Volume 148 — Illinois Appellate Court Reports

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

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

<p>1. Corporations-—what not within power of treasurer of religious trust. The treasurer of a corporation (a religious trust) organized by special act which creates no offices other than that of members of the board of trustees, has no general authority to borrow money and execute notes binding upon such corporation.</p> <p>2. Corporations—extent of authority of “business manager” of eleemosynary institution. To borrow money or to execute notes the authority even of a “business manager” of a eleemosynary institution must be express or absolutely indispensable to the accomplishment of the purpose of his agency.</p> <p>3. Negotiable instruments—what essential to bind religious trust. A religious trust organized by special act of the legislature having no offices other than that of members of the board of directors and having no stockholders, cannot become bound by a promissory note unless its execution is especially authorized and is a means reasonably necessary to the accomplishment of some proper corporate purpose.</p> <p>4. Estoppel—when does not operate against corporation. If a corporation has no power to make notes, it cannot estop itself by giving apparent authority when it had no power to give actual authority, nor can it ratify an act by an agent which it, as principal, had no power to perform.</p> <p>5. Estoppel—what does not establish receipt of benefit. The fact that money borrowed is deposited to the credit of a corporation in itself is not sufficient proof and by itself does not tend to. prove and would not justify a jury in finding that such corporation had received the benefit of the money so deposited.</p>

<p>1. Negotiable instruments—who may sue upon. An endorsee vested with the legal title hut without pecuniary interest in a promissory note may maintain an action at law to recover thereon.</p> <p>2. Negotiable instruments—burden to establish plea of want of consideration. The burden is upon the defendant to establish his plea of want of consideration.</p>

<p>Practice—when theory of recovery cannot he changed. If a plaintiff has specially pleaded in the trial court and has relied upon an express promise as the basis of recovery, it is too late for him to change his theory of recovery in the Appellate Court to a claim predicated upon another and different implied promise provable under the common counts.</p>

<p>Equity—when without jurisdiction. A bill in equity does not confer jurisdiction which sets up a contest open to the public made in connection with an advertising scheme and the award made pursuant thereto and which seeks to set aside such award upon grounds of fraud, accident and mistake and prays a mere money judgment—the remedy is at law.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Jijdson F. Going, Judge, presiding.</p>

<p>Action of contract. Error to the Municipal Court of Chicago; the Hon. Jonp W. Houston, Judge, presiding.</p>

<p>Agency—when evidence establishes. Held, that the evidence in this case showed, as a matter of law, that the real estate broker involved in the transaction in question, was not the agent of the prospective purchaser.</p>

<p>Brokers and factors—when right of action accrues. A broker’s right to a commission in effecting an exchange oí real property accrues ii it appears that such exchange was the result of the broker’s initiative.</p>

<p>1. Suretyship—what discharges appeal bond. A surety upon an appeal bond given to review a judgment in favor of an individual is discharged if upon appeal after amendment duly made judgment is obtained by such individual jointly with another.</p> <p>2. Suretyship—how conditions of appeal bond construed. The conditions of appeal bonds are strictly construed; they are not extended by intendments nor aided by presumptions.</p>

<p>1. Verdicts—when not disturbed. A verdict of a jury will not be disturbed on review unless it plainly appears that it is so manifestly contrary to the weight of the evidence as to be the offspring of the passion and prejudice of the jury rendering it.</p> <p>2. Instruction's—approved form as to impeachment of witnesses. An instruction upon this subject as follows, is approved:</p> <p>“The jury are instructed that one mode of impeaching a witness is by showing that the witness has made different and contradictory statements on the same point on former occasions. If it appears from the evidence in this case that either of the witnesses has been impeached in this manner, the jury have a right to take into consideration such impeachment in determining the' value of the testimony of such witness or witnesses.’’</p> <p>3. Personal injuries—upon what injuries recovery must be predicated. In an action for personal injuries the plaintiff is not entitled to recover compensation for any injuries or ailments which do not arise from, or are not traceable to, the injuries suffered as the result of the negligence of the defendant.</p> <p>4. Personal injuries—what evidence competent to rebut. It is competent to show the mode and manner ih which a plaintiff has lived prior to an accident from which she claims hysteria has resulted, if such mode and manner of living were such as might have tended to produce such condition of hysteria.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.</p>

