Imágenes de páginas

cutting machine until all the patents herein, evidence tending to support the plaintiff's mentioned shall have run out.” This count | case. In Berriman v. Marvin, 162 III. 415, alleges as the breach thereof that the ap 44 N. E. 719, we held the practice is settled pellee did not, after October 2, 1896, pay the that by submitting the case to the jury withsemiannual royalties for said machine, and out a motion for a peremptory instruction, that said appellee "never did, prior to the a motion to exclude the evidence or a demurcommencement of this suit, return the said | rer to the evidence, the right to raise as a machine, with payments of royalties up to question of law whether there was any evithe date of such return, whereby," etc. The dence tending to support the cause was waiv. second count is the same, in substance, as ed. The appellant, by submitting the case the first, and the breach alleged is the fail to the jury without a motion to direct a verure to pay the semiannual royalties due on dict in her favor, must be held to have conApril 2, 1897, and thereafter. The third and ceded that there was evidence tending to supfourth counts are common counts for port the defense, and that question was not royalties unpaid. There is no averment in

raised by the motion for a new trial. either of the counts that after the delivery

Calumet Electric Street Railway Co. v. Van of the machine to the appellee corporation

Pelt, 173 Ill. 70, 50 N. E. 678; West Chicago the appellee used any other cloth-cutting

Street Railroad Co. v. McCallum, 169 III. 240, machines, and thereby became liable to pay

48 N. E. 424. royalties.

The evidence disclosed that Emanuel LoeTo the declaration the appellee pleaded

wenstein was the president of the appellee the general issue, verified by affidavit, and

corporation and the representative thereof also a plea of the statute of frauds, which

with whom the negotiations leading up to

the alleged contract were had, and that in latter plea alleged that the supposed agreement of April, 1895, was not to be perform

November prior to the trial in March he went

to Europe and was absent there at the time ed within one year, and that no note or

of the trial, and that his deposition had not memorandum of it was signed by the appel

been taken. It was insisted by appellant lee. This latter plea was disposed of by a

that the failure to produce Emanuel Loewendemurrer which was sustained thereto by the

stein as a witness or to procure and present court. The defense was that the machine

his deposition on the hearing justified the was redelivered to the appellant, and the

jury to infer that his evidence, if produced, royalties due to that date tendered to her.

would have been unfavorable to the cause of This defense was sustained and judgment in

the appellee, and therefore appellant conthe sum of $87.50 was entered in favor of

tends the giving of the following instruction the appellant, being the amount due for

in behalf of the appellee was error: "The royalties to the date of the redelivery of the

court instructs the jury that they should not machine to the appellant. The appellant

draw any inference unfavorable to the decontends there was no evidence tending to

fendant from the fact that Emanuel Loesupport this defense. No motion for a per

wenstein has not appeared as a witness in emptory verdict in her favor was entered.

this case on behalf of the defendant, if, froin It is urged by the appellant that the ques

the evidence, the jury believe that said Loetion whether there was any evidence tending

wenstein is unavoidably absent in Europe to support the defense was raised and pre

at the time of this trial.” The evidence for served for review in this court by her motion

the appellant showed, and the brief of counfor a new trial. We do not think this con

sel for appellant here admits, that the only tention can be sustained. In support of this

matter said Emanuel Loewenstein could have insistence counsel urge that Reichwald v.

testified to, if present, was as to part of the Gaylord, 73 Ill. 503, and Geary V. Bangs,

negotiations had between Henry Warth, act138 Ill. 77, 27 N. E. 462, so hold. We have

ing for appellant, and said Emanuel, acting examined both of those cases on this point,

for appellee, in reference to the alleged agreeand find the holdings there to be, that the

ment of February, 1895. The verdict of the question whether the evidence is sufficient

jury is consistent only with the view they to sustain the verdict may be raised for

found that the contract was made and en. review by a motion for new trial. But the tered into as claimed by the appellant, hence question so preserved for review would be

it is clear the instruction, whether accurate one of fact, cognizable only in the Appellate

or not, did not produce any harmful result to Court, not a question of law for this court.

