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(312 Ill. 520) CITY OF CHICAGO v. WISCONSIN LIME & CEMENT CO. (No. 15938.)

(Supreme Court of Illinois. April 14, 1924. Rehearing Denied June 11, 1924.)

1. Weights and measures 3-s–Chicago may enact ordinance requiring merchandise in load lots to be weighed by public weighmaster. Under Cities and Willages Act, art. 5, § 65, subd. 54, authorizing cities to regulate the weighing and measuring of any article of merchandise, Chicago has power to enact an ordinance requiring merchandise sold in load lots by weight, and delivered by vehicle, to be weighed by a public weighmaster, and providing a penalty of from $25 to $200 for a violation thereof, in view of Cr. Code, div. 1, § 101, as the power to regulate necessarily includes the power to make the regulation effective.

2. Weights and measures 3-1–0rdinance requiring merchandise sold in load lots to be weighed by public weighmaster held not unreasonable. A city ordinance, requiring articles of merchandise sold in load lots by weight for delivery by vehicle to be weighed by a public weighmaster, is not unreasonable as affecting only persons selling merchandise in load lots by weight for delivery in Chicago by vehicle, and not including wholesale dealers selling carload lots.

3. Weights and measures 6-8–Coal dealer selling coal in partially filled truck held within ordinance requiring vehicle to be weighed by public weighmaster; “load lots.” A coal dealer selling coal in a partially filled wagon or truck by weight is within Chicago ordinance requiring articles of merchandise sold in “load lots” by weight and delivered by vehicle to be weighed by a public weighmaster.

Appeal from Municipal Court of Chicago; Hosea W. Wells, Judge.

Action by the City of Chicago against the Wisconsin Lime & Cement Company. Judgment for defendant, and plaintiff appeals. Reversed, and judgment entered for plaintiff.

Francis X. Busch, Corp. Counsel, and Samuel E. Pincus, City Atty., both of Chicago, and Leonard J. Grossman, of Belleville (Joseph B. Fleming, Louis G. Caldwell, and Ehlers English, all of Chicago, of counsel), for appellant.

Delbert A. Clithero and Dwight S. Bobb, both of Chicago (F. M. Hartman, of Chicago, of counsel), for appellee.

CARTWRIGHT, J. [1] On May 2, 1923, there was in force in the city of Chicago an ordinance providing that every load of any commodity purchased, or every article or articles of merchandise sold in load lots by weight, delivered by wagon, truck, or other vehicle, should be weighed by a public weigh. master, and a certificate of weight for each

load issued by such weighmaster should be delivered to the purchaser or consignee or agent at the time of delivery, or if the purchaser, consignee, or agent could not be located, the certificate should be posted conspiciously at the place of delivery. On that day the appellee, a corporation, operating a number of yards in the city from which it sold coal, lumber, sand, gravel, cement, and other building material in loads, sold and delivered from one of its yards a load of coal sold by weight, delivered by wagon, which had not been weighed by a public weighmaster. The city brought its action in debt in the municipal court against the appellee to recover the penalty prescribed by the ordinance, which was not less than $25 nor more than $200. The sale in violation of the terms of the ordinance was admitted, and the defense was that the ordinance was void for want of power to enact it and because it was unreasonable. There was a trial before the court resulting in a finding that the ordinance was void, and judgment was rendered for the appellee. The court certified that the validity of the ordinance was involved and allowed an appeal to this court. The ordinance was designed to protect the purchasing public against what has been universally regarded as a widespread evil in the selling of commodities in load lots by weight, and it contained effective means for the prevention of the evil. It was proved at the trial that the conditions in Chicago in regard to short weighting, the use of padded weight tickets, the substitution of a different kind of coal from the coal billed, and the mixing of an inferior grade with coal of a superior grade and quality, had become so bad that many reputable dealers had asked protection from such unfair competition. By section 101 of division 1 of the Criminal Code (Smith-Hurd Rev. St. 1923, c. 38, § 259), if any person shall knowingly sell by false weights or measures he is subject to a fine of not less than $200 and imprisonment not exceeding three months. Purchasers of a commodity by weight already had that protection but no way to enforce it. In buying ordinary articles the buyer generally may see the article weighed or have the means at hand to ascertain whether it is short weight, but when applied to load lots it was and is impossible for the purchaser to determine the weight of the load. The purpose of the ordinance was most commendable and essential to secure to the purchaser the weight of the commodity purchased and paid for, but a defense was interposed at the trial on the ground that the city had no power, either expressed, necessarily implied, or essential to the purposes of the corporation, to pass the ordinance. The powers of the city council are enumerated in article 5, § 65, of the Cities and Wil

