and left sacroiliac joint. His examination disclosed a rigidity of the lumbar vertebrae and of the muscles on each side of the spine. He prescribed a brace for the lumbosacral area of the spine, which plaintiff has continuously worn since then. It seemed to relieve the pain and pressure in her back. This doctor again examined her on November 7, 1945, and testified that she showed evidence objectively, of sacroiliac pain. Injury to sacroiliac ligaments and the like, he testified, cannot be seen in x-ray pictures, and it is not necessary to receive a fracture to develop pain or injury to the same. In his opinion, the fall and the injury were sufficient to cause the symptoms and conditions then complained of by her.

Plaintiff worked as a practical nurse for private people and in institutions. She did not resume work until August 1944, and was discharged August 29, because she was unable to do her regular work due to the pain in her back. For several years preceding the accident, she earned, as a practical nurse, as much as $40 per week on private cases and $85 to $95 a month at hospitals, which included her meals and uniforms. For several months before the accident, she worked as a matron for the Lyons Manufacturing Company, earning $36 a week. She had never been involved in any accident prior to the one in question, had never sustained any injury and was in excellent health.

Defendants argue that most of the pain and suffering complained of by plaintiff is not shown by definite proof to have resulted from the accident in question but is left to mere speculation or conjecture, and that no verdict awarding damages, based upon such proof, should stand. We regard this contention without merit. A careful reading of the record convinces us that the evidence of plaintiff and the medical testimony sufficiently established a prima facie case of injury, pain and suffering, and a causal connection between the accident and the condition complained of, which clearly made it a question of fact for the jury.

This court has been called upon many times to determine whether a verdict under a given state of facts was excessive. The decline in the purchasing power of money has frequently been considered in determining the question. Howard v. Baltimore & O. Chicago Terminal R. Co., 327 Ill. App. 83; Kavale v. Morton Salt Co., 242 Ill. App. 205, affirmed 329 Ill. 445. The question of damages is peculiarly one of fact for the jury, and where -the jury has been correctly instructed upon the measure of damage, and it is not claimed nor shown that the size of the verdict clearly indicates it was the result of prejudice or passion on the part of the jury, the award should not be disturbed upon review. Lanyon v. Lanquist & Illsley Co., 157 Ill. App. 316 (certiorari denied by the Supreme Court); Princell v. Pickwick Greyhound Lines, Inc., 262 Ill. App. 298.

In no case will the scales of justice balance, when injuries, pain and suffering are placed upon the one side and monetary compensation upon the other. Her earning capacity has been seriously reduced. Her ability to do the type of work she was accustomed to has been impaired. Defendants have no right to accelerate her inability to work by injury inflicted through their negligence. She is entitled to have her inability to work develop through the normal channel of advancing years.

We are compelled to hold that the verdict is not excessive. Defendants had a fair trial. The judgment is accordingly affirmed.

Affirmed.

O’Connor, P. J., and Niemeyer, J., concur.


text:
    Olaf Hendriksen, Appellant, v. City of Chicago, Appellee.
    Gen. No. 43,840.

      Opinion filed January 6, 1947.
    Released for publication January 20, 1947.
    Paul R. Brown, of Chicago, for appellant.
    Barnet Hodes, Corporation Counsel of Chicago, for appellee; J. Herzl Segal, Head of Appeals and Review Division and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
   Mr. Justice Feinberg

delivered the opinion of the court.

Plaintiff appeals from an order of the superior court, dismissing the complaint for insufficiency in an action for personal injuries, and entering judgment for defendant.

Plaintiff was employed as a fireman by defendant on its tugboat, owned and operated by it, self-propelled, and plying the navigable waters of the Chicago River, a tributary of Lake Michigan.

The questions presented for review upon this record are: (1) Does the complaint allege sufficient facts to bring the plaintiff within the Jones Act and Federal Employers’ Liability Act, hereinafter referred to? (2) Is the plaintiff’s right to recover governed by the Illinois Workmen’s Compensation Act? (3) Is a tugboat, self-propelled, a vessel within the meaning of the Jones Act? (4) Does the doctrine of assumption of risk apply to the plaintiff under the averments in the complaint? We shall discuss these questions in the order stated. None of these questions seem to have been before our courts of review in Illinois so far as our search has gone, and no Illinois case is cited by either side passing upon these questions.