the appellant. In the latter of the cases cited we held that It is insisted that the court erred in perthe question whether there was any evidence mitting the witness Samuel Loewenstein, to go to the jury was raised by the demurrer over the objection of the appellant that it to the evidence on behalf of plaintiff, but

was immaterial, to state why his brother, that defendant did not abide the demurrer Emanuel, had gone to Europe. We do not but introduced testimony to controvert plain think this was error. The correct rule is tiff's evidence and did not renew the demur stated as contended for by counsel for the rer at the close of all the evidence, and appellant, that the mere withholding or failthereby waived the right to raise the ques ing to produce evidence, which, under the cirtion, on appeal, as to whether there was any cumstances, would be expected to be pro

duced and which is available gives rise to a , amount she claimed to be due. The appellee presumption against a party. Mantonya v. pleaded the general issue and the statute of Reilly, 184 Ill. 183, 56 N. E. 425. But evi frauds, but did not plead the tender of said dence may be given in behalf of the party sum of $87.50. Tender, to be effectual to rewho fails to produce such evidence to explain lieve from costs, must be pleaded, and the such failure, and thereby rebut any inference tender kept good by depositing in court with or presumption that might otherwise arise the plea the amount admitted to be due. therefrom. 22 Am. & Eng. Ency. of Law Knox v. Light, 12 Ill. 86; Leonard v. Patton, (2d Ed.) 1260.

106 Ill. 99; 2 Ency. of Pl. & Pr. 554. The The contention of the appellant that the appellee did not plead the tender, but, on the court erred in allowing appellee, on cross-ex contrary, pleaded the general issue, and amination of Charles Warth, over the appel. thereby denied the justness of the appellant's lant's objection, to question him as to cer. demand in toto. If it desired to concede the tain statements made by the witness in his demands of the appellant in part and to comdeposition taken prior to the trial, but not bat the remainder and to plead tender as to introduced, is without merit. It is always the part conceded to be just, the plea of the proper, for impeaching purposes, to show general issue properly limited and plea of that the witness has made prior inconsistent tender should have been filed. Puterbaugh's or contradictory statements on material | Com. Law Pl. & Pr. p. 228. During the hearpoints, and nothing more was done in this ing of the testimony for the appellee the sum instance. Western Manufacturers' Mutual of $87.50 in gold coin was tendered in open Ins. Co. v. Boughton, 136 Ill. 317, 26 N. E. court and deposited with the clerk of the 591.

court by the order of the court. But we are During the hearing a certain paper was unable to see that this availed to relieve the introduced on behalf of appellant. On the appellee of liability to pay the costs. Section back of the paper certain words were written 4 of chapter 135 (Hurd's Rev. St. 1899, p. with a pencil. On objection by appellant the 1689) authorizes a tender to be made, after court held the pencil memorandum was not suit brought, in avoidance of future accruproper to be admitted, and excluded the ing costs, but the amount to be tendered is same. It is complained the jury took this the amount conceded to be due and the "costs paper, with the memorandum on it, together of suit incurred up to the time of tender." with other documents, to the jury room when No tender of the costs of the suit which had they retired to consider of their verdíct. accrued was made. The appellant having This instrument of evidence was introduced prevailed, was entitled to a judgment also by appellant, and the court, on her motion, for the costs by her expended, no tender bavruled that the penciled words on the back ing been pleaded or kept good by deposit of were not proper to be received in evidence, the money tendered in court and clearly due and it was the duty of the appellant to have and unpaid. caused the words to be covered or erased. The judgment in favor of the appellant in She cannot, therefore, be heard to complain the sum of $87.50 is affirmed, and the judgthat this was not done.

ment against the appellant for the costs is It is complained by the appellant that in reversed, and the cause will be remanded, struction No. 3 given at tbe request of the with directions to enter judgment for the appellee ignored all right of the appellant appellant for her costs in the trial court. to recover royalties by reason of the use of In this court each party will pay one-half other machines than those patented by the | the costs. appellant. The declaration, as we have seen, Affirmed in part, and remanded, with didid not set forth any liability to pay royal rections. ties because of any breach in the contract not to use other machines than those patented by the appellant, and the pleadings

