text:
    Equitable Life Assurance Society v. Edward P. Mueller.
    1. Insurance — Acceptance of a Policy a Question of Faot. — hx an action upon a policy of insurance the question of the acceptance of the policy by the insured, is a question of fact for the determination of the jury.
    Assumpsit, upon a policy of insurance. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed January 16, 1902.
    Deneen & Hamill, attorneys for appellant.
    N. A. Lough, attorney for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee and against appellant, rendered by the trial court on appeal from a justice of the peace. Appellant sued the appellee for the first premium claimed to be due on a life insurance policy, and the only question involved is whether appellee accepted the policy. The application for the policy was made to Charles H. Holm, an agent of appellant, for whose use the suit was brought, the claim having been assigned to him by appellant, and he and appellee were the only witnesses as to whether appellee accepted the policy. There is a direct conflict in their testimony on this question. The appellee testified that when Holm tendered the policy to him he told Holm that he wanted to take it home and look it over, and see whether it would be satisfactory, and Holm told him that would be all right if he, appellee, would give him a receipt for it,which he did. The receipt is as follows :

“ Chicago, August 16, 1900.
Eeceived from Chas. H. Holm policy Ho. 983,761 for $5,000.00, issued by the Equitable Life Insurance Society on my life, and on which the premium, $267.35, two hundred sixty-seven 35-100 dollars, is unpaid. E. P. Mueller.”

The policy contains this clause: “ This policy and the application therefor, taken together, constitute the entire contract.” The application contains a like clause, and also the following: This contract shall not take effect until the first premium has been paid, during my good health.”

Appellee testified that Holm left the policy with him at the date of the receipt; that about a week afterward he saw Holm and told him that the policy was not satisfactory, and that he did not want it; that some time in August he went to the office and tendered the policy to Holm, who said he would not take it back, and that he then went to the cashier of the insurance company and turned the policy over to him; that the cashier did not want to take it, and tried to return it to appellee, but he would not receive it, and left it with him. Holm contradicted appellee’s testimony as to what occurred at the time appellee receipted for the policy, and testified that the policy was not tendered to him until three weeks, less two days, after August 16th, or about September 5th, and fifteen or twenty minutes after he, Holm, had commenced suit before the justice.

The question of the credibility of the witnesses was for the jury to pass on, and we find no good reason for disturbing the verdict on the ground that it is contrary to the evidence.

Appellant’s counsel contend that the court erred in admitting appellee’s evidence that the policy was delivered to him for the purpose of examination and decision as to ■whether he would accept it. In support of this contention they cite a line of authorities to the effect that such an instrument can not be delivered to the party to whom it runs, in escrow, to take effect on a condition not apparent on the face of the instrument. These authorities are not applicable. Appellee’s testimony is not that the policy was delivered to him to take effect on any condition, but that he was permitted to take it merely for the purpose of examining it and determining, after such examination, whether he would accept it. Whether the policy was accepted is a question of fact. N. Y. L. Ins. Co. v. Easton, 69 Ill. App. 479.

The delivery of the policy for that purpose, without payment of the premium, did not bind the company, as it is provided in express terms by the application, that the contract shall not take effect until payment of the first premium. Holm, who drafted the receipt, mindful of this provision, wrote in the receipt that the premium was unpaid. It is entirely reasonable that an applicant for insurance should wish to examine a policy issued on his application, before deciding to accept it. The policy in the present case, as in all cases which we have observed, contains provisions and restrictions to which the application does not refer, so that before the policy is issued, the applicant can not know what its contents will be.

The contention that the bill of exceptions does not purport to contain all the evidence, can not be sustained.

The judgment will be affirmed.


source: Caselaw Access Project

author: Mr. Justice Adams

license: Public Domain

text:
    Emanuel J. Petrue v. Wakem & McLaughlin.
    1. Checks— When Secondary Evidence of the Contents is Admissible. —Where a check is delivered but has never been indorsed by the party to whose order it is made payable, and having been lost and such party having made diligent search for it without being able to find it, it is competent to prove its contents by secondary evidence.
    2. Same — Admission of the Contents of a Lost Chech Makes a Prima Facie Case. — The admission of the contents of a lost check with the proof, the non-indorsement, loss of the check, and inability, upon diligent search made, to find it, makes a prima facie case for the owner of the check.
    8. Banker and Depositor — Implied Contract Between. — By universal custom, when a banker receives a deposit he is held to agree with the depositor to pay it out on the presentation of his checks in such sums as such checks may call for, and to the person presenting them, and in effect he is held to agree with the whole world that whosoever may become the owner of any such check will, upon presentation thereof, be entitled to receive the amount called for by it, provided the drawer shall at that time have the amount on deposit.
    Assumpsit, on the common counts. 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 16, 1902.
    Statement. — This is an appeal from a judgment in favor of appellees and against appellant for the sum of $386.83. The cause, by agreement of the parties, was tried by the court without a jury. Appellees first declared against Emanuel J. Petrue and the Petrue American Importing Company, but subsequently, by leave of the court, dismissed as to the company and amended their declaration by declaring against Emanuel'J. Petrue only, doing business in the name and style of Petrue American Importing Company.
    The facts are substantially as follows: Appellees were warehousemen and custom house brokers, and, as such, had done business for appellant. November 25, 1896, appellees wrote a letter addressed to “Petrue American Importing Company,” in which the following occurred: “We enclose you herewith our bill for ocean freight, duties, insurance and clearing charges, amounting to $322.43, for which kindly mail us a check.” November 27,1896, about eleven o’clock a. m., the appellant called at the office of appellees and left with Ralph N. Andrews, appellees’ clerk, a check signed “Petrue American Importing Company,” on the bank of Wasmandorf & Heineman, for the sum of $322.43, payable to the order of Wakem & McLaughlin, the appellees. It was admitted on the trial that the check was given and received in payment of appellees’ claim, at the time. Andrews receipted the bill for the claim of appellees and gave the receipt to appellant. When Andrews received the check he laid it on his desk, and when Mr. Wakem came into the office, about noon, Andrews showed the check to him, and Wakem looked at it, saw it was for the full amount of the claim, and handed it back to Andrews, who says it lay on his desk for two or three hours. The evidence shows that the check was lost, and that every search possible was made for it in the afternoon of the day it was received and the next morning, and that it could not be found. The check was not indorsed by appellees, to whom it was made payable. These facts are not controverted. Subsequently, the following correspondence took place between the parties:
    “November 28, 1896.
    Petrue American Importing Company, Chicago.
    Dear Sirs : Having mislaid or lost your check of $322.43, you would greatly oblige us by mailing us a duplicate. At the same time you would have to notify the bank, when you send the duplicate, to refuse the payment of the original, if ever presented. This precaution will fully cover you and ourselves. We are sorry to cause you this additional trouble, and remain,
    Wakem & McLaughlin.” “November 30, 1896.
    Messrs. Wakem & McLaughlin, Chicago, III.
    Gentlemen : We do not like to issue a duplicate check
    inside of a week. You will surely find it by making a thorough search. Yours truly,
    Petrue American Importing Company.”
    “ December 11, 1896.
    Petrue American Importing Company, Chicago.
    Dear Sirs : You will greatly oblige by giving us check

      for $322.45, as a duplicate for the check of same amount dated November 26, which we have lost or mislaid. We have notified you of this loss November 28th.
    Wakem & McLaughlin.”
    Appellee Wakem had a conversation with appellant about furnishing indemnity, and told appellant that appellees were willing to furnish any indemnity the bank might ask; that if a bond was desired, appellees would give it. Appellant declined to give another check, and once told Wakem that the bank had advised him to wait a year, before giving a duplicate check. Appellant testified that he did not pay appellees’ bill in any other way, than by giving the check. Appellant has constantly refused to give a duplicate check. Appellant claimed that the Petrue American Importing Company was an incorporated company, and that he was its president, but when called on to produce its articles of incorporation, he only produced a license from the Secretary of State, authorizing appellant and two other persons, as commissioners, to open books for subscription to the capital stock of the Petrue American Importing Company, and testified that this license was all the paper he had in reference to the incorporation, and that he supposed it was all that was necessary. There is no evidence that a company called the Petrue American Importing Company was ever incorporated. After receiving the license above mentioned, appellant was elected president of the company, and a vice-president and treasurer and secretary (one person) were elected, and business ivas carried on by appellant in the name of the Petrue American Importing Company.
    It was admitted on the trial that December 21, 1896, the bank of Wasmandorf & Heineman, on which the check was drawn, failed, and that, from November 27, 1896, the date of the check, till December 21; 1896, the bank books showed a daily balance to the credit of the Petrue American Importing Company of from four to eleven hundred dollars.
    James R. Ward, attorney for appellant.
    Bulkley, Gray & More, attorneys for appellees.
   Mr. Justice Adams

delivered the opinion of the court.

The check never having been indorsed by appellees, to whose order it was made payable, and it having been lost, and appellees having made diligent search for it, without being able to find it, all of which appears from the preceding statement, it was competent to prove its contents by secondary evidence. McMillan v. Bethold et al., 35 Ill. 250; O’Neil v. O’Neil, 123 Ib. 361.

