text:
    Peter Miller v. People’s Lumber Co. et al.
    1. Chancery Practice — No Power to Change the Report of the Master. — A court has no power to alter the report of the master. It may reject or confirm it, overrule exceptions to it, but it can not change it. Such as it is, it is the work of the master, for which he alone is responsible.
    2. Mechanics’ Liens — Liability of the Owner Confined to the Subcontractors Named in the Notice. — Under the mechanics’ lien law (Hurd’s R. S. 1899, p. 1112, § 28,) the owner is not to be held liable to any sub-contractor whose name is omitted from the statement provided by section five of such act, nor for any larger amount than the sum mentioned in such notice as due such sub-contractor, provided such omission is not made with the knowledge or collusion of the owner, unless previous to his payment to the contractor he has been notified of the claim and the correct amount due.
    8. Same — Exist by Virtue of the Statute and Not by Agreements Subsequently Made. — The law provides for a lien in favor of the person who shall, by contract with the owner or with one whom the owner has authorized, improve his premises, but it does not contemplate a change in character of the lien by an agreement of the parties made after the materials have been furnished.
    Mechanic’s Lien. — Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded with directions.
    Opinion filed November 26, 1901.

      Statement. — Peter Miller, on May 10,1898, entered into a written contract with Henry Achenbach for the erection of a brick and stone building on premises owned by him (Miller), for the sum of $2,140, to be paid within twenty days after the completion of such building. The building was completed September 15, 1898, and four days thereafter, the 19th day of September, Miller filed his petition under the mechanics’ lien law, setting forth that upon his requirement under section 5 of said lien law, the contractor, Achenbach, at three different times, furnished three several statements, showing the names and addresses of all parties having sub-contracts for work and material and the amounts therefor; that the last of such statements was made September 16th, and showed that there was then due from said contractor to said sub-contractors and laborers for work and material under said contract, the total amount of $1,303.67, and that all of said sub-contractors and laborers claimed liens on the premises under said act; that the complainant has paid to said contractor or his order $1,275, and that under the contract there remains unpaid $863, and that there is a deficiency of $435.67.
    This petition was filed sixteen days prior to the time when final payment was to be made by the petitioner to the contractor. Most of the contractors and laborers made defendants to said petition answered, claiming in the aggregate liens amounting to some $500, more than the amount remaining unpaid upon the contract.
    The cause having been referred to a master to take testimony and report, his report was filed, setting forth as alleged in said petition that there was due and unpaid on the contract price $863; that there was due from Achenbach as follows:
    “ To the People’s Lumber Company, as a sub-contractor, with interest from August 26, 1898, at 5 per cent per annum.......................$430 87
    To Hodge & llomer Company, as a sub-contractor, with interest $2.57, in all amounting to $103.52, 100 95
    To True & True, a corporation, as a sub-contractor, with interest from September 10, 1898, amounting to $5.48, making in all $120.47.....$115 00
    To True & True Co., as original contractors, with $3.90 interest............................... 75 00
    To Enoch Rydberg, as a sub-contractor......... 24 00
    With $1.23 interest and that there is due to him as an original contractor with 74cents interest. 14 40
    To Herman Johnson, as a sub-contractor........ 67 10
    With $3.38 interest and due to him as an original contractor, with 80 cents interest............. 15 60
    To Axel Johnson, as a sub-contractor, with $1.85 interest................................... 36 90
    To Frank Reburg, as a sub-contractor........... 33 73
    With 70 cents interest, and due to him as an original contractor, with 74 cents interest...... 14 40 .
    To John Schade, as a sub-contractor............ 57 45
    With $2.95 interest, and due to him as an original contractor, with 74 cents interest............. 14 40
    To August Johnson, as a sub-contractor, and $4.40 interest.................................... 85 95
    $1,085 75”
    That upon the completion of the work, George F. Englehardt was entitled to a lien as a sub-contractor for $150, and O. H. Michels was entitled to a lien as a sub-contractor for $150, and C. H. Michels was entitled to a lien of $30 and Edward 0. La Belle was entitled to a lien of $30 and Edward C. La Belle was entitled as a sub-contractor to $16. That in the discharge of the three liens last mentioned, amounting to $196, the owner paid $156.80; that when he made said payment there was sufficient money in his hands to pay on the amounts due the several persons found to be entitled to liens, as sub-contractors, seventy per cent of their claims, which amounts to $137.20, which sum the owner, Miller, is entitled to have deducted from the $865 in his hands, leaving a balance of $727.80, which should be applied first to the payment of the costs' of this proceeding, amounting, including the master’s report, to $119.10, leaving unpaid of the contract price $608.70. This is. sufficient to pay 35-A,- per cent of the amounts due the several sub-contractors. That is to say, there should be paid True & True Company, as sub-contractors, out of said

      sum. of $608.70, the sum of......................$ 73 50
    People’s Lumber Company...................... 276 80
    . Hodge & Homer Company...................... 63 16
    Enoch Rydberg................................ 15 40
    Herman Johnson. .................. 43 00
    Axel Johnson ................... 23 64
    Prank Reberg................................., 21 38
    John Schade................................... 36 63
    August Johnson. ........................... 55 13
    $608 64
    That the following parties are entited to liens as original contractors:
    True & True Co. to ............. $91 79
    Enoch Rydberg “ 16 64
    Herman Johnson “ 18 04
    Axel Johnson, “ 16 64
    Frank Reburg, “ 16 64
    John Schade, “ 16 64
    That the petitioner’s claims for solicitor’s fees is disallowed. Objections to the master’s report having been filed by all parties, the same were overruled and afterward filed in the court as exceptions.
    T. F. Monahan, attorney for appellant; John J. Swenie, of counsel.
    Elmer H. Adams, attorney for appellees People’s Lumber Co. and Hodge & Homer Co.
    Leonard Fiske, attorney for appellees John Schade, Enoch Rydberg, Axel Johnson, Frank Reburg and Herman Johnson; Vincent G. Gallagher, of counsel.
    James Frake, attorney for appellee True & True Co.
   Mr. Justice Waterman

delivered the opinion of the court:

The exceptions to the master’s report were neither sustained nor disallowed, the decree of the court reciting that the cause came on to be heard upon the amended bill of complaint taken as confessed by certain parties, named, answered by others, named, replication to such answers and the report of the master made in pursuance of an order of reference, and “ on the objection and exception to the report of said master, and the court being fully advised in the premises, it is ordered that said report be altered as herein in this decree set forth.”

The court had no power to alter the master’s report. It might reject or confirm it, overrule, or disallow exceptions thereto, but it could not change it. Such as it is, it is the master’s work, for which he alone is responsible.

•The court in this decree found that at the filing of the bill, September 19, 1898, there was due the contractor, Achenbach, from Peter Miller, $865, and that on August 26, 1898, there xvas due from Achenbach to the People’s Lumber Company $430.87, and that it had a lien as a subcontractor therefor from August 26 th.

The court further found that on the 23d day of August, 1898, Achenbach, being in arrears in his payments for materials furnished by the True & True Company, it refused to furnish any further material to said Achenbach, and thereupon Miller, the petitioner, verbally agreed with said True & True Company, that in consideration that it would furnish the material yet to be delivered under the agreement made xvith it by Achenbach, he, said Miller, would pay for material so to be delivered and also the balance then remaining due for material already furnished.

The court further found that said True & True Company furnished the balance of said material and that there became due to said True & True Company the sum of $190, xvith interest from the 10th day of September, 1898, and “that it is entitled to an original contractor’s lien for $190, with interest from September 10,1898, at five per cent per annum, and also $1 for filing a statement of lien and $5 for solicitor’s fees for filing the same and $19 for solicitor’s fees in this case.”

The court also found that Enoch Rydberg, Herman Johnson, Axel Johnson, Frank Reburg, John Schade and August Johnson, were carpenters employed on said building, and that about September 1, 1898, Achenbach, being in arrears in his payments to them, petitioner Miller agreed with them that if they would continue to work, he would pay them the amount so due from Achenbach and also pay them for the work thereafter to be done. Thereupon the court finds that each of said carpenters is entitled to a lien as an original contractor, namely: Enoch Rydberg, §38.40, with interest from the 12th day of September, 1898, and §3.84 for solicitor’s fees; Henry Johnson, §62.70, and interest from the 12th day of September, 1898, and $8.27 as solicitor’s fees; Axel Johnson, §45.30, with interest from the 12th day of 'September, 1898, and §4.63 as solicitor’s fees; Frank Reburg, §47.70, with interest from September 12,1898, and §4.77 as solicitor’s fees; John Schade, §71.85, with interest from September 12, 1898, and §7.18 as solicitor’s fees; and that August Johnson is entitled to §55.13 and a lien therefor as a sub-contractor, with interest thereon from September 12, 1898, and §5.51 as solicitor’s fees in accordance with the master’s report, which is in all things, as to him, approved and confirmed.

