2. Within the meaning of the act of congress approved March 2, 1893, § 4 [U. S. Comp. St. 1901, p. 3174], providing that it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab irons or hand holds, where a train made up in one state, and loaded with stock and merchandise, is destined for a point in another state, a car in such train, whether loaded or empty, is used in interstate

commerce.

3. Failure to define the term "interstate commerce" to the jury was not error, where no request was made.

4. Where the court charged that if the jury believed that certain facts specifically recited (being the facts relied on to constitute negligence of the defendant) had been proven, and that plaintiff was injured in the manner charged in the declaration, as the result of such negligence, their verdict should be for plaintiff, the reference thus made to the declaration was not objectionable.

5. Where, prior to the submission of an action for personal injury to the jury, plaintiff, by leave of court, dismissed the suit as to two counts, and filed an additional count, but the record did not show what change was thereby made, an objection that the instructions were erroneous, in failing to advise the jury that the allegations of such two counts had been abandoned, was not sustained by the record.

6. An employé does not assume all the risks incident to his employment, but only such as are usual, ordinary, and remain so incident after the master has taken reasonable care to prevent or remove them, or, if extraordinary, such as are so obvious, and expose him to danger so imminent, that an ordinarily prudent and careful man would not enter on or remain in the employment.

Error to appellate court, Third district.

Action by J. B. Hood against V. T. Malott, receiver of the Terre Haute & Indianapolis Railroad Company. From a judgment of the appellate court (99 Ill. App. 360) affirming a judgment in favor of plaintiff, defendant brings error. Affirmed.

Neal & Wiley and T. J. Golden, for plaintiff in error. James W. & Edward C. Craig, for defendant in error.

BOGGS, J. The plaintiff in error on the 27th day of December, 1897, was operating the Terre Haute & Indianapolis Railroad Company in his capacity as receiver, by appointment of the circuit court of the United States for the district of Indiana and the circuit court of the United States for the Southern district of Illinois. On that day the defendant in error, who was in the employ of said receiver as rear brakeman on a freight train which said receiver was moving over said road from East St. Louis, in the state of Illinois, to Indianapolis, in the state of Indiana, while attempting, at the side track at Greenup, Ill., to couple one of the cars which had been placed in the train at Fast St. Louis to a car standing on the switch at Greenup, had his right hand caught between the deadwood of the bumpers of the cars, and so badly crushed and mangled that his hand had to be amputated. He brought

6. See Master and Servant, vol. 34, Cent. Dig. §§ 38, 543, 622.

this action in case against the receiver to recover damages for the injuries thus received, and recovered a judgment in the sum of $3,500, which has been affirmed by the appellate court for the Third district on appeal. This writ of error has been sued out by the receiver.

Two grounds of recovery were relied on. The first was that the car which had been placed in the train at East St. Louis, Ill., to be transported or hauled to Indianapolis, Ind., which the defendant in error was attempting to couple to another car, was being used in interstate commerce by the receiver, and was not provided with grab irons or hand holds in the ends and sides thereof, as is required by section 4 of the act of congress approved March 2, 1893 [U. S. Comp. St. 1901, 3174], which section is as follows: "That from and after the first day of July, 1895, until otherwise ordered by the interstate commerce commission, it shall be unlawful for any railroad company to use any car in inter-state commerce that is not provided with secure grab-irons or hand-holds in the ends and sides of each car for greater security to men in coupling and uncoupling cars," and that the injury to the defendant in error resulted from the failure to so have grab irons or hand holds on the ends of the car. As to this ground of recovery, the argument of counsel for the plaintiff in error is that the evidence did not bring the case within the terms of the federal statute, and did not, by a preponderance thereof, show the car was not provided with the grab irons or hand holds, and that the court erred in not giving the jury an instruction defining "interstate commerce."