The contents of the check were admitted on the trial by appellant’s counsel, which admission, with the proof of nonindorsement, loss of the check, and inability to find it, on diligent search made, constituted a prima facie case for appellees. Appellant’s counsel contends that the Petrue American Importing Company is a de facto corporation, and that "appellees having done business with it as a corporation, are estopped to deny its corporate existence, and in support of this proposition cite Bushnell v. C. I. M. Co., 138 Ill. 67; Tarbell v. Page, 24 Ib. 46, and Walker Paint Co. v. Ruggles, 48 Ill. App. 406. In the last case it does not appear from the report that the corporate existence of the paint company was disputed. In each of the other cases relied on by appellant’s counsel, the only defect in the organization of the company was failure to have the certificate of complete organization recorded. These cases have no application to the present case, in which there is no evidence of even an application for a certificate of complete organization. No articles of incorporation, or proper evidence of subscriptions for stock, were produced on the trial. On the contrary, appellant testified that he thought the license to open subscription books sufficient.

In Bushnell v. C. I. M. Co., supra, the court say:

“ The necessary steps to perfect that organization were all taken as required by the statute, except that the final certificate was not recorded. It is shown by the bill that upon the issuing of that certificate its directors elected the proper officers and proceeded to the transaction of business as a corporation, and continued to act as such until the filing of this bill, a period of more than five years. That these facts establish a corporation defacto is settled by numerous decisions of this court,” citing numerous cases.

No decision, so far as we are aware, goes to the length of holding that there may be a defacto corporation merely by taking out a license to open books for stock subscriptions. In Bigelow v. Gregory, 73 Ill. 197, the court held, that where individuals seek to form themselves into a corporation under a general law, it is only in pursuance of the provisions of the statute for that purpose that corporate existence can be acquired. Ib. 201. It was held in that case that the persons who undertook to form themselves into a corporation, but who did not comply with the statutory requirements, were liable as partners. The evidence shows that appellant did business under the assumed corporate name, and it is difficult to perceive how appellees could have transacted business with him in any name other than the business name which he had assumed, and was doing business in. That he was the company is very evident from his own testimony. The following questions were asked appellant and answers given :

Q. “ Do you remember the capital stock of this so-called corporation \ ” A. “ Yes, sir.”

Q. “ How much ? ” A. “ I think it was $50,000.”

Q. “ Who put in $50,000 ?” A. “I put in the most, and two of them put in one share each.”

Appellees’ counsel having admitted on the trial that the check was received in payment of their claim, it must be conceded that their remedy is on the check, and on this theory the cause was tried. Appellant’s counsel urge, in argument, the following propositions:

1. That it was the duty of appellees to endeavor to collect the amount of the check from the bank.

2. That the claim for which the check was given has been paid.

3. That appellees were negligent in losing the check and therefore the loss of the amount thereof by reason of the bank’s failure, should be borne by them.

4. That the finding should have been for appellant, on his plea of non-joint liability.

The check was lost within a few hours of its receipt by appellees. That a lost check can not be presented for payment by the payee, is a self-evident proposition, and that the bank is not liable on a cheek until it is presented for payment, is settled law in this State. Munn v. Burch, 25 Ill. 35, 40; Niblack v. Park Nat. Bank, 169 Ib. 517,520-21; Gage Hotel Co. v. Union Nat. Bank, 171 Ib. 531; Greenebaum v. Am. T. & S. Bank, 70 Ill. App. 407.

The Munn case, supra, is the leading case on the subject and in that case the court say:

The universal custom shows us what the contract of alt the parties is. It shows us that the banker, when he receives the deposit, agrees with the depositor to pay it out on the presentation of his checks, in such sums as those checks may call for, and to the person presenting them, and with the whole world he agrees that whoever shall become the owner of such check shall, upon presentation, thereby become the owner and entitled to receive the amount called for by the check, provided the drawer shall, at that time, have that amount on deposit.”

The views expressed in the language quoted have not been departed from, but, on the contrary, have been adhered to in subsequent decisions. In Greenebaum v. Am. T. & S. Bank, supra, this language is used :

“ As between banker and depositor, the rights do accrue as of the time of the deposit. As between banker and transferee of the deposit, however, neither Munn v. Burch, nor any other authority cited, holds that any rights accrue until presentation of the check.”

On the trial it was admitted by counsel for appellant that the check was given for the claim of appellees, and appellant, who, presumably, knows more about the facts than does his counsel, testified that he paid appellees’ bill with the check, and in no other way. This is a sufficient answer to the claim of payment. We cannot concur in the view that the loss of the amount of the check was caused by the loss of the check itself. Appellees promptly notified aopellant of the loss and requested another check, and, although in case of the loss of a check, payable to the order of the payees and not indorsed by them, as was the case under consideration, it is not necessary in a suit on the lost check, to indemnify the drawer (Edler v. Uchtmann, 10 Ill. App. 488, 496, and authorities cited),' the appellees agreed to give a bond of indemnity, nevertheless, appellant persistently refused to give another check, and intimated that he would not do so until the end of a year from the time the check was lost,-which would have been.after the failure of the bank. The giving the check was a solemn admission that the claim of appellees was due and payable, and had appellant given to appellees another check and notified the bank not to pay the lost one, as we think he should have done under the circumstances, he would have been amply protected, and would not have lost the amount of the check by the failure of the bank.

We can hardly think appellant’s counsel serious in contending that the finding should have been for appellant on his plea of non-joint liability. After the dismissal as to the Petrue Company and the amendment of the declaration, which amendment was made upon the attorneys for appellees learning, from the examination of appellant, that there was no such incorporated company as the Petrue Importing Company, appellant was the sole defendant charged, and the plea of non-joint liability was no answer to the declaration.

The judgment will be affirmed.


author: Mr. Justice Sears

text:
    Citizens Insurance Co. v. Thomas F. Stoddard et al.
    1. 1. vííaxce — Power of an Agent to Waive a Condition of a Policy Requiring Proofs of Loss to be Furnished Within a Specified Time.—
    An agent of an insurance company, though, local in respect to territory, if authorized to solicit insurance and to negotiate contracts therefor, is also authorized to waive a condition of a policy requiring proofs of loss to be furnished within a specified time, and such a waiver may be effected by conduct of the agent inconsistent with an intention to enforce a strict compliance with such condition.

      2. Same — Not Necessary that Such Waiver be in Express Language. —It is not necessary that the waiver of a condition of a policy of fire insurance should be in express language. It is sufficient if the conduct of the agent is such as would naturally and reasonably lead the insured to conclude that the condition of the policy need not be literally complied with.
    3. Instructions — Assuming the Existence of Matters About Which There is no Controversy. — It is not prejudicial error to assume, in an instruction, the existence of a matter about which there is no controversy, and which is in effect admitted.
    Assumpsit, on a policy of fire insurance. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed January 16, 1902.
    Statement. — The appellees sued the appellant upon a policy of insurance, issued by the appellant to the appellees, insuring them against loss by fire for the term of three years from January 26, 1899, to an amount not exceeding $3,350, upon property mentioned in the policy, upon conditions therein set forth.
    The only defense interposed was that the assured, appellees, had not, within thirty days after the fire, the time specified in the policy, rendered to the company proofs of loss, as required by the terms of the policy, and that by reason of such failure to comply with this requirement a recovery could not be had.
    In January, 1899, Charles H. Sisson was an insurance agent in Penn Tan, Tates county, New Tork, and acted as local agent for appellant. He had previously attended to insuring appellees’ property in various insurance companies. During the month mentioned Sisson canceled insurance then on the property in question, and placed thereon the policy issued by the appellant company, and sued on in this case. A fire occurred on October 4, 1899. Sisson retained the policy in his possession until the day after the fire, at which time he delivered it to appellee P. K. Stoddard.
    On October 5th, P. K. Stoddard informed Sisson that a fire had occurred. Sisson told him to go home, make a complete list of everything that was burned, its cost and what it was worth at the time it was burned, so that it would be ready for the adjuster.
    The next conversation between P. IL Stoddard and Sis-son took place about a week later, when Sisson said that he had heard from the company, and they would attend to it as soon as possible.
    The next conversation between the same persons was about two weeks after the fire. Sisson had heard nothing from the company, and said he would write them again immediately; that he did not understand the delay.
    The next conversation was about a week later, not more than twenty days after the fire. P. K. Stoddard testified:
    “I asked Mr. Sisson if he had heard from the company. He said he had, and that Mr. Westover was sick, and I asked him about proofs of loss. He said, ‘ Don’t be afraid, we have sixty days after the fire to file our proofs in.’ * * * The only other conversation which I had with Mr. Sisson bearing on this subject before the proofs of loss were made out, was to ask him whether he had heard from the company. I think he said he had heard from them. Nothing further was said. I first learned that the policy required proofs of loss to be filed in thirty days, on November 10, 1899. The manner in which I discovered what the requirements of the policy were, was I spoke about it to George S. Sheppard, * * * and he told me that the policy required proofs of loss to be furnished in thirty days, and that the thirty days were already up. I did not read the policy before my conversation with Mr. Sheppard.”
    The policy provides by its terms that proof of loss must be made within thirty days after fire, unless such time is extended in writing by the appellant company, and that if such proofs are not so furnished the policy shall be void.
    A statement purporting to be proof of loss was signed by appellees on November 17, 1899, and was deposited in the postofiice at Penn Yan, New York, on November 20,1899. On November 26, 1899, Mr. Westover, acting for the company, notified appellees’ attorney or agent, that the company declined to admit any liability because the condition of the policy with reference to the furnishing of proofs of loss had not been complied with.
    Upon the trial it w;as urged by the appellees that the appellant had waived this provision of the policy and was estopped from setting up as a defense the failure of appellees to furnish proof of loss in time. The appellees were allowed to introduce evidence in support of this contention over the objections of the defendant. A verdict was returned for appellees for the sum of §1,261.25. Motions for new trial and in arrest of judgment were overruled and judgment entered upon the verdict, from which judgment this appeal is prosecuted.
    Charles H. Jackson, attorney for appellant.
    Alden, Latham & Young, attorneys for appellees.
   Mr. Justice Sears

delivered the opinion of the court.

