Volume 140 — Illinois Appellate Court Reports

<p>Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Chas. T. Moore, Judge, presiding.</p>

<p>Divorce. Appeal from the Circuit Court of Jackson county; the Hon. Wm. N. Butleb, Judge, presiding.</p>

<p>Trespass. Appeal from the Circuit Court of Hamilton county; the Hon. P. A. Peabce, Judge, presiding.</p>

<p>Assumpsit. Error to the Circuit Court of Gallatin county; the Hon. Jacob R. Cbeibhtojst, Judge, presiding.</p>

<p>1. Masteb and servant—when doctrine of assumed risk does not apply. A servant injured while performing work under the specific orders of his master is not subject to the doctrine of assumed risk.</p>

<p>1. Fkanchises—who cannot raise question of failure to observe provisions of ordinance. Whether a telephone company has strictly observed all the conditions of a franchise ordinance is a question which can only be raised by the municipality granting the same.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Wabash county; the Hon. J. A. Lapp, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Bubboughs, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>Bill of interpleader. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>The decision in this case is except as to the ensuing point controlled by the decision in the preceding case, ante, p. 46.</p> <p>1. Appeals and errors—when cross-errors cannot he assigned. Cross-errors cannot properly be assigned upon the record filed upon an appeal taken by parties who are unaffected by the matters to which the cross-errors refer.</p>

<p>1. Verdicts—when not disturbed as against the evidence. "A verdict will not he set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Practice—when special interrogatory properly refused. A special interrogatory which does not relate to an ultimate fact in dispute and which would tend to confuse the jury, is properly refused.</p> <p>3. Instructions—need not refer to excluded evidence. It is not error for the court to refuse an instruction which tells the jury that they must disregard particular evidence which has been excluded.</p>

<p>1. Contributory negligence—when servant guilty of. A servant who undertakes to do work which he knows is beset with danger, and neglects to avail himself of ready means, with which he is also acquainted, by which he may remove the danger, is guilty of contributory negligence.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Union county; the Hon. W. W. Duncan, Judge, presiding.</p>

<p>1. Master and servant—when doctrine of assumed risk does not apply. A servant who is taken from his regular employment and directed to perform hazardous duties, the risk of which he does not know and of which he is not informed, is not, if injured, subject to the application of the doctrine of assumed risk, and this notwithstanding he may have been what is known as a “company man” and may have belonged to a labor organization and through it had agreed “to perform whatever day labor” his foreman might direct.</p> <p>2. Instructions—must not ignore contentions of parties. An instruction in a personal injury case which directs a verdict of “not guilty” upon the finding of particular facts must not ignore any theory supported by the evidence which would preclude such a verdict.</p>

<p>1. Vebdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Verdict—when not excessive. A verdict of $2,000 rendered in an action for personal injuries is not excessive where it appears that the plaintiff at the time of his injury was forty-four years old, was thrown from near the top of a three-story building and brick and debris fell on top of him, that he was taken from under such debris in an unconscious condition, removed to a hospital, remained there six days; was then taken to his home and confined to his bed for about four months, was prevented from pursuing his usual occupation for seventeen or eighteen months, was at the time of his injury a strong man earning from six to seven dollars a day, and was at the time of the trial—more than two years after the injury—not fully recovered.</p> <p>3. Statute limitations—when amended declaration does not state new cause of action. Where the original and amended declaraations complain of the same act or acts, namely, the construction by the defendant of an imperfect and insecure stone cellar wall and the procuring of the plaintiff to work upon the brick wall constructed upon such improper and insecure foundation (with resulting injury), the amended declaration does not state a new cause of action, which differs from the original merely in alleging the capacity in which the plaintiff was working at the time of his injury.</p>

<p>1. Amendments and jeofails—what does not constitute amendment. Upon obtaining leave to add new parties, the declaration should be so amended as to connect such new parties with the cause of action relied upon.</p> <p>2. Abatement Act—section 11 construed. If an heir or devisee is joined in lieu of the original defendant, it is necessary to connect him with the cause or action by suitable averments in the delaration, which averments must be as full as if such heir or devisee had been the original defendant.</p>

