text:
    Supreme Lodge, Order of Mutual Protection, v. Wilhelmine Zerulla.
    1. Life Insurance — When Suicide Avoids the Contract. — Where a policy of life insurance contains a provision that if the insured commit suicide, “ sane or insane,” it is not necessary, in order to avoid the liability, to show thafc in taking his own life he was conscious of the moral quality or consequences of the act, but only that he was conscious, at the time, of the physical nature and consequences of such act, or that he knew that the means employed would cause his death.
    2. Beneficiary Associations — Effect of By-Laws Requiring Claims to be First Submitted to the Executive Committee of the Association.— A by-law of a beneficiary association requiring a death claim to be submitted to the executive committee before bringing suit in a court of law is not binding úpon,the beneficiary.
    3. Waiver — Of a By-Law by a Beneficiary Association. — A provision in a by-law of a beneficiary association requiring a death claim to be submitted to the executive committee of the association and declaring a forfeiture of the beneficiary’s rights for a failure to do so, is waived by the action of the association in disapproving the claim and refusing to pay it.
    4. Same — Of the By-Laws of Insurance Associations. — By-laws of an insurance association requiring- a beneficiary, before bringing suit, to .pursue a peculiar remedy provided ir¡ such by-laws, may be waived by the absolute refusal of the association to pay the claim.

      Assumpsit, on a contract of life insurance. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Haxecy, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed January 30, 1902.
    Statement toy tine (lonrt. — Appellee, the beneficiary under a certificate of insurance issued by the appellant January 15, 1897, for $1,000, the insured, Wilhelm Jordan, having died March 6, 1897, began suit to recover the amount of the certificate, a trial of which before the court without a jury, resulted in a finding in her favor of $1,175 and judgment thereon, from which this appeal is taken.
    The declaration consists of the common counts and a special additional count, declaring specially upon the certificate, to which were interposed the general issue, and ten additional special pleas. Eeplications were filed, taking issue upon the first six pleas. To the 7th, 8th, 9th and 10th additional pleas numerous replications were filed, on some of which issue was taken, and as to others demurrers were sustained, and a demurrer to a replication to the 10th plea was carried back and sustained to that plea. It is unnecessary to set out all these pleadings, as the substance of the defense made by the appellant is that the insured came to his death from his own act, knowing that such act -would result in his death, or, in other words, that he knew at the time that the physical effect of such act would cause his death.
    At the close of all the evidence the court refused to find for the defendant, and among other propositions of law held the following:
    “ 2. The court finds as law that every man is presumed to be sane until proven to be insane, and in this case the law presumes that Wilhelm Jordan was sane, and the burden of proof is on the plaintiff to show that he was insane, and the plaintiff must prove by preponderance of the evidence that Jordan was insane and that he did not intentionally take his own life.
    61 3. The court holds as law that though it appears from the evidence that Wilhelm Jordan at the time of his death was insane, and that his death was the result of such insanity, if it further appears from the evidence that irrespective of such insanity Wilhelm Jordan at the time of his death was capable of forming an intention, and that he did intentionally commit suicide, then the plaintiff in this case cannot recover and the finding should be for the defendant.
    “ 4. The court holds as law that the law presumes that Wilhelm Jordan was sane, and though it appears, or is proven by the evidence, that he committed suicide, from that fact alone no presumption arises that he was insane at the time he took his own life.
    “ 5. If it is proven by the evidence in this case that Wilhelm Jordan intentionally took his own life, the finding should be for the defendant.”
    “ 8. The court holds as law that the charter, constitution, laws, rules and regulations of the defendant order, the Supreme Lodge, Order of Mutual Protection, in force at the time of the death of Wilhelm Jordan, if any be shown bv the evidence, are to be taken into consideration in determining whether or not the plaintiff is entitled to recover in this case, and the right of the plaintiff to recover must be determined by the said charter, constitution, laws, rules and regulations of the said defendant order in force at the time of the death of said Wilhelm Jordan, in connection with all other facts shown by the evidence.”
    The certificate in question contains the following provisions :
    “ This certificate, issued by the Supreme Lodge, Order of Mutual Protection, witnesseth : That Wilhelm Jordan, of Chicago, Illinois, has been accepted as a member of the Supreme Lodge, Order of Mutual Protection, upon the faith of the warranties and statements made in his application to the order and medical examination, and that the Supreme Lodge will, upon his death, provided he has, while a member, complied with the charter, constitution, by-laws, rules and regulations of the order, pay from the Widows and Orphans’ Protection Fund, one-half of the amount of one assessment, not to exceed, however, the sum of $1,000, to his sister, Wilhelmine Zerulla, unless this certificate should be by him revoked.
    The express condition upon which this certificate is issued is that the rights of the above named beneficiary or beneficiaries shall be determined by the charter, constitution, by-laws, rules and regulations of the order in force at the time that the sum due hereunder is payable; paragraph 4 of section 148 being annulled.”

      The application of Mr. Jordan to become a member contains the following:
    “I further agree that should my disability or death be caused or result directly or indirectly from any immoral or unlawful act or pursuit on my part, or by my own sui- • cidal act, sane or insane, * * * then in such case or cases neither myself nor any of my beneficiaries shall be entitled to participate in the Widows and Orphans’ Protection Fund, or to have any claim of whatsoever kind or nature against any department of the Order of Mutual Protection, or any subordinate lodge thereof.”
    The by-laws of appellant in force at the time of Mr. Jordan’s death, provide (Sec. 165) that no benefit shall be paid on account of the death of a member “ if the death was due to the voluntary or involuntary suicidal act of the deceased member, whether he was at the time sane or insane.”
    Cratty, Jarvis & Cleveland, attorneys for appellant.
    P. L. O’Meara and William Schreider, attorneys for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

The first claim made is that the court should have found the issues for the defendant. We can not so hold as a matter of law.

The evidence on behalf of appellee tends to show a state of facts which would justify a recovery, but there is a conflict in the evidence as to the extent of the insanity of Mr. Jordan when he committed suicide, as we think the clear preponderance of the evidence shows he did. That he was insane for some weeks prior to his suicide, the evidence tends strongly to establish, as well as to show that he was bereft of all reason and incapable of forming an intention to take his own life or of understanding the physical effect of any act which was likely to result in his death. At the same time there is evidence which strongly tends to show that this act was done deliberately and that he knew at the time that the things which he did would cause his death. Connsel for appellant thus states the substance of that part of the evidence, which seems to be substantially correct, viz.:

“ The evidence further shows that on Saturday, March 6, 1897, shortly before seven o’clock p. m., Wilhelm Jordan came to his death by hanging himself, bv taking a piece of rope, wash line, and fastening one end of the rope on the joist or rafters running over his róom. The other end was tied around him. His head was in a sling. The rope went through a loop and then around his neck, and was tied up to the roof. When found he was hanging by this rope, and his feet were four or five inches from the floor. Hear by was a chair. This is in substance the statement of the witness who found him and cut him down. The witness gives it as his opinion that Jordan stepped on the chair. He also says there was no other way to get up there besides the chair.’ ”

This being the state of the evidence, we think there was presented a question of fact on which reasonable minds might well differ, and therefore it can not be said, as matter of law, that the finding should have been for the appellant.

In the case of Nelson v. Equitable Life Assurance Society, 73 Ill. App. 133-46, we reviewed the authorities upon the question here presented, and there said :

“ It thus is clear that when the policy contains the sane or insane clause, it is not necessary, in order to avoid liability, to show that a person taking his own life was conscious of the moral quality or consequences of the act, but only that he was conscious, at the time, of the physical nature and consequences of the act, that is, that he knew that the means he employed would cause death or endanger his life. Some of the cases go further, and hold that under this clause it is immaterial whether the assured even knew the physical consequences of his act; but we think that should be shown, in order to avoid liability by the insurer.”

The exact question has not been decided by the Supreme Court, so far as we know, but we think that our conclusion in the Helson case is supported by the weight of authority. In fact, 'counsel do not disagree as to the law on this point. Counsel for appellee relies upon some of the cases quoted by this court to support the Helson case.

The propositions of law quoted in the statement as having been held by the learned trial judge, show, in our opinion, that he committed no error in holding the same as the latv of the case. A number of refused propositions, which it is claimed the court erred in refusing, are in substance covered by those held.

The cause, up to the time the evidence closed, was heard before the court and jury, when, in the course of a coloquv between court and counsel as to whether there was a question of fact to be submitted to the jury, viz., as to whether the deceased was sufficiently sane to understand the nature of the act of suicide, the court, in speaking to appellee’s counsel, said:

“ I thought the doctor set you right on that in stating there are no degrees of insanity; if a man is insane he is insane all through; you are still coming back to it now; you say he is insane and they don’t dispute that; therefore there is no question of fact for the jury to pass on. To say that he was or was not insane, then, resolves itself purely into a question of law. He did take his life — nobody disputes that. There is no particular dispute on that question. How, what have you got to say on the question of law ? ”

From this statement, as well as others in the record, we think it apparent that the court reached the conclusion he did solely upon the ground that if, as he found, it was established by the evidence that Mr. Jordan was insane at the time he took his life, it was immaterial whether he knew, at that time, the physical nature and consequences of the acts leading to his death. We therefore think that there should be another trial, from which we would have the benefit of a decision of the trial court on this question of fact.