■ Two questions only, of controlling importance, are presented upon this appeal. The first is as to whether an insurance agent, clothed with the powers created by such a limited agency as that of Sisson6, can, by his agreement or conduct, effect a waiver of the provision of an insurance policy which requires the proof of loss to be made within a stated time. The second question is as to whether the conduct of Sisson, if his power be conceded, did amount to a waiver of the provision. We are of opinion that the first question is determined by the decisions of our Supreme Court. The Phenix Ins. Co. v. Hart, 149 Ill. 513; D. H. Ins. Co. v. Dowdall, 159 Ill. 179; F. F. Ins. Co. v. W. R. Co., 162 Ill. 322; Hancock L. Ins. Co. v. Schlink, 175 Ill. 284; M. & M. Ins. Co. v. Schallman, 188 Ill. 213.

In F. F. Ins. Co. v. W. R. Co., supra, the insurance company defended upon the ground that a provision of the policy that suit must be brought within six months after the happening of the loss, had not been complied with, and that a failure to comply operated to bar the action. Beliance was placed upon a provision of the policy to the effect that only the manager of the company had authority to waive, modify or strike from the policy any of its printed conditions. The provision as to time of bringing suit was one of its printed condition^. It was not waived by the manager of the company, but the plaintiff in the suit upon the policy contended that it was waived by conduct of one Bliss, who was local agent. This contention was sustained by the Supreme Court. In deciding the case the court said:

“ This contention is based upon the stipulation in the open policy to the effect that only the manager of the company at Chicago had authority to waive, modify or strike from the policy any of its printed conditions. That stipulation has been held to have reference only to the conditions entering into and forming the contract of insurance, and to have no reference to provisions as to what is to be done by the parties after a loss has been incurred. Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179; Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102; Rokes v. Amazon Ins. Co., 51 Id. 512; Blake v. Exchange Mut. Ins. Co., 12 Gray, 265; New Orleans Ins. Co. v. Matthews, 65 Miss. 301. * * * Bliss negotiated as agent of the company for settlement of the claim, and his relations/to the company and to the transaction were such that his representations by which the plaintiff was deterred from bringing suit within the limit must be regarded as binding upon 'the company, and not affected by the limitation of power to waive, modify or strike from the policy any of its conditions.”

In D. H. Ins. Co. v. Dowdall, supra, a like question arose as to the power of a local agent to waive by his conduct the proofs of loss required by the terms of the policy. A similar provision of the policy declared that no officer, agent or other representative of the company could waive any of the conditions. The court held that the local agent might waive the proofs of loss required by the policy as a condition to any enforcement of its terms, and in so' holding said:

“ The position of counsel that under the clause in the policy which says ‘ no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy,’ the company could not be held to have waived the required sworn statement of loss by any acts or declarations of its agent, Smith, is not maintainable. Such a statement was required for the sole benefit of the company, and it could certainly waive it or extend the time within which it should be furnished if it thought proper to do so, notwithstanding the statement in the policy that it would not. This is to say, even if the parties did agree by the policy that there should be no such waiver, they might subsequently change that agreement. Hor is it necessary in such case to prove an express agreement to waive, but it may be inferred from the acts and conduct of the insurer inconsistent with an intention to insist upon the strict performance of the condition. Eokes v. Amazon Ins. Co., 51 Md. 512, and authorities there cited. It was also held in that case that a clause in a policy providing that no waiver or modification of any of the terms or conditions of this policy shall be made in any event referred to those conditions and provisions which entered into and formed part of the contract of insurance and which were essential to make it a binding contract between the parties, properly designated conditions, but had no reference to those stipulations which are to be performed after a loss has accrued, such as giving notice and furnishing proofs of loss.’ Citing Blake v. Ex. Mut. Ins. Co., 12 Gray, 265; Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102.”

The latest decision by the Supreme Court upon this question in M. & M. Ins. Co. v. Schallman, 188 Ill. 213, is in re-affirmance of the doctrine of these earlier cases. In that case it was sought to avoid the policy by reason of a failure of the insured to comply with provisions as to an appraisal of the property destroyed. The plaintiff proved a notice in relation to the appraisal given to Fisher Brothers, who were, as the defendant claimed, merely local agents empowered only to solicit insurance and collect premiums. The court in disposing of the case said :

“But e\Ten if Fisher Bros, were merely such agents as had authority to solicit insurance or issue policies and collect the premiums, it is nevertheless true, under the decisions made by this court, that notice was properly served upon them. Eotice of demand for appraisal or arbitration will be sufficient when served upon the agent of the insurer, who is empowered to solicit insurance, issue policies and collect insurance premiums. Under the facts in this case, the appellee was warranted in treating Fisher Bros, as the general agents of the company. ‘ It has been repeatedly held by this court that an agent, although local in respect of the territory in which he operates, who is clothed with general power to solicit and make contracts of insurance for the company, is so far a general agent that notice to him of facts affecting the contract is notice to the company. * * * Whether this agent was apparently clothed with authority to represent the company in the adjustment of this loss or to accept service of demand and notice for arbitration under the conditions of the policy, was a question of fact to be determined by the jury upon consideration of all the facts and circumstances proved.’ Phenix Ins. Co. v. Stocks, 149 Ill. 319; Hancock Life Ins. Co. v. Schlink, 175 Ill. 284; Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179. These authorities hold that a general agent, clothed with power to solicit insurance, receive the application and forward it to the company, receive and deliver the policy and collect the premium, has power to waive a condition of a policy, notwithstanding that power is negatived by provisions in the policy and his contract of employment.”

We think it must be regarded as the settled rule in this State that such conditions as the one here in question contained in a policy of insurance and providing for steps to be taken after a loss, such as proof of loss, are not within the limitation of another provision of the policy to the effect that no officer, agent or other representative of the company shall have power to waive any provision of the police except by writing upon, or attached to, the policy. And that an agent, although local in respect to territory, who is empowered to solicit insurance and negotiate contracts therefor, is also so empowered as to be able to waive such a condition of the policy as the one providing for proofs of loss. And that such waiver may be effected by conduct of the agent inconsistent with an intention to enforce a strict compliance of the condition. In this case it appears that Sisson was so far an empowered agent of the appellant that he was authorized to represent it in the soliciting of the insurance in question. The contract of insurance was accomplished through him as representing the appellant. He was therefore empowered to waive the condition as to proofs of loss. The only remaining question is, did he waive it ?

It is not necessary, in this behalf, that there should have been a waiver in express language. It is enough if the conduct of Sisson was such as would naturally and reasonably lead appellees to conclude that the proof need not be made within thirty days, as provided by the terms of the policy. Sisson said to one of appellees, “ Don’t be afraid, we have sixty days after the fire to file our proofs in.” Proofs of loss were made within the sixty days. We are of opinion that appellant can not now be allowed to interpose as a defense to this suit a delay on the part of appellees in proving loss, which delay was directly caused by the agent of appellant. It is contended by appellant that the trial court erred in giving certain instructions to the jury, in which it was assumed that Sisson ,was an agent of appellant. It is enough to say that the error, if there was any error in this behalf, was without prejudice. There was no conflict in the evidence as to the fact that Sisson acted as local agent of appellant in effecting the contract of insurance between appellant and appellees, and that he continued to be such agent at the time of the transactions in question. This is established by the correspondence between appellant and Sisson and by testimony of one of appellees. ' There is no prejudicial error in assuming in an instruction a fact as to which there is no controversy, but which is in effect admitted. The contention in the case was as to the scope of Sisson’s agency and his power under it. That contention we find is settled by the authorities and no harm could have resulted to appellant by reason of the assumption of the undisputed fact of an agency in the instruction.

. It. is urged by the learned counsel for appellant that the court erred in admitting, over objection, the evidence as to the statement by Sisson to appellees, above set forth, as to the time within which proofs of loss might be made.

From the foregoing consideration of the law, it is apparent that in this respect there was no error.

JSTo other of the errors assigned are - considered in the briefs of appellant, and therefore they may be regarded as waived.