<p>1. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Damages—what evidence competent upon question of, in action for injury to land by fire. The value of manure may be shown, not as an independent element of damage, but as tending to show the value of the land in question before the fire.</p> <p>3. Instructions—when refusal of correct instruction as to interest of plaintiff not ground for reversal. Where the evidence is not seriously conflicting, the refusal of the court to give the following instruction is not reversible error:</p> <p>“The jury are further instructed that while the law permits the plaintiff in the case to testify in his own behalf, nevertheless the jury have the right, in weighing his evidence, to determine how much credence is to be given to it, and to take into consideration that he is the plaintiff and interested in the result of the suit.”</p>

<p>1. Corporations—statute prohibiting unauthorized assumption of corporate name construed. A promissory note taken in a corporate name is not void merely because the assumption of such corporate name is unauthorized and in violation of statute.</p> <p>2. Negotiable instruments—rights of assignee before maturity. A person who takes an assignment of a promissory note before due in good faith, for a valuable consideration, even though he may be guilty of gross negligence, will hold it by a title valid against the world, and it will not in his hands he subject to a defense of failure of consideration.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.

<p>1. Landlord and tenant—estoppel to dispute title. A tenant cannot dispute his landlord’s title, nor can a sub-tenant dispute such landlord’s title; nor can such tenant, even though holding under two landlords, dispute the title of either of such landlords.</p>

<p>1. Negligence—when doctrine of res ipsa loquitur applies. The doctrine of res ipsa loquitur applies where the injury results from an unassignable cause and the servant was at the time thereof in the exercise of ordinary care for Ms own safety.</p>

<p>Action commenced before justice of the peace. Appeal from the City Court of E. St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of St. Clair county; the Hon. Chas. T. Moore, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.

<p>Bills in chancery. Appeal from the Circuit Court of Madison county; the Hon. Chas. T. Moore, Judge, presiding.</p>

<p>Trespass. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyebs, Judge, presiding.</p>

<p>1. Evidence—when question improper as calling for the conclusion of a witness. A question as follows is subject to the objection (hat it calls for the conclusion of a witness and invades the province of the jury: “By walking along in the center of the sidewalk after it was repaired, now was there any danger.”</p> <p>2. Appeals and errors—when assignment of error deemed waived. An assignment of error not argued is deemed waived.</p> <p>3. Instructions—should not invade province of jury. Held proper to modify the following instructions by striking therefrom the italicized words:</p> <p>“The court instructs the jury that if you believe from the evidence that the plaintiff was familiar with the sidewalk in question and knew its condition, and you further believe from the evidence that at the time he claims he was injured, he was not exercising due care and caution for his own safety, such as loohing where he was stepping, then he was guilty of contributory negligence, and the jury will find for the defendant.”</p> <p>4. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>5. Execution—when should not be awarded. An execution should not be awarded against a city.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. Chas. T. Moobe, Judge; presiding.

<p>1. Master and servant—effect of joint negligence of former and fellow-servant. A master is liable for his negligence notwithstanding the injury may have been contributed to by the negligence of a fellow-servant.</p> <p>2. Master and servant—when doctrine of assumed risk does not apply. A servant injured while carrying out the command of his master is not subject to the application of the doctrine of assumed risk, if in obeying such command he acts with that degree of prudence that ordinarily prudent men would have observed under the same circumstances.</p> <p>3. Ordinary care—what competent upon question of. Upon the question of the exercise of ordinary care it is competent to show the lack of experience of the servant.</p> <p>. 4. Appeals and errors—when rulings not subject to • review. Rulings to which no exceptions have been preserved will not be considered on review.</p> <p>5. Amendments and jeofails—propriety of, after verdict. It is within the discretion of the trial judge to permit the declaration to be amended after verdict in order that it may conform to the proof.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>Action in ease for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Madison county; the Hon. Jno E. Hielskotteb, Judge, presiding.</p>

<p>Contested claim in Court of Probate. Error to the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. E. D. W. Holder, Judge, presiding.

