{ "id": 2646969, "name": "George B. Meleny, Appellee, v. Library Bureau, Appellant", "name_abbreviation": "Meleny v. Library Bureau", "decision_date": "1909-05-20", "docket_number": "Gen. No. 14,489", "first_page": "437", "last_page": "443", "citations": [ { "type": "official", "cite": "148 Ill. App. 437" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "228 Ill. 340", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "171 Ill. 495", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3178265 ], "opinion_index": 0, "case_paths": [ "/ill/171/0495-01" ] }, { "cite": "228 Ill. 340", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 561, "char_count": 11880, "ocr_confidence": 0.509, "pagerank": { "raw": 4.60167783687625e-08, "percentile": 0.2883699011023423 }, "sha256": "200b447f361f7a6a11791d2e9cf4da3ff2d9226396fff9fe2afca240ac2897cf", "simhash": "1:fc2f1e1f34f7f571", "word_count": 1987 }, "last_updated": "2023-07-14T18:19:20.179595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George B. Meleny, Appellee, v. Library Bureau, Appellant." ], "opinions": [ { "text": "Mr. Justice Brown\ndelivered the opinion of the court.\nThe appellee\u2019s statement of this case seems to us accurate and we adopt it substantially.\nMeleny, the appellee, brought this suit against the Library Bureau, an Illinois corporation, to recover a balance claimed to be due under a contract of employment for the year 1905. He served the company as general manager. His contract for that year gave bim a yearly salary of $6,000 and \u201cin addition 25 per cent of the earnings of the business after first taking out $20,000 from the profits.\u201d\nThe salary of $6,000 was paid from month to month, and on account of the additional compensation he collected $9,000 in stock (afterwards converted into money), leaving a balance which the parties agreed was to be paid in cash. This suit was brought to recover that balance with interest.\nThe dispute is over the meaning to be placed (in the light of all the evidence) on the words, \u201cthe earnings of the Library Bureau of Chicago above $20,000, for the year ending 1905,\u201d as they appear in defendant\u2019s Exhibit 7, where the Library Bureau says, by its President, in a letter to Meleny, dated December 19, 1904:\n\u201cThe understanding is that we will guarantee to you an additional salary of a sum equal to 25% of the earnings of the L. B. of Chicago above $20,000 for the year ending 1905.\u201d\nMeleny claims they mean the net gains or profits from the business of the Bureau of any sort, and relies upon a statement prepared by the Library Bureau\u2019s Auditor and handed to Meleny by Davidson, the President of the Library Bureau, at Boston, in February, 1907. This Auditor\u2019s statement is in evidence, and it includes the \u201cProfits and Loss Account for year ending December 31, 1905, \u2019 \u2019 as follows:\n\u201cNet Profit on Sales.. 7,764.85\nGain on Library Primes............. 216.55\nInventory Profits..... 38,540.97\nFire Loss Account.... 818.97\nGain on Wabash Avenue Lease.......... ' 6,323.39\nMfg. Corporation per cent. Amt. Appropriated ............... 70,725.22\nLess Mfg. Corpn. expns. 31,140.64\nAdm. Corpn. expns,... 20,092.29\n51,232.93 19,492.29\nPay Poll of Dec. 31,1904, Chgd. in 1905 acct... 2,682.84\n75,839.86\nLoss:\nLoss on Public libraries ............ 2,109.67\nStrike Account...... 2,047.94\nDepreciation of Plants 5,446.05\nBad Debts.......... 16.30 9,916.96\nNet gain on 1905 business............66,219.90\u201d\nDeducting $20,000 from the \u201cnet gain on 1905 business,\u201d leaves $46,219.90, of which 25% is $11,554.97.\nCrediting on this $9,000, which Meleny received in stock (afterward converted in money), leaves $2,554.97, which is the amount for which Meleny sued in this case.\nThe jury to whom the issues were submitted took his view of the matter. But an item of $204.74, being 25 per cent, of the $818.97 appearing in the \u201cProfit and Loss Account\u201d as \u201cFire Loss Account,\u201d was waived by the appellee before the case went to the jury. This reduced Meleny\u2019s claim to $2,350.23, and the jury returned a verdict for that amount, plus one year\u2019s interest at 5 per cent. The interest was remitted by appellee and judgment entered for $2,350.23.\nThe objection made by the appellant to this amount involves these items in the Profit and Loss account:\nOn the credit side:\nGain on Wabash Avenue Lease...........$6,323.39\nFire Loss Account...................... 818.97\nOn the debit side:\nLoss on Public Libraries................. 