The master’s report finds that August Johnson is entitled, as a sub-contractor, to $85.95, together with interest amounting to §4.40, and solicitor’s fees amounting to §9.03, making in all the sum of §99.38. This report was made the 27th day of September, 1898. The discrepancy between the master’s report and the decree of the court which confirms the same as to August Johnson is not explained.

The decree further finds that Hodge & Homer Company is entitled to a lien on the premises for §100.95, but that Miller, the petitioner, is only obliged to pay said Hodge & Homer Company seventy per cent of the amount due, with interest from the 15th day of September, 1898, at the rate of five per cent per annum, together with §7.03 as its solicit- or’s fees.

The decree was entered June 8, 1900, and gives first and prior mechanic’s liens, up to and including the day of the decree, on the premises as follows:

People’s Lumber Company, $466.70, with solicitor’s fee of $43.

True & True Company, $205.39, with solicitor’s fee of $19, also $1 costs for filing suit and $5 for solicitor’s fee for filing same.

Enoch Bydberg, $41.42, and $3.84 solicitor’s fee.

Herman Johnson, $38.71, and $8.27 solicitor’s fee.

Axel Johnson, $48.97, and $4.33 solicitor’s fee.

Frank Beburg, $51.57, and $5.51 solicitor’s fee.

John Schade, $76.68, and $7.18 solicitor’s fee.

Hodge & Homer Co., $76.02, and $7.03 solicitor’s fee.

August Johnson, $55.59, and $5.51 solicitor’s fee.

And the decree provides that one-half the cost of the proceedings shall be paid by the petitioner Miller, and one-half by the respective lienors, to be divided pro rata among them, and directs that unless the petitioner or some of the defendants pay the aforesaid contractors the amount allowed, together with interest thereon from the day of the decree, and also pay the solicitor’s fees as found, then the premises be sold.

The decree makes no mention of the payment by the petitioner of $156.80, in satisfaction of liens amounting, as found by the master to $196, on account of which payment the master, allowed the owner, Miller, $137.20, being seventy per cent of the amount of liens satisfied by said payment.

The total amount of liens allowed by the decree is $1,137.97, whereas the decree finds that at the filing of the petition there was only $865 unpaid on the contract price, an overplus of $262.97; or, if we add to this the $137.20 allowed by the master to the owner for the discharge of liens amounting to $196, the amount which must be paid by the owner to free the premises from liens amounts to $417.17 more than the $865 which the decree finds was unpaid at the time of the filing of the petition.

All of the statements rendered by the contractor, Achenbach, to the owner, Miller, of names and amounts due for work done upon and materials furnished for said building, mention the People’s Lumber Company as entitled to $580.

Thereafter and before any notice had been filed by any contractor or given to the owner, he paid the People’s Lumber Company $300, thus, as he understood, reducing its claim, to $280. Upon the hearing before the master, it appeared that the contractor, Achenbach, had made false representations and statements to the owner, and that in reality instead of there being only $580 due the People’s Lumber Company, there was really owing to it $730.87. Both the master, therefore, and the court, allow the lien of the People’s Lumber Company at $430.87; the master as to this lien prorating the same, so that it should receive its proportionate amount of the $865 due the contractor, Achenbach, or the sum of $276.80 — the court allowing its lien for the full amount of $430.87, with interest thereon from the time the same became due from Achenbach.

Section 26 of the mechanic’s lien law, Bevised Statutes of 1899, page 1112, provides:

“ That the owner shall not be held liable to any sub-contractor or other person whose name is omitted from the statement provided for in section five of the act, nor for any larger amount than the sum therein named as due such person, provided such omission is not made with the knowledge or collusion of the owner, unless previous thereto or to his payment to his contractor, he shall be notified as provided, by such person, of their claim, and the true amount thereof.”

The owner paid said $300 by a check, it would seem, to the order of said Lumber Company, handed by him to his contractor, Achenbach, under the statement made by the contractor that there was only $580 due the People’s Lumber Company, without collusion or notice that more than that sum was claimed by said company. Under such circumstances the owner can not be compelled to pay more than the balande which, according to the contractor’s statement, remains due after said $300 had been paid.

Section 31 of the mechanic’s lien law provides:

“ That upon the hearing the court shall find the amount coming from the owner to the contractor, and the amount due to each of the persons having liens; and in case the amount found to be coming to the contractor shall be insufficient to discharge all the liens in full, the amount so found in favor of the contractor shall be divided between the persons entitled to such Mensuro rata in proportion to the amounts so found to be due them respectively.”

Section 22 of the law provides :

“But the aggregate of all the liens hereby authorized shall not exceed the price stipulated in the original contract between such owner and the contractor for such improvements, except as hereinafter provided. In no case, except as hereinafter provided, shall the owner be compelled to pay a greater sum for or on account of such house, building or other improvements than the price or sum stipulated in said original contract or agreement, unless payment be made to the contractor, or to his order, in violation of the rights and interests of the persons intended to be benefited by this act; provided,” etc. Hone of which provisions apply to the present case.

The master, in his report, did prorate the amount of liens in accordance with section 22, and his finding and prorating seems to be correct, with the exception of the finding of the amount of the lien of the People’s Lumber Company, as before mentioned.

The decree allows to the lienors interest at five per cent per annum upon the amount of the respective liens allowed to them. This is in accordance with section one, but the amount of lien upon which interest is to be allowed in case the fund for the payment of liens is insufficient to pay in full, is only upon thq pro rata amount to which each lienor is entitled. In other words, the statute does not allow interest upon a sum which an owner is under no obligation to pay, and which cannot be maintained as a lien upon his property. So, too, as to solicitor’s fees, while the question has been raised whether solicitor’s fees are to be allowed when the owner, finding that the amount of liens claimed exceeds the fund for the payment of the same, files a petition, bringing the respective lienors into court, and their right to the fund is determined severally to be less than is claimed by them in such proceeding, it is certain that solicitor’s fees can not be allowed to a greater amount than ten per cent of the lien which is finally established.

Section 18 of the statute provides :

In all cases where liens are enforced a fee of five dollars shall be taxed for filing the claim of lien, and the court shall order a reasonable attorney’s fee, not exceeding ten per cent, taxed as part of the costs, in favor of the claimant, and where the same are defeated, in favor of the owner.”

The decree of the court allowed True & True Company a lien as an original contractor for all the materials it furnished, both for those that it supplied entirely under its arrangement with contractor Achenbách, and before it had had any connection with the owner, and those supplied after the owner had promised, in consideration that it would supply more materials, to pay it, not only for what should thereafter be furnished, but what had theretofore been delivered.

The mechanic’s lien law provides, section 15, that no preference, as between contractors, shall be given to him whose contract was first made, with a saving of a preference to a certain extent in favor of laborers.

The law does not contemplate a change in the character of the lien by an agreement made after the materials have been furnished. The law provides for a lien in favor of persons who shall, by contract with the owner or with one whom the owner has authorized to improve the same, furnish materials or supply labor.

Undoubtedly the owner could, after materials had been furnished or labor performed, make himself personally liable to pay for such materials and labor, but his agreement so to do does not change the character of the lien which such person already has, as a. sub-contractor.

The decree of the Circuit Court is reversed and the cause remanded with directions to proceed in entering a decree as follows: Upon the hearing it was testified and the court found that a number of appellees refused to go on with the work unless Miller guaranteed payment for all materials furnished and work by them severally done thereafter.

Such being the case, it appears that the contractor did not fulfill his contract, but that only by the personal pledge of Miller to sub-contractors was the building completed. This, in effect, is as though Miller had paid in money to such several sub-contractors for the work thereafter by them done, and the amounts for which he is thus bound will be deducted from the $865 unpaid to the contractor, Achenbach. Deduct from $865 half the costs, including master’s fees, of this proceeding in the Circuit Court. Deduct $137.30 from amount remaining, such $137.30 being seventy per cent of amount paid by Miller to discharge liens of Englehardt, Michels and La Belle for $196. Deduct from balance cost of materials and labor furnished upon guarantee of Miller, viz., $133.80. Allow to the following named sub-contractors, as such, the following amounts:

People’s Lumber Co., $280, with interest from August 26, 1898.

Hodge & Homer Co., $100.95, with interest from September 15, 1898.

True & True Co., $115, with interest from September 10, 1898.

Enoch Rydberg, $24, with interest from September 12, 1898.

Herman Johnson, $67, with interest from September 12, 1898.