(219 III. 214) presented for decision no such issue. In. CHICAGO & J. ELECTRIC RY. CO. V. struction No. 2 given at the request of the

PATTON. appellant presented the cause and the issues

(Supreme Court of Illinois. Dec. 20, 1905.) in the same manner as did the pleadings, and as also did instruction No. 3 given at

1. APPEAL-HARMLESS ERROR. the request of the appellee.

In an action for personal injuries, error

in refusing to strike out an answer to a quesThe judgment was in favor of the appel- tion to plaintiff as to her physical condition lant in the sum of $87.50, but it was adjudged | since the injury, "I have been a nervous wreck

ever since," is harmless error, where there is that she should pay the costs. This order

ample evidence to show plaintiff's physical conrequiring the appellant to pay the costs was dition. erroneous. The defense was that the appel (Ed. Note.-For cases in point, see vol. 3, lee had redelivered the machine to the appel Cent. Dig. Appeal and Error, 88 4161-4166.] lant, and at the same time tendered to her 2. NEGLIGENCE-TRIAL-INSTRUCTIONS. its check for $87.50, the royalties which had Where, in an action for personal injuries, accrued at the date of such redelivery. Ap

the court instructed that the questions involved,

as alleged in the declaration, as to negligence pellant refused to receive the sum so ten

of defendant, if any, and reasonable are by dered, and brought the action to recover the plaintiff, if any, "are what is known as questions of fact, which it is the duty and province, swer to a question, upon direct examination, of the jury to determine under the law and the interrogating appellee as to her physical conevidence," the instruction was not erroneous,

dition since the injury. The answer was, as summarizing the elements of recovery and directing a verdict without requiring proof

"I have been a nervous wreck ever since." of injury.

The answer was more a statement of a con3. TRIAL-QUESTIONS OF LAW.

clusion than a statement of fact. There is, An instruction, in an action for personal

however, ample evidence in the record to injuries, that, if the jury believe the plaintiff has proved the allegations in one or more of

show the condition of appellee's health since the counts of the declaration by a preponder the injury, and the jury saw and beard her ance of the evidence, she can recover, does not testify, and had opportunity to observe her submit a question of law to the jury.

condition, and could not have been misled by 4. APPEAL-REVIEW-QUESTIONS OF Fact.

the foregoing statement. The refusal of, the In an action for personal injuries, question whether the verdict is excessive is a ques

trial court to strike such answer from the rection of fact, on which the judgment of the

ord was not such error as should work a reAppellate Court is conclusive.

versal of this case. Chicago City Railway Co.

v. Saxby, 213 Ill. 274, 72 N. E. 755, 68 L. R. Appeal from Appellate Court, Second Dis

A. 164, 104 Am. St. Rep. 218. trict. Action by Nancy J. Patton against the

It is next objected that the trial court Chicago & Joliet Electric Railway Company.

erred in giving two instructions for appelJudgment for plaintiff was affirmed by the

lee. The first was as follows: "The court Appellate Court, and defendant appeals. Af

instructs the jury that the questions involved firmed.

herein, as alleged in the plaintiff's declara

tion, of negligence on the part of the defendRehearing denied February 7, 1906.

ant, if any, and the exercise of reasonable E. Meers (E. C. Hall, of counsel), for ap care on the part of the plaintiff, if any, are pellant. John W. D'Arcy, for appellee.