In support of the first of these contentions, it is urged there is no evidence to show that the car in question contained any commodities to be transported from one state to another. The trial court was not asked to hold, as matter of law, the evidence was insufficient to warrant recovery, and to direct a peremptory verdict in favor of the plaintiff in error receiver. The question, therefore, does not arise upon the record whether, as matter of law, the court erred in submitting the case to the jury, and the action of the circuit court and the appellate court is conclusive as to the sufficiency of the proof to support the verdict. Whether the conflict in the testimony on the question whether the car was supplied with grab irons or hand holds was properly decided by the jury was also a question of fact, and is not open to review in this court.

It appeared in the proof the receiver was operating a line of railway from East St. Louis, in the state of Illinois, to Indianapolis, in the state of Indiana, and that the car in question was placed in the train at East St. Louis, and was to be transported or hauled to Indianapolis. The evidence tended to show that the train was loaded with stock and merchandise, and it is insisted the inference

fairly arose that the car was loaded either with stock or merchandise. The danger to brakemen which the federal statute was designed to obviate is the same, whether the car be loaded or empty. The statute applies not only to cars that are loaded, but to all cars, whether empty or loaded, which are being "used" in interstate commerce. The court was not asked to define "interstate commerce," to the jury, and we ao not conceive the position of plaintiff in error to be correct, that it was the duty of the court, acting on its own motion, to give an instruction of that character. If counsel for the receiver deemed it necessary that the jury should be enlightened on the point, they should have asked such an instruction to be given by the court. City of Chicago v. Keefe, 114 Ill. 222, 2 N. E. 267, 55 Am. Rep. 860; Drury v. Connell, 177 Ill. 43, 52 N. E. 368.

2. The second ground of recovery was that the receiver negligently permitted the switch and track where the defendant in error was înjured to become and remain "slanting and sidling," and thereby rendered it an unsafe and dangerous place for the defendant in error to stand when in the discharge of his duties as a brakeman, and by reason of such negligence the defendant in error could not hold his footing, but slipped anu fell, and thereby his hand was caught between the bumpers of the cars. The argument in the brief in behalf of the plaintiff in error does not present or discuss any alleged error of aw arising out of this branch of the case. Whether the condition of the switch or siding was well known to the defendant in error, or whether it was proven the switch or siding was “slanting or sidling," or that the statement or exclamation of the defendant in error made at the instant of receiving his injury indicated that his hand had been caught because of his own negligence, or without the negligence of any one, are questions of fact only, and are in no wise preserved as questions of law for review in this court.

It is urged the court erred in giving instructions Nos. 4 and 7 at the request of the defendant in error.

Instruction No. 4 is as follows: "The court instructs the jury that if you believe from the evidence that the plaintiff, while in the employ of the defendant as freight brakeman, and in the discharge of his duties as such brakeman, attempted to couple together two freight cars on the defendant's road, and in so doing used that care and caution for his own safety that the ordinarily careful man would have exercised, and if you believe from the evidence that the side track where the cars were was slanting and sidling, and, as a result thereof, not a reasonably safe place to work, then and in that case, if you believe from the evidence that the plaintiff was injured, as charged in the declaration, as a result thereof, and that the unsafe condition of the track, if you believe

from the evidence it was so unsafe, was caused by the defendant not exercising reasonable care to provide a reasonably safe track, it will be your duty to tina for the plaintiff." The instruction advised the jury that if they believed that certain facts specifically recited (being the facts relied upon to constitute the negligence of the receiver) had been proven by the evidence, and further believed from the evidence that the plaintiff was injured, in the manner charged in the declaration, as the result of such negligence, their verdict should be for the plaintiff. The reference thus made to the declaration is not objectionable. Chicago & Alton Railroad Co. v. Harrington, 192 l. 9, 61 N. E. 622.