A further contention is made, that there was error in sustaining a demurrer to the tenth plea, which presents the question as to whether the appellee, before bringing suit, should have submitted her claim to the approval of appellant’s executive committee, and in case of its rejection, should have appealed to the Supreme Lodge of appellant, pursuant to the provisions of the by-laws of appellant then in force, which required this to be done, and in case of failure so to do, the beneficiary’s rights would thereby be forfeited.

This question must, in our opinion, by reason of the facts shown on the hearing, be determined against the appellant. In the first place, such a provision in the by-laws as to a matter of the nature here presented, concerning, as it does, the liability of appellant under a death claim made on its certificate of insurance, is not binding upon the beneficiary; and secondly, even though the by-laws are binding in this regard, this provision has been Avaived by the action of appellant, through its supreme secretary, Avho, under date of June 18, 1897, by letter, notified appellee that the executive committee of appellant had not approved the claim on account of the death of Mr. Jordan; that the claim would not be paid because he had committed suicide less than three years after he became a member, this being in violation of appellant’s by-laws. People v. Order of Foresters, 162 Ill. 78-83, and cases cited; Stephenson v. Ins. Co., 54 Me. 55-70; Avery v. Scott, 20 Eng. L. & Eq. R. 327; Grand Lodge, etc., v. Randolph, 84 Ill. App. 220-7, affirmed, 186 Ill. 89.

In People v. Order of Foresters, supra, in Avhich the court considered the right of a member to file a petition for mandamus to compel a fraternal society to restore such member to the privileges of the society Avithout first exhausting the remedies secured to her by its constitution and by-laws, it says:

“It is to be remembered, however, that there is a clear distinction betAveen the obligation to appeal from the lower to the higher tribunals of the society itself, resting upon one who presents a question of discipline, and such obligation so far as it concerns one who asserts a claim to money due upon a contract. Where the controversy is concerning the discipline or policy or doctrine of the order or fraternity, the member must resort to the method of procedure prescribed by the association, including the remedy by appeal, before invoking the power of the courts. But it is otherwise Avhere a member claims money due from the society on its contract, or where the beneficiary of a deceased member claims money due from the society on its contract of insurance; in such case, the right to resort to the courts to coerce payment will not be abridged by the right of appeal from a lower to a higher tribunal of the society as conferred by its laws and rules. ‘ Courts of justice are freely open to those who seek money due them upon a contract.’ ”

In the Randolph case, supra, the by-law was permissive only; but in the Stephenson and Avery cases, the courts sustain the conclusion reached by the Supreme Court above noted. The case of Railway Conductors’ Benefit Ass’n v. Robinson, 147 Ill. 148, relied upon by appellant, is not, in our opinion, applicable here; it rather tends to support the proposition that the by-laws in the respect claimed are not binding on the appellee.

The other cases relied on, being decisions of the Appellate Courts of this State and foreign jurisdictions, even if it can be said that they sustain appellant, must yield to the ruling of the Supreme Court above quoted.

But if tire by-laws can be said to require the appellee, before bringing suit, to pursue the rémedy thereby provided, the requirement is one which the appellant may waive, and in our opinion, by its refusal absolutely to pay the claim, it has waived. Metropolitan, etc., Ass’n v. Windover, 137 Ill. 417-32; Ry., etc., Ass’n, v. Tucker, 157 Ill. 194-201.

We think there was no error in sustaining the demurrer to the tenth plea. Other points made by counsel, in view of the conclusions reached, do not require special mention.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: Mr. Justice Sears

license: Public Domain

text:
    Sidney Loeb et al. v. Fredericka Stern, Adm’x, etc.
    1. Contract— When an Agreement to Repurchase a Note and Mortgage is Not a Gambling Transaction, within the Prohibition of Section 130 of the Criminal Code. — An agreement by the seller of a promissory note and mortgage to take them back at par and accrued interest, less one per cent commission, on thirty days’ notice, made contemporaneous with the purchase and a part of the same transaction, is not an option contract within the prohibition of section 130 of the criminal code.
    2. Demand — Where Unnecessary. — Where a party obligates himself to comply with the conditions of an agreement upon demand and notice, and upon notice he refuses to perform his undertaking, no further « demand is necessary.
    3. Estoppel — Foreclosure by a Purchaser of a Mortgage Under an Agreement Giving the Privilege of Returning it. — The purchaser of a note and mortgage under an agreement on the part of the seller to repurchase them, is not estopped by the foreclosure of the mortgage from claiming damage for the breach of the agreement to repurchase such note.
    4. Vendor and Vendee— When it is the Duty of a Vendor to Realize as Much as Possible from a Sale of the Property in Question.— The ground upon which a party is required to sell upon the market the goods which a vendee refuses to receive in conformity with his agreement to take them, before seeking substantial damages for the breach of the contract, is the duty of the vendor to realize all that he reasonably can, upon the goods, and thus lessen so far as he possibly can the damages resulting from the breach of the agreement, and this duty is well discharged by the reasonable efforts of the purchaser of a note secured by a mortgage, under an agreement on the part of the seller to repurchase it under certain circumstances, to realize all he can upon the note by foreclosure and sale of the mortgaged premises, unless it appears that by the sale of the note upon the market a greater reduction of the damages could be accomplished.
    5. Parties — ■When Not Competent Witnesses in Civil Suits. — No party to any civil action, suit or proceeding, or person directly interested in the event thereof, is allowed to testify in such suit or proceeding of his own motion, or in his own behalf, when any adverse party sues or defends as the executor, administrator, heir, legatee or devisee of any deceased person.
    6. Foreclosure Sales — Price at Which the Property Sells, the Conclusive Measure of its Value. — In the absence of fraud or irregularity in the proceedings, the price for which property sells at a sale in foreclosure is the conclusive measure of its value as a security for the notes mentioned in the mortgage.
    Assumpsit. — Breach of an agreement to repurchase notes, etc. Appeal from the Circuit Court of Cook County; the Hon. Elbiiidge Hanecy, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed January 30, 1902.
    Statement. — One Glaser, as agent of Marcus Stern, appellee’s testator, purchased from appellants a promissory note and interest notes, secured by trust deed upon property in this county. At the time of the purchase the following letter, directed, to Stern, was given to the agent, Glaser, by appellants:
    “ Dear Sir : We herewith hand you first mortgage of

      F. D. & C. D. Hess, dated November 28, 1892, for the amount of $6,500, which, with accrued interest to date, amounts to $6,588.69, for which we received check from Mr. G. D. Glaser, of this city, on your account. We hereby guarantee that the trust deed securing the payment of principal and interest notes which we hand you herewith, is a first lien upon the property covered in said deed and that the title to said property is good in said F. D. & C. D. Hess, and agree to protect you from any loss which might arise from any defect in said title. We also guarantee you the completion, free from all mechanics’ liens, of the four-story stone front store and fiat building, which is now in process of completion upon said premises, and which is known as No. 6504 State street. We will also see to it that the taxes are paid on said property during the term of loan and that the building will remain insured for an amount of no less than $6,500 during said time, which insurance policies we will hold as collateral security of the loan for your benefit. We also hold abstract of title, and agree furthermore to take this mortgage back at par and accrued interest, less one per cent commission, provided you give us thirty days’ notice to such effect in writing.
    Very respectfully yours,
    Loeb & Gatzert.”
    The purchase and contemporaneous agreement to buy back were made February 20, 1893.
    On August 10, 1896, which was more than three years after the purchase, Marcus Stern caused to be served upon appellants the following notice :
    “ Atlantic City, New Jersey, 8-7-96. Messrs. Loeb & Gatzert,
    Chicago, Illinois.
    Gentlemen : In accordance ivith the provision in that respect contained in your writing of February 20, 1893, wherein yon agree to take back the note of $6,500 and trust deed of Frederick D. and Caroline D. Hess at par and accrued interest less one per cent commission, I do hereby give you notice that I desire to avail myself of the benefits of said provision and do hereby notify you to take back said note and trust deed, in accordance with the terms of said provision, thirty days after receipt of this notice by you, and I hereby authorize C. D. Glaser to receive the amount of said note and interest, less commission, for me.
    Truly yours,
    Marcus Stern.”