<p>1. Appeals and errors—what abstract should, contain. While an abstract need not contain portions of the record upon which no question is raised, those portions on which error is assigned should be so clearly and fully abstracted that there will be no necessity for the court or opposite counsel to inspect the record.</p> <p>2. Assignments—when subject to equitable defenses. An instrument not assignable at common law and not assignable by virtue of any statute in this state is taken by an assignee for value without notice, subject to all equitable defenses.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. James E. Dunnesan, Judge, presiding.

<p>Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Instructions—approved form as to right of recovery for damage to crops resulting from overflow. An instruction upon this subject set forth in hcec verba in the opinion is considered and approved.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. W. W. Dxjxoan, Judge, presiding.</p>

<p>1. Contracts—when language of, loill not be construed. If a contract is clear, the language employed will be given its full force and effect.</p> <p>2. Negotiable instruments—what essential to establish defense of fraud in execution. Fraud in the execution sufficient to bar recovery upon a note in the hands of an innocent third party, must pertain to the signature and the delivery, and the evidence must go to the extent of showing that the maker did not know or understand the kind of instrument he was executing.</p>

<p>Action commenced before justice of the peace. Appeal from., the City Court of Alton; the Hon. James E. Dunnegan, Judge, presiding.</p>

<p>1. Passenger and gabbier—obligation of latter to former. A carrier owes to a passenger the duty to exercise the highest degree of care, skill and diligence consistent with the practical operation of its road.</p> <p>2. Passenger and carrier—what establishes prima facie case in action for negligence. In an action for personal injuries by a passenger against a carrier a prima facie case is made by proof of the relation of passenger and. carrier, the accident and the injury.</p> <p>3. Instructions—particularity required of. Instructions should not be given which are ambiguous and uncertain in their phraseology and calculated to mislead.</p>

<p>1. Res judicata—when judgment of sister state not. The voluntary dismissal before judgment by the plaintiff of an action instituted in another state, from whatever motive, is not a bar to another action in this state upon the same cause of action.</p> <p>2. Statute of limitations—tohen "benefit certificate within ten-year provision. Held, that the benefit certificate sued on in this case was not subject to the doctrine that where an agreement, in writing is so indefinite that parol testimony is required to make it complete it will be construed as an oral contract subject to the Statute of Limitations.</p> <p>3. Fraternal benefit society—when administrator of deceased beneficiary need not be joined in an action upon certificate. Upon the death of one of the beneficiaries named in an insurance certificate, the surviving beneficiary may bring an. action on the certificate without joining the administrator of the deceased beneficiary.</p> <p>4. Fraternal benefit society—who may waive forfeiture for non-payment of assessment. The condition of forfeiture and suspension upon failure to pay assessments and dues promptly may be waived by officers authorized to receive and forward the same.</p>

<p>1. Municipal corporation—power of county to compromise with officer. A board of supervisors of a county may settle, adjust and compromise a claim against a sheriff thereof so long as it does not, by virtue of such compromise, appropriate or allow to such officer greater compensation than is allowed him by law.</p> <p>2. „ Municipal corporation—presumption in favor of legality of action of hoard of supervisors. A compromise or settlement by a board of supervisors apparently made within the scope of their authority will be taken as valid unless and until successfully questioned in an appropriate proceeding.</p> <p>3. Appeals and errors—when writ of error will he dismissed. A writ of error will be dismissed where upon the proceeding to review it appears that the matter in controversy has been fully adjusted, compromised and settled.</p> <p>4. Appeals and errors-—power of hoard of supervisors to order dismissal of writ of error. The board of supervisors of a county have authority to order the dismissal of a writ of error proceeding prosecuted at its instance.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>Insurance—when provision of indemnity policy waived. Meld, that under the evidence, it was not error to hold that the provision of the contract of indemnity providing for delivery to the company of all summonses, etc., was waived.</p>

<p>Vebdiot—when set aside as against the evidence. A verdict clearly and manifestly against the weight of the evidence will be set aside on review.</p>

<p>Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. J. B. Vaughn, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. B. R. Burroushs, Judge, presiding.</p>