<p>Mandamus—when laches defense. In a proceeding by mandamus against the civil service commission to compel restoration to the office of policeman a delay of over nine months between the dismissal of the relator and the filing of the petition for mandamus, if unexplained, constitutes laches which bars the right to the writ</p>

<p>Contract—what does not excuse undertaking to loan money. If in establishing an agency the principal agrees to lend the agent a specific sum each month for the period of a year, he is not excused from so doing by the fact that such agency does not prove profitable or by the fact that the commissions earned by the agent, out of which the loans are to be repaid, were not sufficient to make such repayment.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Samuel A. Fosteb, Judge, presiding.</p>

<p>1. Fbatjd—tohen equity will not set aside lease. Equity will not decree the setting aside of a lease upon the ground that it .was obtained by fraud and misrepresentation as to the condition of the premises demised, where, by the terms of the lease, it appears that the lessee took the premises in the condition in which they were at the time of such demise.</p> <p>2. Fraud—what waiver of. Alleged fraudulent misrepresentations inducing the execution of a lease are waived by the lessee if he enters into possession and pursuant to the terms of the lease proceeds to repair and use the same.</p> <p>3. Fraud—what does not constitute. Misrepresentations as to mere matters of opinion do not constitute such legal fraud as will justify a court of equity in setting aside a contract.</p>

<p>1. Master and servant—When vice-principal cannot recover. A vice-principal cannot recover for the breach of those duties of the master which he as vice-principal has duly assumed to perform upon behalf of the master.</p> <p>2. Master and servant—when vice-principal cannot recover. A foreman or vice-principal cannot recover from his master for injuries due to' the neglect of an employe hired by him and under his direction and control or for defects in construction and maintenance of appliances which it was his duty to construct and maintain.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Mabotts Kavanagh, Judge, presiding.</p>

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

<p>Forcible detainer. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthikl, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Geokge A. Dupuy, Judge, presiding.</p>

<p>1. Vebdict—when not excessive. A verdict reduced by remittitur to $3,500 in an action for assault, held, under the evidence, not excessive.</p> <p>2. Damages—what evidence competent in action for injuries to person. In an action for assault it is competent for the plaintiff to show what his regular employment was at the time of such assault, if such employment was permanent, and what was his salary or wages.</p> <p>3. Evidence—what opinion of expert competent. In an action for injuries to the person it is competent for an attending physician to give his opinion to the effect that the contusions and abrasions which he found upon the plaintiff were such as might aggravate his previous condition of partial paralysis.</p>

<p>1. Appeals and errors—when party cannot complain of defective issue. Where both parties to a cause by their conduct have treated it as presenting an issue on which it was tried, neither can be heard on review to complain that there was no issue to be tried; the irregularity is cured by the finding and judgment.</p> <p>2. Damages—what competent to show loss of rental value. In an action upon a bond given upon appeal from a judgment in forcible detainer, the plaintiff is entitled to the reasonable rental value for the purpose for which the rental value of the premises in question was highest, and evidence of the particular purpose for which the highest rental value could be obtained and evidence of the reasonable rental value of the premises for such purpose is competent.</p> <p>3. Judgment—what irregularity will not reverse. A judgment in an action of debt which fails to include in the judgment a judgment for the amount of the penalty of the bond, is a mere error in form, cured by section 7 of the statute of amendments and jeofails, and is not ground for reversal.</p>

<p>1. Instructions—when excludes issue of negligence. An instruction as follows, in an action for personal injuries predicated upon a charge of negligence by the defendant, is erroneous in excluding from the jury the issue of negligence.</p> <p>“If the jury believe from the preponderance of the evidence that the plaintiff while in the exercise of ordinary care was injured by or in consequence of the defendant, as charged in the declaration or either of the counts thereof, then you can find the defendant guilty.”</p> <p>2. Instructions—when upon preponderance of evidence erroneous. The following instruction is erroneous in excluding the tests in arriving at the credit to be given to the testimony of witnesses, first, their honesty; secondly, their ability; thirdly, their numbers and the consistence of their testimony with experience; fourthly, the coincidence of their testimony with collateral circumstances.</p> <p>“By a preponderance of proof the court does not mean the largest number of witnesses on a given point; four or five witnesses may testify to a fact and a single witness may testify to the contrary; but under such circumstances and in such manner and with such. air and appearance of truth and candor as to make it more satisfactory or convincing to you that the one witness, with the opportunity of knowing the facts testified to, has told the truth in the matter. When you are thus satisfied that the proof lies with a single witness or any number, you are justified in returning a verdict in accordance therewith. This is what is meant by a preponderance of the proof. It is that character or measure of evidence which carries conviction to your minds.”</p>