The complaint alleged inter alia, that the action was based upon the provisions of the Merchant Marine Act, as amended June 5,1920, commonly known as the Jones Act, 46 USCA § 688, as well as the Federal Employers’ Liability Act, 45 USCA §§ 51-60; that he was a member of the crew of the tugboat “Chicago Harbor No. 4”; that on September 19, 1945, said tugboat was docked at the Chicago Avenue Pier of defendant, on said navigable waters, and that plaintiff, in line of duty, was breaking up large lumps of coal in the fire-hold with the aid of a coal maul, made necessary because the pieces of coal were too large to enter the firebox for firing the furnace; that while breaking one of the large lumps, a chip of said lump struck by plaintiff with said maul struck plaintiff in the left eye, resulting in the loss of said eye; that defendant negligently and carelessly failed to furnish plaintiff with a reasonably safe place in which to perform his duties; that defendant was negligent and careless in using run-of-mine coal instead of standard coal, well knowing that said large lumps of coal were too large for the firebox and would require plaintiff to use a coal maul to break it up in order to use it for the furnace; that defendant was negligent and careless in failing to furnish goggles to protect plaintiff’s eyes, well knowing of the danger resulting from the use of a maul in breaking up the large lumps of run-of-mine coal; that plaintiff demanded of defendant that it furnish him with goggles to protect his eyes when breaking up the coal and, although requested to so furnish said goggles, defendant neglected to equip the said tugboat with goggles or to furnish plaintiff with said protection, well knowing that breaking up said large, hard lumps of coal, without goggles, would endanger life and limb and especially the eyes of plaintiff; that as a result of the aforesaid negligence, and as a proximate cause, plaintiff’s eye was injured, which resulted in its removal; that plaintiff has suffered loss of income, has suffered pain and injury, and will suffer future loss of earnings as a direct result of the loss of said eye.

Before the Jones Act, seamen and members of a crew, injured in line of duty, were limited to the right to recover under admiralty law, for wages, maintenance and care. The Osceola, 189 U. S. 158. The right to recover was greatly enlarged by the Jones Act, which provides:

“Sec. 20. Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply. . . . ”

The language in this section — ‘ ‘ and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply”, (Italics ours) — extends the benefit of the Federal Employers’ Liability Act governing railway employees to seamen or members of the crew.

Plaintiff exercised his election granted in this section, by bringing the action under the Jones Act and the.Federal Employers’ Liability Act. The applicable portion of the Federal Employers’ Liability Act, 45 USCA § 51, p. 118 is as follows:

. . shall be liable in damages . . . for such injuries or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.” (Italics ours.)

The Jones Act applies to a municipality when it owns and operates a tugboat like the one in question. Pariser v. City of New York, 146 F. (2d) 431; Jacob v. City of New York, 315 U. S. 752.

There has been a progressive development in the law for the protection of those in maritime service who are injured in line of employment. Under the ancient maritime law, the seaman was limited in his claim for personal injuries to the unseaworthiness of his vessel. Later, his right was extended so that defective appliances on the vessel came within the category of unseaworthiness of the vessel. At present, under the Jones Act and Federal Employers’ Liability Act, the charge of negligence, when made in a complaint, does not require any charge that the vessel was unseaworthy. Pariser v. City of New York, 146 F. (2d) 431; Jacob v. City of New York, 315 U. S. 752.

An interesting and noteworthy statement of the gradual extension of this protection, for personal injuries sustained in line of duty, can be found in The Osceola, 189 U. S. 158, and O’Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36. Longshoremen, stevedores and kindred class of employees, who were not considered seamen or members of a crew, were given protection by the Act of Congress, passed March 4, 1927, known as the Longshoremen’s and Harbor Worker’s Compensation Act, 33 USCA §§ 901-950.

Earlier, by its Act of June 10,1922, 42 U. S. Statutes 634, Congress undertook to protect those engaged in maritime work, but not included in the class of seamen or members of a crew, for injuries in line of duty, by giving them the remedy provided for in the workmen’s compensation law of the State where the accident occurred. This Act was held unconstitutional by the Supreme Court of the United States in Southern Pac. Co. v. Jensen, 244 U. S. 205; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149; and State of Washington v. W. C. Dawson & Co., 264 U. S. 219. It was held in those cases that Congress had no power to entend the laws of the several states; providing for compensation, to those in the maritime service, since that power was delegated exclusively to Congress by the Constitution. In State of Washington v. W. C. Dawson & Co., it was said (p. 225):

“To say that because Congress could have enacted a compensation act applicable to maritime injuries it could authorize the States to do so as they might desire, is false reasoning. Moreover, such an authorization would inevitably destroy the harmony and uniformity which the Constitution not only contemplated but actually established — it would defeat the very purpose of the grant.”