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lages Act (Smith-Hurd Rev. St. 1923, c. 24), (It is the opinion of counsel for the appellee and among them are the following:

that these decisions do not sustain the or

dinance because in these cases ordinances “Fifty-Fourth. To regulate the inspection, weighing and measuring of brick, lumber, fire were passed under statutes granting power wood, coal, hay, and any article of merchan- to provide for weighing or measuring such dise.

merchandise or giving the right to appoint "Fifty-Fifth. To provide for the inspection weighers or weighmasters. There is no disand sealing of weights and measures. * tinction, since the power to regulate in"Ninety-First. To tax, license and regulate cludes the power to make the regulation ef* public scales," etc.

fective, which is secured in the only feasible

way by requiring the weighing to be done by The appellee would limit the meaning of weighmasters who give a bond and are subthese sections by confining the word “regu-ject to a penalty. The ordinance is not inlate" to governing by rule and directing or valid for want of power to enact it. managing according to certain standards or [2, 3] The second objection to the ordilaws, and contends that the word does not nance is that it is unreasonable in affecting include authority to provide that commod- only persons, firms, and corporations selling ities sold in loads by weight shall be merchandise in load lots hy weight, for deweighed by a public weighmaster appointer livery in Chicago in wagon, truck, or other by the city, The power conferred, as ap- vehicle, and does not include wholesale deal. plied to commodities sold in load lots by ers or a coal dealer selling a part of a load weight, cannot be so restricted. The com- of coal, who, it is said, may use his own primodity sold and paid for by weight is neces- vate scales. A wholesale dealer selling in sarily weighed, and the authority is not carload lots is not in the same class as the merely to create a mental state in the seller dealers included in the ordinance, but deals or rule or regulation that he shall give with those who have the means of deter. honest weights, but it includes supervision, mining the weight of carload lots; and it is oversight, control, and prescribing methods not true that a coal dealer selling coal in a to secure the intended result. It is admitted wagon or truck by weight, where the wagon that the city could legislate by making rules or truck is not full and only partly filled, and prescribing methods for weighing com- may use his own private scales. Coal demodities sold by weight; but, if there were livered in load lots does not mean that a no power to provide for the weighing of the wagon or truck must be full of. coal. If two commodity, making rules without superin- lots of coal are loaded in the same wagon tendence or control would be ineffective and or truck, separated by a partition, there is worthless. The ordinance is limited to pur- no difficulty whatever in fixing the weight chases of load lots—not as loads, but by of each—first of the coal or commodity on weight. The power to regulate necessarily one side of the partition and then the added Includes the power to make the regulation weight on the other. The ordinance is libereffective and to provide for methods of al in permitting dealers themselves to be apweighing which will secure truthful weights. pointed weighmasters or have their own emThe method provided for such regulation is ployees appointed deputies, for their own the appointment of a weighmaster required convenience. No one is required to become to give a bond and pay a small fee, instead a weighmaster unless he chooses to do so, of the weighing being done by the seller, and if he thinks it to his own advantage to without the knowledge or supervision of any give the bond and pay the fee he may do so. one or any method of ascertaining whether There is no legal objection to the ordinance. the scales are correct or the weighing hon The violation of the ordinance was adest. The power to pass such an ordinance is mitted at the trial and is now admitted, and sustained by many decisions. Petty v. there is no reason for further delay by a new State, 102 Ark. 170, 143 S. W. 1067; Davis v. trial or delaying the enforcement of the orAnita, 73 Iowa, 325, 35 N. W. 244; Sylvester dinance. Coal Co. v. City of St. Louis, 130 Mo. 323, The judgment of the municipal court is 32 S. W. 619, 51 Am. St. Rep. 566; Stone v. reversed, and judgment will be entered in Eck, 121 Minn. 202, 141 N. W. 106, Ann. Cas. this court in favor of the city for $25—the 1914C, 678; Stokes v. City of New York, 14 minimum penalty prescribed by the ordiWend. (N. Y.) 87; Brittingham Lumber Co. v. nance--and for all costs. City of Sparta, 157 Wis. 315, 147 N. W. 635. Reversed, and judgment in this court.