Prior to the submission of the case to the jury, the defendant in error, by leave of the court, dismissed the suit as to the third and fourth counts of the declaration, and by like leave filed an additional count. It is urged instruction No. 4 was erroneous, in failing to advise the jury that the allegations of the third and fourth counts of the declaration had been abandoned. The record does not disclose in what manner the declaration was amended under the order dismissing the third and fourth counts, and giving leave to file an amended count. Therefore no error affirmatively appears, and none can be presumed. On the contrary, the presumption that the proceedings were regularly and properly conducted must prevail.

The purpose of the seventh instruction was to advise the jury that the defendant in error, as an employé of the receiver, did not assume the risks of dangers arising out of the negligence of the employer. Though perhaps not entirely accurate, the instruction, in substance, announces the doctrine laid down by this court in Chicago & Alton Railroad Co. v. House, 172 Ill. 601, 50 N. E. 151, as follows (page 605, 172 Ill., and page 152, 50 N. E.): "An employé does not assume all the risks incident to his employment, but only to such as are usual, ordinary, and remain so incident after the master has taken reasonable care to prevent or remove them. or, if extraordinary, such as are so obvious, and expose him to danger so imminent, that an ordinarily prudent and careful man would anticipate injury as so probable that in view of it he would not enter upon or remain in the employment."

4

The judgment must be, and is, affirmed. Judgment affirmed.

(201 III. 131)

HALE ELEVATOR CO. v. HALE. (Supreme Court of Illinois. Feb. 18, 1903.) CONTRACTS-CONSTRUCTION-FRAUD-AGENCY -CONCEALMENT BY AGENT-QUESTION FOR JURY-INSTRUCTIONS.

1. By contract between persons in the elevator business and their rivals, the former conveyed their business to a corporation controlled by the latter, and it was provided that the

first parties should assist the corporation in such manner as they might be able without actually engaging in the business. Thereafter the manager of the corporation, deeming it impossible to secure a certain contract for the installation of elevators without the services of one of the first parties, employed him to secure such contract, which he did. Held that, though the manager did not know of the previous contract, the latter was not fraudulent, as covering the same services, since the former did not contemplate that either of the first parties should actually engage in the elevator business.

2. The manager of a corporation engaged in the elevator business agreed with another that, if the latter would procure a certain contract for elevators, he might have any sum he could obtain over a certain price. Subsequently the agent informed the manager that, owing to competition, he did not believe he could obtain the sum fixed, whereupon the manager reduced the price. Thereafter the agent presented for execution a contract in which the price of the elevators was fixed at a much greater sum than originally agreed on. The work was done by the corporation, and the money received. There was evidence that the president of the corporation had discussed the employment of the agent in such transaction. Held a question for the jury whether the corporation had been deceived by the agent, and had entered into the contract without a full knowledge of all the material circumstances.

3. Where a principal is possessed of knowledge of the terms of a contract as made by his agent, and the benefit which his agent is to receive under it, and accepts and performs the contract, the principal is estopped to make any objection to it that could have been made without such knowledge.

4. Fraudulent representations, to be a defense to a contract, must have been relied on by the party to whom they were made.

5. In an action by an agent for compensation, an instruction that the jury were the judges of the credibility of the witnesses and weight of tne testimony, and that in so judging they might consider to what extent the witnesses were corroborated or contradicted by other evidence and circumstances in the case, when considered in connection with other evidence, and that, if they believed any circumstances of greater weight than oral testimony, they might so decide, was properly given, especially where the testimony of defendant was contradictory of written instruments executed by him. 6. Persons in the elevator business, by contract with their business rivals, conveyed their business to a corporation controlled by the latter, and agreed to assist the corporation in such manner as they might be able without actually engaging in the business. Subsequently the manager employed one of the first parties to secure a contract for the corporation, agreeing to give him anything he could obtain over a fixed price. The agent afterwards represented that he could not obtain such price, and a lower price was fixed, and he then obtained a contract for a greater price than originally agreed on. In an action for his compensation, the defense was that the second contract was fraudulent, as covering the same services as the first, and that plaintiff's conduct in retaining the reduction of price was fraudulent. Held proper, under the circumstances, to permit testimony showing the time and attention given by plaintiff in supervising the putting in of such elevators.