<p>Passenger and carrier—when latter not liable to former for permitting him to leave train in intoxicated condition. The law does not impose the duty upon a common carrier to place a guard over an intoxicated passenger to prevent him from injuring himself or from placing himself in a place of danger.</p>

<p>1. Vekdict—when not disturbed as against the weight of the evidence. A verdict will not be set aside on review as against the weight of the evidence unless it is clearly and manifestly so.</p> <p>2. Instructions—when lack of clearness will not reverse. Lack of clearness in instructions will not reverse even though the jury may have had some difficulty in arriving at their meaning, if, from a consideration of all of the instructions given, it does not appear that prejudice resulted.</p> <p>3. New trial—when newly discovered evidence not ground for. Newly discovered evidence is not ground for a new trial where it relates merely to the question of the amount of the damages or was cumulative of the evidence heard.</p>

<p>Appeals and errors—when affirmance will he pro forma. An affirmance follows as a matter of law where the transcript does not contain a certificate of evidence, does not show the preservation of exceptions, is unaccompanied hy an abstract of the pleadings and the evidence, and is not followed hy an argument presenting the errors relied upon for a reversal.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.</p>

<p>This case is controlled by the decision in Walker y. O’Gara Coal Co., ante, p. 279.</p>

<p>1. Master and servant—what does not constitute negligence. It is not actionable negligence for a master to adopt one of several methods of doing work, both of which methods are in general use, even though the adoption of the other method would have prevented the injury.</p> <p>2. Master and servant—what essential to recovery where injury results from obedience of order. In order for a servant to recover of his master for injuries sustained while obeying orders of the latter, it must appear that he was ordered to do work that was dangerous, that the master knew the danger to which the servant was exposed by the order, or, -by the exercise of reasonable care, should have known it, and that in the exercise of ordinary care such master might reasonably be held to have anticipated the consequences of giving the order.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.</p>

<p>Action in case. Appeal from the Circuit Court of Fayette county; the Hon. Albert M. Rose, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Randolph county; the Hon. Chas. T. Moose, Judge, presiding.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.</p>

<p>Action on the case. Error to the Municipal Court of Chicago; the Hon. Stephen A. Fosteb, Judge, presiding.</p>

<p>1. Contracts—what not acceptance of proposition. Held, that a letter referred to in this opinion did not constitute an acceptance of an order in question, and that no contract of bargain and sale was consummated between the parties.</p> <p>2. Contracts—formal acceptance of proposition essential to complete. An acceptance of a proposition must be unconditional in order to constitute a contract.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Practice—restoration of lost files. If the order restoring lost files is sufficient on its face, in order to question its propriety a bill of exceptions should be made up showing the evidence upon which the court acted.</p> <p>2. Appeals and errors—effect of stipulation authorising use of original MU of exceptions. Such a stipulation applies as well to a restored bill of exceptions as to the original one.</p> <p>3. Master and servant—who not fellow-servants. Held, that a chief engineer was not a fellow-servant of the plaintiff who was working under the orders of such chief engineer.</p> <p>4. Master and servant—when doctrine of assumed risls does not apply. The doctrine of assumed risk does not apply as against a servant who is injured while obeying the direct instructions of his superior in charge of the work, it not appearing that the servant acted recklessly in obeying such instruction.</p>

<p>Common carriers—what limitations of liability not effective.' Held, that the limitations contained in a receipt for merchandise undertaken to be carried by an express company were not, under the evidence, assented to by the shipper; also, held, that there was no attempt on the part of the shipper to deceive the company as to the value of such merchandise.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>1. Equity pleading—when allegations of Mil of complaint sufficient to sustain injunction. Held, that the allegations of threatened trespass contained in the bill of complaint in this case were positive and sufficiently certain upon general demurrer to sustain the injunction granted upon the bill.</p> <p>2. Steeets and alleys—ordinance with respect to private use of, construed. Held, that the ordinance in question in this opinion clearly contemplated the right of the city to permit the private use of space under a public alley.</p> <p>3. Injunction—when lies to restrain interference with use of alley. An injunction lies to restrain a city from interfering with the use by’a private party of space beneath a public alley where the right to use such space has been lawfully obtained.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>Landlord and tenant—what does not constitute eviction. Held, that the evidence in this case did not show that the defendant had been deprived by the act or authority of the landlord of the use of the demised premises or the appurtenances thereof, and that no constructive evidence was established.</p>