(144 N.E.) (312 Ill. 371)

administratrix of John C. Patterson, being SHEDD et al. v, PATTERSON. (No. 15805) substituted defendant pending the appeal, (Supreme Court of Illinois. April 14, 1924. and the executors appeal on certificate of im. Rehearing Denied June 12, 1924.)

portance. Judgment of Appellate Court af

firmed: 1. Common law Oma 7-English statute modify. ing previous common law held to become part olds, both of Chicago, for appellants.

Harry S. Mecartney and Edmund J. Reynof common law of state.

F. J. Karasek and W. D. Elmer, both of Statute of 4 Edward III, c. 7, modifying the English common-law rule as to abatement

Chicago, for appellee. of actions ex delicto on the death of either party so as to give an action in favor of a CARTWRIGHT, J. On August 1, 1919, personal representative for injury to personal Edward A. Shedd brought an action of tresproperty of deceased, became a part of the pass on the case in the circuit court of Cook common law of Illinois.

county against John C. Patterson to recover 2. Landlord and tenant 70 Long-time damages for malicious prosecution of a series leasehold is chattel real.

of suits, five in equity and four at law, disleasehold estate for a long term of years puting the title of Shedd to a leasehold esis chattel real.

tate in valuable property in Chicago on vari3. Property ml-"Property" defined.

ous grounds and claiming that the leasehold Property in a legal sense consists in the estate had been forfeited, all of which suits domination which is rightfully and lawfully terminated in favor of Shedd. A judgment obtained over a material thing with the right in favor of Patterson in the action for maliof use, enjoyment, and disposition, and in the cious prosecution, aflirmed by the Appellate full sense it denotes a right in point of user, Court for the First District, was reversed, unrestricted in point of disposition and un- and the cause was remanded to the circuit limited in point of duration over a determi-court for a new trial. Shedd v. Patterson, nate thing, and it may apply to a right indefi- 302 III. 355, 134 N. E. 705. Before the cause nite in point of user, but limited in duration, as a life interest in realty.

was redocketed in the circuit court Shedd [Ed. Note. For other definitions, see Words died. A motion of Charles Cossitt Shedd and and Phrases, First and Second Series, Prop- Christiana M. Shedd, executors of the last erty.)

will and testament of Edward A. Shedd, de4. Statutes em 188_Words given ordinary and tinued, was denied, and the motion of the de

ceased, that the action be revived and conaccepted meaning in popular use.

In construing statutes, words are given fendant, Patterson, that the action abate on their ordinary and accepted meaning in popu- account of the death of the plaintiff, was suslar use.

tained. The action was abated by order of

the court, and an appeal to the Appellato 5. Abatement and revival Ow55(1)-Injury to Court for the First District was allowed.

property need not be direct and physical for Pending the appeal Patterson died, and Alcause of action to survive.

vina F. Patterson, the administratrix of his Under Administration Act, $ 123, relating to the survival of rights of 'action, 'it is not estate, was substituted. The appeal was pernecessary that an injury to property be a di- fected, and the Appellate Court decided that rect physical injury for the right of action for the action abated on the death of the plainresulting damages to survive.

tiff, affirmed the judgment, and allowed a 6. Abatement and revival Sm55(1)-Action for certificate of importance and an appeal to

this court. malicious prosecution of suits disputing title to leaseholds held not to survive as action

[1] An action for malicious prosecution is for injury to real property.

in tort to recover damages for the insti. An action for damages for malicious prog- tution, maliciously and without probable ecution of a series of nine suits disputing the cause, of a suit which has terminated in fatitle of plaintiff to a long-time leasehold held vor of the defendant therein. At common not an action to recover damages for injury law such action, like that for all other torts, to real property which survived plaintiff's de- as a general rule abated by the death of the

sole plaintiff or defendant before trial or ver

dict, and, if the cause of action was one that Appeal from Second Branch Appellate would survive, the plaintiff or his personal Court, First District, on Appeal from Cir representative was required to bring a new cuit Court, Cook County; Donald L. Morrill, action against the defendant or his personal Judge.

representative. Causes of action for tresAction by Edward A. Shedd against John pass to person or property did not survive in C. Patterson. Denial of motion of Charles favor of or against personal representatives Cossitt Shedd and Christiana M. Shedd, ex or heirs. The general rule of the common ecutors of Edward A. Shedd, that the action law that actions ex delicto abated on the be revived and continued was affirmed by death of either party was moditied by the the Appellate Court, Alvina F. Patterson, Statute of 4 Edward III, c. 7, so as to give