2,109.67\nAs to the first of these items, it is claimed by defendant that it should not be included among those which make up the \u201cearnings\u201d from which Meleny\u2019s additional compensation is to be paid.\nBesides a contention that the profits on the lease should not be included because the \u201cearnings\u201d of the Library Bureau meant, in the light of the evidence, \u201cnet trading profits\u201d or \u201cnet trading earnings,\u201d which would properly exclude the \u201cgain on the lease,\u201d it is insisted that the lease belonged to the Library Bureau of New Jersey (another corporation), and any \u201cgains\u201d from it had no place in the profit account of the Library Bureau of Illinois.\nAs to the second item\u2014\u201cFire Loss Account, $818.97\u201d \u2014the arvnellee says in his argument: \u201cThe evidence as to the \u2018Fire Loss\u2019 item was confusing; the amount involved was only $204.74, or 25 per cent of $818.97, and before the case went to the jury the appellee waived this item.\u201d But this concession does not satisfy appellant, who contends that the evidence not only does not show a gain of $818.97 on this account, but does show a loss of $2,332.15, one-fourth of which, or $583.04, should be deducted from the amount allowed by the jury to the appellee.\nThe third item disputed is on the debit side\u2014\u201cLoss on Public Libraries, $2,109.67.\u201d For the purpose of calculating the amount due to the plaintiff, this amount should be doubled, says the defendant, because the loss of the Library Bureau of Illinois on the magazine \u201cPublic Libraries\u201d was really $4,219.34, one-half of which, by way of donation, the Library Bureau of New Jersey made up to the Library Bureau of Illinois.\nThe appellee resists this contention by the proposition that the \u201cLoss on Public Libraries\u201d really represented advertising expense, borne primarily by the Library Burean of Blinois, but refunded to the extent of one-half by the Library Bureau of New Jersey, whose business purposes it equally subserved. The payment of $2,109.67 by the latter corporation therefore was no donation, but a payment lessening the \u201cexpense\u201d or \u201closs\u201d by that amount, and legitimately reducing it to the amount in which it appeared in the Auditor\u2019s account.\nThis view, it is contended by appellee, is borne out, among other ways, by the fact that the evidence shows that another employe of the Library Bureau of Blinois, named Burrage, who had a contract for additional compensation in almost every respect identical with Meleny\u2019s, was allowed the benefit of this payment.\nThe appellant admits and claims an agreement or settlement which took no account of the item of $583.04, which it says should justly be deducted from Meleny\u2019s claim on account of \u201cFire Loss,\u201d but insists that on account of the \u201cWabash Avenue Lease\u201d matter there should be deducted one-quarter of $6,323.39, or $1,580.85, and on the Public Libraries matter one-quarter of $2,109.67, or $527.41, making together $2,108.26. This item taken from $2,350.23 leaves $241.97, which sum the appellant says in its opinion is the amount for which a verdict and judgment should have been rendered.\nAlthough we have thus, at some length, stated the contention of the respective parties, we do not propose to discuss the weight of the evidence on them. We might be content to leave the verdict of the jury undisturbed, if a very serious admitted error had not been committed in instructing the jury.\nThe fourth instruction given at the request of the appellee was this:\n\u201cIf the jury believe from the evidence that the defendant had an agreement with one or more persons other than the plaintiff, by which such person or persons was or were entitled to a percentage of the profits of the business of the defendant for a certain year or years, and if they further believe from the evidence that in determining the amount of profits upon which such person or persons would be entitled to a percentage, the defendant admitted that the profits for the year 1905, growing out of the so-called Wabash Avenue lease, were a part of the profits for that year, upon which such person or persons were entitled to a percentage, then the jury are instructed that such admission, if any, is evidence to be considered by them in this case in determining whether the plaintiff is entitled to his percentage on such profits, if any.