Axel Johnson, $36.90, with interest from September 12, 1898.

Prank Reburg, $33.30, with interest from September 12, 1898.

August Johnson, $85.95,'with interest from September-12, 1898.

And there will be allowed to each respectively a lien for his or its pro rata share of the balance remaining, ascertained as above set forth.

There will also be allowed to each of said sub-contractors an attorney’s fee of ten per cent upon such pro rata share.

Allow to the following named lienors as original contractors the following amounts:

True & True Co., $75, with interest from September 10. 1898, also one dollar costs of filing claim, and five dolíais attorney’s fees for preparing and filing same.

Enoch Rydberg, $14.40, with interest from September 12, 1898.

Herman Johnson, $15.60, with interest from September 12, 1898.

Axel Johnson, $14.40, with interest from September 12, 1898.

Frank Beburg, $14.40, with interest from September 12, 1898.

Allow to each of said original contractors an attorney’s fee of ten per cent upon the amount due him or it as aforesaid, as an original contractor. One half the costs in the Circuit Court, including master’s fees, will be taxed against the lienors, to be paid by them, as between themselves, each the pro rata amount which the lien or liens by him or it allowed, bear to one-half of such costs.

Personal decrees will be severally entered in favor of the parties allowed liens as original contractors against Peter Miller for the amount of the respective liens so allowed.

Upon sale of the premises, whatever is realized therefrom by such original lienors, respectively, will be severally credited upon the personal decrees against Miller.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Freeman

license: Public Domain

text:
    Canute R. Matson, for use, etc., v. William Ripley et al.
    1. Bills of Sale — Where the Vendor Has No Title. — Where a person without title to property makes a bill of sale of it to another he conveys no title.
    Debt, on a replevin bond. Appeal from the Circuit Court of Cook County; the Hon; Richard W. Clifford. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    Hoyne, O’Connor & Hoynb, attorneys for appellant.
    M. B. & F. S. Loomis, attorneys for appellees.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is a' suit on a replevin bond, brought by appellant, formerly sheriff of Cook county, for the use of the parties composing the firm of Kellogg, Ducey & McAuley, and one William W. Oliver, against whom the writ of replevin in the action wherein the bond was given, was sued out. That suit was subsequently dismissed on plaintiff’s motion, and this suit on the bond followed.

The cause having been submitted to the court without a jury, judgment was entered in favor of appellant, finding the debt to be the amount of the bond, $2,41)0, and assessing appellant’s damages at the sum of $51. From that judgment this appeal is prosecuted.

To the declaration in debt on the replevin bond, appellees pleaded in substance that the merits upon the original replevin suit were not determined in that action, and that the appellees constituting the firm of William Ripley & Son were and are absolute owners of the goods replevied. Appellee Durgin is sued as surety on the bond.

The material facts are substantially as follows: Appellees Ripley & Son, have been for quite a number of years engaged in the lumber business in-Chicago. March 11 and April 18, 1889, bills of sale were executed by the firm of Hibbard & Co., of Masonville, Michigan, conveying to said appellees a large quantity of pine and cedar logs, ties and posts then lying in certain Michigan rivers, “ and being marked on the end with the letter H.” The consideration mentioned in the said bills of sale is $3,000 and $18,000, respectively. They were duly executed and recorded in the proper office. By arrangement between the parties, Hibbard & Co. manufactured the logs into lumber, the expenses being paid by appellees, and the latter sent vessels from time to time and conveyed the lumber so manufactured to Chicago, where if was received by Ripley & Son and credited on the account with Hibbard & Co. In the fall of the year, October 8, 1889, Ripley & Son directed the captain of the schooner Dunham,” which had been running almost constantly that season in their employ, to go to Masonville, Michigan, for a load of this lumber. The vessel arrived at Rapid River and began loading October 10th. The water being shallow near the dock, the captain was directed to procure a scow to take the lumber from the wharf to the schooner, lying some distance from the shore. October 11th, part of the lumber being on board the vessel and a part still on the scow alongside, a replevin writ was served, issued at the suit of one Richard Mason against Hibbard & Co., on a claim for stumpage, the lumber, it is said, having been cut from land belonging to the “ Mason estate.” This claim was settled by Hibbard & Co., upon the payment of $500, whereupon the lumber tvas released from seizure under said replevin writ, and the loading of the vessel was thereupon resumed. Three days later, October 14th, when all the lumber in controversy was either on the vessel or on the scow alongside ready to be put on board, an attachment writ sued out by appellant Oliver against Hibbard & Co. was levied on said lumber, which it is claimed by appellees Ripley & Son not only belonged to them but was in their possession on said vessel. There is evidence tending to show that Oliver was told by Hibbard & Co. that said lumber belonged to Ripley & Son; but nevertheless Hibbard & Co. were induced to execute a new bill of sale conveying the lumber in question to Oliver, the latter stating he “ would take his chances.” The captain of'the schooner was then directed to deliver the lumber in question to the firm of Kellogg, Ducey & McAuley in Chicago, and he signed a receipt therefor to that effect. When the vessel reached Chicago he delivered the receipt to said firm, but the lumber was at once replevied by appellees Ripley & Son.

It is contended for appellant, that the indorsements on the original bills of sale from Hibbard & Co. to Ripley & Son, under which the latter claim title to the lumber in controversy, were, improperly introduced in evidence. These indorsements, purporting to show the filing of the instruments, were introduced to show compliance with the laws of Michigan, requiring a conveyance intended to operate as a mortgage to be filed in the office of the town clerk of the township where the mortgagor resides. In the view we take of the case it is unnecessary to consider this objection.. It is by no means proven that said bills of sale were not absolute conveyances of the property therein described. There is evidence tending to show that they wTere intended to convey the entire out-put of Hibbard & Co. One of the members of the latter firm testified : “ I considered that William Ripley & Son at this time owned all of the lumber in, around or about the mill at Rapid River where it was manufactured.” Whether specifically covered by the bills of sale or not, the property now in controversy was treated as belonging to appellees Ripley & Son, and it had actually been delivered on board the vessel employed by them to receive it, when attached by Oliver. The captain of the vessel states “ the lumber was received by me as the lumber of William Ripley & Son.” Even if the bills of sale be disregarded, and it be conceded as doubtful whether the lumber in question was cut from logs therein described, still it appears that said lumber had been actually sold and delivered to appellees Ripley & Son, when Oliver seized it as the property of Hibbard & Co. We know of no principle of law that could confer title upon Oliver by such procedure.

The bill of sale given by Hibbard & Co. to Oliver, after the property had passed out of their possession, and after the attachment, obviously conveyed no title. Hibbard & Co. then had no title to convey. They claimed none. They concede the sale and delivery to appellees, and told Oliver at the time the lumber belonged to Ripley & Son. The receipt given by the captain of the “ Dunham” for the lumber, in and by which he agreed to deliver it to Oliver’s representatives at Chicago, had, for obvious reasons, no effect whatever upon the question of ownership.

What has been said disposes of the issues involved, and it is not necessary to consider in detail appellant’s objections to the judgment. It must be affirmed.


author: Mr. Justice Shepard

text:
    Joseph J. Duffy et al. v. Maurice Kivilin.
    1. Negligence — When a Question of Fact. — The question as to whether “ a hoist” in a perpendicular shaft was negligently and improperly caused to be started with a sudden and violent jerk is a question of fact for the jury.
    2. Same — When a Question of Law. — Where the evidence or the undisputed facts establish beyond question that the relation of fellow-servants exists between the person injured and his co-employe by whom, the injury is caused, the question of negligence becomes one of law.
    3. Pleading — Negative Allegations as to Fellow-servants Not Necessary. — In an action for personal injuries caused by the act of a co-employe, it is not necessary to allege in the declaration that the co-employe whose negligent act caused the injury was not a fellows rvant of the plaintiff.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    O. W. Dynes, attorney for appellants.
    Theodore G-. Case, attorney for appellee; A.W. Browne, of counsel.
   Mr. Justice Shepard

delivered the opinion of the court.

A verdict of $7,500 was returned in favor of appellee in a suit brought by him against • appellants for negligence, from which $2,500 was remitted and judgment entered for the balance.

The substantial facts out of which the cause of action arose were' not disputed.