what are known as questions of fact, which

it is the duty and province of the jury to HAND, J. This is an appeal from a judg- determine under the law and the evidence ment of the Appellate Court for the Second in the case." It is contended that this inDistrict affirming a judgment of the circuit struction is defective, in that it attempts court of Will county for $6,000 in favor of to summarize the facts necessary for the appellee, in a suit brought to recover dam plaintiff to prove in order to entitle her to ages for an injury she is alleged to have re recover, but does not require her to prove ceived while leaving one of appellant's cars she was injured. The instruction, in the in the city of Joliet. The evidence intro opinion of the court, does not assume to point duced by appellee tended to show that the out the elements of proof necessary to a recar was stopped for the purpose of allowing covery and direct a verdict, but merely inpassengers to alight, and that, while she was forms the jury that two of the elements in attempting to leave the car, it was suddenly the case, those of due care and negligence, and violently started forward without notice are questions of fact for their determination or warning, thereby throwing her to the under the law and the evidence, and is withpavement and injuring her side and hip se in the rule stated in West Chicago Street verely, which injury was permanent in its Railroad Co. v. Schulz, 217 Ill. 322, 325, nature. At the close of all of the evidence 75 N. E. 495, 496, where it was said: "In appellant moved the court to instruct the framing instructions it is not ordinarily rejury to find for the defendant, and at the quired that any one instruction should state same time presented an instruction to that all the law of a case, but if an instruction effect, which motion was overruled and the is correct so far as it goes, and does not asinstruction refused, and this action of the sume to point out all the elements of proof trial court has been assigned as error. The necessary to a recovery and direct a vermotion made and the instruction offered rais dict, it may be supplemented by other ined the question, as a matter of law, as to structions, and omissions therefrom may be whether there was any evidence before the supplied by other instructions." Taking the court fairly tending to support the case made instructions in this case as a series, the quesby the plaintiff's declaration. We are of tion of the injury to appellee was fully prethe opinion that there is ample evidence in sented to the jury as an element that must the record fairly tending to make a case be proved before she could recover. for appellee. In fact, appellant's argument The second instruction is as follows: “Il upon this assignment of error is largely a the jury believe, from the evidence, that discussion of the weight of the evidence and the plaintiff has proved the allegations conthe credibility of the witnesses-questions tained in one or more counts of her declaraupon which the judgment of the Appellate tion by a preponderance of the evidence, Court is conclusive, and which this court is and if the jury believe, from the evidence, not permitted to consider. The trial court that the plaintiff was injured as therein alproperly refused to take the case from the leged, and if the jury believe, from the evijury.

dence, that the plaintiff, at the time of such It is next contended that the court erred injury, was in the exercise of reasonable in refusing to strike from the record an an- care for her safety, and if you further be

e ba

lieve, from the evidence, that such injury, , 3. SAME – SEWER ORDINANCE — DETAILS OF if proved, was caused by or through the SEWER.

A provision of an ordinance for the connegligence of the defendant, as alleged in

struction of sewers, requiring the construction such count of the declaration, then the plain of house slants every 25 feet, is not an untiff is entitled to recover such damages as reasonable or arbitrary subdivision of the propyou believe, from the evidence, will compen erty owner's land. sate her for the injury sustained." It is


PEACHMENT. objected that the first clause of the instruc

The report of the superintendent of assesstion submits a question of law to the jury. ments reciting that he has investigated the This court has repeatedly held an instruc district in which it is proposed to locate a tion telling the jury that if they believe,

sewer system, as required by Local Improve

ment Act, § 39 (Hurd's Rev. St. 1903, c. 24, from the evidence, the plaintiff has proved

$ 545), cannot be impeached by calling the his or her case as laid in his or her declara

superintendent and showing by him that he has tion, they will find the issues for the plaintiff, not discharged his duty in that respect. not to be objectionable. Mt. Olive & Staunton Coal Co. v. Rademacher, 190 Ill. 538,

Appeal from Cook County Court; Orrin 60 N. E. 888; Central Railway Co. v. Ban

N. Carter, Judge. nister, 195 Ill. 48, 62 N. E. 864; West Chicago

Application by the city of Chicago for the Street Railroad Co. v. Lieserowitz, 197 Ill.

confirmation of a special assessment against 607, 64 N. E. 718. It is further objected that

the Washington Park Club and others. the subsequent clauses of said instruction

From a judgment confirming the assessment, fail to instruct the jury as to the degree

objectors appeal. Affirmed. of proof required to establish plaintiff's case.

