Volume 121 — Illinois Appellate Court Reports

<p>Action of replevin. Appeal from the County Court of Cook County; the Hon. Obrin N. Carter, Judge, presiding. Heard in this court at the October term, 1904.</p> <p>Statement by the Court. Appellant sued appellee in replevin before a justice of the peace. The writ of replevin was returned property not found. The plaintiff, May 22, 1903, the defendant, Goldstein, not appearing, called for a jury of six, and the jury, after hearing evidence, rendered the following verdict:</p> <p>“We, the jury, find the issues for the plaintiff and also find that the defendant fraudulently took and fraudulently and with intent then and there to cheat and defraud the plaintiff on the eighth day of May, 1903, at Chicago, Illinois, converted to his own use six barrels of beef tongues, the property of the plaintiff, of the value of one hundred and forty-seven dollars, and assess the plaintiff’s damages at the suin of one hundred and forty-seven dollars in trover.”</p> <p>The form of the verdict was prepared by the attorney for the plaintiff, presumably with the approval of the justice. The justice rendered the following judgment:</p> <p>“Whereupon it is considered by the court that the -said plaintiff have and .recover of and from the said defendant the said sum of one hundred and forty-seven dollars in tort for its damages in form as by the jury .assessed, with costs.”</p> <p>May 23, 1903, on affidavit made b.y plaintiff’s agent, execution was issued against the goods and chattels of the defendant, and was delivered to a constable, and was returned the same day endorsed: “Mo property found, no part satisfied.” October 19, 1903, the plaintiff sued out from the justice and delivered to a constable a writ of capias ad satisfaciendum or execution against the body of the defendant, on which writ the defendant was arrested.</p> <p>October 20, 1903, the defendant petitioned the County Court-to be discharged, from imprisonment in pursuance of the act concerning insolvent debtors, (Hurd’s Hev. Stat. 1903, p. 1045) alleging that he was not guilty of fraud or. malice, and that October 5, 1903, he obtained from the United States District Court a discharge in bankruptcy, and that the plaintiff’s debt was included in his schedule. The plaintiff answered, denying these averments, and such proceedings were had that a jury found the defendant, Gold-stein, not guilty, and judgment for costs was rendered against the plaintiff, from which judgment this appeal is.</p>

Bill for accounting. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court.

<p>Divorce' proceeding. Appeal from the Circuit Court of Codk County; the Hon. Frederick A. Smith, Judge, presiding. Heard in' this court at the October term, 1904.</p>

Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court. Both the parties to this appeal are corporations. The appellant sued appellee in assumpsit.

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Willard McEwen, Judge, presiding. Heard in this court at the October term, 1904.</p> <p>Statement by the Court. Appellee sued appellant in case, for personal injuries, and recovered judgment for $1,350. The declaration contains four counts. Appellant pleaded the general issue. The accident causing the injury of which the plaintiff (appellee here) complains occurred about two o’clock' in the afternoon of February 20, 1901, in the defendant’s lumber yard. Plaintiff was then about fifty years of age. There were two piles of lumber in the yard, which were being transferred to trucks, at the time of the accident. These piles had been constructed under the orders of Herman Krempski, appellant’s foreman. The piles lay north and south, lengthwise the lumber. The evidence of the plaintiff’s witnesses varies as to the width of the space between the piles, from 1 to 2% inches. The evidence tends to prove that the lumber in the east pile was 3^4 by 4%' inches and 14 feet long, and that in the west pile 4 by 4 inches and 13 feet long, and that the lumber in the piles was green, or partly so, and heavy, and was icy and slippery, and that the piles were each from 3 to 4 feet in width and about 7 feet high; also that there were no crosspieces in the piles, and that it was the defendant’s custom to put cross-pieces in piles 7 feet or more in height. The evidence is uncontradicted that neither the plaintiff, nor Jerosal, who was working with plaintiff at the time of the accident, constructed the piles, but that they were constructed by Krempski’s direction, by other employees of the defendant about' an hour before the accident. Plaintiff’s evidence is that Krempski told the plaintiff, Jerosal and one Smith to go to work removing the east pile, which they did, plaintiff and Jerosal removing the lumber from the pile and Smith placing it on a truck, which was on a track on the north side of and close to the pile. Plaintiff and Jerosal got on top of the east pile to remove the lumber from it, the pile being too high for them to reach and remove it, standing on the ground, and when they had removed about four feet from the pile, the remainder of it being then about three feet high from the ground, they got down on the ground and were taking the lumber from the remainder of the pile, when the west pile fell eastward on appellee and broke his right leg a few inches above the ankle. The uncontradicted evidence is that neither appellee nor Jerosal touched the west pile.</p>

Action of assumpsit. Appeal from the County Court of Cook County; the Hon. William H. Hinebaugh, Judge, presiding. Heard in this court at the October term, 1904. Statement fey the Court. The appellee sued appellant in the County Court of Cook county for a loss on an insurance policy. The declaration contained a special count on the policy, reciting it in haec verba, and the common money counts. The defendant pleaded the general issue only.

<p>1. Special finding—ivhen conclusive. A special finding is deemed conclusive on appeal where it is not attacked in the written motion for a new trial specifying grounds therefor, nor in the assignments of error.</p> <p>2. Fellow servants—what essential to relation of. In .order that servants he regarded as fellow servants, they must be employed by a common master; likewise they must, at the time of the accident, have been co-operating with each other in the particular work in hand, or else their relations toward each other must be such that they could exercise upon each other a mutual influence promotive of proper caution.</p>

<p>• Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the October term, 1904.</p>

<p>1. Mechanic’s lien—when original and amended petitions for, do not state different causes of action. Where the original and amended petitions filed in a mechanic’s lien proceeding ask for the same lien upon the same premises, are based upon the same contract between the same owner and the same original contractor, and name the same parties defendant, etc., it cannot be said that the amended petition states a new cause of action.</p> <p>2. Statute of Limitations—purpose of. The underlying purpose of Statutes of Limitations is to prevent the unexpected enforcement of stale claims concerning which persons interested have been thrown off their guard by want of prosecution. This is especially true of short limitations, in lien laws.</p> <p>3. Mechanic’s lien—when subcontractor's contract sufficient. A subcontract may be pursuant to the original contract notwithstanding it fixes a time limit for performance beyond that provided in the original contract.</p> <p>4. Mechanic’s lien—when notice of claim sufficient. A notice of a claim for mechanic’s lien is not required to state “when the material was to be delivered” nor "that there was any fixed time when it was to be delivered” nor “when payments were to be made.”</p> <p>5. Mechanic’s Lien Act—how construed. Provisions of the Mechanic’s Lien Act are not to be construed so as to render the remedy thereby provided impossible of enforcement.</p> <p>6. Mechanic’s lien—decree for, held sufficient. Held, that the findings of the decree entered in this case constitute a compliance with section 32 of the Lien Act.</p> <p>7. Mechanic’s lien—burden of proving damages in mitigation of the amount of. Under the Mechanic’s Lien Act the burden of proof is upon the owner to establish what damages, if any, should be awarded him in mitigation of the amount claimed by way of lien.</p> <p>8. Mechanic’s lien—when decree for, sufficient. A decree declaring a mechanic’s lien in favor of a subcontractor is not erroneous in not making the contractor a party thereto, where it appears from the evidence that the contractor was beyond the jurisdiction of the court.</p> <p>9. Mechanic’s lien—nature of proceeding for. A mechanic’s lien proceeding under the Illinois practice is a suit in chancery.</p> <p>10. Depositions—when competent in subsequent suits. Depositions taken before a master in a mechanic’s lien proceeding prior to the first appeal therein are competent to be admitted at a subsequent hearing of said suit following a reversal therein,—the parties to the issues remaining substantially the same.</p> <p>11. Costs—what not improper taxation of. Held, that the chancellor in taxing the costs against the losing party did not abuse his discretion by including in such taxation the master’s fees incurred upon an earlier hearing which resulted in an erroneous decree, where the master’s service consisted largely in the taking of evidence which was used upon the subsequent hearing.</p>

Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court. This is an appeal by the plaintiff below from a judgment of the Circuit Court in her favor against the appellee (which was defendant' below) for $87.50 damages, which judgment taxed the costs of the proceeding in that court against the plaintiff.

<p>1. Master's fees—when allowance of, proper. The allowance by the court of a reasonable fee to a master for examining questions submitted to him and making report thereon, is proper.</p> <p>2. Solicitor’s fee—when allowance of, in foreclosure proceeding, improper. The allowance of a solicitor’s fee in a foreclosure proceeding is improper where the trustee named in the trust deed, or a member of the law firm to which such trustee belongs, acts as the complainant’s solicitor.</p>

Bill to set aside by-law, etc. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904. Statement by the Court. Appellant corporation was organized in March, 1901, with a capital of $6,000 in 120 shares of $50 each.

<p>1. Bastardy—presence of child at prosecution for, not error. It is not error to permit the prosecutrix to bring with her into the court room and to take with her to the stand the alleged bastard child, where it is too young to be left alone and no one is provided to take charge of it.</p> <p>2. Exclusion of evidence—when not ground for complaint. Where a party does not move for a continuance nor present an affidavit stating the evidence which he expects would be given by an absent witness, but merely states what he expects to prove by such absent witness, the exclusion of such offer by the court is not grbund for complaint.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. Statement by the Court. Prior to March 3, 1897, Solomon Levine was the owner of lots 1 and 2 in a certain subdivision. On that day he conveyed lot 1 to appellee by a warranty deed.

Foreclosure proceeding. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904. Statement by the Court. Appellee filed a bill in the Circuit Court against Maurice R. Bortree and Sam.

<p>1. Municipal corporation—source of powers of. A, municipal corporation possesses such powers as are conferred by statute.</p> <p>2. Ordinance—reasonableness not test of validity of. The mere fact that an ordinance is reasonable does not determine its validity; there must appear authority for its enactment.</p> <p>3. “Junk store”—what is not, within meaning of statute authorising licensing of. A store where bottles, new and old, are exclusively dealt in, is not a junk store within the meaning of such statute, merely because bottles which have been used, but are as good as ever, in no way distinguishable as bottles, so far as appears, from such as are new, are bought and sold there in the ordinary course of business, together with bottles which are absolutely new.</p> <p>4. “Second-hand store”—what not, within meaning of statute authorising licensing of. A store such as is defined in the preceding paragraph of syllabus is not a second-hand store within the meaning of such statute.</p> <p>5. Costs—judgment against municipal corporation for, improper. It is error to enter a judgment for costs against a municipal corporation. ,</p>

Injunctional proceeding. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the April term, 1905. Statement by the Court.

<p>Action of debt. Appeal from the Criminal Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904.</p>

Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904. Statement hy the Court. In 1891, Frank E. Ballard, appellant, and James Darlow were engaged in the real estate business in the city of Chicago under the firm name of F. E. Ballard & Co. Appellee, Daniel W. Shea, was also engaged in the same business.

Action of replevin. Error to the Circuit Court of Cook County; the Hon. Joseph P. Robarts, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. Statement by the Court.