      Appellant Gatzert testified that the following convórsation took place at the time of the service of said notice by Glaser:
    “ I told him that we would not buy it back, because at the time he bought this mortgage I told him I would make this agreement simply because his father-in-law was coming to the World’s Fair in 1893, and he wanted to look at the property then, and, if it did not suit him, I would then take the mortgage back. We 'would take the mortgage back. For that reason there was an understanding in the nature of our agreement, and I told him we were not compelled to take back that mortgage. Mr. Glaser said, ‘ Well, I simply serve you with this notice.’ That is all he said. He said, ‘ I have nothing to say; I serve you with this notice.’ ”
    Appellant Loeb testified:
    “ I remember the conversation with Glaser which Mr. Gatzert had at that time. He came in and presented that letter from Mr. Stern and said he wanted his money. I was present and we were very much surprised to see him coming in after owning the mortgage three years. We told him that that was not the intent of that letter; that he told us at the time he bought the mortgage that he would not ask it of us, but that he was buying it for his father-in-law; that his father-in-law would be here during the World’s Fair and he would take him out and show him the property, and we agreed to take it back if his father-in-law did not like it at that time. Instead of that, he keeps the mortgage for three years. We told him that we would not take it back. He said he would see about it and went out of the office. He wanted his money. That is all he said.”
    After the service of this notice and the conversations above noted, Glaser took the notes and trust deed to an attorney, with instructions to proceed to foreclose it.
    Mo demand was made upon Loeb & Gatzert on or after the expiration of the thirty days provided in the notice. Subsequently Marcus Stern died, and after his death the administratrix of his estate filed a bill to foreclose the trust deed.
    Mo notice was given to appellants of the filing of this bill, but appellant Gatzert, who was the trustee named in the trust deed, was made a party defendant to the foreclosure proceedings. After the sale in the foreclosure proceedings and the entry of a deficiency decree in said proceedings against the mortgagors, appellee brought this suit in assumpsit to recover for breach of the contract of appellants to purchase the notes. An execution to enforce the deficiency decree was returned “ no property found.”
    Appellants defended upon the following grounds :
    1. That no time being mentioned in the original agreement within which the security might be returned, such security should have been returned within a reasonable time, and that three years after the making of the contract was not a reasonable time.
    2. That no demand upon the defendants or tender of the securities was ever made on or after the expiration of the thirty days provided in the letter of August 7, 1896.
    3. That plaintiff waived her demand against the defendants by electing to retain the securities and foreclose same.
    4. That the letter of February 20, 1893, constituted a contract contrary to the provisions of the statute, and was therefore void.
    Upon the trial the court refused to permit appellants to testify as to the conversations had at the time of the writing of the letter of February 20, 1893, between Mr. Gatzert and Mr. Glaser, which were offered for the purpose of showing what the parties at the time considered a reasonable time within which to exercise the option given to Marcus Stern in which to return the securities.
    The court also refused to give any of the instructions offered on behalf of the defendants, but peremptorily instructed the jury at the close of the case to' find the issues for the plaintiff and to assess the plaintiff’s damages at $1,022.73, which was the amount of the deficiency decree, less one per centum of the amount of the notes. From judgment upon a verdict for that amount this appeal is prosecuted.
    Loeb & Adler, attorneys for appellants.

      Pence & Carpenter, attorneys for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

It is contended by the learned counsel for appellants that the agreement by which appellants undertook to buy back the mortgage notes in question at the election of Marcus Stern, is an option contract within the prohibition of section 130 of the criminal code. This contention can not, we think, be sustained. The contract to buy back was contemporaneous with the purchase by Stern and part of the same transaction. The decision of the Supreme Court in Wolf v. National Bank, 178 Ill. 85, is in point and controlling. See, also, Ubben v. Binnian, 182 Ill. 508.

It is contended that because no demand was made upon appellants to carry out the terms of the contract to repurchase after the expiration of the thirty days named in the notes, therefore no recovery could be had. We regard this contention as untenable. Upon receiving the notice of .Stern’s election to have appellants perform their undertaking to repurchase, the appellants expressly notified Stern’s agent that they would not perform. This dispensed with need of any further demand. The law does not require the needless formality of demand in such case, it being apparent from the declaration of the parties that a demand would be unavailing. Wight v. Gardner, 66 Ill. 94; Lyman v. Gedney, 114 Ill. 388; Gorham v. Farson, 119 Ill. 425.

It is also contended that the rights of Stern under the -contract were waived wdhen his representative proceeded to a foreclosure of the trust deed by which the notes in question were secured. We are of opinion that the action of appellee in foreclosing the trust deed did not operate to estop her from claiming damages for breach of the contract to repurchase the notes. Assuming that contract to have been a valid and enforceable contract, and that appellants, upon their refusal to perform, became liable to appellee for breach of it, how was appellee to establish her measure of damages ? If, upon the refusal of appellants to repurchase, she had at once brought suit for breach of the contract, her claim to any substantial damages would doubtless have been met by the answer of appellants that until she had enforced payment of the notes or disposed of them by sale, it could not be known that she was damnified in any substantial manner, and hence that she could recover nominal damages only. It was the duty of appellee to take such action as might be reasonably calculated to reduce the damages resulting from appellants’ breach of the contract. Appellants refused to take back the notes. If they were to be enforced at all by foreclosure of the trust deed, it was for appellee to take this means of realizing upon them. In so doing she was, presumably, getting all out of the notes which could be realized by subjecting the land security to their .payment, and to that extent she was by prompt action presumably decreasing the damages for which appellants were liable. We are unable to perceive any substantial difference between such action and the ordinary sale upon the market of goods which a contracting party should, but will not, receive in compliance with his contract to buy. In either case it is simply the effort of the party damaged by breach of the contract to make the damages as slight as possible.

We think that there is no merit in the contention of counsel that appellee should have sold the notes upon the market in order to establish the measure of her damages. The ground upon which a vendor is required to sell upon the market the goods which the vendee refuses to receive in conformity with his contract, before seeking substantial damages from such vendee for breach of the contract to buy, is the duty of the vendor to realize all that he reasonably can upon the goods, and thus lessen, in so far as he reasonably can, the damages resulting from the breach of the contract. This duty would be as well met by the reasonable efforts of appellee to realize all that she could upon the notes by foreclosure, as by sale of the notes, unless it appeared that by the latter method a greater reduction of the damages could be accomplished. The underlying reason and purpose of the rule is the reduction of the loss. In Sutherland on Damages, page 155, the author says: ■

“Where damages can thus be saved by timely preventive measures, taken by the injured party, it is his duty to exert himself 'for that purpose; but he has a correlative right, in similar cases, to employ other means to attain the object of the contract broken, which was within the contemplation of the parties at the time of contracting; or to extricate himself from any predicament in which the wrong complained of ma)r have placed him.”

It does not appear from the evidence that at the time of the breach of the contract the notes could have been sold upon the market, or that by sale of them, or in any other manner, appellee could have further reduced the damages caused by the breach of appellants’ contract. At the time of appellants’ refusal to repurchase, one of the interest notes was overdue and unpaid. It would seem very doubtful if such paper could have been sold upon the market, except at a sacrifice, and that it could have been sold at all is problematical. There is no evidence to warrant a conclusion that it could.

Counsel also contend that parol evidence should have been admitted to show that the time within which the election of appellee to re-sell the notes to appellants should be exercised, was limited, and that the right had expired by such limitation before appellee sought to enforce it. In this behalf it was sought to show that by oral agreement the time was, in effect, limited to the time of a proposed visit of Marcus Stern to the city of Chicago, he being a nonresident of that city. The written contract contains no limitation of time within which the option was to be acted upon. It is also urged that the time for the exercise of the option would be, in the absence of express provision in the written agreement, a reasonable time, and that to establish what was a reasonable time it was competent to show what the parties themselves regarded as a reasonable time by showing their conversations in relation thereto at the time of the making of the written agreement.

It is enough to sav of these contentions that if it was proper to allow any showing in this behalf to be made, yet no competent evidence was presented by appellants by which any such facts could be established.

The mere statements by appellants to Glaser as to what they told Glaser at the time of the service of the notice upon appellants, being after the written agreement was made,could not establish these facts. ISTor were appellants competent witnesses by whom to prove what was said by them and by Glaser at the time of the making of the original contract in writing. This suit was brought by appellee as administratrix with the will annexed of Marcus Stern, now deceased. Therefore appellants were not competent to testify to the transactions accompanying the contract made in Stern’s lifetime. The fact that Glaser testified at the trial did not make appellants competent witnesses, except as to matters concerning which Glaser testified in behalf of appellee. Glaser as a witness on behalf of appellee did not testify at all to any of the transactions which occurred when the contract was made. Appellants could not, by questioning Glaser upon cross-examination as to such transactions, thus make themselves competent as witnesses to the transactions, for he was, in thus testifying upon his cross-examination, not a Avitness on behalf ” of appellee. Upon his direct examination as a Avitness on behalf of appellee, he did not testify at all as to such matters. The statute which makes parties in interest as litigants, competent to testify, removing the disability imposed by the common laAv, makes certain exceptions. The statute is in part as folloAvs: Section 2 of Chapter 51, XL S., provides in general that no party to a civil suit shall be allowed to testify on his own behalf when any adverse party sues or defends as administrator, etc. Under this provision several exceptions are specified. By paragraph 2 it is in effect proxdded that Avhen in such action, etc., any agent of any deceased person shall, in behalf of any person suing or being sued as administrator, etc., testify to any conversation or transaction between such agent and the opposite party, etc., then such opposite party may testify concerning the same conversation or transaction. This latter provision is an exception to section 2 of the act. Section 2 is an exception to the operation of section 1 of the act, and section 1 is a modification of the com. mon law rule as to disability of parties in interest. The question now presented is as to whether the testimony of appellants proffered as to conversations with Glaser, agent of Marcus Stern, had when the written contract was made, falls within the last exception noted, and is therefore competent. We think that it does not, and that it was properly excluded by the learned trial court. When Glaser testified “on behalf” of appellee to transactions with appellants, it became competent for appellants to testify in relation to the same, but this did not open the door for testimony of appellants regarding other matters not testified to by Glaser. Hor did the questioning of Glaser upon cross-examination as to such other transactions, not touched upon in his testimony upon direct examination, make the testimony of appellants competent as to the same; for to that extent he was not a witness “ in behalf ” of the appellee, within the provision of the statute. Dunlevy v. Montgomery, 66 Ill. 227.