Appellee was a mule driver and his principal work was driving a mule hauling clay in a tunnel that was being constructed about 110 feet below the surface of the ground. The tunnel extended from the bottom of"a vertical shaft that led to the surface. It was appellee’s duty to haul the clay, after it had been loaded on small cars, to the bottom of the shaft, where the car was received by cagers ” there stationed, and by them run upon the platform of the cage and there hoisted by means of steam power to the surface. The hoisting apparatus was in charge of an engineer stationed on the surface, about ten or twelve feet from the top of the shaft. Besides driving the mule in the tunnel, appellee performed errands for the other men who worked in the tunnel, and it was thus a part of his duty to go to the surface occasionally to get supplies, such as candles, oil, etc., and to do that he would ride up the shaft on the hoist, and on one of these occasions the accident happened. The platform of the cage was provided with rails onto which the car was run by the “ cagers.” In these rails indentations were made about half an inch deep, of about the size of the car -wheels, into which the wheels would settle and thus become what is called “locked.” The object of “locking” the wheels was to prevent the cars from running backward or forward on the platform during the time they were being hoisted. This method of locking trucks on the'hoist platforms was shown to be the usual and common method of doing it.. Appellee had nothing to do with placing the car on the platform. This work was done by the “eager” at that end of the shaft.

On the occasion in question, the appellee wanted to go to the surface on an errand for the men, and he started to ride up on the platform, on which was an empty car. After he got aboard, the “ eager” asked if he was ready, and receiving an affirmative answer, signaled the engineer to start. The platform was a small one and appellee testified there was not room for him to stand in safety by the side of the car, and he therefore got on top of the car, and held on to the iron railings of the hoist.

After the cage had ascended about twenty feet the cage tipped and the car rolled out of the lock or indentation, carrying the appellee with it, and precipitated itself and appellee to the bottom.

The appellants say in their brief:

“ The principal disputed questions upon which evidence was introduced, were whether or not Spellman, the engineer, so operated the hoist as to cause it to give an unusual jerk and dislodge the car wheels from, the locks on the rails; and whether or not Kivilin was in the exercise of due care in attempting to ride to the surface by standing up in the box of the empty truck or car instead of standing down on the platform of the hoistway at one side of the car.”

The testimony of appellee in relation to the movement of the hoist after he got aboard was that it gave “ a sudden jerk and up we went.” The engineer, testifying for the appellants, said he was not aware of giving any unusual movement to the hoisting apparatus, although he did say that he could tell as soon as he started whether there was a load on, and if there was not, he would start up fast. The ‘•eager,” who gave the signal to the engineer to start up, was not able to say, in testifying, that he saw the hoist start. No other witnesses testified as to the movement of the hoist just before or at the time of the accident.

Under such testimony it was for the jury to say whether or not the hoist was negligently, carelessly and improperly caused to be started with a sudden, quick and violent jerk, as charged in one of the counts of the declaration.

With reference to the point that appellee was not in the exercise of due care in riding, standing up, in the box of the empty car, instead of standing at one side of the car, and between it and the side of the cage, the appellee testified that there was not room for him to stand at the side of the car. On the other hand it was shown that there was a space of a foot or more between the car and the side of the hoist, in which appellee might have stood if he had chosen to do so, and another witness testified that he had seen appellee riding up on the platform, standing by the side of the car, on other occasions. Which was the safe place for him, or whether he was bound to always choose the safest place in which to stand, and whether in placing himself in the position he was in, was an exercise by him of due care for his own safety, was a question for the jury. Nor was it prejudicial error by the court to permit the testimony of appellee, as above, to stand. It was the statement of a fact whether there was room or not, at the side of the car, for appellee to stand.

The principal objection urged' against the judgment is that Kivilin, and Spellman, the engineer, by whom the hoisting apparatus was operated, were fellow-servants.

There is no allegation and no proof that appellants had any notice of Spellman’s incompetency or carelessness., He had operated the apparatus for several months without any fault being found with him. But it is insisted by appellants that the character of the employment and work of the two men made them fellow-servants as a matter of law; and the cases of Starne v. Schlothane, 21 Ill. App. 97, and Consolidated Coal Co. v. Seniger, 79 Ill. App. 456, are relied upon especially b}r appellants.

The rule that if the evidence, or the undisputed facts, establish beyond question that the relation of fellow-servants exists between the person injured and his co-employe by whom the injury is caused, the question becomes one of law and will not be controverted.

But here, we think, such can not be said to be the case. The engineer was stationed at the surface end of the shaft, or near it, and from there operated the engine that lifted and lowered the hoist, as the case might be. He started the machinery in response to signals given him by the upper and lower cage men.”

In response to a question put by the attorney for appellants, the engineer testified:

“Q. You must — and you always in performing your work, looked at the cage to see whether the car was right to load, ready or not, before moving? A. Ho, sir; that was not my work; there was a cage man there, McCarroll, who looked after that.”

This had reference to the upper cage man.” Substantially the same duties were performed by the lower “ cage man,” at the lower end of the shaft, where appellee mostly worked as mule driver. The appellee testified as to whether it was his duty or a part of his work to put the cars on the platform, that it was not; “ I had nothing to do with it.” And again as to whether he or the lower “ cage man” placed the car in position in the indentations which “ locked ” it on the platform, he testified that he did not, that it “ was not my business,” and he was corroborated in such respect by the lower 11 cage man” in his testimony.

From this evidence we can not say that the evidence was so plain that appellee and the engineer were fellow-servants, as to make their relationship one of law for the court.

It was not necessary for the declaration to allege that the servant whose negligent act caused the injury to appellee was not a fellow-servant of appellee. Cribben v. Callaghan, 156 Ill. 549.

Ho instructions were offered by the appellee, and no objection to the size of the verdict is made.

We will therefore affirm the judgment, and it is so ordered.


author: Mr. Justice Waterman

text:
    Simon P. Douthart, Ex’r, etc., v. Charles B. Congdon.
    1. Burden of Proof — Shoioing that a Contract is Founded in Part upon an Illegal Consideration. — Where a party alleges that his written promise is invalid, because founded in part upon an illegal consideration, the burden of establishing such contention is upon him, and where, in endeavoring to evade his promise, he charges that a portion of the consideration arose out of the illegal act of the promisee, the burden of proof is upon him to make out such contention.
    2. Contracts — The Fact that a Broker Has No License Does Not of Itself Render Contracts Made by Him Void. — The fact that a broker was transacting his business in violation of a city ordinance, does not of itself render contracts made by him while so acting void, or affect their character as evidence.
    3. Same — Actions upon Contracts Made by Brokers While Acting Without License. — The rule that an action can not be maintained when it is predicated upon a transaction prohibited by law, does not apply to promissory notes made by a broker in his business while acting without license, when a license is required by an ordinance of the city of Chicago. The city may punish him for so acting, but it is powerless to invalidate his contracts.
    4. Brokers, — Validity of Contracts Made by, While Acting Without License. — A contract made by a broker in the city of Chicago, while acting without a license, as required by an.ordinance, is not void on that account, and a recovery may be had upon it.
    5. Same — Contracts Made in Violation of Ordinances, When Void.— Where a contract is made by a broker while acting without a license, and in violation of an ordinance, and such ordinance is enacted for the purpose of raising revenue, the contract is not void; but if the ordinance was. intended to prohibit the acts done, under a penalty, and thus render them illegal, it is void, and no recovery can be had upon it.
    6. Cities and Villages — Statutes and Ordinances Authorizing the Licensing of BroJcers, etc., Are Revenue Measures. — The statute (Hurd’s R. S. 1897, p. 272) authorizing cities and villages to tax, license and regulate money changers, brokers, etc., and the ordinances enacted under it, do not prohibit the carrying on of such occupations without license, but are enacted to enable such municipalities to obtain revenue from licenses issued by them.
    Claim in Probate, on four promissory notes. Appeal from the Circuit Court of Cook County; the Hon. Chables G-. Neely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    Statement* — Upon the trial of this case, begun in the Probate Court and taken by appeal to the Circuit Court, the following stipulation was made:
    “During the years 1883, 1884, 1885, 1886 and 1887, the claimant, Charles B. Congdon, and one Ernest A. Hamill, were copartners doing business as commission merchants and brokers upon the Board of Trade in the city of Chicago, under the firm name and style of Hamill & Congdon; the place of business of said firm was located in the said city of Chicago, and their business was that of buying and selling provisions and grain belonging to and for others, on the Chicago Board of Trade, for a commission or othér compensation. During the period aforesaid, and during the' entire period of the transactions in connection with which the notes sued on were given, the plaintiffs and Daniel Butters were members in good standing of the said Board of Trade, and the transactions between Hamill & Congdon and Daniel Butters, which resulted in the giving of the notes aforesaid, were had upon the same.”
    It was further stipulated that the city of Chicago was in 1883 and ever since has been a municipal corporation in the State of Illinois, and incorporated under the general city and village act; that there was in full force and effect on the twenty-second day of October, A. D. 1883, and up to and including the thirty-first day of December, A. D. 1890, the following ordinance:

      “ 1499. Brokers, etc. — License required. Be it ordained by the City Council of the City of Chicago: Section 1. It shall not be lawful for any person to exercise within this city the business of a money changer, or banker, broker, or commission merchant, including that of merchandise, produce or grain broker, real estate broker and insurance broker, without a license therefor.”
    It was further stipulated that during the years 1884,1885, 1886 and 1887 there were issued to the said firm of Hamill & Congdon, pursuant to the ordinance aforesaid, the following licenses for the following purposes and on the following dates:
    License Ho. 464 on January 10,, 1884, to Hamill & Cong-don, at 156 Washington street, Chicago, as commission merchants.
    License Ho. 156 on June 14, 1884, to Hamill & Congdon, Ho. 156 Washington street, Boom 10, Chicago, as commission merchants.
    License Ho. 223 on July 8, 1885, to Hamill & Congdon, at Ho. 8 Pacific avenue, Chicago, as commission merchants.
    License Ho. 304 on Hovember 24,1886, to Hamill & Cong-don, of 8 and 10 Pacific avenue, Chicago, as brokers.
    License Ho. 410, dated June 14, 1887, to Hamill & Cong-don, of 8 and 10 Pacific avenue, as brokers.
    It was further stipulated, that the said licenses each and all contained among other matters the following:
    “ The penalty for doing a brokerage business- without a license is not less than $25 nor more than $100. The payment of commissions can not be enforced by law unless the party negotiating sale or transaction has a city license as a broker.”
    The firm of Hamill & Congdon paid for licenses to the city collector:
    (1.) On January 10, 1884, $22.92, which was the proportion of the annual license fee of $25 for the period commencing June 11, 1883, when said ordinance went into effect, and terminating May 1, 1884.
    (2.) On June 14, 1884, the sum of $25 as a license fee under said ordinance and for the license Ho. 155 issued to them on that date.

      (3.) On July 8, 1885, $25 as license fee under said ordinance and for the license Mo. 223 issued to them on that date.
    (4.) On Movember 24, 1886, the sum of $25 as license fee under said ordinance and for the license Mo. 304 issued to them on that date.
    (5.) On June 14, 1887, the sum of $25 as license fee under said ordinance and for the license Mo. 410 issued to them on that date; and that neither Hamill & Congdon nor Charles B-.Congdon paid any other license fees or obtained any other licenses under said ordinances during the years 1883, 1884, 1885, 1886 and 1887.
    It was further stipulated that the transactions which resulted in the giving of the notes aforesaid, and out of which grew the consideration for said notes, were purchase and sale of grain on Chicago Board of Trade by the firm of Hamill & Congdon for the deceased, Daniel Butters, and at his instance and request; that the transactions were made on said Chicago Board of Trade under the rules and forms thereof, in the name of Hamill & Congdon with other members thereof; that an account thereof was kept in the books of Hamill & Congdon and statements thereof from time to time rendered by Hamill & Congdon to Daniel Butters, which were never objected to by him; that Hamill & Congdon charged for said purchase and sales a commission of, one-eighth per cent per bushel for the grain bought and sold as aforesaid for Daniel Butters, and in said statements to said Butters and on their books charged their commissions to Daniel Butters and credited themselves with the same at the rate aforesaid, so that the commissions so charged as aforesaid for the transactions shown by said ledger account hereinafter set out, are in part consideration for the notes sued on; and the remainder of the considerations were amounts paid by Hamill & Congdon on account of said purchases and sales; that all of the original contracts, licenses, cards, statements, books and papers relating to said transactions in the possession of Hamill & Congdon were, without the fault of Hamill & Congdon, destroyed by fire in November, 1890, except a ledger of which the following is a copy so far as the entries therein relate to said transactions between Daniel Butters and Hamill & Congdon on page 243 thereof:
    “d. butters.
    1885.
    1886. Oct. 30, by Suspense.
    Apr. 1, To Led. A. 306 2,652.65
    “ 9, “ Loss, 5 May, w 406 300.00
    June 2, “ “ 25 July, w409 193.75 471 3,458.91
    Aug. 1, c‘ “ 10 Sept., w 419 62.50
    Feb’y 23, ’86, “ “ 10 June, w 438 250.00
    3,458.91 '3,458.91 ”
    and page 269:
    SUSPENSE ACCOUNT.
    1886.
    Oct. 30. To D. Butters 1890. .§3,458 91
    July 9. By profits on books of C. B. Congdon & Co............................. 600 00
    Dee'. 31. Daniel Butters,account settled by notes, each E. A. H. and C. B. C........ 3,248 19
    And that in accordance with said memorandum or entry last given on December 31, 1890, said Daniel Butters, deceased, in settlement of said account, gave to E. A. Hamill and Charles B. Congdon his notes aggregating $3,258.19, as follows:
    Note to Charles B. Congdon, dated December 31, 1890, for six months......................$ 814 55
    Note to Charles B. Congdon, dated December 31, 1890, nine months........................ 407 27
    Note to Charles B. Congdon, dated December 31, 1890, at twelve months, for............... 407 28
    Note to Ernest Hamill, dated December 31, 1890, six months.............................. 814 55
    Note to Ernest Hamill, dated December 31,1890, at nine months............................ 407 27
    Note to E. A. Hamill, dated December 31, 1890, at twelve months, for.................... 407 27
    Total $3,258 19

      Of which said notes last mentioned the four notes offered in evidence by the plaintiff in this case were part and parcel, and of which the notes for $814.55 to 0. B. Congdon and for $814.55 to E. A. Hamill were paid by said Daniel Butters in his lifetime. All of the notes bore interest at six per cent per annum.
    It was stipulated that if Charles B. Congdon and E. A. Hamill were called as witnesses, they would testify that in making payments of license fees and taking out said licenses they acted in good faith and without attempt to evade the law, which evidence is objected to by attorney for said estate as being incompetent, irrelevant, immaterial and unlawful.
    The court found for the claimant for $2,131.74, being the total amount claimed, $2,190, minus $58.27 deducted as illegal commissions.
    Douthart & Brendeoke, attorneys for appellant.
    Frank F. Heed, attorney for appellee. •
   Mr. Justice Waterman

delivered the opinion of the court.

It is insisted by appellant that a portion of the transactions resulting in the giving of the four notes upon which suit was brought were for commissions charged by Hamill & Congdon upon grain, by them as commission merchants, bought and sold for Daniel Butters at a time when they had no license to act as such commission merchants, and that a part of the consideration of the notes being illegal, the notes were invalid in toto and nothing can be recovered thereon. What appears in this record is, that while Hamill & Congdon had licenses coveritig nearly the entire period of the five years under consideration and paid therefor the entire sum required by the ' ordinances of the city, or five licenses, each for one year’s duration, for several years, the annual fee of $25 was not paid at the beginning of the license year, but quite a time thereafter, and it is not certain from the evidence that the respective licenses covered the entire five years that elapsed from June 11, 1883, when the city ordinance went into effect. Upon the other hand, it does not appear from the evidence that any of the transactions out of which the indebtedness arose and for which the notes in question were given, were had at a time when Hamill & Congdon had not a license in accordance with the ordinance of the city of Chicago.

Our attention has not been called to any case in which, where it appears, as in the present controversy, that the commission merchant had paid the license fee required for the entire period covering the transactions, and had had :a license or licenses issued to him, his dealings were held unlawful, or he not to be entitled to recover commissions, because his payments and licenses, while covering the period, were not made until some time after transactions took place. '

It is a well known fact in Chicago and in other large cities that at the beginning of what is known as the license year, it is frequently very difficult, if not impossible, to obtain licenses promptly, because of the great number of applications therefor then being made, and the small force which the city has for the accommodation of such applicants.

In the present case it was stipulated that if said Charles B. Congdon and E. A. Hamill were called as witnesses, they would testify that in making said payments of said license fees and taking out said licenses they acted in good faith and without attempt to evade the law, which evidence was objected to by appellant as incompetent, irrelevant and immaterial.

Appellant urges and it has been said by the Supreme Court of this State, that where a part of the consideration of a promise is illegal, the undertaking is invalid, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act or illegal promise, although he may have connected with this act or promise another which is legal.” Henderson v. Palmer, 71 Ill. 579; and there are numerous authorities in other States, as well as in England, to the same effect.

Where a party alleges that his written promise is invalid, because founded in part upon an illegal consideration, the burden of establishing such contention is upon him; and most certainly where a promisor, in endeavoring to avoid his promise, charges that a portion of the consideration for which he gave his word arose out of the illegal act of the promisee, the burden of proof is upon him to make out his contention.