<p>1. Contracts—what acceptance of proposition. Held, that a letter set forth in the opinion was an unconditional acceptance of the offer in question in the case and effectuated a contract between the parties.</p> <p>2. Contracts—when made by proposal and acceptance. If a written acceptance of a proposition is ambiguous as to whether or -not it imposes conditions not assented to by the purchaser, the contract will be deemed to have been made where the parties have, by their conduct, treated the acceptance as unconditional and as completing the contract.</p> <p>3. Measure of damages—in action for breach of executory contract of sale. The measure of damages in an action for breach by the vendee of an executory contract of sale is the difference between the contract price and the market value at the time and place of the breach.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.</p>

<p>1. Bailments—duty of gratuitous bailee for his own benefit. A gratuitous bailee for bis own benefit is bound to. the exercise of extraordinary care and is liable for slight negligence.</p> <p>2. Bailments—when presumption of negligence arises. Upon proof of possession in a gratuitous bailee for his own benefit and an injury to the res, a presumption of negligence arises.</p>

<p>1. Injunction—iohat essential to issuance of temporary. In order properly to issue a temporary injunction the bill of complaint must show by appropriate averments of facts that the plaintiff is entitled to the relief sought.</p> <p>2. Chancert pleading—what mere conclusions of pleader. To allege that a corporate election is void as contrary to the bylaws, etc., is merely to state a conclusion; such a conclusion does not justify the granting of relief by injunction.</p>

<p>1. Insurance—when forfeiture will not he enforced. An insurer cannot defend against a policy by setting up that the same is void for misstatements in the application where at the time of the application it had knowledge of the facts with respect to which the claim of misstatement is made.</p> <p>2. Insurance—to whom life policy may he made payable. A life insurance company organized under the laws of this state may lawfully issue a policy payable to the estate of the insured. .</p>

<p>Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Brttggemeyer, Judge, presiding.</p>

<p>Trespass. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.</p>

<p>Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>1. Fraternal benefit society—when member bound by by-laws. A member of an association who agrees in his application or policy to abide by and be bound by subsequently enacted by-laws, is bound by them unless they are unreasonable.</p> <p>2. Insurance—power to impose lien upon policy. Held, that under the by-laws of a fraternal benefit society, the power to change by-laws or enact new ones was retained in the society, and that a by-law enacted pursuant to such authority, providing for a reserve or deficiency assessment was valid, and, likewise, that it was valid to make the amount of such assessment a lien against the policies subject thereto.</p> <p>3. Accord and satisfaction—what constitutes. A settlement of a claim predicated upon an insurance policy made for a less sum than the face thereof, constitutes an accord and satisfaction, where an honest difference of opinion existed with respect to the amount due and the settlement was effected upon the advice of counsel without any intervention of fraud.</p> <p>4. Release—what constitutes, of claim upon benefit certificate. The surrender of a benefit certificate ordinarily operates as a full release and discharge from liability thereon.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>Forcible entry and detainer. Appeal from the Superior Court of Cook county; the Hon. Axel Ciiytraus, Judge, presiding.</p>

<p>Bill for accounting. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Hokore, Judge, presiding.</p>

<p>Verdict—when not set aside as against the evidence. A verdict will not he set aside on review as against the weight of the evidence unless it is clearly and manifestly so.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Mancha Bktjggemeyer, Judge, presiding.</p>

<p>Landlobd and tenant—what does not constitute eviction. An eviction does not result when the landlord consents to an under-letting, where the request therefor was made on behalf of the tenant.</p>