. The facts being established without any conflict, it was for the court to determine whether the right of Stern was exercised within a reasonable time. C., R. I. & P. R. R. Co. v. Boyce, 73 Ill. 510.

We are of opinion that the court did not err in holding that in this case Stern had the right to enforce the contract when he gave the notice of August 10, 1896.

Evidence was proffered and excluded by the court as to the value of the mortgaged premises which were sold upon foreclosure of the mortgage lien in question. We are of opinion that in this there was no error. In the absence of any fraud or irregularity in the foreclosure proceedings, the price at which the property was sold is the conclusive measure of its value as a security of the notes in question and for the purposes of this suit. Franklin v. Greene, 2 Allen (Mass.), 519.

It can hardly be maintained that appellants had no notice of the foreclosure proceedings, for one of them was a party to the suit, and appellants were copartners.

The question of appellants’ rights under the deficiency decree in the event of payment by them of this judgment, is not, upon this record, a matter for consideration. To say that they would be equitably entitled to the rights of appellee under the deficiency decree would be no answer to appellee’s claim to this judgment.

We are of opinion that a clear right to the recovery was established, that no valid defense ivas shown, that substantial justice has been done, and that there is no reversible error in the proceedings of the trial court.

Therefore the judgment is affirmed.


text:
    John H. Campbell v. Green & Lombard Lumber Co.
    1. Mechanic’s Liens — Where the Oivner and Contractor are Both Liable. — Where payments by the owner have been made to the contractor or to his order in violation of the provisions of the law relating to mechanic’s liens, the owner is liable with the contractor to the party furnishing the materials.

      2. Judgments — Jurisdiction of Justices of the Peace.— The rendition of a judgment on an appeal from a justice of the peace for an amount exceeding the jurisdiction of the justice is legal where the excess is for interest accruing after the rendition of the judgment by the justice.
    Action under the Mechanic’s Lien Law. — Appeal from the Circuit Court of Cook County; the Hon. Area N. Waterman, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed January 30, 1902.
    Statement. — This suit was originally begun before a justice of the peace. An appeal was taken from judgment there to the Circuit Court, and this appeal is from judgment of the Circuit Court. The action is brought under the mechanic’s lien statute against a contractor and owner jointly, to enforce a mechanic’s lien against the owner for the price of materials furnished the contractor.
    The facts as they appeared in the evidence are as follows: The Green-Lombard Lumber Company, a dealer in,materials, contracted to furnish-lumber to defendant Krevscher, a contractor, to erect a building for defendant Campbell, the owner of the property described in the judgment, pursuant to a contract previously made between the two defendants.
    Lumber to the amount of $571.75 was furnished and payments to the amount of $371.75 were made for the same, leaving $200 sued for in this case, and for -which, with interest and attorney’s fees, verdict was rendered against both owner and original contractor. Judgment was rendered on the verdict against “ defendant,” as shown by the record proper. The bill of exceptions shows judgment on verdict.
    It appeared that a mechanic’s lien notice was served upon the defendant Campbell, the owner, on February 3, 1897, by the appellee, of its claim, and intention to hold the building and ground liable for the amount due it.
    It further appeared that no sworn statement had been made by the contractor, Kreyscher, or required by the owner, Campbell.
    It further appeared that on the 11th day of January, 1897, a full settlement had been had between Kreyscher, the contractor, and Campbell, the owner, at which time the contract price was paid in full and the contractor was loaned $300, with which the owner paid certain bills still due, taking the contractor’s check for the amount.
    There was no other evidence-that on the 3d day of February, 1897, the owner was indebted to the contractor, or became indebted to him as such contractor, thereafter, on account of the erection of said building.
    It also appeared in evidence that the defendant Kreyscher drew his check for $200, the amount of the claim in suit, dated December 16, 1896, in favor of the appellee, the receipt of which the appellee acknowledged by postal card dated December 18, 1896, directed to defendant Kreyscher and postmarked December 19, 1896. The check was drawn on the banking house of E. S. Dreyer & Co., which closed its doors December 19, 1896, at 12 m.
    The check was not paid and was returned to the defendant Kreyscher December 2-1, 1896, stamped paid through Chicago Clearing House National Bank of America, December 22, 1896.
    The appellee denied receiving the check before December 19, 1896, and said the date on the postal card was wrong. In this he was not contradicted.
    The court instructed the jury as follows:
    “The jury are instructed that a party furnishing materials upon the order of a contractor .for the erection of a house has a lien thereon against the owner who entered into the contract for the value of the materials so furnished, and may, by taking proper proceedings, recover from the owner the value of such materials, less the amount that has been paid.”
    The jury returned a verdict in proper form under the lien law, finding the issues for appellee and assessing its damages at $235. As to Baird, who, as trustee, had been joined as a party defendant, the jury found against appellee. Upon the verdict, which was against both Campbell, the owner, and Kreysober, the original contractor, the court rendered judgment as shown by the bill of exceptions.
    From that judgment Campbell appeals.
    E. W. Adkinson, attorney for appellant.
    Levi Sprague, attorney for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

The grounds urged by the learned counsel for appellant as reasons for a reversal of the judgment are:

1st. That at the date of the service of the lien notice by appellee upon appellant, all claims of the original contractor for the building in question had been fully paid, and therefore, under the statute, it is contended, no lien could result in favor of appellant, the sub-contractor.

2d. That the court gave an erroneous instruction to the jury.

3d. That .the judgment is excessive, in that it exceeds the amount of the jurisdiction of a justice of the peace.

The evidence establishes conclusively that when the lien notice was served upon appellant by appellee, all the claim of Kreyscher, the original contractor, for his work upon the building, had been fully paid. But the payment was improperly made, and as to appellee it is unavailing. Section 5 of the mechanic’s lien act provides that within ten days after the contract is made, and before commencing work thereunder, it shall be the duty of the contractor to give the owner, and also the duty of the owner to require of him a statement in writing, under oath or verified by affidavit, of the names and addresses of all parties having sub contracts for the specific portions of the work or for material, and of the amount to become due each, and when, or if any such sub-contracts are not then let, the names and addresses of those who have made bids or proposals for the same or for material, and the respective amounts of such bids or proposals, and, within ten days after the same are accepted, the amount thereof, and if any contractor shall fail to so notify the owner within five days after written notice to do so, such owner may cancel the contract with such contractor by written notice of such cancellation, and the lien of such contractor shall be subject to the liens of all other creditors. But this section shall not apply to the contractors who have given, or within ten days first named shall give, to the owner a'good and sufficient bond for the completion of such building or improvement free and clear of all mechanics’ liens, and such bond is made for the use and benefit of those who may be entitled to such liens; nor where such persons shall, in advance, waive their rights to liens and bind themselves to perform their respective subcontracts, services or labor; nor to contractors whose subcontractors and material men agree to take solely for payment, nor to merchant and dealers in material only. .

The exception contained in the final clause of this section has been construed to apply to original contractors who are material men, and not to sub-contractors who are material men. Huntly Mfg. Co. v. M. C. R. R. Co., 76 Ill. App. 387.

Section 33 provides:

“ Ro payments to the contractor or to his order shall be regarded as rightfully made as against the sub-contractor or party furnishing materials if made by the owner without exercising or enforcing the rights and powers conferred upon him in sections five and twenty-three of this act.”

The evidence is undisputed that the payments by appellant to the original contractor, relied upon now, were made without requiring or receiving any sworn statement, as provided by the statute.

But it is urged by appellant that this provision can apply only to such sub-contractors as have contracted with the original contractor within the ten days specified in the act, and that the evidence here fails to establish that this subcontract was made within such time, viz., within ten days after the making of the original contract.

The evidence shows that the sub-contract was made in the early part of October, 1896, but there is no evidence which expressly shows just when the original contract was made. However, we deem the evidence sufficient to warrant the conclusion that there was some material furnished by appellee within ten days after the making of the original contract, and hence that the sub-contract of appellee was made within the time during which the statute required appellant to obtain the sworn statement of the contractor. Mr. Campbell testified :

“ I know Mr. Krevsclier. Had a contract with him for the erection of a building on the premises described here as admitted in that deed, being 6352 Halsted. I had a contract in writing. He did not, within ten days after making the contract, give me a sworn statement of the lumber and material that was furnished by the Green & Lombard Lumber Company. I did not req uire such a sworn statement of him.”

The witness speaks of lumber that was furnished by appellee and in connection with the period of ten days after the making of the original contract. The statement of the witness would not be a reasonable statement if no lumber had then been furnished. No other evidence was presented which showed or tended to show the relative dates of the original and the sub-contract. But if lumber had already been, delivered to any extent whatever under this sub-contract within the ten days after making of the original contract, then the conclusion is irresistible that the sub-contract had been made at the time of such delivery, i. e., within ten days after the making of the original contract. In the absence of any evidence to the contrary, we think this evidence is sufficient to establish the fact that this sub-contract was made within ten days after the making of the original contract, and hence it follows that the payments by appellant, made to the original contractor without requiring of him the sworn statement provided for by the statute, were unavailing as payments against the right of appellee to its lien. Nutriment Co. v. George Green Lumber Co., 94 Ill. App. 342.