In the present case, the cause having been tried without a jury, the court found that there had entered into the indebtedness for which these and other notes were given, illegal commissions amounting to the sum of $58.27. and this sum the court deducted from the amount of the four notes. The court did not find, nor did the evidence show that illegal commissions entered into the consideration of each and all of the six notes given.

Two of the notes given by Daniel Butters, cotemporary with the four now under consideration, were paid by him in his lifetime.

The Supreme Court of this State in Murray v. Doud & Co., 167 Ill. 368-373, says :

“ It appears, however, that there was in the city of Chicago an ordinance providing that it should not be lawful for any person to exercise within the city the business of broker, without a license, and it is contended that as Prentiss did not have a license from the city his acts were void. As bearing on the question, counsel have cited cases holding that a broker could not recover commissions for his services as broker where he had not taken out a license. Whether a broker could, without a license, recover his commissions, is a question upon which the authorities are not harmonious. But conceding that counsel may be right on that question, it does not follow that a contract consummated by the broker would be void. Nor does the rule declaring that an action can not be maintained which is predicated on a transaction prohibited by statute have any application to this case. The contract here involved was not unlawful nor was it prohibited. The mere fact that Prentiss was required to take out a license from the city and had failed to do so could not prevent him from bringing the parties together, nor did it prevent them from coming together in the sale and purchase of the commodity in question. If Prentiss violated the ordinance in failing to take out a license he might be liable to be prosecuted and fined, but that could not affect his acts so far as the rights of third parties were concerned. This court held in Craig v. Dimock, 47 Ill. 308, that while congress had the power to require instruments valid under our State laws to be stamped, and had the consequent power to punish by fine any intentional evasion of the law, yet it had no power to require such instruments to be stamped as a prerequisite to their validity or to their admissibility in evidence in the State courts. The principle involved in that case applies here. While the city might punish by fine for a failure to act without license, it was powerless to do anything which might invalidate a contract made by the broker.”

The question thus discussed in that case has not, so far as we are aware, been directly presented to and passed upon by the Supreme Court of this State. In a number of cases the Appellate Court has held that in such a case a broker could not recover his commissions. In view of this fact, and what is said by the Supreme Court in Murray v. Doud & Co., and a direct presentation of the question in the present controversy, a consideration of some of the inharmonious authorities upon this question is not out of place.

Our attention is called by appellant to the case of ¡Robinson v. Bland, 2 Burrows, 1077. This was an action brought upon a bill of exchange for 700 pounds sterling, in which the following facts were proved and admitted: The bill of exchange was given at Paris for 300 pounds lent by the plaintiff to Sir John Bland and for 372 pounds more lost at the same time and place by Sir John Bland to the plaintiff at play; that Sir John Bland was and the plaintiff is a gentleman. The question before the court was whether, under these circumstances, the plaintiff was entitled to recover anything, and if so, what, from, the defendant. The court gave the plaintiff judgment for the 300 pounds loaned, with interest thereon down to the time of the adjudication.

In Stanwood v. Woodward, 38 Me. 192, the court held that as no person could be an innholder without being licensed according to the provisions of the statute, an unlicensed person could not maintain a lien upon the property of one who had boarded at his house.

In Holt v. Green, 73 Pa. State, 198, the plaintiff brought suit as a broker. Upon trial it appeared that he had not taken out a broker’s license nor paid a special tax under the act of congress, whereupon he was non-suited. On appeal, the decision of the nisiprius court was affirmed, the Supreme Court saying:

“ We are aware1 there are some English authorities, as well as decisions in some of our sister States, that make a distinction in cases of contracts predicated on a violation of the revenue laws, and especially that class of them which does not expressly declare the contract void. The case of Aiken v. Blaisdell, 41 Vermont, 653, is a strong case, going to sustain a .contract of sale contrary to law. We prefer, however, to stand by our own decisions. The ease of Maybin v. Coulon, supra, was based upon a violation of the revenue laws of the United States, and the unbroken current of authorities in this State, is to hold a contract void which is grounded upon a clear violation of a statute, although it may not be expressly so declared by its terms.”

This decision is directly contra to that of our own Supreme Court in Craig v. Dimock, supra.

In Scott v. Gillmore, 3 Taunton, 226, which was an action upon a bill of exchange given in part for a loan and part for spirits furnished by the payee, the court said:

“ The statute does not, indeed, in terms, avoid a security, but it makes the consideration illegal, not merely void; and the security is entire, and can not be apportioned; and since it is partly given for an illegal consideration, the whole bill is void.”

In Stevenson v. Ewing, 87 Tenn. 46 which was an action by a real estate broker for commissions, the court held that he could not recover, saying:

“ It is earnestly insisted by learned counsel for Ewing that the sole purpose of the act under consideration is to raise and secure the collection of revenue, and not to prevent the business of real estate brokers as being against good morals or contrary to public policy; and that, such being the purpose of the act, the courts should construe it so as not to affect the validity of the contracts of such brokers, though made without license. The rule of construction thus insisted upon is sound and well recognized. But there is no room for its application in this case. It is called into requisition by the courts, only when there is doubt, from the language of the statute itself, whether or not the legislature intended to prohibit the exercise of the privilege without license.

We have already seen that no such doubt exists with respect to the language of the act before us. The prohibition is distinct and absolute. That ends all construction.”

In Lamond et al. v. Dunkin, 10 Barnwell & Cresswell, 93, 21st Eng. Com. Law, 49, in commenting upon various cases as to the carrying on of certain avocations where an act of parliament required a license for so doing, the court said :

“Those cases are very different from those where the provisions of acts of parliament have had for their object the protection of the public, such as the acts against stock-jobbing, and the acts against usury. It is different also from the case where a sale of bricks, required by act of parliament to be of a certain size, was held to be void because they were under that size. There the act of parliament acted as a protector to the public as well as to the revenue, securing to them bricks of the particular dimensions. Here the clause of the act of parliament had not for their object to protect the public, but the revenue only. Neither is this one of that class of cases where an attempt is made to recover the price of prohibited goods. On the authority of the two cases which I have mentioned, we think the plaintiffs are entitled to retain their verdict.”

In Cope v. Rowlands, 2 Exchq., 12th Eng. Com. Law, 149, an action by a broker to recover commissions, the court say:

“ The sole question is, whether the statute means to prohibit the contract. In the cases of Brown v. Duncan, 10 Barnwell & Oresswell, 93, and Wetherell v. Jones, 3 Barn-well & .Alderson, both cases of violation of the revenue laws, the particular contract sued upon was held not to be interdicted; and in Johnson v. Hudson, 11 East. 160, as explained in the judgment of the court of King’s Bench in Foster v. Taylor, o Barnwell & Alderson, 898, the provision of the statute'which requires persons dealing in tobacco to take out a license, was held to be a regulation attaching to the plaintiff personally, and affecting líim with the penalty, for the purpose of securing the license duty only, and not forbidding the contract itself, though it is to be observed that some doubt has been thrown on the particular case in a very learned work. 2 Starkie on Evidence, 886. The principle, however, of that decision, is correct, and the question for us now to determine is, whether the enactment of the statute * * * is meant merely to secure a revenue to the citjq and for that purpose to render the person acting as a broker liable to a penalty if he does not pay it, or whether one of its objects be the protection of the public, and the prevention of improper persons acting as brokers. The court held ‘ that it appearing from the statute itself that provision was made for securing the good conduct of persons admitted and that all persons who should act as brokers should be admitted by the court of mayor and aldermen under such restrictions and limitations for their honest and good behavior as the court shall think fit and reasonable, showed clearly that the legislature had in view, as one object, the benefit and security of the public in these important transactions which are negotiated by brokers, and therefore the clause which imposes a penalty must be taken to imply a prohibition.-' ”

In Widoe v. Webb, 29 Ohio State, the plaintiff was not allowed to recover upon a promissory note, given, as the evidence tended to show, in part for intoxicating liquor sold by the plaintiff to the defendant, in direct violation of the provisions of a highly penal statute.

In Brown v. Duncan, 5 Manning & Ryland, 115, it was contended that, the plaintiff having acted in violation of the statute concerning the sale of spirits, it was incompetent for him to sue for the prices of spirits illegally distilled, and that therefore the defendant who had guaranteed the price could not be sued. The court gave judgment for the plaintiff saying:

“ The acts in question contained no clause preventing the carrying on of a distillery by persons who have not .complied with the regulations prescribed for the security of a revenue. The present case is very different from those based upon acts of parliament,, having for their object the protection of the public, the exchange of stock, called jobbing, and charges against usury or against the fraudulent making of bricks below a certain size. We therefore are of opinion that the plaintiffs are entitled to recover.”