The judgment is affirmed.


author: Mr. Presiding Justice Windes

text:
    Pennsylvania Co. v. Thomas A. Reidy.
    1. Railroads — Negligence in Running Past Stations Where a Passenger Train is Discharging and Receiving Passengers. — The running of a railroad train at a high rate of speed, on a parallel track, past a station where a passenger train is discharging and receiving passengers is plainly negligent, and it is equally so to run a train in like manner at a time when a passenger train is pulling into a station on a parallel track, where it is about to stop for the purpose of discharging and receiving passengers.
    2. Negligence — A Question of Fact for the Jury. — In an action for personal injuries, the question as to whether a railroad company is guilty of negligence in the management of its trains in running them at a high rate of speed past a station, or stopping place, on a road running parallel to it, where another train has stopped for the purpose of discharging or receiving passengers, is a question of fact for the determination of a jury.
    8. Damages — Where $10,000 is Not Excessive. — Where a man was injured in a railroad accident, and his ankle so shattered as to require amputation of his leg about four inches below the knee, and it was about six weeks before he could go about his house upon crutches, a judgment for $10,000 was held not to be excessive.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed January 16, 1902.
    Statement toy the Court. — Appellee was injured by being struck by appellant’s 'engine February 8, 1892, and brought suit therefor, which has been tried twice, the first trial resulting in a verdict in his favor of $12,000 and judgment, after a remittitur, for $10,000, which was reversed by this court for errors in procedure (72 Ill. App. 343), and the second trial resulted in a verdict in his favor for $10,000 and judgment thereon, from which this appeal is taken.
    On the second trial, at the close of all the evidence, defendant’s counsel moved the court to direct a verdict in its favor, which was denied.
    Among other instructions for the plaintiff the court gave the following:

      B. “ The jury are further instructed that if, under the evidence and instructions of the court, they find the defendant guilty, then in estimating the plaintiff’s damages, if any, they have a right to take into consideration the personal injuries inflicted upon the plaintiff, if any; the pain and suffering undergone by him in consequence of his injury, if any are proved; and also any permanent injuries sustained by him, if the jury believe from the evidence that the plaintiff has sustained such permanent injuries from the wrongful acts complained of.”
    The court also of its own motion gave the following instruction:
    A. “ The jury are instructed that this is a suit brought ' to recover damages w’hich it is alleged were caused the plaintiff by and through the negligence of the defendant company, as set forth in plaintiff’s declaration, or in some one or more of the counts thereof.
    In order to a recovery of any damages in the case it is required that you shall believe from a fair and impartial consideration of all the evidence in the case that the preponderance of greater weight of the evidence establishes, first, the fact that plaintiff suffered an injury, as stated in his declaration, and the extent thereof; second, that he himself was at the time and place of said injury exercising reasonable and ordinary care and caution for his own safety; and, third, that the injurjr was the direct and proximate result of the negligence of the defendant company at said timo and place, as the same is set out in the declaration, or in some one or more of the counts thereof.”
    On behalf of the defendant the court gave sixteen instructions and refused others, among them the following :
    24. “ Reference by plaintiff’s counsel to his own misfortune in having lost one of his legs, was highly improper, and should in no wise influence the jury.”
    Geo. Willard, attorney for appellant.
    Seth F. Crews and Ralph Crews, attorneys for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

For appellant it is claimed that the trial court erred in not taking the case from the jury at the close of the evidence, both because, it is said, the evidence shows that the appellee was guilty of contributory negligence, and that the appellant Aas not guilty of the negligence charged in the declaration.

The declaration charges appellant, first, with negligence in carelessly and negligently driving and managing its train; second, in running its engine across a highway without ringing a bell or sounding a whistle, in violation of the statute; third, in running its engine and train negligently and improperly past a station or stopping place of passenger trains on the Eastern Illinois Railroad at not less than twenty-five miles an hour; and, fourth, in negligently driving its engine and train toward the highway crossing at a rate of speed higher than twenty-five miles per hour, contrary to the city ordinances. There is no evidence to sustain the verdict and judgment under the second and fourth charges, and a recovery, if it can be sustained, must be based upon the first and third charges of negligence.

The evidence shows that appellee, a switchman of the Eastern Illinois Railway, on the day of the accident came from Auburn Park on a passenger train of the Eastern Illinois Railroad, which arrived on its way to the center of the city at Thirty-first street and Stewart avenue at about 5:20 p. m.

Stewart avenue, at this point, runs north and south, and Thirty-first street at right angles to it, east and west. There were a number of railway tracks running north and south at this point on Stewart avenue, among them two tracks of the Western Indiana Railway Co. on the west, and two tracks of the appellant on the east, there being a space of some twenty feet between the two sets of tracks. On this space there was a platform about two and one-half feet wide and some ninety féet long and about fifteen inches high, extending south from Thirty-first street, which was used by passengers alighting from and taking the passenger trains of the Eastern Illinois Railway Co., which used the tracks of the Western Indiana Co. There was a watchman stationed at the street crossing, and gates were there also. The Eastern Illinois train, on which appellee was a passenger, came from the south, was a few minutes late, and stopped at this platform to discharge and receive passengers. A passenger train of appellant, known as the Limited New York Express, came from the north, going south, on time, at a speed variously estimated by the witnesses at from fifteen to thirty miles per hour. Appellee alighted from the north platform of the rear coach of the Eastern Illinois train at or near the south line of Thirty-first street, and proceeded in an easterly direction on or near the south sidewalk of Thirty-first street, to cross the tracks of appellant and go to his home, which was in that direction, and about one-half block south of Thirty-first street. Just north of the north line of Thirty-first street, on this space between the two sets of tracks, was a small switchman’s house, used by switch-tenders, about six feet high and three feet wide. There were also in this same space several persons, either leaving the train of the Eastern Illinois or waiting to take it, the evidence of the witnesses differing as to the number, one witness for the defense stating that there were perhaps three persons, while the plaintiff states that when he looked north, as he was leaving the Eastern Illinois train, “ there was nothing to see only the people that were standing on the north side of Thirty-first street.” He does not state the number. The witness McG-rew, for the plaintiff, says there were several people on the crossing. The bell of the Eastern Illinois train was ringing as plaintiff proceeded eastward. Plaintiff says that before he stepped off onto the platform he looked both north and south, but did not see appellant’s train coming, only saw" the people on the north side of Thirty-first street and the shanty (referring to the switch-house); that it “ was just dusk; just started to get dusk” ; that he started to walk across on the sidewalk, the planking, board walk; that he was going a medium walk, and when he got about twenty feet from the passenger train, as he was walking along buttoning up his overcoat, and just as he stepped over on appellant’s track, he “ heard some feller holler, and when he hollered, this (appellant’s) train was right on top of me and I jumped. That is all that I remember seeing there at all.” McGrew, one of appellee’s witnesses, says that he saw appellee getting off the Eastern Illinois train at the south side of Thirty-first street; that he was close to appellee; that “ when he got off he started to go home east. He started to cross the Pennsylvania tracks to go home, and I happened to look north, and I saw the Pennsylvania Limited coming south, and I called out, Look out, Tom,’ and Tom made a dive for his life. * * * He was in the south-bound track of the Pennsylvania Company. He jumped east the way he was facing. That train was running when it passed Thirty-first street, I dare say, thirty miles or more per hour. It smashed Eeidy’s ankle. The train ran its length, lacking half a coach length, before it stopped. They generally pulled five cars in that Limited, five to six. The hind end of the train stood on Thirty-first street. This Chicago & Eastern Illinois train at the time this happened was standing on Thirty-first street. It stopped there to let off and take on passengers. The' Pennsylvania Limited engine, when I first saw it, was just north of Thirty-first street.” He also says that when he first saw appellant’s train it was within twenty feet of the north line of Thirty-first street.

The witness Smith, for appellant, says that when appellee got off the Eastern Illinois train he started to run east on Thirty-first street, and somebody hollered at him,” and appellee tried to run around the Pennsylvania Limited; that the bell of appellant’s train was ringing when it reached the crossing, and it was going “ about twenty miles an hour, perhaps not that much.” He also says that he saw appellant’s train before the Eastern Illinois train stopped, and that there was nothing whatever to prevent any one standing on the platform from seeing the train as it approached from the north.

The engineer of appellant’s train says that his engine was about the north end of the crossing when the Eastern Illinois train stopped; that the gates were down, and the man in charge of the crossing gave him a signal to come ahead; that the first intimation he had of any danger was when his engine was about the north end of the crossing (meaning evidently the north crossing of Thirty-first street), when he saw a man run across the track maybe ten or twelve feet ahead of his engine; that he “stepped over on the left-hand side of the engine to see whether he was hit or not, and I seen that he fell down. I come back and shut the engine off and put on the brake and stopped the train on the crossing. * * * I couldn’t have saved him. I wouldn’t have time. If I had knowed it was going to happen I would have plenty of time. I didn’t know. We were running the schedule time, about fifteen miles an hour.” He also says :

“I believe we had five cars, to the best of my memory ■ we pulled five or six. The engine and tender was fifty-five feet long. They were all Pullman vestibule cars. Some are longer than others; I should think about seventy feet, an average of that. The bell was ringing. * * * The cars were equipped with air brakes. * * * We had all the established means of controlling the speed of the train.”

He also says that he saw the Eastern Illinois train approaching the station; that he was paying attention to the people getting off of it; that when he first saw appellee he was on the south side of Thirty-first street, and he was running; that it was clear. The weather was clear and it was not getting dark; that the brakes were in good order, and that when running at fifteen miles an hour he could stop the train in a couple of car lengths, maybe less; that if the train was going thirty miles an hour under the same circumstances, “ it would take a little longer ” to stop it.

The witness Furnish, for the defendant, who was a brakeman on the Eastern Illinois train, corroborates the. engineer of appellant’s train as to appellee running across the track in front of the train, but says that appellee jumped off the Eastern Illinois train north of the center of Thirty-first street; that it was daylight; that appellant’s train was going about twenty miles an hour.