The foregoing consideration disposes of the alleged errors in excluding evidence proffered by appellant as to waiver of lien by Krey sober, upon payment to him of his claim.

The instruction complained of and set out in the foregoing statement of facts, is too broad, but we are of opinion that no prejudice resulted to appellant by the giving of it. The uncontroverted evidence established a right of recovery.

It is argued that the judgment is for an amount without the jurisdiction of a justice of the peace, and therefore is excessive. The excess over $200 being for interest which had accrued after the judgment had been rendered by the justice of the peace, the recovery was proper. Tindall v. Meeker, 1 Scam. 137; Mitcheltree v. Sparks, Id. 198; Rives v. Kumler, 27 Ill. 291; Alley v. McCabe, 147 Ill. 410.

The bill of exceptions shows that the judgment was rendered upon the verdict, and the verdict was against both Campbell, the owner, and Kreyscher, the original contractor. This showing by the bill of exceptions is sufficient and controlling. Hirth v. Lynch, 96 Ill. 409.

The receipt of a check for $200 by appellee, which check was dishonored at bank, is not seriously relied upon in defense of this action. The testimony of Mr. Green that the check was received only upon the day when the bank closed its doors upon suspension of its business, is not controverted.

There appears no valid defense to appellee’s claim, and we discover no reversible error in the record. Therefore the judgment is affirmed.


text:
    Robert Good v. Charles W. Lasher.
    1. Dentists— When Their Qualifications Under the Statute Will Be Presumed. —Where the question of license or qualification of a dentist under the dental surgery act (Hurd’s R. S. 1897, page 1079) arises collaterally in a civil action between the dentist and a party employing him, the license or due qualification under the law, to practice his profession, will be presumed.
    2. Appellate Court Practice — Entry of Judgments in Bar on the Merits in Appealed Cases. — Where the trial of an action in the court below has been without a jury, the question of the amount involved not disputed and no defense is established, judgment will be entered in this court for the amount shown to be due, and costs.
    Assumpsit, for professional services. Appeal from the Circuit Court of Cook County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed, and judgment entered in this court.
    Opinion filed January 30, 1902.
    David L. Zook, attorney for appellant.
    Wm. R. Everett, attorney for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

Appellant, who is a dentist, brought this action to recover for his professional services rendered for appellee and the wife and children of appellee. The evidence established, without any conflict, that appellant was a practicing dentist, graduate of the Chicago College of Dental Surgery and Lake Forest University; that he had procured the license or certificate required by statute from the State Board of Dental Examiners, and that such certificate was dated Mav 17, 1892, and recorded in the office of the county clerk of Cook county on November 19, 1892. There was no dispute as to the amount and value of the services rendered by appellant. The amount due is $158. -The only defense interposed was that by force of the statute appellant had forfeited his license by failure to register the same with the county clerk of Cook count}*- during the period of six months after its issue by the State Board of Dental Examiners. The cause was submitted to the court for trial without a jury. The court found the issues for the defendant below, appellee here. We are of opinion that the court erred in holding that upon the evidence in this record the appellant could not recover.for his services rendered. The provision of the statute relied upon in defense is section 10 of the act regulating the practice of dentistry, which was enacted in 1881, and is as follows:

“ Any person who shall be licensed by said board to practice dentistry shall cause his or her license to be registered with the county clerk of any county or counties in which such person may desire to engage in the practice of dentistry, and the county clerks of the several counties in the state shall charge, for registering such license, a fee of twenty-five cents for each registration. Any failure, neglect or refusal on the part of any person holding such license to register the same with the county clerk, as above directed, for a period of six months, shall work a forfeiture of the license, and no license, when once forfeited, shall be restored, except upon the payment to the said board of examiners of the sum of $25, as a penalty for such neglect, failure or refusal.”

Evidently the General Assembly intended to impose the forfeiture upon one who should hold the certificate or license for a period of six months after receiving the same. The act does not provide that the forfeiture shall apply if no registry is made within six'months from date of issue of license. A later modification of the act, enacted in 1899, does so provide (see paragraph 44, Chap. 91, R. S. 1899), but at the time in question the act merely imposed a forfeiture upon one “ holding ” the license for six months ■without registering it. There is no evidence in this record to determine when appellant received his license. It may have been within six months of the date of its registry with the county clerk. The presumption is, in the absence of proof to the contrary, that it was within that period, for the presumption is in favor of the legality and. regularity of the proceeding. Williams v. People, 20 Ill. App. 92; City v. Wood, 24 Ill. App. 40; American, etc., Bank v. Gregg, 37 Ill. App. 425; Shendorf v. Gorman, 86 Ill. App. 279; Munroe v. Finno, 87 Ill. App. 655.

In Williams v. People, supra, this court, through Mr. Justice McAllister, said:

“ After a somewhat thorough examination of the authorities and full consideration, we are of opinion that the rules with their proper distinctions may be thus stated: Where the question of license or qualification of a physician arises collaterally in a civil action- between party and party, or between the doctor and the one who employed him, then the license or due qualification under the statute to practice, will be presumed. McPherson v. Cheadell, 24 Wend. 15; Thompson v. Sayre, 1 Denio, 175; Pearce v. Whale, 5 Barn. & Gres., 38 Id. 758.”

If the license was registered within six months of the time of receipt of it by appellant, then we are of opinion that it was not within the provision of the statute for forfeiture. The legislature evidently so interpreted its act, for it afterward modified it so as to provide that registry must be within six months of the date of the issue of the license — a modification which was entirely superfluous if the contention of the learned counsel for the appellee is correct.

We are of opinion that no forfeiture herein is shown as a defense to this suit. The trial was by the court without a jury. The amount due is undisputed. ISTo defense was established. The court should have found the issues for the appellant and he should have had judgment for §158. Therefore the judgment will be reversed and judgment will be entered, in this court for $158 and costs against appellee.

Reversed, and judgment in this court.


author: Mr. Presiding Justice Windes

text:
    Michael C. McDonald and Joseph Salomon v. Jesse Holdom, Adm’r, etc.
    1. Administration of Estates — Judgments Against Administrators After Removal. — Where an administrator is removed and a judgment is entered against him for the amount due to the estate in the form of an order to pay the amount over to his successor, the judgment should be against him as an individual and in favor of the estate.
    Debt, on. an appeal bond. Appeal from the Circuit Court of Cook County; the Hon. Abba N. Waterman, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed January 30, 1902.
    Edward Maher and Robert F. Kolb, attorneys for appellants.
    Bulkley, Gray & More, attorneys for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

In a suit on an appeal bond made by appellants on an appeal from the Circuit Court of Cook County to this court, which was tried before the court without a jury, appellee recovered a judgment in debt for §8,000 and damages, $7,093.78, from which this appeal is taken.

The declaration is the usual one in debt on bond, to which the appellants pleaded non est factum and three special pleas, which were filed October 15, 1900, the first of which contains certain allegations which it is claimed show that the Probate and. Circuit Courts had no jurisdiction to enter a personal judgment against said Salomon, and that the bond sued on is void; the second, a plea that the bond in the declaration mentioned was given by said Salomon for the purpose of perfecting an appeal from a judgment of the Circuit Court sustaining certain objections- to his final account as administrator to collect of the estate of George Wincox, deceased, and for no other purpose whatever; and the third special plea is nul tiel record. A demurrer to these three special pleas was sustained, whereupon the defendants filed two additional pleas by leave of court, the first of which is nul tiel record, and the second that the judgment in the bond mentioned was not affirmed by this court, as alleged. Issue was taken on these two pleas.

On the hearing the plaintiff offered in evidence the bond declared on, the condition of which is as follows:

“The condition of the above obligation is such, that whereas, the said Jesse Holdom, administrator of said estate, did, on the 30th day of June, A. D. 1898, in the Circuit Court of Cook County, in the State aforesaid, and of the June term thereof, A. I). 1898, recover a judgment against the above bounden Joseph Salomon for the sum of sixty-two hundred and forty-nine dollars and twenty-five cents, besides costs of suit; from which said judgment of the said Circuit Court of Cook County, the said Joseph Salomon has prayed for and obtained an appeal to the Appellate Court wdthin and for the first district in said State.
“How, therefore, if the said Joseph Salomon shall duly prosecute his said appeal with effect, and moreover pay the amount of the judgment, costs, interests and damages rendered and to be rendered against him in case the said judgment shall be affirmed in said Appellate Court, then the above obligation to be void, otherwise to remain in full force and virtue.”

The plaintiff also offered in evidence a certified copy of the order of affirmance of the order of the Circuit Court from which the appeal was taken, by this court, in the case of Joseph Salomon, appellant, against Jesse Holdom, administrator of the estate of George W incox, deceased, appellee, which was entered December 5, 1899, and a certified copy of a bill of the costs in this court, and a witness testified to a computation of the interest from the date of the rendition of the Circuit Court judgment, and the aggregate amount due thereon, including costs, viz., $7,093.78.