<p>Partition. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>1. Pebsonal injuries—-when restriction of cross-examination erroneous. If upon direct examination evidence has been adduced tending to show that fatty tumors resulted from an accident, it is reversible error to refuse to permit a question upon cross-examination the answer to which might tend to show that such tumors were not the result of such accident.</p> <p>2. Evidence—when medical books incompetent. So long as a witness testifying has not assumed to base his opinion upon the authority of a particular author, the opinion of such author as expressed in his treatise (even if such opinion so expressed is examined by the witness), is incompetent.</p>

<p>Municipal cobpobations—when license ordinance does not unlawfully discriminate. Held, that the license ordinance involved and set forth in Johnson Express Co. v. Chicago, 136 Ill. App. 368, does not unlawfully discriminate between persons of the same class and in the same occupation.</p>

<p>1. Insurance—when incontestable clause becomes effective. Notwithstanding it is provided in the contract • of insurance that a policy shall not become binding until actual payment of the final premium, yet the policy (the first premium having been actually properly paid) becomes effective for all insurance purposes and the incontestable clause operates from the day of its date.</p> <p>2. Insurance—when forfeiture clause is self-executing. A provision which specifies that “if any premium be not paid when due * * * this policy shall be void until duly re-instated,” is self-executing, but such a forfeiture incurred, as well as the right to declare a forefeiture, may be waived.</p> <p>3. Insurance—effect of waiver of forfeiture. Upon the waiver of a forfeiture incurred the parties are restored to their original rights and the performance proceeds under the old contract, a novation not being deemed to have been entered into.</p> <p>4. Insurance—when running of limitation of incontestable clause not tolled. If a policy is provided to be incontestable after the lapse of a stipulated period, the fact that during such period a forfeiture has been incurred and waived, does not toll the running of such limitation.</p>

<p>Mandamus. Appeal from the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding.</p>

<p>1. Appeals and ebbobs—when hill of exceptions not stricken. If a bill of exceptions has been presented to the trial judge for signature in apt time, his failure to sign and seal the same within the time provided for the filing thereof, and the fact that the same was not actually filed within such time, is immaterial.</p> <p>2. Appeals and ebbobs—when dismissal not awarded. If the bill of exceptions is stricken from a record a dismissal of the appeal will not be awarded, as the record which remains affords the basis for assignments of error.</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.</p>

<p>1. Evidence—what competent upon the meaning of words. It is competent for a witness to testify to the meaning of a term used in his trade, profession or occupation.</p> <p>2. Fbatebnax, benefit societies—when certificate void. If contrary to the provisions of the by-laws a deceased member changes his occupation to one of those of the prohibited class, and a consequent loss of membership being made self-executory by the contract of insurance, a recovery upon such certificate (the death of the member occurring while engaged in such prohibited occupation), cannot be sustained.</p> <p>3. Instructions—when as to meaning of words erroneous. It i^s error to instruct the jury to look to the evidence for the “ordinary and usual” meaning of words and terms; the meaning of words and terms is a matter for the determination by the jury upon their own knowledge, information and experience independent of evidence or instruction.</p>

<p>Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.</p>

<p>Verdict—when not disturbed. A verdict not manifestly contrary to the weight of the evidence will not he set aside on review.</p>

<p>Lord Campbell’s Act—what does not preclude recovery for death caused by wrongful act. The proviso of the Injuries Act as follows: “Provided, further, that no action shall be brought or prosecuted in this state to recover damages for a death occurring outside of the state,” does not preclude recovery in this state if the wrongful act complained tif was done within the territorial limits of this state.</p>

<p>Bill for accounting, etc. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding.</p>