The evidence shows that the length of appellant’s train was about 450 to 500 feet. According to the engineer’s estimate, it was, if he had five cars, 405 feet, and if six cars, 475 feet. Appellant’s train stopped when the end of its rear coach was on Thirty-first street, and we think, from all the evidence, the train must have run from 400 to 500 feet after the engineer saw the danger. From this evidence, considered in connection with the rate of speed testified to by the different witnesses and the opinion of the engineer as to the distance in which he could stop the train under .the circumstances shown, we think the jury might well have found that the speed of the train was as high as thirty miles per hour as it approached Thirty-first street.

There was also in evidence a rule of the appellant company in force at the time of the accident, which reads as follows:

“A train approaching a station where a passenger train is receiving or discharging passengers, must be stopped before reaching -the passenger train.”

The evidence shows that there was a custom on appellant’s lines of railway that where two passenger trains were approaching a point where one of them was scheduled to stop and the other not, the train scheduled to stop would slow up to let the other train get by, in order to avoid having the through train make a stop. Appellant’s train in question was not scheduled to stop at Thirty-first street, though there is evidence that some of its trains did stop for the discharge and receipt of passengers at this place. The Eastern Illinois train was scheduled to stop at this place, though it was behind time several minutes. There was evidence by several witnesses on behalf of appellant, that said rule was construed by appellant’s employes to be applicable to appellant’s road alone, and not to other roads, and the court instructed the jury that there was no evidence, “that the defendant or any of its officers, agents or employes understood that said rule 114 applied to any trains or tracks other than those of said defendant, Pennsylvania Company.” The construction of this rule was a matter for the court, and the evidence in this regard can not avail appellant. We think it immaterial what construction was given this rule by appellant and its employes.

We are of opinion, in view of the foregoing evidence, that it was a question for the jury as to whether appellant was guilty of negligence in the management and running of its train, under the circumstances shown, at a high rate of speed past the station or stopping place of passenger trains on the Eastern Illinois railroad, at a time when a passenger train of the latter road was stopping or had stopped for the receipt and discharge of passengers. Under this evidence, omitting appellant’s rule, we are inclined to the opinion that it presented a question for the jury, and we can not say but that the jury were justified in finding that appellant was negligent. Chicago & Alton R. R. Co. v. Kelly, 75 Ill. App. 490-4; Chicago & Alton R. R. Co. v. Kelly, 80 Ill. App. 675-8, and affirmed in 182 Ill. 267, adopting the opinion of Mr. Justice Wright of Appellate Court, Third District, in which he said:

“ The running of a freight train at a high rate of speed past a station where a passenger train is receiving and discharging passengers, is so plainly negligent as not to require comment. It is equally negligent to so run a freight train just as the passenger train is pulling into the station, and more especially when the track on which the freight train is moving is between the depot and the track on which the passenger train is moving.”

The same is true as to the question of appellee’s contributory negligence. The evidence tends to show that appellee’s view was obstructed by the switch house and people standing on Thirty-first street at the time he looked to the north, and the bell of the Eastern Illinois train was ringing. C. & N. W. Ry. Co. v. Hansen, 166 Ill. 623, and cases cited; C. & A. R. R. Co. v. Fell, 182 Ill. 523; I. C. R. R. Co. v. Batson, 81 Ill. App. 143-52; C. & A. R. R. Co. v. Kelly, 182 Ill. 267.

It is claimed that the court erred in admitting in evidence the rule above quoted. We held on the former appeal (72 Ill. App. 343) that this rule was properly admitted, and although there is some additional evidence not in the former record, to the effect that it had been construed by appellant’s employes as having no application to other roads, we see no reason why it should have been excluded.

The instruction “A” quoted in the statement, is criticised as being misleading, because it assumes that the defendant was negligent. We think the criticism not good. The instruction, as we read it, makes no such assumption.

It is also said that the instruction is objectionable because it limits the exercise of care on the plaintiff’s part to “ the time ” of the injury, and cases are cited which seem to support the contention. A careful reading of these cases, however, as we think, shows the contrary. In Ry. Co. v. Hessions, 150 Ill. 546-55, this objection to a similar instruction was held to be untenable. To a like effect are: R. R. Co. v. Johnson, 135 Ill. 641-53; McNulta v. Lockridge, 137 Ill. 270-87; R. R. Co. v. Fisher, 141 Ill. 614-25.

In the Johnson case it was said the words “at the time,” as used in the instruction, referred to the whole transaction. Moreover, by appellant’s instructions 5 and 7, the jury were instructed as to appellee’s care, so that they could not have been misled.

We see no objection to appellee’s instruction B, quoted in the statement. W e also think there was no error in the refusal of appellant’s instruction Mo. 24. The language of counsel used in his argument, to which the instruction has reference, is as follows:

“ The lamest excuse, lamer than Tom Eeidy is, or I am, or possibly can be, because it has not even a leg to stand on, is the trumped-up theory in the imagination of counsel here that somebody in that train might have got hurt if he had stopped.”

Mo objection to it was made at the time the language was used, and we think the statement was not an improper one.

It is also claimed that the closing address of plaintiff’s counsel was misleading in several ways, but only one matter is called to our attention, viz., that it assumes that the accident happened after dark. While we think the weight of the evidence is to the contrary, there is basis for the claim of plaintiff’s counsel. The plaintiff testified: “ It was just dusk; just started to get dark.” One of defendant’s witnesses, Boss, the conductor, said it was between daylight and dark.

The further claim is made that the damages are grossly excessive, but we can not agree with the claim. Appellee’s ankle was shattered so that his leg had to be amputated about four inches below the knee, and it was six weeks before he could go about the house upon crutches. Without any reference to appellee’s present earning capacity, we can not undertake to say that the damages are excessive. R. R. Co. v. Holland, 18 Ill. App. 418-22; R. R. Co. v. Fisher, 38 Ill. App. 33-43; Ry. Co. v. Wilcox, 33 Ill. App. 450-3; Gibson v. Glizozinski, 76 Ill. App. 400-4; N. C. St. R. R. Co. v. Dudgeon, 83 Ill. App. 528.

The fact that there have been two verdicts and judgment thereon for $10,000 each, is not without weight.

The judgment of the Circuit Court is affirmed.


text:
    Fidelity & Deposit Co. and Moses Salomon v. West Chicago St. Ry. Co.
    1. Appellate Court Practice— Where the Court is Confined to the Consideration of Alleged Errors in the Common Law Record. — In an appeal where the bill of exceptions does not purport to show anything that occurred on the hearing of the cause, or contain any evidence, or refer to any of the proceedings in the trial court anterior to the judgment, the Appellate Court is limited to the consideration of alleged errors in the record proper, anterior to the i endition of the judgment.
    3. Waiver — Of Demurrers. —Where a demurrer to the declaration is overruled and the defendant pleads issuably, such pleading operates in law as a waiver of the demurrer.
    3. Pleading — Where the Plea of Non Damnificatus is and Where it is Not an Answer to the Declaration. — In an action on abend, when the condition of the bond is merely to indemnify, the plea of non damnificatus is an answer to an alleged breach; but if the condition stipulates for the performance of any particular act, such a plea is not an answer; the performance must be averred.
    Debt, on a penal bond. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed January 16, 1902.

      Leon Hornstein, attorney for appellants.
    John A. Rose and Louis Boisot, attorneys for appellee; W. W. Gurley, of counsel.
   Mr. Justice Adams

delivered the opinion of the court.

This was an appeal from a judgment in an action of debt on a penal bond against appellants, the Fidelity & Deposit Company, of Maryland, and Moses Salomon. The damages were assessed at the sum of $547. The judgment was rendered January 17, 1901, at the January term of the trial court, and January 26, 1901, at the same term, the appeal was prayed and allowed. The bill of exceptions does not purport to show anything that occurred on the hearing of the cause, nor does it contain any evidence, or refer to any of the proceedings in court anterior to the judgment. We are, therefore, limited to the consideration of alleged errors in the record proper, anterior to the judgment. The only such errors assigned are as follows:

1. The court erred in overruling the demurrer to the plaintiff’s declaration.

. 2. The court erred in sustaining the demurrers to the defendants’ third and fourth pleas.

After overruling the demurrers of appellants to the dec- ' laration, they pleaded issuably to the declaration. This operated, in law, as a waiver of the demurrers. The fourth plea of each of the appellants was the same. Appellee demurred to the pleas, but subsequently withdrew its demurrer and took issue on the pleas. The third plea was non damnificabas. The demurrer to this plea was properly sustained. It is recited, in the condition of the bond sued on, that Moses Salomon and others named, assumed and undertook the defense of certain garnishment and attachment suits in the place of appellee, and to pay all costs and expenses of defending such suits, and all judgments which might be rendered against appellee in the suits, etc., and the declaration avers breaches of these conditions.

When the condition of a bond is merely to indemnify, the plea of non damnificatus is an answer to an alleged breach; but if the condition stipulates for the performance of any particular act, that plea is no answer; performance must be averred.” Sears v. Nagler, 18 Ill. App. 547, and cases cited; Terre Haute, etc., R. R. Co., v. Peoria Ry. Co., 81 Ib. 435, 444; 1 Chitty on Pleading, 1 Am. Ed. 426.