<p>Bill for accounting. Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1904.</p>

<p>1. Jurisdiction—when question of, arising from absence of parties, cannot be raised. The question of the jurisdiction of the court to hear an appeal from a justice of the peace, arising from the absence of one of the defendants, cannot be raised by another defendant who has voluntarily entered a general appearance in the cause, and this is especially true where such appearing defendant has entered into various stipulations in the cause and does not seek to raise the question until the cause has reached the Appellate Court.</p> <p>2. Implied contract—what does not create. An implied contract, to pay for work done on the demised premises, does not arise from the mere fact that the landlord has seen the workmen engaged in making repairs thereon.</p>

<p>Action of debt. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honobe, Judge, presiding. Heard in this court at the October term, 1904.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Lockwood Honors, Judge, presiding. Heard in this court at the October term, 1904.</p> <p>Statement by the Court. The appellee sued appellant in assumpsit for commissions which he claimed to be due him as a solicitor for insurance on the life of George P. Braun, and recovered judgment for the sum of $5,684.10. Appellee, at the time of the transactions hereafter mentioned, had been engaged as a solicitor for life insurance for a number of years, and had been in the employ of Mutual Life Insurance Company during all the time he was such solicitor, except three or four months. He became acquainted with George P. Braun in the year 1890, and in the year 1900 solicited him to apply for insurance on his life, with the result that he procured from Mr. Braun an application to the Mutual Life Insurance Company, of New York, which that company declined, after which appellee brought the notice of Mr. S. M. Pearman, who at that1 time was agents’ director of appellant at appellant’s branch office in Chicago, to Hr. Braun’s desire for insurance. Hr. Pear-man testified that, by appellee’s request, he called on Hr. W. B. Carlile, the manager of the Chicago agency of the Hutual Life Insurance Company of New York, and stated to him, as Pearman testified, that Billing had told him that he, Hr. Carlile, would furnish him with all the data of the history of the Hutual Life with the Braun application, and show to him Braun’s correspondence with the company, and that Carlile said that was correct and that Billing was very much disappointed that the Hutual Life did not issue the policy applied for, that he expected the commissions and the company expected to wipe out some indebtedness of Billing from the commissions, and that he, Carlile, would appreciate any interest Pearman would take in the matter on Billing’s behalf, as it would do him and the Hutual Company a good turn, and Pearman told Carlile that-he was interested in a $100,000 application, and would do all he could to get the case through, and would fully protect Billing by giving him a contract. Hr. Carlile testified that Hr. Pearman said he wanted the information so that he could protect Billing’s rights with his company, and I said he controlled the business for the Hutual Life, and that it was with my knowledge that he was taking the Braun policy to be issued for $100,000 to the New York Life. Pearman said he would shut out any other agent for all time, after Billing signed his name to the bottom of the application. Hr. Pearman ■ denied positiely having said that he would protect Billing for all time, or words to that effect. Hr. Pearman then returned to his office and a contract was executed between the appellant and Billing. The contract is dated July 16, 1902. By it Billing is appointed agent for appellant, “for the purpose of canvassing for applications for insurance on the lives of individuals, and of performing such other duties in connection therewith as may be required by the officers of said party of the first part,” etc. The contract contains numerous provisions, among which are provisions fixing rates of compensation or commissions to solicitors, which last it is unnecessary to refer to, as the rate claimed by appellee, viz: 50 per cent of the first or cash premium, dóse not exceed that fixed by the table of rates in the contract.- The contract between appellant and appellee seems to be the usual form of contract between appellant and its canvassers or solicitors.</p> <p>It is not controverted that the .Mutual Life Company and appellant knew that appellee executed the contract for the sole purpose of procuring an application from Mr. Braun to appellant for life insurance, and that he would still remain in the service of the Mutual Life Company. July 17, 1902, the next day after the execution of the contract above mentioned, Mr. Braun, through appellee, made application to appellant for a $100,000 fifteen-year accumulation policy. Ho policy was ever issued by appellant to Mr. Braun in accordance with the terms of this application. Appellee executed the following on the day of its date:</p> <p>“Chicago, Ill., October 11, 1902.</p> <p>New York Life Ins. Co.,</p> <p>New York, H. Y.</p> <p>Gentlemen: Referring to the agreement that has been in existence between your company and myself, I wish to avail myself of the clause which gives me the privilege of terminating such agreement. Please have same take effect immediately. Please construe this as my resignation.</p> <p>Yours truly,</p> <p>C. W. Rilling.”</p> <p>There is a conflict in the evidence as to the circumstances under which this document was. signed by appellee. After Rilling sent to appellant Mr. Braun’s application for a $100,-000 policy, appellant, as appears by appellee’s testimony, made a counter proposal to issue to Mr. Braun a ten-year endowment policy for $10,000. Mr. Rearman testified that October 11, 1902, he sent for Rilling to come to his office, which he did, and he asked Rilling if he was through trying to get Mr. Braun to go to New York, and through with the effort to get Mr. -Braun to accept the offer the New York Life had made. “He said he was, and I said that my purpose in having him come to the office was to fully protect him, and that if he was ever going to do anything with the Braun case, to do it then, and if he was going to give up and abandon the case and not do any work for the New York Life, L would suggest that he should not incumber its books by being carried as an agent, and he said: 6I am absolutely through, Dr. Pearman, and I think myself it is best to resign.’ His resignation was then made up and he signed it.”</p> <p>L. A. Greenwood testified that in 1902 he was the assistant of Dr. Pearman, in appellant’s branch office in Chicago; that about two months after the Braun application was in he met Rilling and asked him what he was going to do about the Braun matter, and he said he didn’t believe he would do anything about it; that shortly thereafter he again met him and told him they were anxious to know what he was going to do aboift the Braun case, and took him to Pearman’s office, and there heard a conversation between Pearman and appellee; that Pearman told appellee that if he was going' to do anything more about the Braun case, he must do it right away, and Rilling said he would not attempt to deliver the proposition which had been made by the New York Life, and Pear-man said that if he would not make any effort to deliver the proposition, he should resign and leave way for some other man, that the business had been hanging fire for some time, that the New York Life had other agents in touch with Mr. Braun, and that if Rilling was not going to do anything more, he should step out of the way and let a man step in who would handle it. “Rilling, I believe, said that nobody could write Mr. Braun for insurance, that he controlled the business. The resignation was signed that day in my presence.” Witness also testified that in the interview between Pearman and appellee there was nothing in the conversation about reservation of the Braun matter. Rilling, the appellee, testified, in respect to the conversation at the time he signed the resignation, that Pearman told him the appellant had offered Braun a ten-year endowment policy for $10,000, which was its best offer, and that if he could get Braun to go to New York, or hold him till the chief medical examiner could come to Chicago, they had a good chance to get the policy appellee wanted, and that when Pearman asked him to resign, he told him he would so far as the contract went, hut would not relinquish his rights to the Braun claim, and Pearman said it would not affect his claim for commissions, and also said that as soon as appellant could get its chief medical examiner to Chicago he would notify appellee, and he was to bring Braun to the office for exaination, and that he did not tell appellee that if he was going to do anything about the Braun policy he should do it then.</p> <p>Pearman testified that he had no further dealings with appellee after October 11, 1902; that he remained in the •performance of the duties of his office in Chicago until about May 7, 1903, when he ceased to be connected with that office, and May 20, 1903, he sailed from New York for Europe. Pearman also testified that prior to the interview of October 11, 1902, he told Rilling that he had been to New York, and had tried to get appellant to issue a policy on Braun’s application and was unsuccessful; that he had talked with appellant’s vice-president and that there was a very marked prejudice against the case, by reason of the Mutual Life’s rejection of Brann’s application, and that the obstacle seemed to be that the company was not clear as to why Braun should have gone to Europe, taking a physician with him, and that he did not see how that could be overcome, and that Braun might go to New York and submit himself to the company’s medical examiner there; and Rilling said he would make an effort to get Braun to go-; that in three or four days after the last-mentioned conversation he again saw Rilling, and Rilling said that Braun would take no insurance other than that applied for, and that there was no use trying to get him to do so.</p> <p>July 21, 1903, Braun made four written applications to appellant for four installment annuity policies of insurance on his life; one for $20,000, payable on his death to his son, George P. Braun, Jr.; one for $80,000, payable on his death to his wife, Martha E. Braun: one for $40,000, payable to his said wife, and one for $60,000, payable to his daughter, Mabel Braun. The applications are signed, “George P. Braun” and are “Witnessed by W. Edwin Nichols, agent.” Policies were issued to Braun on the fonr applications, for the amounts, and for the benefit of the persons,, respectively, mentioned in the applications as beneficiaries. The numbers of the policies correspond with the numbers of the applications, and run from July 21, 1903, the date of the applications. Mr. Braun paid the first year’s premium on all the policies, amounting in all to $10,870. Appellee claimed 50 per cent of said amount as commissions.</p>

<p>1. Tbespass—when removal of sidewalk by city does not constitute. Where the owner of land subdivides the same, dedicating certain parts thereof as public streets, he cannot complain successfully in an action of trespass of the acts of the municipality in entering upon said dedicated land and tearing up the sidewalks built thereon by him, and failing to replace the same, in connection with the making of a sewerage improvement, such acts being within the power of the city, regardless of whether the dedication was statutory or at common law.</p>

Mandamus proceeding. Appeal from the Superior Court of COok County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court.

<p>1. Practice and pleading—disregard of, may Be ground for reversal. The action of the parties and of the trial court in disregarding the statutory requirements as to practice and pleading, might if taken advantage of in apt time, have been ground for reversal.</p> <p>2. Streets and highways—right of railroad companies to enter upon. A railroad company incorporated under, chapter 114 of the Revised Statutes can cross any highway outside of cities and villages without further condition than that it shall not unnecessarily impair the usefulness of the highway. It cannot construct its railroad upon or cross any street in any city or village without the assent of the corporation of such city or village.</p> <p>3. Streets—how grant of railroad company in, construed. Grants by municipal corporations of special privileges in its streets are to be strictly construed, and all doubts are to be resolved against the railroad company.</p> <p>4. Streets—grants to railroad companies in, may he conditional. The grant of a power or privilege to a railroad company in a street may be made conditional.</p> <p>5. Streets—grant to railroad company in, construed. The power to cross certain streets with “one or more railroad tracks,” construed not a continuing one but as having been exhausted by the construction of a single track.</p>

<p>I. Appeal—when lies to Appellate Court. An appeal from an order of the County Court, remanding to the custody of the sheriff a petitioner who was held under capias and who had applied for discharge under the Insolvent Debtors’ Act, is properly to be taken to the Appellate and not to the Circuit Court.</p>

<p>1. Sidewalk tax—when. void. An ordinance enacted under the Sidewalk Act of 1875, providing for the construction of disconnected sidewalks in different streets, is invalid and void.</p> <p>2. Tax—what does not support pretended. The mere fact that a pretended tax was not objected to in the County Court does not give it any additional validity, where it is attacked as void in an action to enjoin the issuance of tax deeds upon certificates of sale based upon such tax.</p> <p>3. Reimbursement—when need not "be made to holder of tax' certificates. Where there never was a valid tax to support a sale, it would be error to require reimbursement to be made to the holder of tax certificates upon which the issuance of tax deeds is enjoined,.</p>

<p>Contest in court of probate. Appeal from the Circuit Court of Cook County; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904.</p>

<p>1. Appeal—when Appellate Court has no jurisdiction of. The Appellate Court has no jurisdiction of an appeal which presents for consideration, the validity of a statute.</p>

<p>Action on the case for personal injuries. Error to the Superior Court of Cook County; the Hon. George W. Thompson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.</p>

<p>Bill in chancery. Error to the Superior Court of Cook County; the Hon. Axel Chxteaus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Pinal judgment on demurrer for defendant in error.</p>

Mechanic’s lien proceeding. Appeal from the Superior Court of Cook County; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904. Statement by the Court. Appellant, in 1901, built on certain premises owned by him, an apartment house. Appellee furnished the mill work for said building under a written contract with appellant.