<p>1. Finding of court—when not disturbed as against the evidence. The finding of the court in a cause tried without the intervention of a jury is entitled to the same weight as is accorded to the verdict of a jury, and it will not be disturbed on review as against the weight of the evidence, unless clearly and manifestly so.</p> <p>2. Replevin—when lies to recover property conditionally sold. Replevin lies by vendor against vendee to recover possession of personal property sold on condition that the title should remain in the vendor until full payment of the purchase price, when default has taken place in the payment of the purchase price according to the terms of the contract of sale.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.</p>

<p>1. Municipal Court Act—what not intent of. The Municipal Court Act was not intended to cut off. the right of a plaintiff to a review of a judgment of that court where the trial judge has, at close of the plaintiff’s proofs, directed a verdict against him.</p> <p>2. Bailments—what establishes liability for loss of baggage. Held, that the evidence in this case established prima facie that the defendant express company acquired possession of the plaintiff’s trunk without authority, and that the loss of property contained therein resulted to the plaintiff during the period of such unlawful possession.</p> <p>3. Damages—upon whom burden rests to establish value of promissory note. Upon claim for the physical loss of a promissory note through the neglect of a carrier, the burden is not upon the plaintiff in the first instance to prove the actual value of such .note —its face value is its actual value until the contrary is established.</p>

<p>Assumpsit. Error to the Circuit Court of Cook county; the Hon Richard W. Clifford, Judge, presiding.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.</p>

<p>Contracts—when continued existence of, inferred. A contract continues in force notwithstanding default, where the party against whom the default is made affirmatively so treats it. •</p>

<p>Indictments—what must he proved as laid. A description of the place is material and must be proved according to the averment thereof. Where the indictment charges the keeping of a room for gaming purposes at No. 239 East Twenty-second street, in Chicago, proof of the keeping of such a room at the corner of Dearborn and Twenty-second streets, in the same city, is not sufficient.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.</p>

<p>Divorce. Error to the Superior Court of Cook county; the Hon. Willard M. McEwek, Judge, presiding.</p>

<p>1. Insurance—“concurrent” insurance clause construed. A clause in a policy of fire- insurance which provides that “$150,000 total concurrent insurance is permitted” means $150,000 in addition to the policy in which the clause appears.</p> <p>2. Insurance—how policy to be construed. A policy of insurance ambiguous in its terms is to be construed most strongly against the insurer.</p> <p>3. Insurance—good faith required of members of co-operative mutual organization. The court indicates in this case that cooperative mutual insurance organizations involving confidential and fiduciary relations might exist which would render it a fraud for one member to fail to make full and fair disclosure of premium rates required to be paid by him when placing insurance through the ordinary channels; but the court holds that this case does not come within such principle.</p> <p>4. Insurance—when defense under subrogation clause insufficient. A defense of settlement with a wrongdoer without the consent of the insurer, thus preventing the operation of the subrogation clause in favor of such insurer, is an affirmative defense, and must be sustained by evidence; first, that the claim against such wrongdoer actually existed; second, that the insured, without the consent of the insurer, actually released such claim.</p>

<p>Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggejieyeb, Judge, presiding.</p>

<p>Action in case. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.</p>

<p>Action in trespass. Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>Replevin. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.</p>

<p>1. Master and servant—-what essential to recovery where slippery condition of floor is charged. Before a servant can recover because of an injury claimed as resulting from the slippery condition of the floor upon which he was working, he must prove, first, that the condition of such floor was due to the negligence of his master, and, second, that his injury proximately resulted therefrom.</p> <p>2. Master and servant—when doctrine of assumed rislc applies. A servant assumes the risk of a slippery condition of the floor upon which he is working, where he has had full opportunity to observe and know such condition, and has continued in the employ of his master, using such floor for a considerable period without complaint.</p>

<p>Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Axel Chytbaus, Judge, presiding.</p>

<p>1. Master and servant—-.what failure to furnish reasonably safe place to work. A master employing a servant upon extra hazardous duty is bound to the exercise of reasonable care to furnish to such servant a place reasonably safe considered with respect to the dangers involved.</p> <p>2. Railroads—when lessor liable for negligence of lessee. A railroad company which has leased to another railroad company the right to use its franchises or part of the privileges thereof is liable for the negligence of such lessee company to the same extent as it is liable for its own negligence.</p> <p>3. Instructions—when peremptory should not be given at instance of defendant. The issues in an action at law should be submitted to the jury where the evidence in favor of the plaintiff, standing alone and uncontradicted, is sufficient to authorize the verdict in his favor.</p> <p>4. Evidence—what competent with respect to ordinary methods .of performing worh. It is competent to show the usual and ordinary methods of performing work in a switch-yard in which the plaintiff received his injury.</p>