Counsel for appellants devotes his argument mainly to the contention that the court erred in overruling a motion of appellants to vacate the judgment. Hot withstanding the question whether the court so erred is not properly before us for decision, we have carefully read the argument of that question for the appellants, and were the question properly before us, we would feel constrained to hold that there was no error in the ruling of the court.

The judgment will be affirmed.


author: Mr. Justice Waterman

text:
    Chicago Soap & Polish Co. v. Frederick W. Stansbury.
    1. Contracts — Unusual, Not Presumed. — An engagement to work one year for two dollars per day, payment to be made at the expiration of the term, is so unusual as not to be presumed.
    Assumpsit, for work, etc. Appeal from the Circuit Court of Cook County; the Hon. John C. Carver, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.
    Lee, Lee & Schuchardt, attorneys for appellant.
    Ritchie, Esher & Knobel, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

This was an action for wages begun before a justice of the peace. There and upon appeal to the Circuit Court the plaintiff recovered a judgment for $77. Appellant contends that he employed appellee to work for one year, and that he broke the contract by leaving before the end of that term.

The evidence tended to show that appellee was employed to work for one year, and that he was to be paid $2 per day, either daily or weekly; that he was paid at three different times, in all $2o; and that thereafter he left because he could not get his pay.

An engagement to work for one year for $2 per day, payment to be made at the expiration of the term, is so unusual that it is not to be presumed.

The small payments made in December, January and February, indicate that this was not the agreement.

The engagement appears to have been broken by the failure of appellant to pay wages as promised. Complaint is made that appellee carried off formulas which belonged to appellant. No evidence showing the value of such formulas was offered.

Appellant may, perhaps, in another action, recover these, but the carrying them away by appellee, under the evidence in this case does not constitute any ground of defense or for set-off.

The judgment of the Circuit Court is affirmed.


text:
    People ex rel., etc., v. City of Chicago et al.
    1. Mandamus — To Restore One Irregularly Removed to His Place— Civil Service Act.— In mandamus proceedings the writ will not be awarded to restore a person to his place, from which he has been irregularly removed, where the right of removal exists, which, if he be restored, can be and is likely to be exercised and made effectual.
    Mandamus. — Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded, with directions.
    Opinion filed January 21, 1902.
    Statement. — January 24, 1900, appellant filed a petition for mandamus. The petition sets forth that on March 19, 1888, petitioner was appointed police patrolman in the police department of the city of Chicago, and at once entered upon the discharge of his duties, “ and which office of police patrolman he has held from thence hitherto.” That Joseph Kipley was, on the first Monday of May, 1897, duly appointed superintendent of police and is still acting as such. That on December 18, 1897, by direction of the superintendent, petitioner took the civil service examination as to his qualifications as a patrolman, which was conducted under the direction of the civil service commission of Chicago. That upon' the examination, petitioner was passed as duly qualified, standing upon such examination ninety-seven upon a scale of 100, and standing No. 68 upon the list of eligibles. That on March 14,1898, Kipley, as superintendent, directed the name of petitioner dropped from the roll of policemen of said city, which was done; and from thence hitherto said Kipley, as superintendent, has excluded petitioner’s name from the pay-roll of the police department, and still does. That said conduct was wholly unauthorized, and contrary to the legal rights of petitioner. That in consequence, petitioner has not been paid the salary accruing to him since March 14, 1898, nor any portion thereof. That petitioner has made demand upon the city, upon the mayor and upon Kipley, as superintendent, for the restoration of his name to the police payroll, to the end that he might secure his salary, to which he is lawfully entitled, but that they respectively refused to comply with said demand. The salary that petitioner was entitled to under the ordinance of Chicago from March 14, 1898, was the sum of $83.33 per month. That from the time of petitioner’s appointment until March 14,1898, such salary had been paid monthly. That by section 3 of the civil service act it was provided that the commissioners should classify all officers and places of employment with reference to examination, except those mentioned in section 11 of the act; which offices and places so classified should constitute the classified civil service of the city, appointments to which should thereafter be made only according to the rules mentioned in the act. That by section 4 of said act it was provided that the commission should make rules to carry out the act and for examinations, etc. That soon after the organization of the commission, it proceeded to classify the offices and places of employment in the city as required, and that by rule 1 in force in 1898, it was provided that all such offices, except the excepted ones, should be classified, and among others, “ 2,504 patrolmen in the department of police at $1,000 per annum.”
    That by sections 31 and 32 of the civil service act it was provided that the comptroller should pay salaries only after certification, and that no disbursing officer of the city connected with the disbursement of moneys should in any manner be concerned in paying any person for service unless such person occupied “ an office or place of employment according to the provisions of law.”
    That the first civil service commission appointed in 1895 adopted the practice of certifying pay-rolls of all employes of the city, including police patrolmen, which practice had been continued, and that the comptroller of the city required such certification as a condition of payment. That the legal effect of such certification by said commissioners was that the parties named were entitled to be paid as persons holding office under the act; and the city in legal effect admitted that all persons named on such pay-rolls were in the classified service and entitled to payment as such.
    That for more than two years prior to December 18,1897, petitioner was duly certified upon the police pay-roll by the civil service commission as a patrolman entitled to pay under the act; and that after petitioner had successfully taken the civil service examination as above stated, he continued to be certified by the commission upon the pay-roll as an officer of the city in the civil service under the act. That by the facts stated, said defendants Harrison, mayor, and Hipley, were estopped to deny that petitioner was a patrolman in the classified service under the act and entitled to the provisions and protection thereof.
    That the commissioners now in office are Eobert Lindblom, Edward M. Carroll and John W. Ludwig.
    Petitioner prays mandamus against the city, Mayor Harrison and Superintendent Kipley, and also against the civil service commissioners, demanding said city, said mayor and superintendent to forthwith place the name of petitioner upon the police pay-roll, to the end that he might obtain his pay as other officers are paid. And also commanding the commissioners to certify the petitioner’s name upon the pa)r-roll whenever thereafter appearing.
    To this was interposed the joint and several demurrer of all defendants; that the petition does not show that the civil service commissioners or their predecessors certified the name and address of the petitioner to the appointing officer as required by law; also that said petition is otherwise informal and insufficient; which demurrer was sustained.
    W. P. Black and A. B. Chilcoat, attorneys for appellant.
    Charles M. Walker, corporation counsel, and Roswell B. Mason, attorneys for appellees.
   Mr. Justice Waterman

delivered the opinion of the court.

The petitioner being a patrolman when the civil service law went into effect, was what is known as a “holdover.” Thereafter, by direction of the superintendent of police he took the civil service examination as to his qualifications as a patrolman.

Whether this direction was compulsory and whether he might not have refused to comply with it is now of no consequence. He did take the examination and having done so, and successfully passed such examination, he became under the civil service law an eligible; his name went upon the list of eligibles. If such position was inconsistent with the rights of a “ holdover” the latter were by him waived. He thus became entitled to have his name certified in due course to the superintendent of police for appointment as a patrolman. The civil service commissioners appoint no one to office; they determine as to eligibility and prepare lists of eligibles, from which, upon request, names are in proper order certified to those having power to appoint. Petitioner, not having been so certified, is an eligible, but not an appointee under the civil service law.

We do not regard the alleged fact, that before and after his examination appellant was duly certified by the civil service commission upon the police pay-roll “ as a patrolman entitled to pay under the act,” estops the commission, the mayor or superintendent, to deny that he is or was a patrolman in the classified civil service under that act.

The designated officials are acting, not in their own interests, but thaVof the public; as such officers they can not be estopped by any act of theirs. The public have all the while a right to demand that they obey the law and do their entire duty thereunder. If, either mistakenly or intentionally, they have failed to do this, neither they as officials, nor the public, are estopped thereby. Appellant has acquired and can acquire no right to have them persist in wrong doing.

Appellant insists that as a patrolman, appointed before the civil service law went into effect, he could not be removed by the superintendent; nor by the mayor, except upon a formal charge, the reasons for which must be reported to the council at a meeting thereof held not more than ten days after such removal. As before stated, appellant can not occupy inconsistent positions. Whether his place as an eligible is consistent with his claim to yet possess all the rights he had as a holdover it is not necessary that we now determine.

He asked to have his name placed upon the list of eligibles for appointment; not for retention of his place as one who had been appointed. If he had failed in his examination could he have maintained his place as a holdover patrolman ?

His present contention in effect is, that he is entitled to hold his old place, and that no one, not even one who stood higher than did he at the examination, can be certified to take it.

If his petition be true it would seem that he is, in due course, entitled, as an eligible, to be certified to the superintendent for appointment.

Petitioner alleges that March 19, 1888, he was appointed police patrolman, “at once entered upon the discharge of his duties,” “ and which office of police patrolman he has held from thence hitherto.”

The allegation is only that he has held the office, not that he has performed or offered to perform the duties thereof. At common law the utmost strictness was required in pleadings upon applications for mandamus. High on Extraordinary Eemedies, Secs. 448-450.

Our statute has established new rules as to some matters but has not in terms, if at all, modified the rule as to the strictness with which mandamus pleadings are regarded.

The petition is verified, but consistently therewith the petitioner may, since his name was stricken off the roll, have been living in Cairo, and been there engaged in merchandising. Twenty-two months elapsed before, so far as appears, petitioner objected to the striking of his name from the payroll; during which time it does not appear that he has performed or offered to perform any of the duties of a police patrolman.