<p>Bill for accounting, etc. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904."</p> <p>Statement by the Court. This is a hill for an accounting and other relief between former partners. The copartnership was evidenced by an agreement in writing dated March 31, 1896, signed by each of the parties. The agreement recites among other things that appellant had been engaged in the practice of dentistry in Chicago over twenty-seven years and had built up a large business; that appellee had been a dentist in Chicago three years, and that the good will of appellant’s business was agreed to be valuable and worth with his time about $50,000; that appellant on account of other business was desirous of liberty to devote only such part of his time as he might deem proper to the copartnership business, and therefore made a concession as to the value of his business of about $10)000, which the parties agreed to; that the partnership should commence April 1, 1896, and continue five years, and that the parties were to share all expenses and earnings equally. It was agreed that appellee should pay appellant $15,000 “for the said copartnership and interest in the practice and business,” of which sum according to the contract, “he has paid by conveyance of certain real estate, $10,350, leaving $4,650 to be paid out of his share of the net income, which shall be paid to party of the first part (appellant) over and above $5,000 per annum until paid.”</p> <p>After an experience of eighteen and one-half months, the parties concluded that the partnership should be discontinued and executed the following:</p> <p>“Chicago, Oct. 15, 1897.</p> <p>“We, the undersigned, wish to dissolve the partnership in • the practice of dentistry now existing under the name of Crouse & McCandless by mutual consent, the terms of dissolution and settlement to be agreed upon hereafter, but the dissolution to take effect the 1st of October last.</p> <p>(Signed) J. A. Crouse,</p> <p>A. W. McCandless.”</p> <p>The bill states that the complainant (appellee) deeded certain real estate to appellant at an agreed valuation of $10,-350 and gave his promissory note for $4,650 in payment of the premium which by the articles of copartnership he was to pay appellant for the interest acquired in the business, which real estate and note appellant still retains. Appellee prays for an accounting both as to the earnings of the co-partnership and the premium paid by appellee, and that appellant be decreed to cancel and surrender the note received by him from appellee and “either be compelled to deed complainant the real estate given him or pay the complainant the value thereof.”</p> <p>The decree finds the equities with the complainant and recites that after the dissolution by agreement, the parties were unable to agree upon the terms of dissolution, that complainant insisted as shown by his bill, that the articles of co-partnership should have been rescinded for fraud and that he should he permitted to have a return of the bonus paid and an equal share of the earnings; that defendant had offered to deed back to complainant the property conveyed to him, and to return to complainant his note for $4,650 upon complainant paying to defendant such proportion of the premium or bonus as the period of copartnership (one year and six months) bore to the whole term of five years mentioned in the partnership contract. The court finds that there was no such fraud as entitled complainant to set aside and rescind the contract of partnership, but that the dissolution was without fraud or misconduct of complainant, and that the latter is entitled to recover the unearned part of the premium in the proportion which eighteen months, during which the partnership continued, bears to five years, the time provided for its continuance by the articles of agreement; and that this unearned portion of the bonus is $10,500, for which amount complainant is entitled to credit in the accounting. . The court also finds, there being apparently no controversy in this regard, that appellant has in his hands $3,712.14 of the receipts of the partnership over and above his share, which sum is due from him to appellee.</p>

Bill for accounting. Error to the Circuit Court of Cook County; the Hon. Richabd S. Ttjthiel, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905.

Action of replevin. Error to the County Court of Cook County; the Hon. William H. Hinbbatjgh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904. Statement by the Court. Defendant in error originally brought an action in replevin against plaintiff in error before a justice of the peace and obtained judgment from which an appeal was prosecuted to the County Clerk.

Action commenced before justice of the peace. Appeal from the - Circuit Court of Cook County; the Hon. Geobge W. Brown, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904. Statement by the Court.

Bill for receiver, etc. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. Statement by the Court. This is an appeal from a decree entered in the case of Klink et al. v. Central Avenue Investment Ass’n et al. by the Superior Court of Cook County on March 10, 1904, against Fannie E. Shipman and eleven others, nunc pro tunc, as of April 22, 1903.

Action on the case for personal injuries. Appeal from the City Court of Chicago Heights; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. Statement by the Court. This action was brought byappellee against appellant to recover damages for a personal injury sustained by appellee while in the employ of appellant at its factory in Chicago Heights, Cook county, Illinois, on or about April 17, 1903.

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. John L. Healy, Judge, presiding. Heard in the Branch Appellate Court at the October term, •1904.</p> <p>Statement by the Court. This is an action on the case commenced by Edward Mann, a minor sixteen years old, by Alexander Mann, his next friend, against B. Shoninger Company for injuries sustained by the plaintiff, appellee, by falling into an elevator shaft at 267 Wabash avenue, Chicago, on the 10th day of December, 1901. The declaration consists of two counts. The first count avers that the plaintiff was a minor sixteen years old and a servant of Thompson & Thomas. He was engaged near the elevator shaft of the defendant’s premises in the performance of his duties; that the defendant carelessly and negligently left the elevator shaft on the first or ground, floor of said building unguarded and unprotected, and that the plaintiff, while in the exercise of ordinary care for his own safety, fell into said shaft and was injured. The second count avers the same facts and in addition thereto that the elevator shaft was provided with a wooden door which Adíen pulled down closed the shaft, and that the defendant carelessly and negligently failed to push said door down so as to cover said shaft and moved said elevator away from said floor carelessly and negligently without notice or warning to the plaintiff and carelessly and negligently left said shaft open and unprotected.</p> <p>The evidence shows that defendant, appellant, was, on the / 10th. day of December, 1901, occupying said premises and operating said elevator under a léase from Lewis S. Perry, as trustee, and in his own right; that appellant had sub-let various portions of the building to different tenants, and that at the time of the accident in question The Thompson Music Company occupied the south half of store and basement of the building, Kurz & Allison occupied the third floor; that Thompson & Thomas occupied the second and fourth floors of the building. The building faces east on Wabash avenue and along the west or rear end of the building runs north and south an alley. The elevator shaft was at the rear end of the building about six feet from the alley, and there was a passage from the alley to the elevator about six feet long. The elevator ran from the basement to the fourth floor of the building. The elevator and the entrance leading thereto was not demised to any of the tenants. It remained under the control of defendant for the benefit of the tenants of the building by whom it was used. The lease of appellant to Thompson & Thomas provided, “that the party of the second, part shall have the use of the freight elevator in common with other tenants in the building in which the demised premises form a part.” Thompson & Thomas took possession of their part of the building on May 1, 1900, and continued in possession until May 1, 1902. Ho regular man was in charge of the elevator prior to May 15, 1901. On that date, appellant took exclusive possession of the elevator, the steam heating plant and the passageways and halls. After that date, the tenants of appellant had nothing to do with the management of the building, the steam heating plant or the operation of the elevator.</p> <p>Appellee had worked for Thompson & Thomas two or three weeks at the time of the accident. He had made two trips on the elevator before the accident, one about a week before he commenced working for Thompson & Thomas, and the other a few days before the accident. He was employed as an errand boy to assist in handling and delivering packages of books. Appellee and some other boys working for the sam® firm were instructed just before the accident to take some packages of books to the entry way to the elevator and there to deliver them to various express companies. They placed the packages of books on the elevator and descended on the elevator with the packages of books to the main floor, and the books were taken off the elevator and placed in the entry way. When the Wells Fargo Express Co. man called, appellee started to look for one of the packages. It was about 5:30 P. M. and at that hour on December 10, 1901, it was dark." Ho light was maintained in the entry way. The boys had with them an ordinary barn lantern with a reflector on the back of it, and bull’s-eye in the front. At the time appellee fell this lantern was held by another boy who was looking for packages on the other side of the entry way, and appellee was facing south, but moving toward the east, looking for a package. Palmer, who was in charge of the elevator for appellant, had taken the elevator up after the packages had been placed in the entry, leaving the elevator shaft unprotected, but appellee had not noticed this movement of the elevator and supposed it was still there. Appellee’s foot accidentally slipped and he fell towards and into the shaft, receiving the serious injuries complained of. There was a wooden door to the elevator shaft, but at the time of the accident, and for many months prior thereto, the door did not work and the shaft had been left unguarded and unprotected in any way.</p> <p>The results of the fall were that the entire nervous system of the plaintiff was seriously injured and the plaintiff is suffering from constipation, diabetes and blood in the urine, and total blindness of the left eye. These conditions are incurable and permanent and the plaintiff cannot live many years. Before the accident he was strong and healthy and had never been sick.</p> <p>The jury returned a verdict in favor of the plaintiff for $10,000. The court overruled a motion for a new trial and entered judgment on the verdict.</p>

Action of assumpsit. Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. Statement, by the Court.

Bill to remove cloud. Error to the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904. Statement by the Court.

Action for damages for breach of contract, etc. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904. Statement by the Court. This suit was commenced by Edward Browne, ¡Robert L. Chapin, William P. Cary and Arthur C. Lombard, co-partners, doing business as Browne-Chapin Lumber Company, against the Sagola Lumber Company.

<p>Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1904.</p> <p>Statement by the Court. Appellee brought an action in case for damages against appellant and the Citizens’ Brewery. In the afternoon of October 17, 1900, in Maxwell street, at a point 75 to 100 feet west of Union street in the city of Chicago, appellee was run over by a two-horse beer wagon, and thus received the injuries of which he complains.</p> <p>The declaration alleges that the horses and wagon were owned and used by appellant and its co-defendant in their business of the manufacture and sale of malt liquors, and was then and there in charge of certain of their servants; that the defendants negligently and improperly drove and managed said team; that they drove said team at the unlawful rate of nine miles per hour; and that they improperly drove said team upon and along the left-hand side of the street, whereby said team ran into and struck appellee, etc. The defendants united in a plea of not guilty. The jury found the defendants guilty and assessed plaintiff’s damages at the sum of $4,250. The plaintiff remitted $1,750, and judgment was entered against the defendants for the sum of $2,500. From the entry of this judgment appellant perfected the present appeal.</p>

Injunction proceeding. Appeal from the Circuit Court of Cook County; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court.