Certainly, by the same token, the Illinois Workmen’s Compensation Act could not reach, include nor govern the claims of seamen or members of the crew of a vessel on navigable streams, injured in line of duty. The trial court was in error when it held that the provision of the Illinois Workmen’s Compensation Act was the one under which plaintiff should seek his remedy. It was following these decisions by the Supreme Court of the United States that Congress passed the Federal Compensation Act for longshoremen and harbor workers, already referred to.

A tugboat, such as the one described in the complaint, comes within the definition of a vessel under the Jones Act. In Norton v. Warner Co., 321 U. S. 565, it was held that a barge without motive power of its own is a vessel, and that “vessel” is defined by section 3 of the Revised Statutes of the United States, 1 USCA § 3, to include every description of water craft or other artificial contrivance used, or capable of being used, as a means of transportation on water. The fact that the tug was tied to the dock does not prevent the liability from applying. The Edith Godden, 23 Fed. 43; Johnson & Co. v. Johansen, 86 Fed. 886; Seas Shipping Co., Inc. v. Sieracki, 66 Sup. Ct. 872.

The contention that the complaint, on its face, clearly shows that the plaintiff assumed the risk and was barred by the doctrine' of assumption of risk, we deem without merit. It is fully disposed of by Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, which dealt with the construction of the 1939 amendment to the Federal Employers ’ Liability Act, wherein it was said:

“We hold that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 amendment, and that Congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to £ non-negligence. ’ ”

It was not necessary to allege in the complaint that the plaintiff and defendant were engaged in interstate commerce at the time of the injury, since it is sufficiently alleged in the complaint that he was employed as a member of the crew in the capacity of fireman, on a tugboat plying on the navigable waters of the United States, namely, the Chicago River, which brings the parties clearly within the operation of the Jones Act.

We believe that the allegations in the complaint set up a sufficient charge of negligence on the part of defendant, proximately causing the injury "in question. Jacob v. City of New York, 315 U. S. 752. Mr. Justice Cardozo, in Cortes v. Baltimore Insular Line, 287 U. S. 367, in construing the Jones Act, said:

“Congress did not mean that the standards of legal duty must be the same by land and sea. Congress meant no more than this, that the duty must be legal, i. e., imposed by law; that it shall have been imposed for the benefit of the seaman, and for the promotion of his health or safety; and that the negligent omission to fulfill it shall have resulted in damage to his person. When this concurrence of duty, of negligence and of personal injury is made out, the seaman’s remedy is to be the same as if a like duty had been imposed by law upon carriers by rail.”

The court erred in dismissing the complaint and entering judgment. The judgment is therefore reversed, with directions to the trial court to overrule the motion to dismiss and compel an answer to the complaint.

Reversed and remanded with directions.

O’Connor, P. J., and Niemeyer, J., concur.


text:
    Joseph I. Bulger, Appellant, v. Doyle, O’Connor and Company, Appellee.
    Gen. No. 43,910.

      Opinion filed January 6, 1947.
    Released for publication January 20, 1947.
    Joseph I. Bulger, pro se; Ode L. Rankin, of Chicago, of counsel.
    Thomas S. Rosenberg and Alfred Roy Hulbert, both of Chicago, for certain appellee.
    Alfred Roy Hulbert, of Chicago, for certain other appellee.
   Mr. Justice Feinberg

delivered the opinion of the court.

Plaintiff, a lawyer, sued defendants for $2,100 for services, the amount alleged to have been agreed upon. A trial with a jury resulted in a verdict for plaintiff for that amount. After verdict, plaintiff dismissed the suit as to defendants Camden and Deuell, leaving Doyle, O’Connor & Company, a corporation, the only defendant. A motion for a new trial was filed for this defendant. The court granted the new trial, and plaintiff appeals from that order.