Nor does he offer to hereafter discharge such duties; he merely asks that his name be placed upon the pay-roll “ to the end that he ” may “ obtain his pay as other officers are paid.”

In mandamus proceedings the writ will not be awarded to restore to place one irregularly removed, where it appears that a right of removal exists, which, if he be restored, can and is likely to be exercised and made effectual. High on Extraordinary Eemedies, Secs. 409-410-411.

In McNeill v. City of Chicago, 93 Ill. App. 124, a case similar to this, it was held that the allegation that his name had been stricken from the pay-roll, taken in connection with the charge that he was, in 1888, a police patrolman, and has remained such “ from thence hitherto ” does not amount to a statement that he was discharged, but amounts to an allegation that he is yet such patrolman.

The judgment in that case, overruling a demurrer to the petition, was reversed. The same action will be had here. The judgment of the Circuit Court is therefore reversed ■? and the cause remanded, and that court is directed to overrule the demurrer with leave to appellees to answer the petition. Eeversed and remanded, with directions.


author: Mr. Presiding Justice Freeman

text:
    La Salle County Carbon Coal Co. v. Edward P. Eastman, Adm’r, etc.
    1. Negligence — Recoveries Must Be upon that Charged in the Declaration. — In an action founded upon negligence, the plaintiff can recover only on the case made by his declaration.
    2. Same — Recovery in Actions for. — In an action for damages for the death of a person from negligence, evidence for the purpose of showing negligence in the operation of an elevator, not charged in the declaration, is not admissible.
    3. Instructions — Not to Assume Matters in Dispute. — In an action founded upon negligence in starting an elevator in a coal mine without warning, an instruction to the effect that if the “ jury believe from the evidence that the deceased was injured because of the failure of the defendant,” as alleged in the declaration, “ to give him sufficient warning that the cage was about to start, the jury must find for the plaintiff,” is erroneous as assuming that the defendant did fail to give such warning.
    4. Same — Attorneys Should Condense Their Instructions Within a Reasonable Number. — In actions founded upon negligence thirty-three instructions is an unduly large number to ask a trial judge to consider.
    Trespass on the Case. — Death from negligent acts. Appeal from the Circuit Court of Cook County; the Hon. Edmund Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed January 21, 1902.
    Statement. — This is a suit in which appellee, as administrator of the estate of one Michael Szcyek, seeks to recover for the death of the said intestate alleged to have been caused by negligence of the defendant.
    The deceased was a man about fifty years of age, and employed by the defendant as a miner. There were two shafts to the mine in which the accident occurred, in one of which were two elevators, in size each about seven feet by four. These were open on two sides and were used for hoisting cars loaded with coal, and were operated each by two miners called “ cagers,” who, it is said, usuallj’' stood on either side. These elevators were also used to hoist the men out of the mine when the day’s work was done. The deceased approached one of the elevators from the north at the close of the day’s work to be carried up. There is evidence tending to show that, seeing the elevator loaded with his fellow-workmen, he hastened his steps to get on; that the signal to raise the elevator had been given when he was about twelve feet away; that two of the workmen called to him, “ Look out there, the cage is rung away; ” that he paid no attention, but kept on; that when he was still about three feet away the cage began to ascend; that it was about a foot high when he fell on the elevator platform, which went up about fifteen feet before it was stopped; that as he was getting on, one of the cagers called out to stop the cage and the other eager rang to stop it; that it was stopped as soon as possible; that the deceased was caught between the elevator and the shaft; that to release him the elevator was lowered a few feet, and the body of the deceased was at once taken to the top.
    There is conflict in the evidence as to whether the deceased got on the elevator platform before or after it started, and there is evidence in behalf of appellee tending to show that the deceased was on before the start; that the cage started with a jerk; that the signal bells were not sounded; that the deceased was not warned; and it is claimed that one of the cagemen was not attending to his duty, and that the place was insufficiently lighted.
    James W. Duncan and C. LeRoy Brown, attorneys for appellant.
    Cheney & Evans, attorneys for appellee; James S. Harlan, of counsel.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is stated by appellee’s attorneys, “ The case was tried more particularly upon the second amended count, in which the averment is that, the day’s work being done, deceased was about to leave the mine by means of the elevator provided for that purpose; that it became the duty of the defendant to give deceased a sufficient notice or warning when the elevator was about to be raised, but that it negligently failed to do so, and in consequence while deceased was attempting to step upon it, the elevator started and he was injured.”

There are three counts to the declaration, the first of which charges that it was the duty of appellant to provide the elevator with suitable appliances to warn the deceased and keep him free from danger in using it; and the third count charges that it was appellant’s duty to warn the deceased of the danger in stepping on said elevator when it was about to rise. It is charged in each count that appellant negligently failed in its duty in these respects, but in none of them is there any such statement of facts as to make the duty evident as a matter of law. There is, however, in neither of the counts any charge whatever of neglect of duty in the operation of the elevator. The alleged negligence apparently relied upon by appellee’s counsel is that charged in the second count as above stated, viz., that there was a failure to give sufficient notice or warning when the elevator was about to start. The first and third counts seem to be practically abandoned.

Evidence was introduced by appellee’s attorneys for the purpose of showing negligence in the operation of the elevator, which, as above stated, is not any where charged in the declaration. This evidence was inadmissible. Objections were made to its introduction, which were overruled, as were also motions to strike out. Appellee was entitled to recover, if at all, only on the case made by his declaration. The defendant was entitled to know from the declaration what the negligence was with which it was charged. Having averred negligence in one respect, appellee was not entitled to introduce evidence, over appellant’s objection, tending to prove negligence of an entirely different character. Ebsery v. Chicago City Ry. Co., 164 Ill. 518-523.

The trial court gave to the jury an instruction, the concluding part of which is to the effect that if the jury believed from the evidence that the deceased “ was injured, because of the failure of the defendant, as alleged in the declaration, to give to him sufficient warning that the cage in question was about to start, then the jury must find the issues for the plaintiff.” This instruction is properly criticised for assuming that the defendant did fail to give sufficient warning, the only question left to the jury being whether such failure or something else was the cause of the injury; and because it declares as a matter of law that failure to give warning was negligence entitling appellee to recover. It is generally a question for the jury to determine whether an act or omission constitutes negligence. Here the jury are told to find for the plaintiff if they believed from the evidence that the failure to give notice caused the injury, whether or not such failure was occasioned by or constituted negligence of the defendant, whereas such failure might not necessarily, as a matter of law, constitute negligence. See Chicago City Ry. Co. v. Dinsmore, 162 Ill. 658.

Objection is made to the refusal of several instructions requested by appellant. We find nothing objectionable in some of the instructions thus refused, but appellant offered thirty-three instructions, and it has been repeatedly held that this is an unduly large number in a case of this character, to ask a trial court to consider. Chicago City Ry. Co. v. Sandusky (decided here at the present term), ante, page 164. If at another trial appellant’s attorneys condense their instructions within a reasonable number, it is probable no occasion' for such complaint will arise.

As there must be a new trial we make no further comment on the evidence. For the reasons indicated the judgment of the Circuit Court must be reversed and the cause remanded.


text:
    Lake Street Elevated R. R. Co. v. Kate Burgess.
    1. Ordinary Care— What the Exercise of, Does Not Require. — The exercise of ordinary care does not require that passengers on street cars should be all the time on the lookout for deep and unguarded holes in or close to the entrance of such cars, nor to watch for unheralded removal of safeguards formerly existing.
    2. Damages — Where $2,500 Is Not Excessive. — Where the evidence tends to show that in consequence of an accident, a lady passenger on an elevated railway was made permanently lame, and up to the time of the trial, three and a half years afterward, her left arm was disabled so that she could not use it as she formerly did, that an abscess had formed on her ankle as a result of the accident, and that she not only suffered great pain but was at the time of the trial under medical treatment for the injuries received, a judgment for $2,500 is not excessive.
    Trespass oil the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.
    Statement. — This was an action brought by appellee to recover damages for injuries by her, a passenger, sustained in changing, as she was required to do, from a Market street to a Eandolph street car of appellant’s road. She testified:
    “ I got on the train that transfers you at Canal and Lake streets. When I got to Canal street I sat down for a few minutes and waited for the train to come to take me to Austin. The car came up and I went to get on the car and-I walked just as calmly as I always do, and I took hold of the railing to get in, and with that I was transferred into between the cars. I went down like a flash in between the wheels and I thought every minute was my last. I couldn’t see because it was dark. I could hear the voices saying, ‘ Can you help her up.?’ They tried to pull me up and after a while they got me up from between the cars and helped me over to a seat and I sat down there. I fell in between the motor and the cars. I can’t tell how many feet it was because I went down so suddenly. I can’t say whether it was before or after sunset. I don’t know whether there were any lights on the depot platform or by the depot platform. I suppose there was some light. It was dark on the platform. Of course in that time of the night the boards were somewhat dark and numbers of people passing at the time, and of course I naturally supposed when I saw the gate open that I was going on the platform.”
    “ Q. What I want to get at is, do you say you saw that space there as you stepped into it — saw that opening ? A. Why, of course, I thought it was—