Injunctional proceeding. Appeals from the Circuit Court of Cook County; the Hon. Lockwood Honoré, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court.

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook County; the Hon. John L. Healy, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court. This suit was brought against appellant and the city of Chicago for negligence which it is alleged caused the death of appellee’s intestate.

<p>1. Fellow-servant rule—when statute of sister state abolishing, cannot be availed of. Where such a statute provides for the service of a particular notice upon the employer, a failure to serve such a notice precludes the right of the servant to avail of such a statute, when suing in this State.</p> <p>2. Fellow-servants—when conductor and porter of sleeping car are. The conductor and porter of a sleeping car are fellow-servants insofar as their duties require that they shall during certain night hours keep watch over said car, one serving during one portion of the night and the other during the remainder thereof.</p> <p>3. Declaration—when does not state cause of action. A declaration in an action for personal injuries, brought by the porter of a Pullman palace car against the company owning the same, charging it with negligence through the conductor of said car, does not state a cause of action when no neglect or violation of duty is alleged and no allegation is made that the plaintiff and such conductor were not fellow-servants.</p> <p>4. Declaration—when not aided by verdict. A declaration which does not state a cause of action is not aided by verdict</p>

<p>1. Erasures and alterations—when do not render written instrument incompetent. Where the party offering such an instrument testifies that the same is in the same condition as when originally executed, and such testimony is corroborated by circumstances, erasures and alterations appearing on the face of the instrument do not render the same incompetent.</p> <p>2. Variance—when question of, cannot be raised. The question of variance cannot be first raised on appeal.</p> <p>3. Rent—possession not essential to liability to pay. The liability of a tenant to pay rent is not dependent upon his having possession.</p> <p>4. Motion for new trial—when grounds of, waived. Where a written motion specifying grounds for a new trial has been filed, grounds not specified are waived.</p>

<p>1. Summons—power of court to authorize signing of return to. A court of chancery has power, even after the rendition of a decree, to permit the sheriff to sign the return made on the summons, a sufficient showing having been made.</p> <p>2. Masteb—when proceedings before, cannot be questioned. Where no objections have been filed, proceedings had before the master cannot be questioned on appeal.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court. This appeal was consolidated for hearing with the separate appeal taken from the same judgment by Joseph Stockton Company, Ho.- 12,030 in this; court.

Mandamus proceeding. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court. The appellee, a corporation, filed in the Circuit Court of Cook county a petition for a mandamus to compel the appellant to issue to it a permit to move a frame building. An answer was filed by the appellant to the petition. A demurrer to this answer was sustained.

<p>Foreclosure proceeding. Appeal from the Superior Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in this court at the October term, 1904.</p>

<p>1. Corporation—what within implied powers of. A brewery company has the implied power to make a loan for the erection of a building in which it is required by contract that only the beer manufactured by such company shall be sold.</p>

<p>1. Arguments—when irregularity in order of, will not reverse. Irregularity in the order of the arguments to the jury will not reverse unless it appears that injury has resulted.</p> <p>2. Contract—when cannot he repudiated. A contract for the delivery of scrap from time to time cannot be repudiated by the purchaser on the ground that the deliveries were not up to contract, where by the course of dealing the seller had from time to time been permitted to substitute scrap conformable to agreement; nor can such repudiation,, be predicated upon the previous request theretofore made by the shipper where such request had been denied by the purchaser and the contract continued under.</p>

<p>1. Adultery—when condoned. Where the husband knowing of the adulterous conduct of his wife lives and cohabits with her for a period of four years thereafter, he condones the offense.</p> <p>2. Desertion—what does not justify. Desertion by the husband is not justified by a showing that his wife was slovenly, failed to keep her children, her household and her husband’s and children’s clothing in the shape and manner expected of a wife, was unclean as to her own person and clothing and was lazy and neglectful.</p> <p>3. Alimony—when allowance in gross improper. It is improper in a separate maintenance proceeding to allow alimony in gross.</p> <p>4. Alimony—when, cannot he made lien. A court of chancery has no power to make a decree for alimony a lien on personal property.</p> <p>5. Solicitor’s fees—when allowance of, improper. The allowance of solicitor’s fees in a separate maintenance proceeding is improper where no evidence has been preserved to support the same.</p> <p>6. Support money—provision should he made for, in separate maintenance decree. In a decree for separate maintenance, the provision for the support of the wife and of the children should be treated separately, and both the wife and the children provided for.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1904.</p>

<p>Contest in court of probate. Appeal from the Circuit Court of Calhoun County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the November term, 1903.</p>

<p>Action of assumpsit. Appeal, from the Circuit Court of DeWitt County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1904.</p>

<p>1. Condonation—what does not establish. The fact that the wife after knowledge of the adulterous conduct of her husband continues to reside with him in the family homestead, does not establish con-donation where she occupied a separate room and denied him cohabitation.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Christian County; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the November term, 1904.</p>

Action on the case for personal injuries. Appeal from the Circuit Court of Vermilion County; the Hon. J. W. Cbaig, Judge, presiding. Heard in this court at the November term, 1904.

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1904.</p>

<p>1. Transcript of record—contents of, cannot be determined by stipulation. The parties cannot stipulate to the incorporation into the transcript of the record of matters under the law foreign thereto, and where it is done the court will not upon review consider the same.</p>

<p>Contest in court of probate. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myebs, Judge, presiding. Heard in this court at the May term, 1904.</p>

<p>Prosecution for obstruction of highway. Error to the County Court of Montgomery County; the Hon. M. J. McMubbay, Judge, presiding. Heard in this court at the November term, 1904.</p>

<p>1. Ante-nuptial contbact—when should he set aside. Where it appears that at and prior to the execution of an ante-nuptial contract the affianced husband did not fully and fairly acquaint his betrothed of the means at his disposal, such contract should be set aside.</p> <p>2. Witness—when incompetent 6y reason of interest. A widow is incompetent by reason of interest in an action instituted by her against the heirs of her deceased husband to set aside an ante-nuptial contract.</p>

Action on the case for death caused by alleged wrongful act. Error to the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1904.

<p>Petition to annex various tracts of land to drainage district. Appeal from the Circuit Court of Champaign County; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the November term, 1904.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Adams County; the Hon. Albbbt Akebs, Judge, presiding. Heard in this court at the November term, 1904.

Action in assumpsit. Error to the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term 1904. Statement by the Court. Plaintiff in error brought an action in assumpsit against defendant in error in the Circuit Court.

Certiorari proceeding. Error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. Statement by the Court.

Mandamus proceeding. Appeal from the Superior Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. Statement by the Court.

Contested claim in court of probate. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October - term, 1904. Statement by the Court. The will of Charles A. Morrill was admitted to probate and letters testamentary issued to appellee January 13, 1903. A claim of appellant against his estate was allowed by the Probate Court June 25, 1903, for $38,879 as a claim of class seven.

Action in assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904. Statement by the Court. This is an appeal hy the plaintiff from a judgment for the defendants in an action of assumpsit brought on the following instrument: “Geo. A. Seaverns, 153 Monroe Street. Chicago, Nov. 15, 1886.

<p>Foreclosure proceeding. Error to the Circuit Court of Cook County; the Hon. Edward O. Brown, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.</p> <p>Statement by the Court. One of the defendants in error, the German Old People’s Home, obtained a- decree foreclosing a trust deed upon the premises therein described, and it was ordered that said premises be sold at public auction for cash to the highest and best bidder, the decree to be executed by appellee Cooper, master in chancery, and the master’s report of sale to be subject to confirmation by the court. At the time advertised or perhaps five minutes thereafter, at the room provided for sales in judicial proceedings by the Chicago Real Estate Board, the master offered the premises for sale. The representative of the Old People’s Home, the holder of the decree, had not yet arrived. Plaintiff in error was present with his client, who was one of the parties defendant in the foreclosure proceeding. The master proceeded with the sale at once, acting, as he states, under a misapprehension and supposing plaintiff in error to be a representative of the complainant in the suit. When the master asked for bids, plaintiff in error quickly took advantage of the situation and offered $3,000 for the premises. The amount found due the complainant by the decree was $8,197 with costs and solicitors’ fees, and there is testimony tending to show that the premises were fairly worth more than twice the amount of the bid. The master states that being still under the impre.ssion that plaintiff in error represented the complainant, he said to him in substance, that the bid would “leave you a deficiency of about $5,800,” or words to that effect, and being satisfied that the bidder understood the situation the master announced the sale of the premises for $3,000 to plaintiff in error, who then said “that the bid was in the name of William Slack” and thereupon left the room with his client. Ho cash payment was made or tendered to the master. While the latter was still on the sales stand checking up his sales, the complainant’s solicitor entered, having met Slack about fifty feet away from the sales room. The master at once told complainant’s solicitor that his representative had bid $3,000 at the sale, and was then informed that the said solicitor had no representative, and upon learning the name of the bidder said solicitor told the master who said bidder was. The master stated the misapprehension under which he had acted and sent complainant’s solicitor after Slack to tell him that the sale was a mistake and that he, the master, would reopen ¡the sale for higher and better bids and that he, plaintiff in error, should return. The evidence is not contradicted that this message was delivered to Slack almost immediately and that he refused to return. The master thereupon made the public announcement from the sales stand that inasmuch as he had by mistake supposed Slack to be an agent of the complainant and acting under that misapprehension had accepted his bid without payment of any money on account of the purchase, and had made the sale to Slack before the arrival of complainant’s solicitor within a reasonable time of the hour fixed for the sale, and had given notice to Slack of his intention to resell the premises, the sale would be reopened for higher and better bids. Thereupon complainant’s solicitor offered and bid the sum of $7,000, and the bid having been several times announced and none higher or better having been made, the premises were struck off to the complainant for that sum. The master filed “a report of sale, setting forth the above facts.</p> <p>Plaintiff in error subsequently filed an intervening petition asking that the alleged sale to him be approved and affirmed and that the sale to the German Old People’s Home, complainant herein, be disaffirmed, to which petition answers were filed. Upon hearing, the trial court ordered that the bid of plaintiff in error and also that of complainant be rejected and a new sale had.</p>

<p>1. Corporate organization—what may he waived with respect to. The ten days’ notice required by statute of the convening t¡y the commissioners of the first stockholders’ meeting, may be waived by the subscribing stockholders.</p>

<p>1. Jurisdiction—presumption as to, of the Circuit Court. It will be presumed in the absence of any showing to the contrary that the judgment of the Circuit Court was within the limits of its jurisdiction and based upon such papers or evidence as was necessary to support its judgment.-</p> <p>■ 2. Forcible detainer—duty of defendant in appealing from, judgment in. It is the duty of the defendant in appealing from a judgment in forcible detainer to see to it that the complaint is filed with the transcript, and he can take advantage of the absence of such complaint being returned by the justice into court with his transcript and have the action dismissed.</p>

Theodore Brehtano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court.