In Smith v. Mawhood, 14 Exchq. 452, 24 Common Law, 650, an action to recover for tobacco sold, with a plea that the plaintiffs at the time of the sale had not a license to bill any tobacco, the court say:

“ The question is, does the legislature mean to prohibit the act done or not? If it does, whether it be for the purposes of revenue or otherwise, then the doing of the act is a breach of the law and no right of action can arise out of it. But here the legislature has merely said that where a party carries on the trade or business of a dealer in or seller of tobacco, he shall be liable to a certain penalty, if the house in which he carries on the business shall not have his name, etc., painted on it, in letters publicly visible and legible, and at least an inch long, and so forth. He is liable to the penalty, therefore, by carrying on the trade in a house in which these requisites are not"- complied with; and there is no addition to his criminality if he makes fifty contracts for the sale of tobacco in such a house. It seems to me, therefore, that there is nothing in the act of parliament to prohibit every act of sale, but that its only effect is to impose a penalty, for the purpose of the revenue, on the carrying on of the trade without complying with its requisites. I am of opinion, therefore, that both the pleas are bad, and that our judgment should be for the plaintiff.”

In Taylor v. The Crowland Gas & Coke Company, 10 Hurlstone & Gordon, 36 Exch. 293, which was an action for preparing certain conveyances and deeds relating to real and personal estate, Parke, Baron, said:

“ I am of opinion that the defendants are entitled to judgment. The true principle is laid down in Cope v. Rowlands and Smith v. Mawhood; and the question in all these cases is, whether, looking at the statute, the object of the legislature in imposing a penalty was to prohibit the particular act, or whether it was for a different purpose. Therefore, the simple point which we have now to decide is, whether the legislature intended to prohibit this act being done under a penalty, and thus render it illegal; for if so the plaintiff can not recover. How, looking at the statute, I am of the opinion that the object of the legislature was to confine the practice of drawing the instruments therein specified to a certain class supposed to have a competent knowledge of the subject, and to protect the public against the mistakes of inexperienced persons in matters of this kind; and with that view, the legislature has prohibited these acts being done except by a particular class of persons. The object of the legislature could not have been merely to secure to the revenue the duty on certificates, because it is only certain persons who can by law obtain such certificates. In that respect the case is different from Smith v. Mawhood, where the object of the legislature was to compel the obtaining of licenses, which any one might obtain, to deal in a particular commodity.”

. In Shepler v. Scott, 85 Pa. State, 829, which was an action to recover commissions for bringing about the sale of real estate, the main ground of defense was that the plaintiff could not recover without showing that he had a license to act as a real estate broker; the court say, that under the pleading his right to recover did not depend on proving that he had a license, and aside from this there was no evidence that the plaintiff was engaged in the business of a real estate broker as an occupation, or that he held himself out to the public as such.

In Lindsey v. Rutherford, 56 Ky. (17 B. Monroe) 246, an action upon a bill of exchange, in which the defense was that the plaintiff purchased the bill while he carried on and conducted the business of an exchange dealer of grain and without having obtained a license to carry on such business, and that his purchase of said bill was therefore contrary to the policy of the law and void, the court, quoting from Chitty on Contracts, 41V, say:

“ There are many statutes, the object of which is to raise a revenue, rendering it necessary for - persons dealing in specified goods to take out a license for that purpose and inflicting a penalty on them for their neglect to do so.”

In this case, there was, however, no intention to prohibit the sale of such goods, but merely by inflicting a penalty personally on the seller, to secure the receipt of the revenue, and the price of the goods sold even by an unlicensed vendor might therefore be recovered.

“These general principles will enable us to arrive at a proper conclusion in the present case. The dealing in bills of exchange, in view of the statute, is neither malum in se nor m alum prohibitum. Contracts for their sale and purchase are not prohibited by the statute; they are neither evil in themselves nor evil because forbidden by the statute. The statute strikes no blow at the business itself, but simply declares upon this subject that ‘if any person shall carry on, conduct, or engage, directly or indirectly, in the business of a broker or exchange dealer, by the purchase of bills of exchange, etc., without a license, besides the tax imposed, he shall forfeit and pay to the commonwealth one thousand dollars.’ The business may be carried on; the business itself is not prohibited; it is lawful to deal in bills of exchange; but, if carried on without a license, the person doing so shall forfeit and pay to the commonwealth one thousand dollars.”

W e conclude, therefore, that our statute, in this regard, is essentially a revenue measure, designed to raise revenue from a business esteemed by the legislature as very profitable, and authorizing the requisition of a tax from him who thinks proper to engage in the business.

In Pope v. Beals, 108 Mass. 561, an action to recover commissions on the sale of a horse to the defendant, the judge at nisi prius was asked to rule that the plaintiff could not recover, because he had no license and had paid no special tax. This the court refused to do, and his ruling, with judgment for the plaintiff, was affirmed by the Supreme Court.

In Ruckman v. Bergholz, 37 N. J. Law, 437, an action of assumpsit to recover compensation for services as an agent in selling real estate, a defense interposed was that the plaintiff had at the time of the sale no license. The court said:

“ The question in such cases is, whether the statute was intended as a protection, or merely as a fiscal expedient; whether the legislature intended to prohibit the act unless done bv a qualified person, or merely that every person who did it should pay a license fee. If the latter, the act is not illegal. * * * The internal revenue law pre-scribed no qualification for a real estate agent. Any one who should have taken out the requisite license would have been authorized ipso facto, so far as that law was concerned, to carry on the business without respect to his qualifications. It did not undertake to declare any act done by an unlicensed person, acting as a real estate agent, invalid. Its sole object in requiring a license in such case was to raise revenue.”

The power of the city council in respect to the business done by brokers and commission merchants is derived from clause 4 and clause 91 of section 6 of chapter 24 of the Revised Statutes, which are as follows :

Clause 4. “ To fix the amount, terms and manner of issuing and revoking licenses.

Clause 91. “ To tax, license and regulate auctioneers, distilleries, breweries, livery-stables, lumber-yards, public scales, money changers and brokers.”

Ho authority has been given to the city to make the business of brokers or commission merchants unlawful. Hor does the statute forbid the carrying on of such business without the obtaining of a license. Hor is either character or qualification required of persons who engage in such business. The statute has simply given to cities the opportunity to obtain revenue from licenses given by it to commission merchants. ,

The statute in this regard is quite variant from what it is as to some other occupations. The statute entitled “ Dram-shops,” is highly penal, and clearly forbids the selling of liquor without the obtaining of a license. It is not merely a revenue act. So, too, the statute concerning the practice of medicine, directly forbids the “ practice of medicine, or any of the practices thereof, or midwifery, in this State, without first applying for and obtaining a license from the State Board of Health to do so.”

This is an enactment designed to protect the public health and the people from imposition. The business of a commission merchant is neither malum prohibitum nor malum in se.

Ho cross-errors are assigned. The judgment of the Circuit Court is affirmed.


author: Mb. Justice Waterman

text:
    Charles S. Wolsey et al. v. Oscar J. Price.
    1. Satisfaction — Procured by False Representations. — Where a person holding a claim against a married couple for which both are liable, is induced to satisfy his claim by the false representations of the husband, the wife, when suit is brought against both upon such claim, can not take advantage nor derive any benefit from a satisfaction so obtained.
    Assumpsit, for services. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanaqh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    Statement. — This was an action in assumpsit brought by appellee against appellants.
    The pleadings in brief were as follows: Appellee, on December 2, 1896, filed a special count for services as physician, together with the common counts.
    On December 29, 1897, he filed a special count for breach of warranty. Appellants had theretofore filed a plea of the general issue, and by stipulation that plea was to stand to the additional count. Two subsequent amendments were filed by appellee in respect to form and phraseology. Afterward, on January 29, 1900, on the opening of the trial herein it was verbally stipulated between the parties that there was no controversy in this suit as to the value of the service rendered, and that there was an account stated between the parties on or about August 1, 1893.
    The evidence tends to show that appellee had been the family physician of appellants for a number of years prior to August 1, 1893, and that on or about that date an accounting was had and a balance struck amounting to $560, and in payment thereof appellant Charles $. Wolsey gave appellee a bond of the Staver and Abbott Manufacturing Company of the denomination of $500 and a check for the balance of the account, less accrued interest on the bond, which bond was tendered back to appellants. Appellee, as the interest matured thereon, collected the same to the amount of $96.27, until the failure of the Staver and Abbott Manufacturing Company, which occurred January 31,1896. Appellee then began this suit, and claimed upon the trial that he was induced to take the bond in payment of his account, by the false and fraudulent representations of Mr. Wolsey.
    M. B. & F. S. Loomis, attorneys for appellants.'
    Cunningham, Vogel & Cunningham, attorneys for appellee.
   Mb. Justice Waterman

delivered the opinion of the court.