\u201d\nThe appellant claims that giving this instruction was error, because there is no evidence in the record of any such admission by appellant, nor evidence from which any inference can be drawn that such an admission was made.\nThe tendering and giving of the instruction seems to have been the result of a misapprehension and the confusion of the \u201cPublic Libraries\u201d matter with the \u201cWabash Avenue Lease\u201d matter.\nThe appellee does not deny that giving the instruction was error, but argues that it should not result'in reversal.\nHe quotes from Bettis v. Green, 171 Ill. 495, the language : \u201cIt is well settled that to authorize a reversal of a decree, it must appear not only that an error intervened, but the record must contain enough to raise and justify the inference that the error was prejudicial or probably prejudicial to the party who asks reversal.\u201d\nThe argument of appellee then proceeds: \u2022* \u2018 The only result unfavorable tq the appellant to which this instruction might have contributed, was the finding by the jury that the profits of the Wabash Avenue Lease were a part of the appellant\u2019s earnings for the year 1905. We have labored fruitlessly if the Court is not convinced upon the whole evidence, that such was the fact, and that with or without this instruction, the jury could not have found otherwise. A finding to the contrary would not he allowed to stand.\u201d\nPerhaps if we could yield our assent to the concluding sentence of this paragraph of the appellee\u2019s argument, we could bring the admitted error within that class of errors which alone the Supreme Court in a much later case than Bettis v. G-reen says are harmless, not requiring reversal.\nIn Crane v. Hogan, 228 Ill. 340, the Supreme Court says: \u201cA judgment will not be reversed unless error is affirmatively made to appear, but whenever error is shown to exist it will compel a reversal unless the record affirmatively shows that the error was not prejudicial.\u201d\nBut even if we follow what seems to us the less drastic rule laid down in the earlier case, and require something in the record justifying the inference that the error was prejudicial, to prevent affirming, rather than something which shall \u201caffirmatively show\u201d that it was not prejudicial, to nr event reversing, we cannot, in this case, overlook this admitted error. The principal matter left\u201eto the jury was this very item of the alleged gains on the Wabash Avenue lease. The instruction was very likely, under the circumstances, to mislead the jury at least into believing that the court had heard and remembered testimony during the trial which they had forgotten; and altogether we can neither say that \u201ca finding to the contrary would not have been allowed to stand,\u201d nor that there is not enough in the record \u201cto raise and justify the inference\u201d that the error was \u201cprobably prejudicial\u201d to the party who asks reversal. At all events we certainly cannot say that \u201cthe record affirmatively shows that the error was not prejudicial. \u2019 \u2019\nFor the error indicated we must reverse the judgment and remand the cause for a new trial.\nWe do not think that the other instructions complained of were erroneous, nor do we express any opinion on the weight of the evidence.\nThe judgment of the Municipal Court of Chicago is reversed and the cause remanded to that court.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Brown" } ], "attorneys": [ "Ahdrew J. Eyax, for appellant.", "Custer & Cameron, for appellee; Timothy F. Mullen, of counsel." ], "corrections": "", "head_matter": "George B. Meleny, Appellee, v. Library Bureau, Appellant.\nGen. No. 14,489.\n1. Instructions\u2014when error wilt reverse. An Instruction Is erroneous and requires reversal which is likely to mislead the jury into believing that the court had heard and remembered testimony during the trial which they had forgotten.\n2. Arre\u00e1is and errors\u2014when error will reverse; when not. Under the doctrine of Crane v. Hogan, 228 Ill. 340, a judgment will not be reversed unless error is affirmatively made to appear, but whenever error is shown to exist it will compel a reversal unless the record affirmatively shows that the error was not prejudicial.\nAssumpsit. Appeal from the Municipal Court of Chicago; the Hon. Mancha Bruggbmeyer, Judge, presiding.\nHeard in this court at the March term, 1908.\nReversed and remanded.\nOpinion filed May 20, 1909.\nAhdrew J. Eyax, for appellant.\nCuster & Cameron, for appellee; Timothy F. Mullen, of counsel." }, "file_name": "0437-01", "first_page_order": 453, "last_page_order": 459 }