Except as otherwise noted, these facts are undisputed. Defendant was in the business of buying and selling securities. Camden was manager of its municipal bond department. The Hawthorne park district had issued $70,000 face value of bonds at 5 per cent interest. The Chicago Policemen’s Pension Fund had purchased the entire issue, some of which were about to mature. The district had no ready money with which to pay the bonds. The pension fund was offering the bonds fór sale and asked defendant to bid on them. Camden, on behalf of defendant, procured an exclusive 10-day option, which was extended several times, to buy the entire issue and set about to get the district to consider issuing a refunding bond issue. He enlisted the aid of one, Duggan, who was working with him in the bond department of defendant. Duggan undertook to persuade the park district to authorize such an issue and negotiated with the officers of the district. His daily efforts, extending from January 25, 1943, to February 4, 1943, brought no result. Deuell, an independent broker, had business dealings with Camden on behalf of defendant in previous bond issues.

Deuell testified that he talked with Camden about this bond issue in question about February 3,1943, and while in Camden’s office, and in his presence, he called plaintiff to make an appointment to talk with him about it. This occurrence Camden denied. The appointment was made for the afternoon of the day of the telephone call, which plaintiff testified was on February 4. Deuell was not so specific about the date. Deuell further testified that he went with Camden to plaintiff’s office on the afternoon of February 4, pursuant to appointment, and there discussed with plaintiff the district bond issue, part of which was maturing, and asked whether he (plaintiff) could get the park board to issue a refunding bond issue at 4% per cent interest to take the place of the 5 per cent issue. The charge for his service was discussed, and plaintiff stated he should have 3 per cent of the total bond issue, namely, $2,100, for Ms services, in the event he was able to get the park district to authorize the refunding bond issue; that Camden and Deuell agreed to the price for his services.

Camden denies tMs version of the conference and testified that he, by accident, met Deuell at the corner of Jackson Boulevard and LaSalle street in Chicago, who invited him to go to plaintiff’s office, wMch Deuell told him was around the corner from Camden’s office but turned out to be eight blocks away, and that he did not know what the purpose of the visit to plaintiff’s office was; that in plaintiff’s office he listened' to the discussion about the district bond issue but said nothing, and did not agree to hire plaintiff nor agree to pay him for any services. Camden, in tMs testimony, stands alone against the testimony of plaintiff and Deuell.

Plaintiff further testified that on the evening of February 4, 1943, he went to a meeting of the park district and there presented his reasons why the park board should authorize a new bond issue to refund the present outstanding issue, the new issue to bear 4% per cent interest instead of 5 per cent; that he convinced the park board, and that same evening the board voted to refund the issue; that the following day he called Camden and reported to him what he had accomplished at the park board meeting and told Camden to go ahead and prepare whatever documents were necessary. Camden denied this conversation ever took place.

It appears that defendant proceeded at once to employ Holland M. Cassidy, a recognized bond attorney, to draft the necessary papers and ordinance for formal passage by the park board. It stands undisputed in the record that Cassidy (who died before the trial), a few days later, called plaintiff and asked bim for the names of the park officials, which he needed in drafting the necessary papers; that plaintiff obtained the information desired by Cassidy and furnished the same to him.

In this purchase of the bond issue from the pension fund and the surrender of it to the park board for the new bond issue, and in the resale of the new bonds to the public, there was a potential profit to be made by defendant. Deuell was to share in the profit. The deal with the park board and the pension fund was carried through to completion, and when plaintiff, within a few days, learned of the completion of the transaction, he called Camden about the payment of his fee. It was then that Camden told him he knew nothing about any fee to him and he knew of no reason why he should be paid, following which, plaintiff brought this action.

The controlling question on this appeal is whether there was a hiring of plaintiff by defendant, through Camden, and whether there is proof of authority on the part of Camden to bind defendant with any such alleged hiring. In considering this question, it should be noted that with the general verdict, the jury also answered in the affirmative three special interrogatories, submitted at the request of defendant. The affirmative answers were that there was a definite contract or agreement of employment between plaintiff and defendant, entered into on February 4, 1943; that Camden had authority and power to employ plaintiff to render legal services on behalf of defendant in the matter of the refunding of certain bonds of the park district, and that defendant authorized and empowered Camden to contract and agree with Bulger for the payment of $2,100 for legal services to be rendered by plaintiff to defendant.

No questions are presented as to the rulings of the court upon the evidence or the instructions given. The trial judge, in stating his reason for granting a new «trial, said: “I don’t think a contract has been established. I think a contract might be. established if new proof were put in. I am going to allow the motion for a new trial.”