<p>1. Trespasser—instruction as to when person seeking to board traction car becomes, approved. An instruction upon this subject as follows is approved:</p> <p>“If you believe from the evidence that the plaintiff was guilty of improper conduct on said car and that he was ejected from said car, then the court instructs you, as a matter of law, that the plaintiff had no right to again board said car, and in attempting to do so, if he did so attempt, he would not be a passenger on said car but would be a trespasser.”</p> <p>2. Instructions—how to be considered. The instructions given by the court are to be regarded as a series, and the omissions of one may be cured by the contents of another.</p>

<p>Pleading—what non est factum does not put in issue. A non-verified plea of non est factum does not put the plaintiff upon proof of the execution of the bond declared upon.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. A. H. Fbost, Judge, presiding.</p>

<p>1. Creditors’ bills—when conveyance in fraud of creditors. Held, under the evidence in this case, that the conveyances attacked were fraudulent as against creditors existing at the time of the making thereof, and likewise as to creditors becoming subrogated to the rights of such existing creditors.</p> <p>2. Subrogation—when doctrine of, applies to sustain creditor’s MU. A complainant may maintain a creditor’s bill to set aside a conveyance as fraudulent and subject it to the payment of a debt due him by reason of his becoming surety upon a bond covering a contingent liability which existed at the time of the conveyance but which became absolute and was discharged by such complainant after the conveyance had been made.</p>

<p>1. Railboads—when liability to repair viaduct arises. A railroad by accepting an ordinance conferring upon it special privileges becomes obligated to perform the conditions of such ordinance which consist, among other things, of a requirement to keep viaducts in repair.</p> <p>2. Viaducts—upon whom duty rests to apportion cost of repair among railroads jointly obligated therefor. It is primarily the duty of the city council to apportion among several railroads the cost of repairing a viaduct, such railroads being jointly liable for such repairs.</p>

<p>Action of debt. Error to the Municipal Court of Chicago; the Hon. William N. Cottbell, Judge, presiding.</p>

<p>Action to recover penalty for violation of ordinance. Error to the Municipal Court of Chicago; the Hon. John C. Scovee, Judge, presiding.</p>

<p>Master and servant—when safe place to work rule does not apply. The safe place to work rule does not apply where the servant is engaged by the master in connection with the construction of a building in process of erection. Hansell v. Clark, 115 Ill. App. 209, affirmed in 214 Ill. 399, explained. Pressed Steel Car Co. v. Herath, 207 Ill. 576, distinguished.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.</p>

<p>1. Pbactice—when dill of particulars sufficient. In a prosecution to recover a penalty for the violation of a statute, it is sufficient for the bill of particulars to set forth the offense alleged to have been committed with sufficient clearness to enable the defendants to know with what they are charged.</p> <p>2. Pbactice—what bill of particulars need not contain. In a prosecution to recover a penalty for selling cocaine contrary to the statute, it is not essential that the name of the alleged purchaser be set forth.</p> <p>3. Penalties and fobzeitubes—when enforcement will follow notwithstanding illegal act was performed by agent. A penalty for the unlawful sale of cocaine may be recovered notwithstanding the sale made the basis of the prosecution was by a clerk not expressly (though impliedly) authorized to make such sale.</p> <p>4. Statutoby law—when repeal by implication effected. Where there is an inconsistency between two acts so that they cannot stand together, the later act, being the last expression of the legislative will, must prevail.</p> <p>5. Evidence—when prior unlawful sale of cocaine competent. As bearing upon the question of intent and also upon the question of the agency of the employe making the particular sale in question in the prosecution, prior unlawful sales of cocaine may be shown.</p> <p>6. Appeals and ebrobs—when assignment of error deemed abandoned. Assignments of error not argued are deemed abandoned.</p> <p>7. Cocaine—character of prosecution for unlawful sale of. A prosecution for the unlawful sale of cocaine although civil in form is qwasi-criminal.</p> <p>8. Judgment—when form of, appropriate in prosecution for unlawful sale of cocaine. In a prosecution for the unlawful sale of cocaine, a judgment providing for a fine may likewise impose imprisonment until the fine, etc., is paid.</p>