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an action in favor of a personal representa- , 505, and personal property was held in the tive for injury to personal property. That popular meaning to include only articles or statute became a part of the common law things movable. The same rule applies to of this state, which changed the common law real property, and the statute includes only only so far as related to injuries to personal such property in the common understanding. property. Reed v. Peoria & Oquawka Rail. An injury to property in that sense need not road Co., 18 Ill. 403. The classes of action be a direct physical injury to the subject of which survive have been further enlarged by property. An action may be maintained for section 123 of the Administration Act (Smith- an injury to property by erecting and mainHurd Rev. St. 1923, c. 3, & 125) as follows: taining anything amounting to a nuisance,

"In addition to the actions which survive by by which real estate is damaged or which the common law, the following shall also sur. injures it as a habitation or for other uses. vive: Actions of replevin, actions to recover

That was the doctrine of Penn Mutual Life
damages for an injury to the person (except Ins. Co. v. Heiss, supra, where it was con-
slander and libel), actions to recover damages sidered that the right of action of a lot own-
for an injury to real or personal property, or er for damages caused by the location and
for the detention or conversion of personal operation of a railroad in the street in front
property, and actions against officers for mis- of his lot survived to his personal representa-
feasance, malfeasance or nonfeasance of them- tive as an injury to his property. In all such
selves or their deputies, and all actions for
fraud or deceit."

cases, however, the damages, although in-
direct and consequential, are damages to the

real estate. And by our statute in relation to abate

[6] The statutes providing for the survival ment, if the action is one that survives, the of actions vary considerably, and some may same action is continued and may be pros- be broad enough to embrace an injury to a ecuted by or against a personal representa- right or interest growing out of real estate; tive.

but our statute is limited, in terms, to ac[2, 3] The action for malicious prosecution tions to recover damages for an injury to of the civil suits was not to recover damages real property. The statute does not expressfor an injury to the person of the plaintiff ly or by implication provide for the survival nor for the detention or conversion of person of an action for malicious prosecution, which al property. The actions brought by Patter is not an injury to real estate or to the use son related to a leasehold estate for a long or enjoyment of it. Undoubtedly Edward A. term of years, which was a chattel real and Shedd suffered pecuniary losses by the proseunder our law classed as real estate. Knapp cution of the suits against him, but they were V. Jones, 143 Ill. 375, 32 N. E. 382. The ques- not the direct result of injuries to his leasetion to be determined is whether the action hold estate and do not come within the terms for malicious prosecution was an action to

of the statute, recover damages for injury to real property.

The judgment of the Appellate Court is While the word "property," in common use, affirmed. is applied to the tangible physical thing com

Judgment affirmed. monly called property, in the law it is not the material object, but the right and interest which one has in it, to the exclusion of others, which constitutes property. Property,

(312 III. 359)

V. in a legal sense, consists in the domination PRESSED STEEL EQUIPMENT CO. which is rightfully and lawfully obtained over


(No. 15450.) a material thing, with the right to its use, enjoyment, and disposition. In the full sense (Supreme Court of Illinois. April 14, 1924. it denotes a right in point of user, unrestrict Rehearing Denied with Modification ed in point of disposition and unlimited in

June 5, 1924.) point of duration over a determinate thing, Appeal and error (1083(1)-Rule as to con. and it may be applied to a right indefinite

clusiveness of judgment of Appellate Court, in point of user, but limited in duration, as

on appeal from judgment rendered in action a life interest in real estate. 2 Austin on tried by court, stated. Jurisprudence, 817; Penn Mutual Life Ins.

A judgment of the Appellate Court was Co. v. Heiss, 141 Ill. 35, 31 N. E. 138, 33 conclusive in an action tried by the court, Am. St. Rep. 273.

where no propositions of law were submitted, [4, 5] In construing statutes, however, the no demurrer to the evidence was interposed, court takes words in their ordinary and ac- no motion to find for appellant was made, and

no question was raised as to the admission and cepted meaning in popular use. Stuart v. exclusion of evidence, since in such case there Hamilton, 66 Ill. 253; Wheeler v. Wheeler, is no question of law presented to the Su134 I. 522, 25 N. E. 588, 10 L. R. A. 613; preme Court for review. Culver v. Waters, 248 Ill. 163, 93 N. E. 747. The rule was applied to the survival statute Appeal from Second Branch of Appelin Jones v. Barmm, 217 Ill. 381, 75 N. E. late Court, First District, on Appeal from

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Walter H. Eckert, Warren B. Buckley, and Loucks, Eckert & Peterson, all of Chicago, for appellant.