Rehearing denied February 8, 1906. In Village of Altamont v. Carter, 196 Ill. MacChesney & Bradley and F. W. Becker, 286, 63 N. E. 613, in passing upon a similar for appellants. Robert Redfield and Frank objection, it was said: “A requirement in Johnston, Jr. (James Hamilton Lewis, the first part of an instruction that the jury Corp. Counsel, of counsel), for appellee. must base their findings upon the evidence applies and extends to all subsequent clauses HAND, J. This was an application for in the instruction, and it is unnecessary in the confirmation of a special assessment for each of the succeeding sentences to inform the construction of a system of sewers in the the jury that they must find from a pre city of Chicago. The appellants appeared ponderance of the evidence." The objections and filed objections to confirmation. Their urged as to the second instruction are not objections were overruled and the assesswell taken.

inent confirmed, and the objectors have The last assignment of error is that the prosecuted an appeal to this court. The verdict is excessive. That question was one appellants urge four objections as grounds of fact, conclusively settled by the judgment for reversal in this court: of the Appellate Court. City of Elgin V. First. It is urged that the provision of Nofs, 212 Ill. 20, 72 N. E. 43.

section 41 of the local improvement act A careful consideration of all errors as (Hurd's Rev. St. 1903, c. 24, section 547, p. signed by appellant fails to disclose any er- | 400) that an affidavit shall be filed before the ror which would justify a reversal of this final hearing, showing a compliance with case. The judgment of the Appellate Court said section 41, was not complied with. The will therefore be affirmed.

point was made upon the argument of the Judgment affirmed.

case that the affidavits filed were not a compliance with section 41 of the local improvement act. Afterwards and before the case

was finally decided, but after the evidence (219 Ill. 323)

had been introduced, arguments heard, and WASHINGTON PARK CLUB et al. V.

the court had held the matter under adviseCITY OF CHICAGO.

ment for some weeks, an amended affidavit (Supreme Court of Illinois. Dec. 20, 1905.)

was permitted to be filed on behalf of the 1. MUNICIPAL CORPORATIONS - LOCAL IM city. This affidavit, we think, complies with PROVEMENTS - SPECIAL ASSESSMENTS-AF all the requirements of that section of the FIDAVIT.

statute, and was sufficient. It is also said Under Local Improvement Act, $ 41 (Hurd's Rev. St. 1903, c. 24, $ 547), requiring

section 41 should be so construed as to rethe filing before final hearing of an affidavit quire the affidavit mentioned in that section "showing a compliance with the requirements to show a compliance with the provisions of this section," such an affidavit need not show

of sections 38 and 39 of the local improvecompliance with sections 38 and 39 of the act.

ment act. Section 41 limits the affidavit to 2. SAME-RESOLUTION AND ORDINANCE – VA

that section. Its language is: “Showing a BIANCE.

A resolution describing a sewer improve compliance with the requirements of this ment as a system of "brick and vitrified tile section.” The statute does not require the pipe sewer” does not substantially vary from affidavit to show a compliance with the rean ordinance describing the improvement as

quirements of sections 38 and 39 of said act a system of "brick and vitrified tile-pipe sewers," where the streets and sewers are described (sections 544, 545), and the court did not err in both the resolution and the ordinance. | in overruling the objection,

Second. It is next urged there was a on each side on the question of benefits does variance between the first resolution of the not preclude the court from finding that there

is a preponderance of evidence on the question board of local improvements and the ordi

in favor of the petitioner for the confirmation nance in the description of the improvement. 1 of the assessment. The resolution described the improvement as | 4. MUNICIPAL CORPORATIONS - LOCAL_IM. “a system of brick and vitrified tile-pipe PROVEMENTS-SPECIAL ASSESSMENTS - PROsewer," while the ordinance described it as


The fact that an original assessment was a system of brick and vitrified tile-pipe

made payable in installments drawing interest sewers.” The streets and character of the as authorized by Local Improvement Act, $ 42 sewer in each street are described in the (Hurd's Rev. St. 1903, c. 24, $ 548), does not resolution as well as the ordinance, and the

empower the city, in levying a supplemental

assessment payable in one payment, to provide omission of the letter "s" in the word

that it shall draw interest. “sewers" in the resolution could not have

5. SAME. misled the property owners. The variance The fact that a supplemental assessment, was immaterial, and the objection was prop

payable in one payment, is erroneous in provid.

ing for interest, does not defeat the assessment, erly overruled.