<p>1. Receiver—when appointment of, erroneous. The appointment of a receiver and the taking away through him of the control of an old and established business from the hands of a trustee who has had an active interest therein for years and who was acting under the direction of a court of chancery, without a showing of cause therefor, and without the consent of the majority interest in the trust, is improper and erroneous.</p>

Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court.

<p>1. Public charity—what comes within legal definition of. A university dependent upon trust funds, and incidental tuition fees not required for purposes of gain, comes within the legal definition of a public charity.</p> <p>2. Respondeat superior—eleemosynary institution exempt from doctrine of. Public charities are eleemosynary institutions and are exempt from the operation of this doctrine.</p>

Action of covenant. Appeal from the Superior Court of Cook County; the Hon. Willard M. McEwbn, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. Statement by the Court. This is an action of covenant brought by appellant against appellees for work done under a building contract. The first and third counts of the declaration declare on an award alleged to have been made by one Charles T. Hiker, in pursuance of certain provisions of the contract.

<p>Bill to set aside award. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.</p> <p>Statement by the Court. Appellants, as complainants in the Superior Court of Cook county, filed a bill to set aside an award on a fire loss on a stock of merchandise, and for- an apportionment of the loss among the twenty defendant companies who had issued to complainants policies of insurance on their stock of merchandise, and for an accounting.</p> <p>The policies of insurance were all of the so-called “standard” form and contained the following provision:</p> <p>“In the event of disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and the company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss.”</p> <p>The twenty defendant companies prior to June 30, 1903, issued these policies of insurance to Tyble Bros. & Co., a firm composed of two individuals, the complainants, who manufactured canvas and leather satchels and novelties, mostly of a cheap grade. The stock which complainants had on hand and covered by the policies was damaged by fire on June 30, 1903. After the fire complainants made a list of the property “damaged or destroyed” and a disagreement arose between the parties as to the loss and damage. On July 29, 1903, an appraisal agreement to determine the amount of such loss and damage as provided in the policies was entered into between complainants and the defendant companies. Complaints chose Julius Kiper, an active member of the firm of L. Kiper & Sons, who were manufacturing leather goods, as their appraiser. The companies named Louis Lapiner, who followed the business of adjusting fire losses for the assured. Prior to engaging in the adjusting business Lapiner had been in the general dry goods business for about twenty years and was familiar with the character and value of the goods described in the policies. Mr. Kiper and Mr. Lapiner agreed upon Mr. K. W. Owen of the firm of Lanz, Owen & Co., manufacturers of leather and canvas goods, satchels, etc., as umpire. Complainants and Kiper desired, for various reasons, that the appraisal be completed as soon as possible, and to avoid delays in submitting matters to Mr. Owen, the umpire, it was agreed at a conference of the appraisers and umpire that they should all make an examination of the amount of loss and damage at the same time; that each should take a list of the goods “damaged and destroyed” furnished by complainants and examine such goods and all evidence of loss, and by this method Mr. Owen might decide without delay in case of disagreement of the appraisers. Accordingly the umpire and appraisers went to complainants’ place of business each day for eight or nine days and made the examination of the property listed, each man by himself, lot by lot, ■ until they finished the list. Whenever a dispute arose between the appraisers as to the damage to any lot the umpire put down his own estimate on his schedule without their interposing in the matter. The complainants were present most of the time, making suggestions and were fully heard. On August 8, 1903, the umpire and appraisers met for a final consideration as to the amount of loss upon the various items, and to make their award as to the aggregate loss. They made an award finding that the sound value of the stock of merchandise was $14,947.52, and that the loss and damage on the same was $4,978.48. Complainants filed their bill to set aside the award, and on „ hearing the Superior Court of Oook county dismissed complainants’ bill for want of equity at complainants’ costs, and complainants appeal from this decree.</p>

<p>1. Directors—power of removal vested in, construed. The power of removal vested hy statute in the directors of a corporation does not extend to the removal of one of their own number.</p> <p>2. By-law—authorizing removing of a director. hy the directors, invalid. A by-law giving the directors power to remove one of their number in specified contingencies is illegal and void.</p> <p>3. Injunction—lies to restrain removal of director. An injunction lies at the instance of a director to restrain the hoard of directors of which he is a member from removing him from office.</p>

Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. This is an appeal from an interlocutory injunction order, restraining appellant from disposing of or paying out its emergency fund. On May 1, 1905, appellee filed her hill of complaint against appellant in the Superior Court of Cook county, alleging that one.

<p>Action of assumpsit. Appeal from the Circuit Court of Cook. County; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1904.</p> <p>Statement by the Court. Appellee by written lease demised certain premises to appellant for the term of one year ending April 30, 1901. The lease provided that ..appellant should pay $5 per day for the time he might withhold possession after the end of the term, and should not sublet the premises or any part thereof. On the trial appellee put the lease in evidence. She also offered and the court received in evidence the proceedings in a forcible detainer suit brought by her against appellant and one Ob-lander, in which judgment for the possession of said premises in favor of appellee was entered June 4, 1901. The evidence tends to show that the possession of said premises was not surrendered to appellee until June 10, 1901, and that the premises were then out of repair. The evidence further tended to show that it reasonably cost appellee $20 to repair the premises, and that she was not able to obtain another tenant until October 15, 1901. Judgment was rendered upon the verdict of the jury, for the sum of $125, and thereupon the present appeal was perfected.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Edwabd F. Dunne, Judge, presiding. Heard in this court at the October term, 1904.

Foreclosure proceeding. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court. In November, 1901, George Johnson and appellant, his wife, executed a trust deed upon premises therein described to secure the payment of the sum of $2,000, evidenced by three promissory notes signed by said George Johnson.

John L. Healy, Judge, presiding. Heard in this court at the March term, 1905. Statement by the Court.

<p>Injunctional proceeding. Appeal from the Circuit Court of Cook County; the Hon. Murbay F. Tuley, Judge, presiding. Heard in this court at the March term, 1905.</p>

Action on the case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Elbbidge Hanecy, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court. This is an appeal from a judgment rendered in favor of appellee and against appellant, in an action in case for negligence, in the sum of $8,500.

Foreclosure proceeding. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1904. Statement by the Court. Pankratz Weidner filed a bill in chancery in the .Superior Court of Cotik county against Katherine Martin and various other defendants, in March, 1897, to foreclose a trust deed made by Katherine* Martin to secure an indebtedness of $2,400..

<p>1. Injunction—-what essential to granting of, without notice. In order that an injunction may he properly granted without notice, the complainant must show such facts by sworn statement, either in the bill or accompanying affidavits, or both, as will enable the court to draw the conclusion that his rights will be unduly prejudiced by the giving of notice; a mere statement of conclusions will not suffice.</p>

<p>1. Injunction—when order for, obtained without notice, erroneous. An injunction granted without notice upon a bill not positively verified, is erroneous.</p> <p>2. Injunction—what essential to granting of, without notice. In order that an injunction may be properly granted without notice, the complainant must show such facts by sworn statement, either in the bill or accompanying affidavits, or both, as will enable the court to draw the conclusion that his rights will be unduly prejudiced by the giving of notice; a mere statement of conclusions will not suffice.</p>

Injunctional proceeding. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. The hill in this case was filed by South Chicago City Railway Company against Independent Credit Company and Edward L. Shover.

Injunetional proceeding. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1905. Statement by the Court. Appellees, the owners of ■ the Brevoort House in Chicago, leased a store room on the first floor of said building to appellant for the term of five years from January 1, 1903.

<p>Action of assumpsit. Appeal from the Superior Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904.</p>

<p>Action on the case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.</p> <p>Statement by the Court. This action is brought to recover damages for personal injuries inflicted Hay 29, 1901, in consequence, it is alleged, of appellees’ negligence and resulting in the death of Henry Alfred Hadl, which the declaration states occurred July 14, 1901. The praecipe was filed and summons issued against the Chicago City Railway Company July 24, 1901, and the summons was returned served July 31, 1901. The original declaration was filed August 9, 1901. ¡Nearly two years thereafter, July 3, 1903, by leave of court, the Chicago, Eoclc Island and Pacific and the Lake Shore and Michigan Southern Kailway Companies were joined as parties defendant. Summons was served on them and an amended declaration filed the same day. Subsequently on May 20, 1904, nearly three years after the accident, by leave of court appellant amended his declaration last referred to by inserting on its face after the statement that the deceased was “a passenger upon said street car” the following in parenthesis: “(and</p> <p>was then and there quietly and carefully standing on the footboard of said car, on the right side of said car, and exercising due care for his own safety.)” After this amendment, each of the defendants separately filed pleas of the general issue and also of the Statute of Limitations, to the last of which appellant demurred. These demurrers were overruled and judgment entered accordingly.</p> <p>The several pleas of the Statute of Limitations are in part as follows: “Because it says that the several supposed causes of action mentioned in the said declaration as amended on the 20th day of May, A. D., 1904, did not, nor did any or either of them, accrue to the plaintiff at any time within two years next before the amending of said amended declaration on the face thereof as above set forth, in manner and form as the plaintiff has above complained against it.”</p>

Action of assumpsit. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. Statement by the Court. This is a suit by appellee to recover for legal services claimed to have been rendered for the appellant, a corporation organized under the laws of the territory of New Mexico. The cause was submitted to the trial court without a jury.

<p>Foreclosure proceeding. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904.</p>

Action on the case for death caused by alleged wrongful act. Appeals from the Superior Court of Cook County; the Hon. Robebt W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1904. Statement by the Court. These suits are brought to recover for the same cause of action, viz. alleged' negligence causing the death of two women in the same accident upon the tracks of the Chicago & Northwestern Railway Company at Evanston in Cook County.