7. A corporation in the elevator business agreed with an agent that he might retain any sum he could obtain on a contract for the installation of elevators, over a named price. Thereafter the agent represented that he could

4. See Contracts, vol. 11, Cent. Dig. § 424.

not obtain such price, whereupon the corporation fixed a lower price, and the agent then secured a contract for a greater price than that originally agreed on. Held that, even though the agent's representations were fraudulent, and the price was reduced on that account, he might recover the amount obtained over the price first fixed.

8. The declaration, having set out all the contracts as made, and all the modifications, was sufficient to support a verdict for the amount in excess over the price first fixed, though there were no common counts, and the special counts were on the contract as modified.

Appeal from Appellate Court, First District.

Action by George W. Hale, as executor of the estate of William E. Hale, deceased, against the Hale Elevator Company. From a judgment for plaintiff (98 Ill. App. 430), defendant appeals. Affirmed.

For a number of years prior to May 1, 1888, William E. Hale and his brother, George W. Hale, were engaged in the elevator business under the firm name of W. E. Hale & Co., in the city of Chicago. The Crane Elevator Company had long been their business rival, and on the day mentioned there was an agreement reached by the Crane Company to buy out the Hales, and an agreement was drawn up between the Hales, on one side, and the Crane Elevator Company and R. T. and C. R. Crane, on the other. One of the provisions of the contract was that the Hale Elevator Company, a corporation, should be organized, and the good will, etc., of the old firm of W. E. Hale & Co. turned over to this new corporation; and on December 24, 1888, there was a contract entered into between the Hale Elevator Company and William E. and George W. Hale for the transfer of all their business and assets to the Hale Elevator Company. Among other provisions, the contract contained the following: "In consideration of one dollar to them in hand paid, and the promises and agreements herein contained, the said parties of the second part hereby covenant and agree to give so much of their time, for the period of ten years from July 1, 1888, as they shall give to the elevator business in the territory reserved to them in said agreement of May 1, 1878, exclusively to the Hale Elevator Company, and to aid and assist said company in such manner as they may be able, when in Chicago, without being actually engaged in the business, and to advise and consult with its officers, and to transfer to it, with the business, whatever influence and assistance they may be able, to enable it to realize the full benefit and enjoyment of the business heretofore conducted by them under the firm name of W. E. Hale & Co." On October 19, 1893, Charles N. Coen, who was the general manager of appellant, was desirous of obtaining for his company the contract to place elevators in the Marquette and Champlain buildings, in the city of Chicago, and on that day he asked Mr. W. E. Hale if he

"would take hold of the selling of these jobs for the Hale Elevator Company," and he suggested to Hale that he would pay the usual 5 per cent. commission if the sale was made. Hale declined the offer, and said: "You make me a fixed price on these jobs, and anything I get over that will be my own." Thereafter Coen submitted to Hale a proposition in writing, as follows: "Chicago, Oct. 19, 1893. W. E. Hale, Esq., City-Dear Sir: We hereby agree to execute the contract for which we have submitted proposals, or any of them, for the Marquette building and the New York Life Insurance Company building, according to specifications submitted, for the net sum to us, as follows: Marquette building, $60,000; Champlain building, $25,000; New York Life Insurance building, $31,500,-less five per cent. (5%) commission. We will purchase of the Vertical Transit Company the eight elevators now in operation in the Transportation building, except enclosures and cars, as follows: We will take possession of the plant November 1, and pay approximately one-half amount due within ten days thereafter and the balance January 1, 1893. The elevator machinery to be taken at cost-i. e., Otis Bros. & Co.'s bills and freight; the tanks to be taken at cost and freight; all pipe and fittings at Crane's billed price; ropes at cost; all other material at value; we to take it all where it stands, and remove it when required by exposition authorities. We will pay to you the difference between the prices you obtain from