The defendants then offered in evidence a certified copy of the record in this court in the said case of Salomon against Holdom, showing the prayer for appeal from the judgment of affirmance in that case, the order approving the bond and the appeal bond to the Supreme Court; also a certificate of the clerk of this court that the record had been removed from this court for the purpose of filing the same in the Supreme Court. The defendants also offered a copy of a transcript of the record in the Supreme Court in that appeal, which includes, among other things, an order of the Probate Court entered on January 28, 1898, in the estate of George Wincox, deceased, which recites, among other things, that the cause came on to be heard upon the objections filed to the final account of Joseph Salomon, administrator to collect de bonis non of said estate, and after directing a certain payment to be made by said Salomon as such administrator to collect, the further hearing of the said objections was continued to February 9,1898; also a further order of the Probate Court on that date, showing that the said objections came on for a further hearing and an order by the court that said Salomon do forthwith pay to said Holdom, administrator of the estate of the said George Wincox, deceased, the sum of $6,192.06, and that said Salomon prajmd an appeal from that order to the Circuit Court of Cook County, which was allowed. The defendants further offered the records of the Probate Court, showing an approval of the appeal bond of Salomon to the Circuit Court, his appeal bond to the latter court, together with his account as administrator to collect, and the objections thereto. The defendants then offered an order of the Circuit Court of Cook County in Salomon’s appeal, which shows, among other things, an order “that the said Joseph Salomon, administrator to collect of the estate of George Wincox, deceased, do forthwith pay to Jesse Holdom, administrator of the estate of George Wincox, deceased, the said sum of $6,219.25, together with the costs of this appeal in this behalf expended, to be taxed.” The order further shows that Salomon prayed an appeal to this court, which was allowed, and he thereupon gave the bond which is sued upon in this case.

The appeal bond from this court to the Supreme Court, which was offered in evidence, recites, among other things, that this court did on the 5th day of December, 1899, affirm the said judgment of said Circuit Court.

It is contended by appellants that the court erred in sustaining the demurrer to the special pleas filed October 15, 1900. If there was error in this regard, it constitutes no cause for reversal, since all the evidence which would have been proper under these pleas was offered under the pleas subsequently filed. The substance of the defense attempted to be set up under these pleas is, first, that the Circuit Court entered a judgment against Salomon as administrator to collect, and that he was compelled to give the bond sued on, which he claims to be void for the reason, as it is said, that the bond is not authorized by law; and second, that this court did not affirm the judgment of the Circuit Court.

Neither of these defenses is tenable. As. shown by the judgment of the Circuit Court, it is not a judgment against Salomon as administrator to collect, etc., but is a personal judgment against him, requiring him to pay the amount of the judgment to Jesse Holdom, administrator of the estate of George Wincox, deceased. Section 124 of the administration statute referred to by appellant in this connection, has no application whatever to an appeal of this nature. That section has reference to appeals by the executor or administrator of an estate from judgments against the estate. The judgment here is a judgment against an outsider, viz., Joseph Salomon, and in favor of the estate. There could be no judgment against him in his official capacity. He had been removed as administrator to collect, and was indebted to the estate. The judgment is, as it should be, against him as an individual and in favor of the estate.

The evidence offered by appellants, the substance of which has been above recited, not only fails to show that this court did not affirm the judgment of the Circuit Court, but on the other hand,, establishes the fact that this court did affirm that judgment. Moreover, appellants, by the appeal bond from this court to the Supreme Court, under their own signatures, state that the judgment of the Circuit Court was affirmed by this court. They will not now be heard to deny the fact.

The judgment of the Circuit Court, being fully sustained by the evidence in this case, is affirmed.


author: Mr. Justice Adams

text:
    Chicago & Western Indiana R. R. Co. v. Theodore Ketchem.
    1. Railroads — Liability for the Unauthorized Acts of Bralcemen.— It can not be assumed that a brakeman has authority to remove trespassers from cars from the mere fact of his employment as such, and a trespasser who sues for injuries received while being ejected by a brakeman must, in order to recover, show that the brakeman had authority from the company to remove him and do the act which caused the injury.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed.
    Opinion filed January 21, 1902.
    Statement. — This is an appeal from a judgment rendered against appellant and the Louisville, New Albany & Chicago Ry. Co., now called the Mo non. Appellant’s railway, consisting of four tracks, ran south from Twelfth street in the city of Chicago, to Forty-ninth street, but it did not itself operate the railway or control its operation. By agreement between appellant and the Louisville, New Albany & Chicago Railway Co., the latter company operated the railway. July 11, 1896, between four and five o’clock p. m., a freight train of the last named company was running south on the rail way mentioned. The train consisted of twenty freight cars and the engine. The crew were the engineer and fireman, two brakemen and the conductor. Appellee testified that about Twenty-third Place, where the train stopped at a crossing, he climbed the ladder to the top of a car, about the middle of the train; that he was on the side of the car facing west, with his feet hanging down by the side of the car. Appellee testified that after he got on the car the train commenced running pretty fast, and that about Twenty-sixth or Twenty-seventh street he saw a man coming along; that he guessed there were a lot of boys on top, back of him, and the man was running them off; that the man came to him and said, “You get off here,” and he said, “I will not do it,” when the man, applying to him an opprobrious epithet, said, “ I will show you whether you will get off or not,” and kicked him, appellee, in the face and cut his lip, and he fell off, hit against a fence, bounded under the train and was injured. He testified that he heard that the name of the man who kicked him was Danger O’Brien; that he had a jumper and a straw hat on, and that, since the alleged injury, he had seen him on the train acting as brakeman, and had seen him in the court room that morning. Conrad Hildebrand’s evidence tended to corroborate the testimony of appellee about his being kicked off, but he did not know who kicked him. Eobert Gunn, the conductor of the train, died before the trial. There is no claim by appellee that any other than O’Brien, who was rear brakeman of the train, interfered with appellee. His counsel affirmatively claims that O’Brien caused the injury. Appellee was a trespasser on the train. This is not disputed. He himself testified that before getting on the train his intention was to goto Went-worth avenue and catch a street car. but he thought he would save five cents, and so he got on the train. O’Brien testified that it was not his duty to put trespassers off the train unless directed so to do by the conductor, and that he never put a man off or ordered one off in his life. The trial took place October, 1900, and O’Brien had quit the service of the L. N. A. & C. Ry. Co. in February, 1900. John O’Halleran testified that he was head brakeman and O’Brien hind or rear brakeman of the train; that he was sitting in the door on the east side of the train, second car from the engine, and O’Brien was also on top on the same side of the train in the rear, on the car next in front of the calaboose, when the train reached Twenty-first street; that he never saw appellee before he saw him in the court, and that south of Twenty-first street no accident occurred of which he had any knowledge. Joseph Poole, towerman for the Ft. Wayne E. E. Co., testified that he saw O’Brien on the northeast end of the last car in the train as it passed Twenty-eighth street, and that when the train reached Twenty-ninth street O’Brien was sitting in the same place. The rules of the L. N. A. & C. Ry. Co. applicable to freight conductors and brakemen of freight trains were put in evidence, and among the duties of brakemen, the removal of trespassers from trains is not mentioned. In other words, this duty is not imposed on brakemen by the rules. J. S. McGarr, yardmaster of the operating company, testified ' that each member of the train crew had a copy of these rules; that it was his, McGarr’s, duty to instruct as to the removal of trespassers from the trains; that he instructed the conductor to stop his train and put people off, when riding on the train, and that no instruction on the subject was given to brakemen. The witness, on cross-examination, testified as follows:
    Q. “ How many brakemen were in assistance to the conductor of that train?” A. “Always two.”
    Q. “And it is their duty to assist the conductor in the operating of that train, of course, was it not?” A. “Yes, sir.”
    Mr. Esher: “You mean to tell this jury and court that if a trespasser gets upon a passenger or freight train, there is no authority given to the train crew to eject that passenger or trespasser? ”
    A. “Hot while the train is in motion — they have no authority; the train must be stopped; our book of rules will show that.”
    Q. “ You have stated the rule is the train must be stopped and the trespasser put off?” A. “Yes, sir, of course.”
    Q. “ Whose duty is it to put them off ? ” A. “ The conductor’s.”
    Mr. Esher: “Has the conductor any authority to instruct the brakemen to assist him in that regard ? ” A. “ He can call on his brakemen for assistance.”
    At the close of the evidence for the plaintiff, appellant’s attorney moved the court to instruct the jury to find for the appellant, which motion the court overruled, and, at the close of all the evidence, moved the court to instruct the jury to find appellant not guilty, and tendered an instruction in writing to that effect, and the court overruled the motion, and refused to give the instruction. The jury found the defendants guilty and assessed the damages at the sum of $8,000, for which judgment was rendered.

      G. W. Kretzinger and L. L. Smith, attorneys for appellant.
    Ritchie, Esher & Knobel, attorneys for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

It is not claimed by appellee’s counsel, and in view of the evidence can not be claimed, that the brakeman, O’Brien, had express authority to remove trespassers from the train, but counsel claim that the brakeman’s authority so to do was within the scope of his employment as brakeman, and that the jury were warranted in so finding, and cites decisions of other States to that effect. But, whatever may be the law in other States, we think it conclusively settled in this State, that such authority can not be assumed to be possessed by a brakeman, and that in the absence of proof, it can not be inferred or implied from the nature of his employment. Ill. Cen. R. R. Co. v. King, 179 Ill. 91; C., R. I. & P. Ry. Co. v. Brackman, 78 Ill. App. 141.

