
    Peter Hand Brewing Company, Plaintiff in Error, v. Peter Feller, Defendant in Error.
    Gen. No. 16,249.
    
      Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 28, 1912.
    Mayer, Meyer, Austrian & Platt, for plaintiff in error.
    J. Marion Miller, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

This is a writ of error prosecuted by the Peter Hand Brewery Company, a corporation, plaintiff below, and hereinafter designated as the company, to reverse a judgment of the Municipal Court of Chicago in favor of Peter Feller, defendant below. The company brought suit to recover the sum of $500.25, and interest thereon, which sum it claims to have loaned and advanced to Feller, about May 1, 1908, for a saloon license at No. 2 Winnemac avenue, Chicago, for the six months’ period from May 1, 1908, to October 31, 1908. Feller demanded a jury trial, which was had, resulting in a verdict in his favor, upon which judgment was entered.

That such license was issued to Feller and that the company paid for the same out of its funds is not controverted. The question is, did Feller verbally agree to repay said sum absolutely, or did he only agree to do so indirectly, and conditioned upon Ms paying for such beer as he should order of the company at a higher price per barrel than the usual market price? Counsel for the company claims that Feller absolutely agreed to repay the money advanced for the license, and that the verdict of the jury in favor of Feller is manifestly against the weight of the evidence.

It appears that for several years prior to May 1, 1908, Feller had been in the saloon business, and for at least two years had been running a saloon at No. 49 Willow street, and purchasing his beer from the company. Shortly prior to May 1,, 1908, he began negotiations for a lease of premises at No. 2 Winnemac avenue, where he contemplated opening a saloon. The company, hearing of these negotiations, sent an agent to see him, who persuaded him to call at the office of the company, which he did during the latter part of April. He was there interviewed by several of the representatives of the company, including the president thereof, aud he was urged to buy his beer for the new saloon from the company. Before he left the office he signed three documents: (1) application for a saloon license at No. 2 Winnemac avenue for a six months’ period, (2) the usual bond (on which the president of the company and an employe thereof signed as sureties), and (3) an assignment of the right of renewal of said license to said president of the company. Considerable talk preceded the signing of the papers, and what that talk was has an important bearing upon the issue in the case. Feller, in his own behalf, testified, in substance, that he. first saw the president of the company; that he was called into the latter’s private office; that the president said to him, “I hear you have a place out there; we will do the same as we used to do; you have to pay $6 for your beer, the same as you used to do, and we furnish the license and fixtures and everything in there”; that he then talked with the office manager of the company; that the latter told him the same thing, in substance, as the president had, and further said, without reading the papers to him, “Just sign them papers ”, which he did. The evidence tends to show that Feller was unable to read and did not have full knowledge of the contents of said documents. The president of the company did not take the stand, and, therefore, Feller is the only witness as to his conversation with the president. The testimony of the office manager as to his conversation with Feller is, in substance, that after the papers were signed “I asked Feller how are you going to pay for this license, and he says, You know how we always do, I will pay you for that license as we always do it. I said, that will be entirely satisfactory”; that Feller had been doing business with the company for four or five years; that he paid his license in irregular amounts, sometimes $100, and sometimes he would give the driver $10 or $15 in addition to the beer charges, and sometimes he used to come and pay down something at the office; that he had always paid enough when the term of the license expired to be clean on the books, and that the company furnished to all its customers a so-called “beer book,” in which was written by the driver the number of barrels delivered at a particular time, and in which the amounts charged for the beer and all credits for payments made either to the driver or at the office were also written. The “beer book” of Feller, covering the period from May 7, 1906, to May 9, 1908 (when it was balanced and closed), for beer delivered to him at his Willow street saloon, was introduced in evidence, and it clearly disclosed what the parties hereto “used to do”, and how the license fee, advanced by the company, for each six months’ period was paid. Feller was charged at the beginning of such period with the amount of the license fee, and was thereafter charged for all beer delivered to him at the rate of $6 per barrel; he was credited with all cash payments, made either to the driver or at the office, and at the end of each month, if he made sufficient payments at said rate of $6 per barrel to also repay to the company the month’s proportion of said license fee, so advanced, he was allowed a rebate of $1.50 per barrel. Of course, if he was slow in his payments and had not paid at the end of any month a sufficient amount to give the company $4.50 for each barrel delivered, and also repay a proportionate amount of the license fee advanced, it was within the power of the company, under this arrangement, not to allow him any rebate. This “beer book” shows, during the first six months at least of the period covered therein, that Feller was a good customer, and made such payments that, on Nov. 1, 1906, when the next license fee became due, after all rebates had been made, he had about $335 to his credit, which was used by the company to pay said new license fee, and he started in on the next six months’ period owing the company only about $165, with the license fee paid.

On May 1,1908, although Feller had received a written lease, the owner of the premises on Winnemac avenue was unable to deliver possession to Feller, owing to the fact that the former tenant refused to yield possession. Pending negotiations for such possession, a temporary building was erected at the rear of said premises, and Feller there started in business. Subsequently Feller, not being able to secure possession of the premises he had leased, closed the temporary saloon, opened a saloon in another location and purchased his beer for that saloon from another brewery. In November, representatives of the company called upon him and demanded payment for the license fee advanced in May, and upon Feller’s refusal to make payment, either in cash or by notes, threatened to sue him. Later in November, Feller visited the office of the company, had an interview with the office manager, and, according to the latter’s testimony (in which he is corroborated by other representatives of the company who were specially directed by said manager to listen to the conversation), admitted that he owed the company for said license fee. Feller denies making any such admission.

After carefully considering all of the evidence in the record, and particularly in1 view of the facts disclosed from said “beer book,” and that at the time Feller signed the application for said license he also executed to the president of the company an assignment of the right of renewal of said license, we cannot say that the verdict of the jury is manifestly against the weight of the evidence, and, therefore, we are not disposed to reverse the judgment.

Other errors assigned are that the trial court erred in refusing to admit in evidence certain books of account of the company, and in making certain remarks in the hearing of the jury which, it is claimed, were prejudicial to the company, and that certain remarks made by counsel for Feller in Ms address to the jury were also prejudicial to the rights of the company. Without discussing these different points,, suffice it to say that, in our opinion, the errors complained of, if any, are not sufficient, in view of all the evidence, to warrant a reversal. The judgment is affirmed.

iJudgment affirmed..  