owners and above-named prices, according as we receive payment on each and every job, viz.: One-half amount due when first payment is received by us, one-half the balance when second payment is made, and balance when contract is completed and accepted. Above prices are figured on Otis Bros. & Co.'s usual charges to us. We will, in addition, pay you any amount you save us on these bills for any machinery in addition to that now at Transportation building. Respectfully yours, Hale Elevator Company, per Cha. N. Coen, Gen'l Manager." On October 23, 1893, the appellant wrote W. E. Hale, through its general manager, Coen, "Mr. Crane has instructed me to say that the Hale Elevator Company must not take the contract for elevators in the New York Life building," whereupon, it seems, no efforts were made by Hale to secure such contract; and whatever were the rights, if any, of the parties thereto, were not presented for determination in this suit. Afterwards, on November 25, 1893, the appellant, through its manager, Coen, proposed to construct the Champlain building elevators for $23,000, and wrote on the face of the above instrument the following: "Nov. 25/93. 23,000.00. Chas. N. Coen." And on December 30, 1893, the price on the elevators in the Marquette building was reduced to $55,000, and on the face of the above instrument was written the following: "We make price $55,000, according

to specifications signed this day. 30/12/93. C. N. Coen." On November 25th appellant prepared and forwarded to the Fuller Company, the constructor of the buildings, specifications for the work. In both specifications. and the letter forwarding the same, it was stated, "All work to be done under supervision and to the approval of W. E. Hale;" and on the same day appellee delivered to Manager Coen a contract, duly executed by the Fuller Company, for the construction of the elevators in the Champlain building at $27,300, which was accepted and signed by appellant, through Coen. On the same day the Hale Elevator Company, by Charles N. Coen, sent W. E. Hale a letter, the only part of which as material in this case is as follows: "In consideration of your efforts to secure contracts for us for the Champlain and the Marquette buildings, we hereby agree as follows, to wit: We will execute said contracts, when secured by you, at the prices and upon the terms set forth in our letter to you dated October 19, 1893; such prices to be hereafter modified as we may mutually agree, but otherwise to remain as stated in said letter." On that day Mr. Hale also handed to Manager Coen a letter addressed to the Hale Elevator Company, accepting the provisions of the Hale Elevator Company's letter. The proposition from appellant to the Fuller Company, relative to the construction of the elevators in the Marquette building, was in writing, in which appellant proposed to furnish the elevators for $70,000; and the concluding sentence of the proposition is as follows: "So much of Otis vertical cylinder elevators used in Transportation building, at World's Fair, as are available, to be used in this plant; any additional machinery to be made by Otis Bros. & Co. of the same pattern and design as that used at Transportation building; and entire plant to be put up under superintendence and to acceptance of W. E. Hale. [Signed] Hale Elevator Co., per C. N. Coen." The acceptance of the Fuller Company was written at the foot of the proposition. This acceptance was procured by W. E. Hale, and was on the 30th of December, 1893, delivered to Coen, manager of the Hale Elevator Company. Prior to the making of the above contract, the Hales, with the permission of the appellant, had organized the Vertical Transit Company, for the purpose of equip ping with elevators certain buildings at the Chicago World's Fair. The machinery from the Transportation building, above referred to, was owned by the Hales, and, the fair having closed, they were desirous of selling the same; and, as a part of the contract made at the time Hale's services were engaged, the appellant agreed to purchase these elevators, and did purchase and pay for them, and used such as were suitable in the Marquette building, as shown by the above proposition to the Fuller Company relative to that building. Appellant refusing to pay for

services rendered in procuring the contract for the construction of the elevators, suit was brought by Hale upon the agreements, and modifications thereof, of the Hale Elevator Company, made by Coen, to recover for his services the difference between $27,300 and $23,000 for obtaining the contract for the Champlain elevator, and the difference between $70,000 and $55,000 for obtaining the contract for the installation of the elevators in the Marquette building. Before the trial, Hale died, and his executor was substituted as party plaintiff. At the close of all the evidence, appellant requested the court to instruct the jury to find the issues for the defendant, which was refused by the court. Upon the trial in the circuit court the jury returned a verdict in favor of the appellee for $16,550, and judgment was entered thereon. Upon appeal to the Appellate Court the judgment of the trial court was affirmed. The present appeal is prosecuted from such judgment of the Appellate Court.