In the first of the cases cited, a trespasser on a freight train was injured by the willful and apparent malicious conduct of a brakeman in pulling him from the train. The following instruction was given by the trial court:

“ The court instructs you that if you believe, from the evidence, that the injury complained of was wantonly and willfully inflicted, as charged in the declaration, then the plaintiff will be entitled to recover, although you may believe, from the evidence, that plaintiff was guilty of some negligence.”

Commenting on this instruction, the court say:

“ This instruction is objected to because it purported to state to the jury the conditions under which plaintiff would be entitled to recover and under which they should return a verdict for him, and omitted the requirement of proof that the brakeman was acting within the line of his duty or within the scope of his employment. The law can not assume, at least as to a subordinate employe on a train, who is not intrusted with the general management and control of it, that he has control over passengers or persons attempting to ride, or that he is intrusted by his employer with authority in respect to them or to eject them, and it was necessary to make the proof. (3 Elliott on Railroads, Sec. 1255; Farber v. Missouri Pacific Railroad Co., 116 Mo. 81; Corcoran, v. Concord and M. Railroad Co., 56 Fed. Rep. 1014.)”

” The authorities cited by the court fully sustain the text of the opinion.

¡Numerous authorities are cited by appellant’s counsel in line with the opinion of the Supreme Court quoted supra, to which we think it unnecessary to refer. The case in 78 Ill. App., cited supra, is similar to the present, and directly in point. O’Brien not having been expressly authorized to remove trespassers from the train, and this not having been within the scope of his employment as brakeman, neither the operating railway company nor appellant is liable for his acts in the premises. For what one does not, either himself or by another, he is not responsible. Decisions in cases of assaults by railway employes on passengers riding on passenger trains have no application to such case as the present. 2 Wood on Railroads, 2d Ed., by Minor, Sec. 316; C. & E. R. R. Co. v. Flexman, 103 Ill. 550, 551.

We do not find it necessary to pass on the contention of appellant’s counsel that if there is any liability of either railroad company, the Louisville, ¡New Albany & Chicago Railway Company is solely liable. Authority of O’Brien to remove appellee from the train being an element essential to recovery, and there being no evidence tending to prove such authority, but, on the contrary, the evidence being that he had no such authority, it was error to submit the cause to the jury.

The judgment will be reversed.


author: Mr. Justice Brown

text:
    Second District
    — October Term, 1901.
    Mrs. S. H. Hurtt v. Sanders Bros. Mfg. Co. et al.
    1. Mechanics’ Liens — Defective Notices. — The following notice under the mechanics’ lien law is held to be defective in not stating when the material was to be delivered nor that there was any fixed time when it should be delivered or when the payments were to be made:
    “ Ottawa, III., Mar. 2, 1899.
    “ To R. A.Young, Architect in Charge of a Certain Building Being Erected for one Mrs. S. H. Hurtt, at Pontiac, Illinois,
    Under a Contract with P. D. Rish.
    “ You are hereby notified that on or about the first day of September, 1898, the undersigned entered into a verbal contract with one P. D. Rish, who then had the contract for the construction of a house for the said Mrs. Hurtt, in and by which the undersigned agreed to furnish the mill work for the said contract for the construction of the said residence for the amount of $750.00, and subsequently the undersigned entered into a contract with the said Rish to furnish the plate glass for said house for the sum of $50.76, which sums were to be paid for by the said Rish upon the delivery of the said mill work and plate glass. You are further notified that the undersigned furnished said mill work and plate glass to the said Rish, amounting to $800.76, and the said Rish has received credit upon said sum of $206.32, and that there is now due to the undersigned from the said Rish upon said contract the sum of $594.44. Sanders Bros. Mfg. Co.”

    2. Notice — Under the Mechanics' Lien Law — When Defective. — The following notice under the mechanics’ lien law is held to be defective in not stating that the material was furnished under one or many contracts or when the money became due or whether it is due or not:

      “To R. Young, Agent for Mrs. S. H. Hurtt.
    You are hereby notified that we have been employed by P. D.Rish, contractor, to furnish lumber and other building material for house erected under his contract with Mrs. Hurtt on East Madison street. We have furnished material to the value of ($801 63-100) eight hundred and one dollars and 63-100 dollars.
    Of this amount, on February 30, 1899, the sum of two hundred seventy-three and 27-100 dollars ($373.27) remains unpaid.
    We shall hold your interest in grounds and building liable for the balance unpaid.
    (Signed) W. L. Craig & Co.,
    per W. L. Craig.”

    Petition, under the mechanic’s lien law. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1901.
    Reversed and remanded.
    Opinion filed January 24, 1902.
    H. E. Torrance and R. S. McIlduff, attorneys for appellant.
    Norton & Winkler, C. Griggs and Geo. P. Hills, attorneys for appellees.

      This notice is taken from the transcript of the record on file in the office of the clerk of the Appellate Court at Ottawa.

       This notice is taken from the transcript of the record on file in this case in the office of the clerk of the Appellate Court at Ottawa.

   Mr. Justice Brown

delivered the opinion of the court.

On July 21,1898, Mrs. S. H. Hurtt, appellant, entered into a written contract with appellee Peter D. Pish, to erect for her a residence in the city of Pontiac, for the sum of $2,765, “ subject to additions and deductions,” as provided in the contract.

The contract also provides that the building shall be completed on or before Hovember 1, 1898, if possession of the premises is given to Pish on or before July 25, 1898, and provides for a certain extension of time in the event of the happening of either of certain contingencies therein mentioned that might delay the work. There is no proof that any of these contingencies occurred.

It also provides that all payments shall be upon the architect’s certificates (to be made every two weeks), the contractor to receive eighty per cent of the estimate, the owner to retain twenty per cent of the contract price until completion and acceptance of the building, final payment to be made within five days after fulfillment of contract.

After beginning work Rish prosecuted it very indifferently, and when November 1, 1898, arrived, the building was not finished, and finally work ceased entirely.

January 14, 1899, notice was served upen' Rish by Mrs. Hurtt that she would enter upon the premises at the expiration of five days and proceed to finish the work at his expense, unless he himself did so. The building was at this time habitable, and she arranged with Rish that she might occupy it, but stipulated in writing that her occupancy should not be construed as an acceptance of the building or as a fulfillment by Rish of his contract. Some work was done or materials gotten in February, but work was again stopped, and finally, on April 14-, 1899, Mrs. Hurtt served notice upon Rish that if he did not go on with the work within five days she would herself take charge and complete the building. Rish ignored this notice and entirely disregarded his contract, whereupon Mrs. Hurtt did take charge of the building, and under the direction of R. A. Young, as architect, it was finished about June 1, 1899.

Appellees, Sanders Bros. Mfg. Co., W. L. Craig & Co., Henry R. Davies and George S. Thompson were severally sub-contractors of appellee Rish, Sanders Bros. Mfg. Co. having taken the contract for the mill work, interior finish and certain plate glass, Craig & Co. the contract for nearly all other materials, Davies the contract for the construction of the brick and stone work, and Thompson the contract for the galvanized iron and tin work, certain hardware and the nails. These several contracts were oral.

It is impossible to determine, from either the pleadings or the testimony, just when some of the materials were furnished and when certain of the work was done.

Appellee Thompson instituted this proceeding by filing a petition to enforce a lien in the Circuit Court of Livingston County on July 10, 1899, and made Mrs. Hurtt, Rish, Craig & Co. and Sanders Bros. Mfg. Co., parties defendant. Davies subsequently became a party by intervening petition. Mrs. Hurtt filed an answer to the original and intervening or cross-petition admitting ownership of the lot on which the building was erected and that she made a written contract with Eish July 21, 1898, and denied that the building was erected and completed according to the terms of the contract, averred the notice to Eish heretofore referred to, and stated that she was obliged to and did take charge of the work and complete the building, and in so 'doing she necessarily expended all the money not theretofore paid to Eish, to be coming to him upon the contract, except the sum of $134.05 now in her hands, subject to the order of the court.

The case being brought to issue, was referred to the master in chancery to take proofs and report his conclusions. After hearing the testimony offered by the various parties the master reported that none of the complainants were entitled to a mechanic’s lien, but that the amount in the hands of Mrs. Hurtt (erroneously reported to be $185.99) should be distributed among the various creditors in proportion to the amount of their respective claims. Exceptions were filed to the master’s report by the various claimants. The court sustained certain exceptions to the master’s report and entered a decree finding that Thompson and Davies were not entitled to liens and decreed liens in favor of Sanders Bros. Mfg. Co. and W. L. Craig & Co. for $191.02 and $112.16, respectively. Mrs. Hurtt brings the case to this, court by appeal and assigns various errors; and Sanders Bros. Mfg. Co. and W. L. Craig & Co. assign cross-errors, alleging that larger sums should have been awarded to them respectively. We hold that the master correctly found that none of the parties were entitled to mechanics’ liens and that the action of the trial court in sustaining exceptions to such findings is erroneous.

Section 22 of the act of 1895 gives sub-contractors a lien. Section 25 permits the sub-contractor, at any time after making his contract with the contractor, and requires him, within sixty days after the completion thereof, to serve a written notice of his claim on the owner or his agent, etc. The claim, becomes a lien from the date of the service of such notice. By section 34 the four months within which he must commence his suit to enforce his sub-contractor’s lien is determined by the time when final payment is shown to be due by said notice. By section 25 such notice must state his claim, the amount due and to become due thereunder, and when it became or will become due. The form of notice prescribed by such section shows that the date when the payment became due or is to become due is to be stated.