Winston, Strawn & Shaw, of Chicago (John C. Slade and Harold Beacon, both of Chicago, of counsel), for appellee.

PER CURIAM. The appellant brought an attachment suit in the municipal court of Chicago against the Thornburgh Pressteel Company, as principal debtor, and served the appellee, the Commercial Acceptance Trust, as garnishee. In the hearing on the attachment, a judgment was entered against the Thornburgh Pressteel Company (hereinafter referred to as judgment debtor) in the sum of

$5,5SS; and in the issue made up on the gar

nishment proceeding, the court, on trial without a jury, entered a judgment against the Commercial Acceptance Trust (hereinafter referred to as garnishee) in the sum of $70S.72. The judgment in garnishment was appealed to the Appellate Court for the First District. That court affirmed the judgment, issued a certificate of importance, and granted an appeal to this court. Appellant contends that the judgment against the garnishee should have been for the sum of $4,622.55. On the 15th day of March, 1919, the judgment debtor entered into a certain agreement with the garnishee, in and by which it is expressed, in substance, that the Thornburgh Pressteel Company is desirous of selling to the Commercial Acceptance Trust its accounts receivable, notes, acceptances, leases, mortgages, contracts, and choses in action, therein designated as accounts, evidencing sales and deliveries of personal property usually dealt in by the Thornburgh Pressteel Company; that in consideration of the premises the parties agreed that the Commercial Acceptance Trust would from time to time during the continuance of the agreement purchase such of said accounts belonging to the Thornburgh Pressteel Company as should be acceptable to the Commercial Acceptance Trust and pay therefor 100 per cent. of the net face value of the accounts purchased, “less a charge equal to the legal rate of interest on the money outstanding thereon, of which 77 per cent. of the net face value thereof shall be paid in cash upon acceptance thereof by the second party, and the remaining 23 per cent, less any deductions and plus any

overpayments by the debtors, and less total charges as shown in lines 38 to 42 hereof, to be paid immediately upon payment of any such accounts to second party, provided that no payments of any such remainder need be made so long as any accounts purchased hereunder are affected by any breach or violation of warranty hereunder; but such remainder, and any moneys, accounts, or property of the first party which may come into possession of second party, may be held and later applied to the payment of any accounts or any indebtedness.”

The second clause of the contract provided for remittances to be paid at the office of the Thornburgh Pressteel Company, and that representatives of the Commercial Acceptance Trust might have the privilege of inspecting and auditing the books at the expense of the former. The third clause provided that the Commercial Acceptance Trust would place its collection department at the disposal of the Thornburgh Pressteel Company and upon request endeavor to collect direct. This clause also makes other provisions relative to the working relation between the parties. The fourth clause provides for the total compensation to be paid for such services rendered, as follows:

“Fourth—The total compensation to be paid by first party for all services and other considerations specified in lines 18 to 37 hereof, and for the charge as mentioned in line 11 hereof, it is hereby agreed shall be one-thirtieth of one per cent. (1/3 o of 1%) of the net face value of accounts for each day from date of purchase by and until paid to second party, plus $5 per $1,000 only on the first $100,000 of accounts purchased within any twelve successive months' period.”

The fifth clause sets forth the warranties referred to in the first clause and provides that the Thornburgh Pressteel Company warrants that:

“(a) First party, and each debtor named in an account, is solvent and will remain so until maturity thereof; (b) there will be no suspension of business, request for general extension, bankruptcy petition, or any act amounting to a business failure by or against first party or any debtor; (c) every account purchased hereunder and any settlement received thereon will be paid in full at maturity in cash or Chicago par funds; (d) prompt payment will be made to second party of any allowance or credit offered for sale to second party; (e) each amount offered for sale to second party shall represent a bona fide sale and delivery of property usually dealt in by first party, and shall be for a certain, undisputed, liquidated claim or demand which is due or to become due on the dates set forth; (f) first party will not sell or assign any of its own accounts elsewhere without first giving ten days' written notice to second party of such intention.”

The sixth clause provides for an assignment in writing of all accounts thus sold and purchased, and that the Commercial Accept

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