Wing & Chadbourne, for appellant. Wilson, Moore & McIlvaine, for appellee.

At

RICKS, J. (after stating the facts). the close of all the evidence the appellant offered an instruction directing the jury to find a verdict in its favor, which the court refused, and upon this error is assigned, and it is insisted that the instruction should have

been given, for the following reasons: "First. The contract in suit was in fraud of the contract of 1888. That William E. Hale had previously been fully paid for the very services which the present suit respects. The contract in suit was void because Manager Coen had no authority to make it." Under this head it is urged that the contract of 1888 was intended to, and does by its terms, cover the services rendered under the contract sued on, and that William E. Hale fraudulently obtained the contract sued on, knowing that the former contract was in existence; that Coen, the general manager of appellant, did not know of its existence; that the two contracts were the same in meaning, and demanded the same services, and that therefore Hale was not entitled to compensation, other than the $1 mentioned in the contract of 1888; and that Coen had no authority to make the contract sued on, because of the existence of the contract of 1888, under seal, which could not be changed or revoked by Coen, as such power would not be implied from his position as general manager. With the contention that the services claimed for under the contract sued on were covered by the contract of 1888, we cannot agree. Under the terms of the original contract, it was expressly stipulated that Mr. Hale should not be required to engage in the elevator business. It contemplated his retirement from the field, save such advice, aid, influence, and assistance as he might render the Hale Company "without being

career which had attracted wide and general attention in business circles, not only in Chicago, but in the Northwest. As an elevatorman, he was the peer, if not the superior, of any elevatorman in Chicago. At that time the Hale elevator stood second to none in the estimation of architects, contractors, builders, and owners. The greatest asset that he then possessed was his personality-the good will of his business. * William E. Hale had acquired his elevator fame by reason of his wonderful ability and skill in securing contracts for the construction of elevators." From the contract of 1888, we think it clear that the parties contemplated the retirement of Hale from the elevator business, and that it was the purpose of the Crane Company to remove so successful a rival from further competition, and acquire for itself the name and good will that Hale had spent many years in attaining. The intention is nowhere expressed in the contract that this "wonderful skill and ability in securing contracts for the construction of elevators," possessed by Hale, was to be transferred to appellant, and that the Hale Company was to be entitled to call upon W. E. Hale to solicit contracts for it, but, on the contrary, he was to render only such aid and assistance as he might be able "without being actually engaged in the business." When the contracts for supplying the Marquette and Champlain buildings with elevators came upon the market, Coen, as business manager of appellant, discovered that these contracts could not be secured by appellant without the active assistance of Mr. Hale; and it is perfectly apparent that Coen understood that, by the agreement sued upon, he was employing Mr. Hale, as a skillful salesman, to again actually and actively engage in the elevator business in the interest of appellant. It is evident the terms of the former contract were not broad enough to cover the services expected of, and actually performed by, Hale, in securing these elevator contracts. There is evidence tending to show they were let to the Hale Company by reason of the confidence the constructor of the buildings had in Mr. Hale, and each contract with the constructor of the buildings provided that Mr. Hale should superintend the work to completion, and thus compelled him to again actually engage in the business during the time occupied in the construction of the elevators; and the Fuller Company, the constructor of the Marquette building, wrote appellant: "Please prepare necessary drawings, and secure Mr. Hale's approval, and file them in our office before execution of the work. We