where the levy for the deficiency is explicit, in Tbird. The ordinance provided for house

the absence of anything in the ordinance to slants every 25 feet, and it is urged such show that there were outstanding interest-drawprovision is unreasonable and an arbitrary

ing bonds to be paid, or that it would be peces

sary to levy an assessment that should draw subdivision of appellants' lands. It has

interest, for in such case the provision for inbeen repeatedly held that such provision

| terest may be disregarded. in an ordinance is not unreasonable or an arbitrary subdivision of the property owner's Appeal to Cook County Court: Orrin N. land. Vandersyde v. People, 195 Ill. 200, Carter, Judge. 62 N. E. 806; City of Chicago v. Corcoran, Application by the city of Chicago for 196 III, 146, 63 N. E. 690; Duane v. City of judgment of confirmation of an assessment Chicago, 198 Ill. 471, 64 N. E. 1033; Walker against the property of Patrick Conway and V. City of Chicago, 202 Ill. 531, 67 N. E. 369. others. From a judgment granting the ap

Fourth. The appellants called John A. plication, the objectors appeal. Reversed. May, the superintendent of special assess- |

Rehearing denied February 8, 1906. ments, and sought to show by him that he

MacChesney & Bradley and F. W. Becker, had not investigated the district in which it was proposed to locate said system of sewers,

for appellants. Robert Redfield and Frank in accordance with the provisions of section

Johnston, Jr. (James Hamilton Lewis, Corp. 39 of the local improvement act. In the

Counsel, of counsel), for appellee. report filed by the superintendent of assessments he certified he had made such investi

RICKS, J. This appeal is prosecuted from gation, and the appellants could not impeach

a judgment of confirmation of the county his report by showing by him he had not

court of Cook county upon an assessment discharged his duty in that particular.

levied against the property of appellants. Wright v. City of Chicago, 48 III. 285; Quick

The assessment proceeding was begun under V. Village of River Forest, 130 Ill. 323, 22

section 59 of the local improvement act N. E. 816.

(Hurd's Rev. St. 1903, c. 24, $ 565); there beFinding no reversible error in this record,

ing a deficiency caused by the fact that the the judgment of the county court is affirmed.

contract price was in excess of the amount Judgment affirmed.

of the original estimate. The supplemental

assessment is payable in one installment, and (219 Ill. 295)

the ordinance provides that it shall bear in

terest at the rate of 5 per cent. per annum. CONWAY et al. 7. CITY OF CHICAGO.

The objections urged below were that no affi(Supreme Court of Illinois. Dec. 20, 1905.) davit was filed showing a compliance with the 1. MUNICIPAL CORPORATIONS - PUBLIC IM. requirements of section 41 of the act, that PROVEMENTS-SPECIAL ASSESSMENTS-AFFI no estimate of the cost of the original imDAVITS. Under Local Improvement Act, $ 41, as

provement was made and appeared on the amended by Laws 1901, p. 107 (Hurd's Rev.

record of the first resolution, that the amount St. 1903, c. 24, § 547), requiring an affidavit to of benefits was res judicata by the finding and be filed before final hearing "showing a com judgment in the original proceedings, that pliance with the requirements of this section," such affidavit need not show a compliance with

the ordinance was void in providing for insections 38 and 39, relative to making the as

terest, and that the assessment was not made sessment and how it shall be made.

in the same manner as the first. 2. SAME-SUPPLEMENTAL ASSESSMENTS.

Under the objection that no affidavit was Under Local Improvement Act, $ 59 (Hurd's

made in compliance with the requirements of Rev. St. 1903, c. 24, $ 565), authorizing the levy of a supplemental assessment, objectors to a

section 41 of the local improvement act it is supplemental assessment cannot attack the in argued that an affidavit or affidavits should sufficiency of the ordinance for the original as be filed showing a compliance, not only with sessment.

the provision of section 41, but with sections 3. EVIDENCE-PREPONDERANCE OF TESTIMONY

38 and 39 also. It may first be remarked -EQUALITY OF WITNESSES.

In special assessment proceedings. the that the objection as filed in the court below fact that an equal number of witnesses testifies' makes no reference to sections 38 and 39,

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