<p>Criminal prosecution for conspiracy. Error to the Criminal Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.</p> <p>Statement by the Court. January 19, 1903, a special grand jury returned into the Criminal Court of Cook county an indictment containing eight counts against the plaintiffs in error herein for a conspiracy to do an illegal act injurious to public trade, etc.</p> <p>. The first count charges that the defendants “unlawfully, fraudulently, maliciously, wrongfully and wickedly did conspire and agree with one Delos Hull” and other persons whose names are unknown “to do an illegal act injurious to the public trade, to wit: to then and there in restraint of trade and to the injury of the public trade, unlawfully create, enter into and become members of and parties to a pool, trust, agreement, combination, confederation and understanding with each othfer to suppress, destroy and prevent competition in the sale and delivery and distribution of coal to consumers and to the general public in the State of Illinois and in the State of Wisconsin to the great damage and injury of all purchasers of said coal and contrary to the statute ' and against the peace and dignity of the State of Illinois.”</p> <p>The second count is practically the same. The third count charges that the conspiracy and combination were “then and there to unlawfully regulate and fix the price at which coal should be sold in1 the State of Illinois,” the same being “an article of necessity to consumers thereof and to the general public” and an article of merchandise. The fourth count charges that the purpose of the conspiracy was “to regulate, fix and raise the price at which coal should be sold.”</p> <p>The fifth count charges a conspiracy to suppress competition “by limiting sales of coal made or to be made to consumers in such localities to retail vendors thereof only and by limiting the territory in which the members of said combination or conspiracy engaged in business of selling coal at retail should thereafter make sales and delivery of coal to consumers, and by limiting the right of wholesale dealers in coal to make sales and delivery of coal to consumers, and by limiting the right of wholesale dealers in coal to make sales and delivery of coal to only such persons as conformed to the rules and regulations of said members of said combination and conspiracy,” which rules required each person selling coal to comply with conditions specified.</p> <p>The sixth count charged that the defendants each then and there being engaged in or interested in the business of selling to the general public, and then and there in competition with various retail dealers in said business, and unlawfully contriving and intending unjustly and oppressively to increase and raise the price at which the coal to be sold by them should be sold, and to suppress and destroy competition among the said several retail dealers and vendors of coal and to fix a price at which said coal should be sold unlawfully then and there did combine, confederate, conspire and agree together with one Delos Hull and other persons whose names 'are unknown, to raise, fix and keep up the prices at which coal should he sold in the respective localities in the State of Illinois and the State of Wisconsin in which said conspirators were and might he engaged or interested in the business of selling coal to the consumers thereof, and to that end did unlawfully in pursuance of and as part of said conspiracy agree that none of the members of said conspiracy and confederation would make or cause to be made any shipments of coal into the territory that might be recognized among the said members of said conspiracy as the territory to which such members should confine his or their sales and delivery of said coal, and to that end did unlawfully in pursuance' and as a part of said conspiracy agree that coal should not be sold by them or either of them at a price below a certain fixed minimum price then fixed and from time to time agreed to be fixed by them jointly or through a committee appointed or to be appointed for said purpose, such minimum price being greatly in excess of the prices at which coal had been accustomed to be sold in said territory, to the great injury of. purchasers of said coal and contrary to the law.</p> <p>The seventh count charged that said defendants conspired to increase, raise and keep up the price at which coal should thereafter be sold in the State of Illinois and the State of Wisconsin, and to suppress, destroy and prevent competition in the sale of coal in said states.</p> <p>The eighth count charges that the defendants conspired, combined, confederated and agreed to create, enter into and become members of and parties to an agreement, combination, confederation and understanding with each other then and there to suppress, destroy and prevent competition in the sale of said coal in the respective states and parts of states in which each respectively was engaged or interested in said business of selling coal as aforesaid, directly to the consumers thereof, and in pursuance of said unlawful agreement and combination, formed themselves into a voluntary association called the Retail Goal. Dealers Association of Illinois and Wisconsin, for the purpose of preventing shipment, delivery and sale of coal by any mine operator, wholesale ship-" per, jobber or their agents, to any consumer except to railroads, gas companies, blast furnaces, transportation companies and manufacturers where said coal is used for manufacturing purposes only in Illinois and Wisconsin, where there is. a member of said association engaged in the business of selling and delivering coal to consumers and fdr the purpose of restricting competition among the members of said association by limiting the right of any member to make sales and delivery of coal in the territory or locality recognized by said association and its members as the territory of other members of said association, etc.</p> <p>A motion to quash the indictment was overruled, the de- • fendants were arraigned and pleaded not guilty. Upon the trial the jury returned a verdict finding each of the defendants “guilty of conspiracy in manner and form as charged in the indictment” and fixing the punishment of each defendant at a fine.</p> <p>The bill of exceptions shows an agreed statement of facts upon which the case was submitted, being received as the only evidence of facts in the trial. Such agreed statement is in part as follows:</p> <p>“That the Retail Coal Dealers’ Association of Illinois and Wisconsin is a voluntary association, whose membership is composed of certain retail dealers in coal in the states of Illinois and Wisconsin; that said association was organized more than three years ago in the City of Chicago, County of Cook and State of Illinois, and has maintained its office during its entire existence in said city; that its officers are elected annually; that its officers elected and serving for the year from July 1, 1902, to July 1, 1903, are as follows, to wit: President, W. M. Sanford; vice-president, C. S. Lusk; secretary, Frank E. Lukens; treasurer, Gus Aucutt; executive board, E. H. Keeler, Delos Hull, Frank McGrew, F. M. Durkee, C. L. Marston and R. C. Brown, being parties named in the indictment herein; that all of said parties were acting in the capacity of said officers, respectively, at the time of the indictment herein; that each of said persons, with the exception of Frank E. Lukens, had been personally engaged, in the business of selling coal at retail for more than three years past, each in his respective locality in the State of Illinois or State of Wisconsin; that said Frank E. Lukens has. not been engaged in the business of selling coal at wholesales or retail since the organization of said association, but has. acted as secretary of said association during its existence;, that the residences of the several defendants, respectively,, are as stated in the pamphlet hereinafter set forth containing-the constitution and by-laws of said association; that all of said defendants except Lukens are engaged in the retail coal, business at said places respectively; that all of said defendants are citizens of the United States.”</p> <p>Then follows the constitution and by-laws adopted by said association and in force since January 1, 1901; parts of which not deemed material are omitted from this statement..</p> <p>CONSTITUTION.</p> <p>ARTICLE I.</p> <p>NAME AND OBJECT.</p> <p>Section 1. The title of this organization shall be “Retail Coal Dealers’ Association of Illinois and Wisconsin.”</p> <p>' Sec. 2. The object of this Association shall be the protection of its members against the shipment of coal direct to» consumers or scalpers, by mine operators, wholesale shippers, jobbers, or their agents, and the general improvement and. elevation of the coal trade in the States of Illinois and Wisconsin.</p> <p>ARTICLE II.</p> <p>MEMBERSHIP.</p> <p>Section 1. Any firm, individual or corporation, owning- or leasing and operating a coal yard, having a set of scales, keeping an office during regular business hours, with a competent person in charge to attend to the wants of customers, at all times, and who has storing capacity for one or more cars of coal, and is REGULARLY and CONTINUOUSLY engaged in the sale of coal at retail in the States of Illinois and Wisconsin, shall be eligible to membership in this Association.</p> <p>Seo. 2. A person buying carloads, and delivering direct from the same, shall not be considered a dealer within the meaning of this Article.</p> <p>Seo. 3. Mine operators, wholesale shippers, jobbers, or their representatives, may become honorary members of this Association, and such membership shall entitle them to all the privileges of the Association, except the right to vote in any of the transactions of the meetings of the Association or the Executive Board.</p> <p>ABTICLE III.</p> <p>COMPLAINTS.</p> <p>Section 1. All complaints shall be made to the secretary in writing, giving as full information as possible, including dates of shipment and arrival, car number and initials, original point of shipment, names of consignor and consignee and any other particulars that can be learned.</p> <p>Seo. 2. All complaints to be handled by this Association must be filed, with the secretary within sixty days after receipt of shipment at point of destination, and no complaint from any member will he considered when made on account of sales or shipment made within thirty days after the date of said member’s certificate of membership.</p> <p>Seo. 3. ¡Nothing in the foregoing sections shall be construed so as to entitle members to make complaints on account of sales and shipments of anthracite and bituminous coal, coke, smithing coal, etc., to railroads, gas companies, blast furnaces, transportation companies, or manufacturers, where said coal is used for manufacturing purposes only.</p> <p>Seo. 4. It shall be contrary to the principles of this Association for any mine operator, wholesale shipper, jobber or their agents to ship coal upon the order of a regular coal dealer, for delivery at any point other than where such dealer may have a yard and is regularly established in the business, and any mine operator, wholesale shipper, jobber or their agents, making such shipment into the territory of other retailers, who are members of this Association, will be considered as having sold or shipped a consumer.</p> <p>Seo. 5. It shall be contrary to the spirit of this Association for any of its retail members to make or cause to be made, shipments into the legitimate territory of other members of the Association, and members who shall offend shall be subject to the same conditions as shipments made by wholesale members.</p> <p>Sec. 6. Shipments for public or private schools, city and county buildings, shall be considered as shipments direct to consumers.</p> <p>Sec. 7. It shall be the duty of the secretary to at once notify the party or parties against whom complaint has been made. If the transaction was made through or by a jobber, mine agent, or other person, the principal for whom they act or the shipper from whom they receive the coal shall also be notified and shall be considered jointly liable.</p> <p>Sec. 8. If it be found impossible to adjust a claim through the efforts of the secretary, then the matter shall be referred tó the Executive Board, whose decisions shall be final and binding on all parties.</p> <p>ARTICLE IV.</p> <p>TERRITORY.</p> <p>Members shall be entitled to the protection of this Association at only such places where they operate yards as they shall desire to have placed on the membership lists, and for which they shall pay annual dues for each place so protected.</p> <p>ARTICLE IX.</p> <p>RECIPROCITY.</p> <p>Whereas, As reciprocity is in direct line with the principles of this Association, we hereby pledge ourselves to purchase goods of only those mine operators, wholesale shippers, jobbers or their authorized representatives who recognize the principles of this organization and make it their uniform practice to distribute their goods only through the legitimate channels of the trade, and who may be eligible to honorary membership in this Association. .</p> <p>SECTION 6.</p> <p>EXECUTIVE' BOARD.