<p>1. Contbaots—effect of custom upon. A custom cannot have the effect of making a contract between parties where otherwise there would, be none.</p> <p>2. Contracts—from what will not he implied. A custom existing among real estate brokers, according to which a commission is divided where one broker has a buyer and the other a seller, is not. sufficient to entitle the broker representing the seller, but not effecting the sale, to recover of a broker who was the procuring cause of the sale, one-half of the commissions earned.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Osoab M. Tobbison, Judge, presiding.</p>

<p>1. Inn-keepers—who not guest. One who contracts, even with an inn-keeper, for a stay by the week, at a fixed price, is not a guest but a boarder.</p> <p>2. Inn-keepers—when not insurers against loss of baggage. An inn-keeper is not an insurer against loss of baggage by theft or otherwise unless the owner of such baggage be a guest, as distinguished from a mere boarder.</p> <p>3. Bailments—when printed notice enters into implied contract.</p> <p>A printed notice as follows: “Baggage or wearing apparel left for</p> <p>storage will receive careful attention, at owner's risk,” contained upon large cards posted in the halls and rooms of a hotel or boarding house, enters into an implied contract of bailment arising from the storing of baggage in such hotel or boárding house.</p> <p>4. Bailments—when bailee for hire not liable for theft of baggage. A hotel or boarding house keeper becoming a bailee for hire, is not liable for the theft of baggage by his servant where he had no knowledge, means of knowledge or grounds of suspicion of the bad character of such servant.</p>

<p>1. Pleading—what pleading of facts as distinguished from stating conclusions of law. Ultimate facts may be pleaded notwithstanding they, to an extent, represent conclusions.</p> <p>2. Pleading—what statements of conclusions not bad. It is good pleading to aver the existence at a specified time of a trust deed conveying certain property and securing a particular indebtedness, without setting out such trust deed.</p> <p>3. Deceit—what proof of allegations sufficient in action of. The allegations made in a declaration in an action of deceit are regarded as divisible and the plaintiff may succeed if he can prove any one of them which of itself makes a cause of action; and the plaintiff may likewise succeed although he may not prove the misrepresentations precisely as laid, nor any of the different forms as alleged. All that is required is proof substantially of the material allegations.</p> <p>4. Deceit—degree of proof required in action of. In an action of deceit the plaintiff need only prove the material allegations of his declaration by a preponderance of the evidence. People v. Sullivan, 218 Ill. 419, distinguished.</p> <p>5. Deceit—when proof of scienter need not be made. Proof that the defendant knew that his representations were false at the time he made them need not be made where it appears that the defendant stated a material fact and asserted knowledge thereof upon which the plaintiff relied.</p> <p>6. Vekdict—when not disturbed as against the evidence. Where two jury trials have resulted in the same way the Appellate Court will be slow to set aside a verdict as against the weight of the evidence.</p> <p>7. Measube of damages—instruction as to, in action of deceit, approved. An instruction on this subject as follows, is approved:</p> <p>"The court instructs the jury that if you find the issues for the plaintiff, you should assess the plaintiff’s damages at such sum, if any, as you may believe from the evidence and under the instructions of the court that the plaintiff necessarily paid in discharge of the encumbrance, if any, shown by the evidence, resting, at the time of the purchase thereof by the plaintiff, upon the lot in question, purchased by her, together with interest upon that amount from the date of such payment at the rate of five per cent, per annum.”</p> <p>8. Damages—when punitive, may he awarded. Where malice is, as in an action of deceit, a part of the gist of the action, punitive damages may be awarded even though the act complained of is indictable.</p>