      Q. It was an opening about how wide ? A. The opening I went through was the same width as the other one.
    Q. And you knew, whether it was a motor car in the front or in the rear, that that space was always between the two cars, didn’t you ? A. It was only changed the day before. I think there was a steam car there. They were fixing the station there on Fifth avenue and they had taken the steam car off. I would not have gone through only they changed from steam to motor car and I think it was only the day before. I had seen these motor cars before this day. I knew how they were made. I knew motor boxes were on each end of the car platforms where the motormen stand when the car was running. I never noticed where the motormen stayed on the car, because I always took the car and I never missed the step, and I supposed I had been fifteen years taking cars and standing on the step, and I never made a false step, and I didn’t know anything about the car. I was sitting down, and the car came up and I saw this gate open, and that one open, and I naturally supposed that that was the gate to go into. I thought it was a platform. It was dark.”
    A witness for the. defendant testified:
    “ I was under the impression that this lady wanted to get on the same platform that I. was attempting to get on and I stepped aside, and apparently she had a misconception of where she was going, and she stepped into the space between the tail end of the motor car and the front part of the car that I was trying to get on. I hollered to the conductor not to start the car and I hailed the gentleman from, the other end of the platform, who was a sort of a train starter, and he came funning up, and the two of us, as best we could, extricated the lady. She was wedged in pretty tightly between the two cars. We pulled her out. She was not able to proceed on that train. She was, I would state, at least semi-unconscious and suffering from nervous strain, etc., and I told the trainmen that I would wait over.” “ I should say that the space that this lady fell into was about twenty-four or twenty-six inches wide, somewhere along there. It was about the same width as the gate and opening. Being V-shaped it diverts your vision and appears more narrow; but it is about the same width.”
    Frank Canfield, at the time of the accident a conductor for appellant, being called by it, testified:
    “ JMy attention was called to the fact that the gate between the two cars was missing. I saw her approach the entrance, and knowing that the gate was missing 1 used some precaution. As I seen her approach the car I put my hand out and said, ‘ Stop, lady,’ or ‘ Look out, lady; ’ 1 don’t remember which word was used, but I remember of repeating the word, whichever it was. I tried to prevent the accident, but she stepped down into the opening and I couldn’t prevent it.”
    It did not appear that the plaintiff heard or knew of this attempted warning.
    The defendant introduced evidence tending to show that at the time of the accident the sun had not set and it was light. The plaintiff recovered a judgment for $2,500.
    Clarence Knight and William G. Adams, attorneys for appellant.
    William A. Doyle and Thomas E. Rooney, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

Appellant was bound to exercise the highest diligence to prevent injury to appellee.

Without notice, they removed a gate that theretofore had prevented passengers from walking into the opening between its cars, and left an open space some two feet in width into which any passenger might easily, and appellee did, fall. There was no failure upon her part to exercise ordinary care. Ordinary care does not require that passengers be all the while on the lookout for deep unguarded holes in or close to the entrance to cars or to watch for unheralded removal of safeguards formerly existing. Taking the defendant’s evidence above, there is clearly shown great negligence upon the part of appellant.

The damages awarded are not, under the evidence, excessive.

A ppellant complains of the refusal of the court to give the eighth and fifteenth instructions asked by it. -The substance of the eighth was given in the second and fifth instructions. Instructions numbered 4%, 10 and 11, given at the instance of the defendant, embrace substantially all contained in the fifteenth. Twenty-one instructions asked by the plaintiff were given, and appellant has no just reason for complaint in this regard.

The evidence tended to show that as a consequence of the accident appellee was made permanently lame; that up to the time of the trial, three and a half years after the injury; her left arm was disabled so that she could not use it as she formerly did; that an abscess formed upon her ankle as a result of her fall and that she not only then and thereafter suffered great pain, but was, at the trial, still being treated for the injuries she received.

The judgment is not excessive.

Appellee was clearly entitled to a verdict and had one been rendered for the defendant it would have been the duty of the court to set it aside.

The judgment of the Circuit Court is affirmed.


author: Mr. Justice Shepard

text:
    Union Elevated R. R. Co. v. Wilson K. Nixon.
    1. Recovery — When Proper Under the Common Counts. — Where a contract is fully executed and nothing remains to be done but the payment of the money, a recovery under the common counts is proper.
    3. Interest— Unreasonable Delay a Question of Fact. — Whether there has been an unreasonable and vexatious delay in the payment of a claim is a question of fact, and the finding of the trial court on evidence tending to show such act will not be disturbed in the Appellate Court.
    Assumpsit, for services, etc. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed January 21, 1902.

      Clarence Knight and William G. Adams, attorneys for appellant.
    Bentley & Burling, attorneys for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

The appellee sued appellant in assumpsit to recover the sum of $5,000 for labor and services performed by him for appellant, under a contract for the rendering of services in the matter of procuring from frontage owners of real estate, consent to the erection of an elevated railroad loop on certain streets in the down town district of Chicago.

The case was tried, by agreement of the parties, by the court without a jury, and a judgment rendered for the full amount claimed by appellee, with interest.

There does not appear to be any controversy as to the employment of appellee for the purpose, nor as to the rendition of services in the matter for which he was employed, nor as to the additional amount which he was to be paid, in case of success. It is for the additional sum of $5,000 that the suit was brought, the $500 per month having been fully paid appellee.

In the latter part of December, 1894,. appellee was employed, and about the same time, Mr. Louderback, the president or general manager of appellant company, sent to appellee a letter, of which the following is a copy :

“ Chicago, December 22, 1894.
W. K. Mixon, 85 Dearborn St., City.
Dear Sir : So there may be no misunderstanding in the future, I hereby reduce our agreement to writing. The Union Elevated Railroad Company will pay you at the rate of $500 per month for such time as may be necessary in their judgment, commencing December 22, 1894, you to use your best efforts during such appointment to obtain the signatures of property owners to their consent for the building of the proposed loop. In case the company is successful and your efforts have helped in securing the legal amount of frontage, within thirty days after the passage and acceptance of the ordinance, you are to receive the further sum of $5,000. Tours truly,
D. H. Louderback,
President.”

We observe no substantial difference between the terms of the agreement stated in the above letter, and those stated by either Hr. ¡Nixon or Hr. Louderback in their testimony, as to the effect of their previous verbal agreement.

There is no doubt from the testimony but that appellee went to work immediately and continued to work faithfully for a period of about eleven months, and without complaint against him, in the matter for which he ivas employed. During that time he secured the consents of numerous property owners along the line of the proposed route, and was pai,d at the rate of $500 per month to ¡November 30, 1895.

The objections of the appellant to paying the additional sum conditioned on success, are of a most technical kind. It is urged that ¡Nixon was to obtain the consents without expense to the appellant. He never did pay or agree to pay anything for the consents, and if appellant did finally pay therefor it was not because of an agreement of Nixon so to do, and moreover, the fact was settled adversely to appellant by the finding of the trial judge that Nixon had performed his contract.

It is further urged that the appellant was never successful within the meaning of the agreement; and that it was necessary that appellant should be successful within the meaning of the contract before Nixon was discharged.

Granting that Nixon’s employment was at will, his compensation was to be paid, if his efforts helped in securing the legal amount of frontage needed for the passage of the ordinance, and could not be defeated by a summary discharge on the eve of adopting another method of procuring the consents. It can not be truthfully said that the consents obtained by him, and his services in convincing property owners of the desirability of the “loop,” were of no use in securing the desired end.

The appellant, finding itself baffled in obtaining the consents of a necessary number of frontage owners on Yan Burén street and Fifth avenue, adopted, in connection with other elevated road companies, a new scheme whereby the objections to consent might be overcome.

This was by organizing the Union Consolidated Elevated Bail way Company and extending the proposed line thereof so as to embrace territory in which property owners were not so hostile to the construction of an elevated road, and under that plan the necessary number of consents were obtained, whereby the needed ordinance was authorized and obtained.

■ In accordance with the authority given by that ordinance the appellant has succeeded to all the rights that it was desirous of under the original plan, and the entire loop is now owned and operated as a single system by the appellant. Some of the consents obtained by Nixon were used in obtaining the ordinance to the Union Consolidated Elevated Bail way Company. We think there can be no doubt that the appellant was successful in the sense used in the agreement with Nixon.

We have" nothing to do with the value of Nixon’s services. The parties fixed that for themselves, and it does not appear that he was discharged because he neglected to perform all that he had contracted to do, and the finding of the trial judge settles that question.

We do not feel called upon to lengthily discuss the question raised by appellant, that the contract was opposed to public policy. The contract as read does not contain anything or suggest anything of that character, nor does what was done or intended should be done by Mr. Nixon tend in that direction.

It is next argued that error was committed in the allowance of interest. Whether there was an unreasonable and vexatious delay in payment of the claim was a question of fact, and the trial judge having found there was, on evidence tending so to show, we will not disturb the finding.

The recovery was proper under the common counts. The contract was fully executed, and nothing was left to be done by appellant, but to pay the money. Childs v. Fischer, 52 Ill. 205; Wolf v. Schlacks, 67 Ill. App. 117; Sands v. Potter, 165 Ill. 397; Neagle v. Herbert, 73 Ill. App. 17; Lane v. Adams, 19 Ill. 167.

We regard the action of the court on the propositions of law submitted to be held, as without error. And upon the whole record, the judgment must be affirmed, and it is so ordered. Affirmed.