<p>1. Municipal Court—effect of failure to file statement of set-off. The failure of a defendant to file with his appearance a statement of his claim of set-off is waived -hy the plaintiff if he proceeds to trial upon such set-oif knowing that no such statement had been filed.</p> <p>2. Municipal Court—effect of oral statement of set-off. If a defendant has filed no statement of set-off as required by statute, but in lieu thereof makes an oral statement of the defense of set-off, he is as much bound by such oral statement as he would be by a written one.</p> <p>3. Negotiable instruments—what does not sustain defense of want of consideration. The defense of a want of consideration is not established by proof of partial failure of consideration.</p> <p>4. Negotiable instruments—as to what act of 1907 does not apply. The act of 1907 pertaining to negotiable instruments does not apply to a promissory note executed prior to its going into effect.</p> <p>5. Contracts—when rescission must he made. One who desires to rescind a contract for fraud must act promptly; he cannot be passive and speculate as to the result of his investment, and this is especially true of mining stock which is likely to fluctuate in value.</p>

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

<p>This case is controlled hy the decision in Kinney v. Rochester German Ins. Co., 141 Ill. App. 543.</p>

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

<p>Master and servant—when question of assumed rish determined hy the jury. Held, under the evidence, that it was for the jury to determine whether the plaintiff had assumed the risk arising from the use of a defective machine, it appearing that the plaintiff knew that the machine was defective, but it not appearing that the knowledge of the plaintiff extended to the particular danger which resulted in injury.</p>

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

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

<p>1. Master and servant—who not fellow-servants. A servant is not the fellow-servant of another if at the time of his injury in the performance of his regular duties he was not brought into contact or association with such other servant.</p> <p>2. Master and servant—limitation of duty of former. If a servant is voluntarily at a place where his duty does not call him his master owes him no duty at that place to furnish him a reasonably safe place to do work which does not fall within the line of his duty and in the doing of which he is a mere volunteer.</p> <p>3. Master and servant—when latter may properly leave his-usual post. A servant is justified in leaving the place where he is working and in entering upon another portion of the premises of his master if in doing so he is seeking to avert what threatens to be a disaster both to himself and others in his vicinity.</p> <p>4. Master and servant—failure to observe custom. If it has become customary to give a particular signal a servant has a right to rely upon the giving of such signal, and if his injury results from a failure to give such signal a recovery will be sustained.</p> <p>5. Instructions—when giving of abstract proposition of law will not reverse. An instruction which states a correct proposition of law will not reverse if it does not tend to mislead.</p>

<p>1. Vebdict—when not disturbed. A verdict will not be set aside as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Contracts—election of remedies. If a party refuses to receive merchandise pursuant to a contract, the other party may either treat the contract as abandoned and sue for profits or may keep the same alive until the time for deliveries has passed and sue for the difference between the contract price and the market prices at the times when the various deliveries should have been accepted.</p>

<p>Assumpsit. Appeal from the County Court of Cook county; the Hon. Holland A. Russell, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.</p>

<p>1. Brokers and factors—when brokerage fees earned. Brokerage fees are earned if the broker was the procuring cause of the sale and the means of introducing the purchaser to the property and the seller.</p> <p>2. Evidence—when impeaching evidence property excluded. Impeaching evidence is properly excluded if the foundation therefor has not been properly laid.</p> <p>3. Evidence—what part of res gestae. Conversations held out of the presence of the party against whom they are offered are competent if they form a part of the res gestae and tend to prove the issues of fact before the jury—verbal statements accompanying evidential facts are competent evidence.</p> <p>4. Practice—when propositions of law properly refused. Propositions of law which ignore essential issues in the cause are properly refused.</p>

<p>1. Continuances—when motion properly denied. A motion for a continuance based upon the absence of a witness is properly denied if it does not appear that the testimony of such witness would tend to establish any legal defense.</p> <p>2. Negotiable instbuments—presumption as to purchase before maturity. The presumption is that the assignee or a promissory note purchased the same prior to maturity.</p> <p>3. Negotiable instbuments—what not defense against assignee. The fact that the payee of notes sued upon by an assignee before maturity thereof warranted merchandise for which such notes were given, does not constitute a defense as against such innocent assignee for value.</p> <p>4. Negotiable instruments—when fraud and circumvention no defense. Under the Illinois statute making fraud and circumvention used in obtaining the making or execution of a note a defense to an action thereon, the fraud must relate to the execution of the instrument itself and not to the consideration.</p>