The notice served by Sanders Bros. Mfg. Co. states that they furnished material under two contracts with Kish. It states the first contract was made on or about September 1, 1898, and that the other was made subsequently and that payment was to be made on delivery of the material. It does not state when the material was to be delivered nor that there was any fixed time when it should be delivered. It does not state when the payments were to be made. It states that there is now due from Kish a certain sum, but it does not say when it became due or when the material was delivered. It clearly does not comply with the statute.

The notice served by "W. L. Craig & Co. is still more defective. They notify the owner that they were employed by the contractor to furnish material for the building and have furnished material to a certain amount and that a certain portion thereof remains unpaid. They do not state whether this was furnished under one or many contracts and do not state when the money became due; nor whether it is due or not. The respective petitions of these parties set up these notices and expressly claim a lien by virtue thereof under the mechanics’ lien law of the State.

They argue no notice was necessary. Section 25 provides notice shall not be necessary where the sworn statement of the contractor provided for by section 5, or of the sub-contractor provided for by section 23, shall serve to «■ive the owner true notice of the amount due and to whom O due. Section 5 provides that a sworn statement from a contractor shall not be necessary if the contractor has given the owner a bond for the benefit of those having liens. In this case such a bond was given. It is argued section 25 should be construed as if it read also that notice should not be necessary by the sub-contractor to the owner if the bond had been given under section 5. We have no authority to read such provision into section 25, nor do we think anything of that kind is meant. The meaning is that if the sworn statement of the contractor gave the owner a true notice of the amount due and to whom due, it should be unnecessary for the sub-contractor to give notice to the owner merely to repeat those facts. But the giving of the bond did not convey to the owner any information as to the sub-contractors and the amounts due them. Decree reversed and remanded.


author: Mr. Justice Higbee

text:
    Rock Island Sash & Door Works v. Henry Pohlman.
    Master and Servant — The Master is Charged with the Duty of S'ee“26r that the -PZace Where He Sends His Servant to Work is Beason¡ably Safe. — The master is charged with the duty of exercising reasonable and ordinary care to see that the place where the servant is ordered to work is reasonably safe, before he is sent there to perform his labor.
    3. Same — Duties of the Servant. — A servant is not required to make a critical and careful examination of his surroundings at the place where he is ordered to work.
    3. Reasonable Care — Exercise of, a Question of Fact. — The question as to whether the foreman of a company employing men has exercised reasonable and ordinary care to see that the place where he sends his men to work is reasonably safe before, sending them to work there, and also as to whether the men employed should have known of any dangers to which they were exposed, are questions of fact, and as such, are properly submitted to the jury for its determination.
    4. Instructions — Foremen of Incorporated Companies — Scope of Their Authority. — In an action for personal injuries, an instruction which tells the jury that where a corporation delegates to one of its servants the control and direction of other servants in and about the work they are ordinarily required to do, such servant must be considered as the representative of the corporation within the scope of the authority so delegated to him, is proper.
    5. Same — Where a Party is Estopped to Complain. — A party litigant is not in a position to complain of an instruction given on behalf of his adversary, where one embodying substantially the same principia has been given to the jury at his own request.
    6. Damages— Where $4.000 is Not Excessive. — A young man about twenty-one years of age, employed in a sash and door factory, was injured while engaged at his work, and as a result, he lost a portion of each of the fingers of his left hand. He was under the care of a doctor five or six weeks and suffered pains from his wounds for two or three months. It was five months before he went to work again, and then only as a night watchman. He was dependent upon his manual labor for his support and his earning capacity was greatly lessened throughout the remainder of his life. Under such circumstances a verdict and judgment for $4,000 is not so excessive as to warrant the reversal of the case.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed January 24, 1902.
    Sweeney & Walker, attorneys for appellant.
    Searle & Marshall, attorneys for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee against appellant to recover damages for injuries sustained by him while at work in the mill of the latter on September 25,1899. Appellant was engaged in the business of sawing and manufacturing lumber in the city of Bock Island. Appellee at the time of said injury was employed in the work of directing the course of sawed lumber after it came from a band saw, along what was known as a “ carriage,” which was operated by rollers, to a gate or stop located about sixty feet south of the saw. The slabs and rotten boards were permitted to go through the gate, which was raised for that purpose by means of a rope attached to a lever, and .the good lumber was directed from the carriage, partially by force of contact with the gate or stop, which stood in a slanting direction across the carriage, and partially by the operator, who in this instance was the appellee, onto chains which carried it to another part of the building. To do his work appellee stood in a space about ten feet square within ready reach of the lever used in raising the gate, holding in his hand a hook some eighteen inches long with which he managed the lumber. There was also in this space a treadle which he worked with his foot to set in motion the chains which carried away the good lumber. Some of the lumber going over the carriage was in the shape of slabs, upon which there was bark. This bark, which was wet and slippery, frequently became detached and fell in the space where appellee stood.

To the main shaft operating the rollers which caused the lumber to move along the carriage, was attached a cog wheel which had at one time been covered by a board. This board had, however, been pressed down upon the wheel by the weight of the lumber as it was carried along until a hole was worn through it. The top of the wheel was even with, or very slightly above, the top of the board. Appellee went to work on the day in question at about 6:30 a. m. and was injured about 1:30 p. m. He had worked in the mill before but never in this place. While engaged in his work, which required his constant attention, he stepped upon a wet piece of bark and slipped; to save himself he threw out his left hand, which came down upon the cog wheel and was severely injured. An appropriate declaration was filed alleging negligence on the part of appellant and due care on the part of appellee, to which the general issue was pleaded. There was a verdict and judgment in favor of appellee for $4,000.

Appellant insists that the injury was caused by the negligence of appellee, for the reason that if the place where he was at work became unsafe on account of the wet bark, the condition was caused by his act; also that it was the result of .a pure accident for which it was not liable; that the exposed condition of the cog wheel was a danger which ■was obvious to appellee and was one of the ordinary hazards and risks of his employment which he assumed when he undertook the work to be done at the place where the injury occurred.

We think it fully appears from the weight of the proof that the appellee was at all times in the exercise of ordinary care for his own safety. He was directing his attention to the business at band, which was constantly pressing, and the fact that bark fell off the carriage was due to the operation of the machine and not to any fault of his. He testified that he did not know that the cog wheel which injured him was uncovered.

Appellee was set at work by the foreman at a place which the evidence shows to have been surrounded with danger, without any notification thereof. The following language used in the case of Ross v. Shanley, 185 Ill. 390, is peculiarly applicable here:

“Appellants’ foreman, in ordering appellee to work where he did, was charged with the duty of seeing that the place was reasonably safe. He represented appellants, and for them was bound to take reasonable precautions for the safety of appellants’ employes. * * * Appellee was not required to make a critical and careful examination of his surroundings at the place where he was sent to work by the foreman. We think it was properly left to the jury to determine whether appellants’ foreman exercised such reasonable and ordinary care to see that the place where he ordered appellee to work was reasonably safe before he sent him there to work and also whether appellee knew or should have known the danger to which he was exposed.”

We do not think it appears from the evidence in this case that appellant used ordinary care to provide appellee with a reasonably safe place within which to work. Appellant’s agents in charge knew of the existence of the cog wheel in question and at one time had covered it so that it could do no injury. It had, however, been permitted to go through the board again so that it became .dangerous, and no attempt was made by appellant to re-cover it.

The fact that the place where appellee was directed to work was made dangerous by the slippery bark which fell into it, was either known to, or could readily have been ascertained by those in charge of the mill. The jury was, therefore, fully warranted in finding the facts as they did, in favor of appellee.

Appellant complains of instructions Ho. 5 and 8, given by the court for appellee. The former told the jury that where a corporation delegates to one of its servants the control and direction of other servants in and about the work they are ordinarily required to do, he must be considered the representative of the master within the scope of the authority so delegated to him. This instruction was entirely proper under the declaration and evidence in this case. The latter of the two instructions defined due care, reasonable care and ordinary care as used in said instruction, in reference to the question whether the appellee was using such care at the time he was injured, and states the principle of law correctly. An instruction embodying substantially the same definition of said terms was also given to the jury at the request of the appellant, so it was in no position to complain even if the definition had been incorrect. Consolidated Coal Co. v. Haenni, 146 Ill. 614; Ochs v. People, 124 Ill. 399.

The court properly modified certain instructions offered on behalf of appellant and refused others. ' The refused instructions which were not covered by those given, failed to state correct principles of law, and in some cases, assumed facts to be proved which were contested, and stated as propositions of law things which were really questions of fact for the jury. Appellant also insists that the verdict in this case was excessive. Appellee lost a portion of each of the four fingers of his left hand. He was under the care of a doctor for five or six weeks and suffered pains from his wounds for two or three months. He testified that it was five months before he went to work again and that he then worked as a night watchman; that he has not worked much since he was injured and the stubs of his fingers are tender and sore. He lacked a few days of being twenty-one years of age at the time of the injury and as he depends upon manual labor for his support his earning capacity will be greatly lessened throughout the remainder of his life. Under such circumstances, although the verdict may appear to be large, we can not say it was so excessive as to warrant the reversal of the case. The judgment of the court below is accordingly affirmed.