If the hiring of plaintiff was within the apparent scope of Camden’s authority, then all the remaining facts, disputed and .undisputed, and the credibility of the witnesses were proper matters for the jury to pass upon. In our judgment, upon the facts presented in this record, the alleged hiring of plaintiff was within the apparent scope of Camden’s authority as manager of the bond department. The jury having specifically found the facts as already indicated, we cannot say that the findings of the jury were against the manifest weight of the evidence. We are convinced that the facts amply support the conclusion reached by the jury.

In Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, the question of fact was whether, when the contract of hire was made, Glennie, manager of the hotel company, made the contract for the hotel company, and whether he had authority to do so. It appeared that before the alleged hiring, the by-laws of the company had been changed to make Glennie the assistant manager instead of manager. Nevertheless, it was held that as manager or assistant manager, he had authority to bind the company.

In Hughey v. Sbarbaro, 181 Ill. App. 396, it was held that a contract of hire, made by a sales manager for work and materials, was within the apparent scope of his authority.

In Hartford Life Ins. Co. v. Sherman, 123 Ill. App. 202, affirmed 223 Ill. 329, it was said:

“We are of opinion that under such circumstances the Shermans were not required to be suspicious, to question his authority, or to demand and inspect his letter of instructions. A person dealing in good faith with an agent who is apparently acting within the scope of his authority is not responsible for any breach of trust the agent may perpetrate upon his principal. Where one of two innocent contracting parties must suffer from the . . . unauthorized act of an agent, the loss should fall on him who selected the agent and whom the agent represents. One dealing with an agent is not bound to be on the watch lest the agent wrong his principal. Where the acts of the agent will bind the principal, his representations respecting the subject-matter, made while he is transacting the business and executing his authority, will also bind the principal, even though such representations are fraudulent.”

In Northern Illinois Coal Corp. v. Cryder, 361 Ill. 274, 287, it was held:

“ ... the principal is bound to the same extent by the authority assumed and exercised, with the apparent authority of the principal, as by the authority actually granted.”

It is urged by defendant that there was no proof of any holding out to the plaintiff by the defendant of Camden as manager. Where it is admitted that the agent in question is the manager, no proof is necessary that there was any such holding out. Moreover, Deuell knew he was manager and introduced Camden to plaintiff as manager of the bond department of defendant. This was clearly in harmony with the admitted fact that he was the manager, and there was no need, under the authorities cited, for the plaintiff to inquire of defendant whether Camden was the manager.

We think the trial court was in error in granting a new trial. The order granting a new trial is reversed and the cause remanded with directions to enter judgment for plaintiff upon the verdict of the jury.

jReversed and remanded with directions.

O’Connor, P. J., and Niemeyer, J.', concur.


author: Presiding Justice O’Connor.

text:
    Mary Burch, Appellee, v. Will Hickman et al., Appellants.
    Gen. No. 43,788.
    "opinion filed January 6, 1947;
    released for publication January 20, 1947.
    Wade G. Morgan, for appellants; Irwin Bloom and Victor H. Goulding, for ap-pellee.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    S. C. Lurie, Appellant, v. William H. Watson et al., Appellees.
    Gen. No. 43,881.

      opinion filed January 6, 1947;
    released for publication January 20, 1947.
    Aaron Soble, for appellant; Jerome S. Klein, of counsel; Bergstrom, Evans & Nelson, for appellees; Edward H. Nelson, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Justice Feinberg.

text:
    Martha George et al., Appellants, v. Dr. Lewis D. Moorhead et al., Appellees.
    Gen. No. 43,848.
    opinion filed January 6, 1947;
    released for publication January 20, 1947.
    Dayton & Oppenheim, for appellants; James A. Dayton, of counsel; Beckman, Healy, Newby & Hough, for certain appellee; Richard E. Kropf, for certain other appellees; Richard E. Kropf and Daniel M. Healy, of counsel.
   Opinion by

Justice Feinberg.

Not to be published in full.


text:
    Dr. William H. Benson, Appellee, v. Earl M. Williams and Western Casualty and Surety Company, Appellants.
    Gen. No. 43,860.
    opinion filed January 6, 1947;
    released for publication January 20, 1947.
    Howard D. Geter, for appellants; Sonnensehein, Berkson, Lautmann, Levinson & Morse, for appellee; Isaac E. Ferguson and Ben Liss, of counsel.
   Opin-

ion by

Justice Feinberg.

Hot to be published in full.