</p> <p>It shall be the duty of the Executive Board to hear and determine all complaints made by any member of this Association, when duly reported to them by the Secretary, and them decision shall be binding upon all members of this Association. They shall have the power, by a two-thirds vote, to remove or suspend any official for any just cause, and appoint a member of the Association to fill the vacancy. Furthermore, they shall have the power, by a two-thirds majority vote, to suspend or expel any member for any conduct which in their opinion might endanger the welfare, interest or character of the Association. No vote shall be taken on a proposed suspension or expulsion until after ten days’ notice in writing has been sent the member in question, setting forth the charges preferred against him or them. The defendant shall have the right to be heard, either in person or by writing, and shall have the privilege to offer any testimony he may desire before final vote thereon.</p> <p>Upon request of the Secretary, said Board shall convene to determine and adjudicate such matters as are not clearly defined by the Constitution and By-Laws, or such other questions as he deems of great importance to the Association.</p> <p>Four members of the Executive Board shall constitute a quorum for the transaction of business at any meeting, notice by mail having been given each officer ten days prior thereto.</p> <p>SECTION 7.</p> <p>QUORUM.</p> <p>In all the meetings of the Association, fifteen members • shall constitute a quorum for the transaction of all business.</p> <p>SECTION 9.</p> <p>EXPENSE OP OFFICERS.</p> <p>The legitimate expenses of officers and the members of the Executive Board, in attending meetings of the Board, shall be paid out of the funds in the treasury of the Association.</p> <p>SECTION 10. ■</p> <p>SHIPMENTS AND PENALTIES.</p> <p>Whenever, and as often as any mine operator, wholesale shipper, jobber, or their agents, shall sell coal to any person not a regular dealer, except as provided in Art. Ill, Sec. 3, of Constitution, shipper will be considered as having sold and shipped to a consumer, and the penalty for said shipment shall be fifty cents per ton for each ton of anthracite coal and twenty-five cents per ton for each ton of bituminous coal, smithing coal, or coke thus sold. Whenever the secretary of this Association shall succeed in collecting any claim made against the mine operator, wholesale shipper, jobber, or their agents, upon coal sold to the consumer, as provided in the Constitution and By-Laws, eighty per cent of the sum so collected shall be paid in equal parts to the members of the Association who shall be located at the point where such sale is made, and if there be but one member, then eighty per cent of all the sum so collected shall be paid to him, and the remainder shall be turned into the treasury of the Association.</p> <p>SECTION 11.</p> <p>SHIPPERS LOSE STANDING.</p> <p>. Any mine operator, wholesale shipper, jobber or their agents, who shall sell coal direct to a consumer in any town or city where there is a member of this Association shall be deemed as withdrawing from Honorary Membership, and shall not thereafter be included in any printed list of membership, Active or Honorary, unless he shall first have satisfied the reasonable objections of all parties aggrieved.</p> <p>SECTION 13.</p> <p>penalty eor non-payment oe annual dues.</p> <p>If any member shall neglect or refuse to pay the dues provided by the Constitution and By-Laws of this Association within sixty days after due notice by the secretary, he shall cease to be a member of this Association, and the secretary may strike his name from the rolls.</p> <p>SECTION 14.</p> <p>member’s liability to suspension.</p> <p>Any member of this Association who shall habitually fail to meet his obligations with the Wholesale Dealers and shall be reported by any dealer to the secretary of this Association shall be cited to appear before the Executive Board, and should he fail to exonerate, himself from the charges preferred, to the satisfaction of the Executive Board, he shall no longer be considered a member of this Association and a participant in its benefits. When a member is dropped from this Association for non-payment of debts, the shippers who are honorary members of this Association shall be notified monthly by the secretary</p> <p>RESOLUTIONS.</p> <p>The following resolutions were adopted at the semi-annual meeting, held in Milwaukee, Wis., Dec. 14, 1899:</p> <p>Besolved, that the Executive Board of the Betail Coal Dealers’ Association of Illinois and Wisconsin be instructed and they are hereby authorized to amend the Constitution and By-Laws of said Association, so that shipment to railroad companies, where the coal is used for other purposes than operating their lines, or conducting their business of railroading, shall be considered as shipments to consumers.</p> <p>Whereas, Considerable trouble and many disputes have arisen on account of shipments being made to parties claiming they were going into the coal business, before such parties had properly equipped themselves as regular dealers, as provided in the Constitution and By-Laws of the Retail Coal Dealers’ Association of Illinois and Wisconsin; therefore he it</p> <p>Resolved, That shipments to parties claiming that they are going into the business shall be considered as shipments to consumers, if such shipments are made before said parties have the proper equipment, a-1- provided by the rules of the Association.</p> <p>Resolved, That the Executive Board of the Retail Coal Dealers’ Association of Illinois and Wisconsin be instructed and they are hereby authorized to employ a competent attorney as counselor for the Association, and that such attorney’s name appear with the list of officers of said Association.</p> <p>Resolved, That the Executive Board of the Retail Coal Dealers’ Association of Illinois and Wisconsin be instructed and they are hereby authorized to change or amend the constitution and by-laws of said Association whenever they have reason to believe that they conflict with the laws of the State of Illinois or Wisconsin.</p> <p>The pamphlet containing the constitution and by-laws contains this notice:</p> <p>“NOTICE.</p> <p>Shippers are urged to refrain from quoting prices or sending circulars and price lists to consumers in towns in which members of this Association are located.”</p> <p>The statement further recites:</p> <p>“That previous to the adoption of the resolution which authorizes the executive board to change or amend the constitution and by-laws whenever they have reason to believe that they conflict with the laws of the State of Illinois or the State of Wisconsin, the association was advised by a reputable attorney that the constitution and by-laws, as hereinbefore set forth, was not in conflict with the laws of the State of Illinois or of Wisconsin and that it was not an illegal act for this association to transact business under such constitution and by-laws, which advice the defendants believed and followed in the doing of the acts complained of.”</p> <p>“That in practice under Section. 11 of said bydaws no inine operator, wholesale shipper, jobber, or their agents, has ever been expelled or dropped from thé honorary list of membership, and objections-have beén satisfied either by'payment of finesj as provided in th'e by-laws, or by agreement not to repeat the offense complained of.” r</p> <p>“It was not deemed a reasonable objection thereunder to a sale to the consumer, as defined in said constitution and bylaws, if the regular dealer or dealers,' as' defined therein, doing business at the point of sale, failed to meet his or their financial obligations to the shipper, etc.; of if the wholesaler or shipper, etc., did not know at the timé of the salé that the purchaser was not a regular dealer, as aforesaid.”</p> <p>“¡No compulsion or Coercion was exercised by said association- over the members thereof to induce them to comply with said constitution and by-laws otherwise than provided therein, if they may bé so Construed,"but each -inember complied or not with said provisions as be co'nsidéréd' his own best interests to dictate.”,.</p> <p>“The association did not attempt to regulate or fix the price of coal, but, on the contrary, the members of the association were at full liberty to charge whatever price they saw fit.” “Said association-never compelled mine dperátors, wholesale shippers or jobbers or their agents, to violate any contract which they might have already entered into for the sale of coal.” , ,,</p> <p>“Penalties were considered as compensation to the retail member or members of the ‘association located at the point where such so-called irregulár sale was made, só'as to assist such injured member or members to maintain the equipment required in the constitution, and to compensate them for loss occasioned them by sale from'the shipper, etc., direct to the consumer.” • , ' "</p> <p>‘‘Experience in the retail coal business in Illinois and Wisconsin for many years' has shown that'the cost of handling coal by retailers who are regularly and continuously engaged in the business, is,-on the average, over fifty "cents per ton;' and that fifty cents-per fon bn anthracite coal and twefity-fivé cent’s per ton on bituminous coal, smithing coal or coke/ is no more than a fair, reasonable profit to such average retail dealer for doing the business.” -</p> <p>“That the establishment of said association has resulted in some instances in enabling regular retail coal dealers to establish places-of business in some localities where before this association was established no retailer could afford to maintain a place of business, so as to keep a supply of coal constantly on hand all the year round to meet -the demands of the public; and before the establishment of such retail dealer at such point, the public at such place were compelled to get their supply of coal from distant and inconvenient points at increased expense, or else purchase their coal directly from mine operators, and wholesale shippers or jobbers in carload lots (which contain from twenty to forty tons of coal per car), or else purchase of scalpers, who would not have a yard or other facilities for keeping a constant supply of coal on hand, but who would occasionally buy one or moré carloads, of coal, at such times in the year when fit could be immediately retailed to consumers.” ■</p> <p>“A scalper, as understood by said association, is a person who does not have an office, scales, or a place for storing coal, nor does he engage regularly and continuously in the coal business, so as to supply the demands of the public at all times during the year; but on the contrary, á scalper is one who is in the habit of buying one or more carloads of coal, principally in the summer and fall when coal is at a low figure, and then áelling it to consumers directly off the car.”</p> <p>“Protection to members of the association was sought to be given by imposition of the penalties prescribed in said by-laws, on offending members.”</p> <p>“The secretary of the association hás sent out every three months, or caused to be sent out, a list of the honorary members of the association to the active members thereof; but neither said association, nor the secretary thereof, has since this constitution was adopted ever sent out, posted or distributed any warning, request or notice to the members of said association, or to anyone else, that any mine operator, wholesale shipper, jobber or any of tbeir agents, whether members of said association or not, should not be dealt with or patronized, or that purchases of coal should not be made of' them.”</p> <p>“The ■ executive committee, usually convened only twice a year, once just before the annual meeting and once just after.”</p> <p>“Either active or honorary members could withdraw from said association whenever they pleased; and the non-payment of dues effected a termination of membership in the association.”</p> <p>“The term ‘legitimate territory’ referred to in Article 3, Section 5, of said .constitution was understood by the members of said association to include territory naturally tributary thereto through location and lines of travel, but not to include any other city, town of village, where a member of said association was operating a yard and office, except in those instances where a member’s place of business outside of said city, town or village was more accessible by the regular and natural route of travel than places of business in such cities, towns or villages.</p> <p>“But if there were several members or eligible members of said association doing business in the same city, village, town or locality, it was understood that the legitimate territory of each included the whole.-of said city, village, town or locality, and any member was permitted to establish and operate as many places of business as he desired.”</p> <p>“That on the date of the indictment the members of'said-association consisted of 424 active members in the State of Illinois, 322 active members in the State of Wisconsin and 70 honorary members. That at said date there were over. 1,950 persons engaged in' the retail coal business in the State of Illinois and over' 325 persons engaged in the retail coal business in the State of Wisconsin, who were eligible to membership in said association but were not members thereof. It is estimated there is sold in Illinois and Wisconsin each year on the average about 25,000,000 tons of coal, of which the railroads consume about one-half, and there is sold in said states through the retail dealers who were members of said association about ten per cent of this amount, viz: 2,500,000 tons, about one-third of which is anthracite coal. The honorary members of said association did not include all the mine operators, wholesale dealers and jobbers who sold coal in Illinois and Wisconsin—the entire number being 250. But said 70 members were the principal and largest of said operators, etc.”