There was given upon the trial, evidence tending to show that appellee received the bond of the Staver and Abbott Manufacturing Company for $500, in satisfaction of his account against appellants for medical services, upon false representations made to him as to the character thereof by Mr. Wolsey.

The evidence was certainly such that the jury were warranted in finding that the claim of appellee in this regard was well founded. Appellant urges that the representations testified to were made entirely by Mr. Charles Wolsey and none of them by Mrs. Wolsey and that therefore neither the instructions given by the court nor the verdict of the jury can be justified.

The claim of appellee was for medical services rendered to the family, for which both Mr. and Mrs. Wolsey were liable to him.

If appellee was induced to satisfy such claim by the false and fraudulent representations of Mr. Wolsey, Mrs. Wolse}r can n'ot take advantage nor derive benefit from a satisfaction so obtained.

The suit was based upon a claim for medical services, with a special count setting forth the manner in which an attempt had been made to discharge the same.

The jury found, as the evidence certainly warranted, that the claim had not been discharged in any valid manner, that it still existed, and that therefore appellee was entitled to a judgment against Mr. and Mrs. Wolsey, to whom he had rendered, as was admitted, the services for which the judgment in this case was rendered.

The judgment of the Superior Court is affirmed.


text:
    Robert W. Sunasack v. Lydia J. Morey et al.
    1. Lease — Definition—Rights of the Parties — Liability of the Land-\ lord for Representations. — A lease is a sale of the right to use and occupy premises for a certain time, and to which the rule of caveat emptor applies. The landlord is not liable for representations as to the condition of the premises concerning which the lessee has the same opportunity for observation and examination that he has, unless by some artifice the lessor prevents him from making an examination as to latent defects known to the lessor and unknown to the lessee, and of which knowledge could not be ascertained'by an ordinary and reasonable examination.
    2. Landlord and Tenant — Liability to Keep the Premises in Repair. —A landlord is not bound to repair or to keep the demised premises in a habitable or tenantable condition unless he has expressly agreed to do so, in which case, if he fails to keep his promise, the tenant may cause the repairs to be made and charge them to the landlord, or he may abandon the premises.
    3. Same — Liability of the Tenant for Nuisances. — A tenant is not liable for a nuisance existing on the premises at the time the lease is made, nor for a defect in the premises, unless the defect is latent and the landlord has been guilty of fraud or deceit in the letting.
    4. Same — Right of Control During the Term. — When a tenant enters into possession of premises under a lease, the landlord, during the term, parts with all his right of control over the same, except as to injuries affecting his reversionary interests.
    5. Pleading — Allegations of Duty in Actions for Neglect of a Duty. —In an action for a neglect of a duty by the defendant it is not sufficient to allege in the declaration that it was the duty of the defendant to do certain things. Facts from which his duty arises must be stated.
    Trespass on the Case. — Injuries from sewer gas. Appeal from the Circuit Court of Cook County: the Hon. Charles A. Bishop. Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1901.
    W. P. Black and A. B. Chilcoat, attorneys for appellant.

      Heckman, Elsdon & Shaw, attorneys for appellees.
   Mb. Justice Waterman

delivered the opinion of the court.

This was an action brought to recover damages sustained in consequence of the presence of sewer gas in a house leased and occupied by the plaintiff, both as a residence and as a barber shop.

It was alleged that it was the duty of the defendants to keep the premises in good order, particularly as to sewerage; and that, disregarding this duty, defendants suffered the premises to be in bad order and sewer gas to escape therein in such quantities as to become dangerous for tenants; all of which was well known to defendants, or by the use of ordinary care could and should have been known to them; that the defendants had assured the plaintiff That the premises were free from sewer gas and in a healthy condition, relying upon which assurances plaintiff rented a portion of said premises for a barber shop and dwelling place for himself and family; that soon thereafter he discovered sewer gas escaping from sewers connected with said building, into the premises occupied by him; that he gave notice to defendants and they promised that the same should be remedied, but failed to do so, and by reason thereof serious and permanent injury to his wife and children followed, and he was required to and did lay out large sums of money for the healing of himself, wife and children; that by the ordinances of the city of Chicago it was provided that for any person to suffer any sewer or drain on the premises to become injurious to the public health should constitute a nuisance; that it was the duty of the defendants to have complied with said ordinances, but they negligently disregarded the same and permitted the nuisance to continue, to the great injury of the plaintiff and his famity.

In other counts it is also alleged that the bad and unsafe condition of the premises on account of escaping sewer gas “ was well known to defendants, or of which they had notice, and was wholly unknown to the plaintiff; ” that the plaintiff moved into said premises with his family and thereafter discovered that sewer gas was escaping into that part of the building occupied by him; “ that the discovery made by plaintiff was occasioned by the sickness of himself and divers members of his family which continued for a long space of time thereafter.”

A demurrer to the declaration was sustained and judgment entered for the defendants, from which the plaintiff appeals.

There is, in respect to the leasing of property, as in respect to the sale thereof, no implied warranty or undertaking on the part of the landlord or grantor that the premises are in a safe and healthy condition or fit for occupancy, either for the purpose of business or residence. A lease is a sale of the right to use and occupy the premises for a certain time. As to both lease and sale the rule caveat emptor applies. Mor is landlord or grantor liable for representations as to conditions concerning which the lessee or grantee has the same opportunity for observation and examination that has the lessor or grantor, unless by some artifice, the lessor or grantor prevents the lessee or grantee from making an examination as to latent defects known to the lessor or grantor and unknown to the lessee or grantee, and of which knowledge would not be obtained by an ordinary and reasonable examination, as that the premises had lately been occupied by persons sick with the small-pox. Minor v. Sharon, 112 Mass. 477; Coulson v. Whiting, 12 Daly, 408; Wood’s Landlord and Tenant, Sec. 382; Fisher v. Lighthall, 4 Mackay 82; Lucas v. Coulter, 104 Ind. 81.

Most of the questions involved in this case were passed upon and determined in Blake v. Ranous, 25 Ill. App. 486, which was an action brought to recover from Blake damages “for falsely, fraudulently and deceitfully representing a certain building owned by him, and which appellee was about to lease, to be in good repair, in a sanitary condition and fit for occupancy, whereby appellee was induced to lease and occupy said building.”

A tenant is not liable for a nuisance existing on the premises when the leas'e was made, nor for defect in the premises, unless the defect is latent and the landlord has been guilty of fraud or deceit in the letting, as in the case of premises lately occupied by persons sick with an infectious disease, hior is the landlord bound to repair or to keep the premises in a habitable or tenantable condition, unless he has expressly agreed to do so, in which case, if he fails to keep his promise, the tenant may cause repairs to be made and charge the same to the landlord, or may abandon the premises.

It is not sufficient in a declaration to allege that it was the duty of the defendant to do certain things. Facts, from which said duty arises, must be stated. Appellant quotes from Chicago Coal Company v. Glass, 34 Ill. App. 367, the statement that “ the rule is well nigh (if not entirely) universal that men must so use their own property, and so exercise their own privileges, that they do not thereby destroy or imperil the rights of others.”

In reference to this, it must be borne in mind that for all the purposes of use to which premises can be put, they are from the beginning of the lease the property of the tenant, and he has the right to keep them in a tenantable and habitable condition; and that for a nuisance arising on the premises during the- tenancy, even as to third persons; the landlord is not liable, unless the nuisance necessarily arises from the use of a thing demised, or for the use for which it was demised; and where the use of the premises may or may not become a nuisance, according as the tenant exercises reasonable care or uses the premises negligently, the tenant alone is chargeable for the damages arising therefrom. Wood’s Landlord and Tenant, Sec. 539.

When a tenant enters into possession of premises, under a lease, the landlord during .the term parts with all his right of control over the same, except as to injuries affecting his reversionary interests. Wood’s Landlord and Tenant, Sec. 538.

Counsel in their brief say:

“ That they do not insist that the landlord was bound to repair, because during the tenancy he had promised to do so, but that the allegation of such promise is put in the declaration for the purpose of showing why the tenant remained in the premises after he discovered the presence of sewer gas.”

The declaration is thus put upon the representation of the landlord concerning a matter of which it is not charged he had actual knowledge, and concerning which there is no allegation that anything was done to prevent the plaintiff’s making full examination, nor is it charged that he did not have ample opportunity so to do.

So far as the ordinance of the city is concerned, it' appears that so soon as the lease was made it became the duty of the lessee to keep the premises in the condition prescribed by the ordinance and to abate any nuisance existing thereon. The judgment of the Circuit Court is affirmed.