</p> <p>“That on November 5, 1902, the following letter was sent out from the headquarters of said association in Cook County aforesaid, by its secretary, the defendant F. E. Lulcens, addressed to one of the honorary members of said association, being a wholesale dealer in coal in the City of Chicago aforesaid, to wit:</p> <p>“RETAIL COAL DEALERS’ ASSOCIATION . OF ILLINOIS AND WISCONSIN.</p> <p>1536 Monadnock Block,</p> <p>Chicago.</p> <p>Telephone Harrison 588. .</p> <p>(Omitting names of the officers'' and Executive Board, which appear on the letter heads.)</p> <p>" Chicago, November 5, 1902. No. 81.</p> <p>Gentlemen:—</p> <p>We have six members of our Association living in and doing business at South Chicago. We are informed that you° are supplying the Illinois Steel Company, with soft coal for manufacturing purposes. We are further informed that the Illinois Steel Company are furnishing a part of this coal to their employes and others. We wish to advise you that this is against the rules of our Association, and such shipments are irregular after the mine operator has been duly notified, unless the manufacturer ceases to divert the coal for domestic use. There is no question but what the sale of this coal by the Illinois Steel Company is greatly injuring and demoralizing the trade in South Chicago. Ton may not know perhaps that they have been disposing of the coal in this manner, but now that you have the information, we hope you will take immediate steps to1 relieve the situation, which is becoming 'almost intolerable tó the retail dealers in South Chicago.</p> <p>Kindly let us hear from you at your earliest convenience with' reference" to the matter, and greatly oblige</p> <p>Yours very truly,</p> <p>* F. E. Lukeiís, Secretary.”</p> <p>■; . “That on January 9> .1903, -the following letter was sent out from the headquarters of said association by- said Secretary thereof, addressed to the same honorary member, as aforesaid, to wit: . ■ , '</p> <p>(Letter head, name of association and officers and executive board the same as on first letter.)</p> <p>“Chicago, Jan. 9, 1903.</p> <p>Gentlemen:—■</p> <p>Wé have a complaint from Watseka, Illinois, in which it is claimed that Martin & Sweeney, Tile Mfgrs., have bought coal from you and are distributing same to private parties, which is against the rules of the Association.</p> <p>We are also advised that the City of Watseka have bought coal from you, which they have distributed to private consumers, and we would like to hear from you with reference to .this matter, and oblige .</p> <p>Yours very truly, ■ ■ ■</p> <p>F. E. Lukeks, Secretary.”</p> <p>* “That the following circulars were sent out from the head- • quarters of said retail dealers’ association in Chicago" aforesaid, by its secretary, at the time of their respective dates, to the honorary members of 'said association, and to no others, • to witi" ■</p> <p>(Part of said circulars omitted for brevity.)</p> <p>(Letter head, name of association and officers and executive board the same as on first letter.)</p> <p>“May 29th, 1901.' ‘</p> <p>' The following parties are reported as being in the market for coal, and that they are- not regular coal dealers' at the points named, according to the rules of the Association: "1</p> <p>ILLINOIS.</p> <p>ALGONQUIN.</p> <p>The' Borden Condensed Milk Co.,</p> <p>Hard coal for employes.</p> <p>FREEPORT.</p> <p>The Stover Mfg. Co.,</p> <p>Hard coal for employes.</p> <p>LANARK.</p> <p>E. C. Harpold, of Chicago,</p> <p>For hard coal.</p> <p>Runs small electric light plant at Lanark.</p> <p>Several farmers near Lanark.</p> <p>Kindly keep this information on file for future reference.</p> <p>Yours very truly,</p> <p>Retail Coal Dealers' Association of Illinois and Wisconsin."</p> <p>(Letter head, name of association and officers and executive hoard the same as on first letter.)</p> <p>“June 6, 1901.</p> <p>The following parties are reported as being in the market for coal, and it is claimed that they are not regular coal dealers at the points named, according to the rules of the association.</p> <p>ILLINOIS.</p> <p>WAYNE.</p> <p>W. S., J. B. and B. Dunham,</p> <p>Proprietors of the Oak Lawn Farm. ■,</p> <p>QUINCY.</p> <p>Knollenberg & Wavering.</p> <p>Kindly keep this information on file for future reference. .</p> <p>Yours very truly,</p> <p>Retail Coal Dealers' Association of Illinois and Wisconsin."</p> <p>(Letter head, name of association and officers and executive hoard the same as on first letter.)</p> <p>“June 6, 1901.</p> <p>The following parties are reported as being in the market for coal, and it is plain that they are not regular coal dealers at the points named, according to the rules of the Association :</p> <p>ILLINOIS.</p> <p>BOCK FALLS AND STEELING.</p> <p>Will Long.</p> <p>Keystone Mfg. Co.</p> <p>HINSDALE.</p> <p>John Pitts.</p> <p>STKEATOB.</p> <p>Thad. Bussell.</p> <p>WISCONSIN.</p> <p>BEEDSBUEG.</p> <p>W. A. Stolte.</p> <p>NEENAH.</p> <p>Frank Leavens.</p> <p>Henry Northrup.</p> <p>MENA SHA.</p> <p>Frank Leavens.</p> <p>Henry Northrup.</p> <p>Kindly keep this. information on file for future reference.</p> <p>Tours very truly,</p> <p>Betail Coal Dealers’’ Association op Illinois and Wisconsin/’’</p> <p>(Letter head, name of association and officers and executive board the same as on first letter.)</p> <p>“July 1, 1901.</p> <p>The following parties are reported as being in the market for coal, and it is claimed that they are not regular coal dealers according to the rules of the Association:</p> <p>ILLINOIS.</p> <p>HENBT.</p> <p>J. W. Watercott & Co.</p> <p>Duke Bros.</p> <p>DANVILLE.</p> <p>T. Conron.</p> <p>Ed Winters.</p> <p>Dewitt Erazier.</p> <p>Frank Lindley.</p> <p>T. J. Donley.</p> <p>Chas. Peiwell.</p> <p>J. W. Kent.</p> <p>WHEATON.</p> <p>W. Lament Odett.</p> <p>WISCONSIN.</p> <p>APPLETON.</p> <p>D. W. Barry.</p> <p>BIPON.</p> <p>J. A. Eggleston.</p> <p>Note 1. That Thad. Bussell, of Streator, 111., makes the statement that he has complied with all the rules of the Association as regards equipment, etc., in which event he will he considered as a regular coal dealer.</p> <p>Yours very truly,</p> <p>Betail Coal Dealers' Association oe Illinois and Wisconsin."</p> <p>LEMONT.</p> <p>' A. O’Shaughnessy.</p> <p>Is not a resident of Lemont; cannot he considered a dealer according to the rules of the Association. BIDGEFIELD.</p> <p>E. W. Hartman.</p> <p>WISCONSIN.</p> <p>VIEOQHA.</p> <p>Nustad Bros.</p> <p>Vernon County Lumber & Mfg. Co.</p> <p>Are not entitled to quotations as manufacturers, as they use a gasoline engine.</p> <p>Kindly keep this information for future reference, and oblige</p> <p>Tours truly,</p> <p>Retail Coal Dealers' Association of Illinois and Wisconsin."</p> <p>“That in the month of April, 1902, the secretary of said association sent out from the office thereof in the county aforesaid, to its honorary members in and out of Cook County, and only to them, a pamphlet called a look-out list,’ on the cover of which pamphlet was printed the names of the then acting officers of said association, being the same parties named in' the indictment herein so far as their names are the same, a copy of which pamphlet is hereto annexed, and is the only pamphlet of the kind ever sent out, and is as follows, to wit:</p> <p>The pamphlet referred to has on the.first page of its cover the following:</p> <p>‘Hook-out List ■</p> <p>RETAIL COAL DEALERS’ ASSOCIATION</p> <p>of</p> <p>ILLINOIS AND WISCONSIN.</p> <p>Monadnock Block,</p> <p>CHICAGO.”</p> <p>On the inside of the first page of the cover is the following: “To Our Wholesale Friends:</p> <p>“The Hook-Out’ List contains the names of persons who are not regular dealers in coal according to the rules of eligibility of our Association, and are not entitled to buy at wholesale under the rules of the trade, but who may seek to buy coal in car lots at towns where our members are located, and sales made to them will cause an injury to our members and may result in trouble for the shipper. Our wholesale friends are requested to keep this list constantly before them, as it will be a guide and guard against irregular shipments, and we solicit your co-operation to "the end that the coal business may be mutually profitable iu the territory of our organization.</p> <p>“In considering our own interests we would not forget the interests of our brothers, the mine-operators and wholesalers, and it is our ambition to do all that is possible to the end that every coal dealer, be he shipper or retailer, may realize a reasonable return for his investment.</p> <p>Retail Coal Dealers'* Association oe Illinois and Wisconsin.</p> <p>(Extra copies furnished upon application.)”</p> <p>Then follows in thirty-two pages an alphabetical list of towns and cities in Illinois and Wisconsin, together with the names of certain individuals and firms at each place.</p> <p>The list is headed, “Look-Out List.”</p> <p>Following this list of names on page 33 of the pamphlet is the following:</p> <p>“To our Wholesale Friends:</p> <p>“Following is a list of manufacturers who under the rules of our Association are entitled to purchase coal at wholesale for manufacturing purposes only; however, shipments made to manufacturers, where the coal is resold or furnished to their employes or others for domestic use, will be considered as irregular and the original shipper will be held responsible according to the rules of the Association. If contracts made for coal with manufacturers contained a provision that such coal is not to be resold or used for domestic purposes, the desired result would no doubt be accomplished.</p> <p>Retail Coal Dealers'’ Association oe Illinois and Wisconsin/"’</p> <p>After this is a list headed “Look-Out List Manufacturers” . in Illinois and Wisconsin, containing ten pages, arranged alphabetically.</p> <p>The last page of the pamphlet is as follows:</p> <p>“RETAIL GOAL DEALERS’ ASSOCIATION OF ILLINOIS AND WISCONSIN.</p> <p>1536 Monadnock Block,</p> <p>Chicago.</p> <p>. Telephone Harrison 588.</p> <p>—o—o—o—</p> <p>OFFICERS:</p> <p>President, R. O. Brown, Oshkosh, Wis.</p> <p>Vice-President, W. M. Sanford, Freeport, Ill.</p> <p>■ Secretary, Frank E. Lukens, Chicago.</p> <p>Treasurer, Joseph Vial, LaGrange, Ill.</p> <p>Attorney, Samuel W. Packard, Chicago.</p> <p>EXECUTIVE BOARD.</p> <p>E. H. Keeler, Rockford, Ill.</p> <p>F. M. Durkee, Lake Geneva, Wis.</p> <p>Jno. W. Adams, Peoria, Ill.</p> <p>C. L. Marston, Appleton, Wis.</p> <p>Frank McGrew, Kankakee, Ill.”</p> <p>The agreed statement of facts then proceeds as follows :</p> <p>“That the said defendants and each of them claim and insist that a conviction of them, or either of them, under any one of the several counts of said indictment, would deprive them of a right, privilege or immunity guaranteed to them under the Fourteenth Amendment to the Constitution of the United States, and that they each claim and insist that they are entitled to protection in the doing of the acts complained of in the said several counts of said indictment under the provisions of Section 1 of said Fourteenth Amendment to the Constitution of the United States; and that the statutes referred to in the several counts of said indictment, and each of them, are unconstitutional and void, and contrary to the Constitution of the State of Illinois and to said Section 1 of the Fourteenth Amendment of the Constitution of the United States; and especially that the act of the legislature of Illinois entitled, ‘An Act to provide for the punishment of persons, copartnerships or corporations forming pools, trusts and combines, and mode of procedure and rules of evidence in such cases, approved June 11, 1891, and in force July 1, 1891, and as amended by an act approved June 20, 1893, in force July 1, 1893, and as further amended by an act approved June 10, 1897, and in force July 1, 1897, is contrary to the Constitution of the State of Illinois, and to the first section of the Fourteenth Amendment of the Constitution of the United States, and that Section 46, Chapter 38, Division I, of the Revised Statutes of the State of Illinois, Hurd’s Edition, 1901, is contrary to the Constitution of the State of Illinois, and to the said first section of the Fourteenth Amendment of the Constitution of the United States.”</p> <p>Then follows a copy of the report made by the special grand jury which found the said indictment above referred to against the said defendants. The jury returned a verdict finding each of the defendants “guilty of conspiracy in manner and form as charged in the indictment and we fix the punishment of each of said defendants at a fine of $100.” Motions for a new trial and in arrest of judgment were overruled and each of the defendants was sentenced to pay a fine of $100 and costs.</p>

Prosecutions for contempt, etc. Appeals from and error to the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1904. Statement by the Court.