<p>1. Appeals and eeeoes—when assignments of error not considered. Assignments of error will not be considered if the abstract does not contain the evidence and the objections upon which they are predicated.</p> <p>2. Appeals and eeeoes—when assignments of error insufficient. Assignments of error should point out the error complained of; if they fail in this the point urged will not be considered on review.</p> <p>3. Appeals and eeeoes—waiver by appeal to Appellate Court. A question as to the allowance of an attorney’s fee in a mechanic’s lien proceeding which raises a constitutional question, is waived by an appeal to the Appellate Court.</p>

<p>Assumpsit. Appeal from the County Court of Cook county; the Hon. Holland A. Russell, Judge, presiding.</p>

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

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

<p>1. Contracts—effect of notice of intention to abandon. If a party to a contract gives notice to the other party thereto that he does not intend further to perform the same the party receiving such notice has a right to treat the same as a breach and to bring an action for the damages resulting from such breach.</p> <p>2. Evidence—when objection to competency of witness comes too late. An objection to the competency of a witness comes too late if made after such evidence has been offered and received.</p> <p>3. Evidence—when admission of erroneous, harmless error. The failure of the court to exclude certain testimony constitutes harmless error if no fact was stated in answer to the question to which objection was made which had not already been stated by such witness in answer to questions to which no objections were made.</p>

<p>Contributory negligence—effect of failure to loolc. Held, under the evidence that it was a question for the jury to determine as to whether or not the plaintiff in seeking to cross street car tracks was guilty of contributory negligence and that the verdict of the jury finding that there was no contributory negligence was conclusive.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. William H. McSubely, Judge, presiding.</p>

<p>1. Evidence—when written report not competent. A written report of a conductor as to the manner of an accident’s occurrence does not become competent if upon cross-examination such conductor is asked whether such report contains a particular statement and he replies in the negative.</p> <p>2. Trial—when remarks of counsel will not reverse. If remarks of counsel are complained of a reversal will not follow unless an objection was made thereto, such objection overruled and an exception preserved to such ruling.</p> <p>3. Verdict—when not excessive. Held, that a verdict of $1,000 in an action against a traction company for assault committed by its employe was not excessive where it appeared that at the close of the affray the plaintiff’s nose was bruised and swollen, his eyes blackened and one shoulder dislocated.</p>

<p>Verdict—when evidence in civil case sufficient. In civil cases it is sufficient if the evidence on the whole agrees with and supports the hypothesis which it is adduced to prove.</p>

<p>Mechanic’s lien. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.</p>

<p>1. Trusts—classification. Trusts are of two kinds: express and implied; implied trusts are again divided into resulting and constructive trusts.</p> <p>2. Trusts—what essential to establish resulting trust. In order to establish a resulting trust the one claiming it must show that he has furnished the consideration money or some aliquot part thereof, as part of the original transaction at the time the property, in which the trust is claimed, was acquired.</p> <p>3. Accounting—chancery follows profits. No matter what form profits may be converted into, equity will follow them.</p> <p>4. Decrees—what aids construction of. A decree must be read and" construed in connection with the pleadings.</p> <p>5. Decrees—when final. A decree is final which clearly and conclusively fixes the relative rights of the contending parties in respect to the questions in contest.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Theodore Bbentano, Judge, presiding.

<p>Trespass on the case. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.</p>

<p>1. Appeals and errors—when assignments of error too general. Assignments of error which bring into question an entire order are bad if any part of such order is valid.</p> <p>2. Masters in chancery—when findings of fact not disturbed. Findings of fact by a master will not be disturbed as against the evidence unless clearly and manifestly so.</p> <p>3. Decree—-when does not merge trust deed. A decree which does not increase or in the least affect the rights of the owners of a trust deed in the premises covered thereby, does not effect a merger of such trust deed.</p> <p>4. Foreclosure—validity of provision for solicitor’s fees, etc. While it may be that a provision in a trust deed or mortgage for payment of solicitor’s fees for services in foreclosing a trust deed or a mortgage is a penalty, yet such provision is valid and enforceable in a court of equity.</p> <p>5. Negotiable instruments—what not defense. The fact that a purchaser of a note before maturity knew that the same represented a building loan and that the money constituting the consideration was to be paid out by the party originally acquiring such note as the building in question progressed, would not, if such money was not so paid out, constitute a defense at law.</p>

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

<p>Contested claim in court óf probate. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthild, Judge, presiding.</p>

<p>Assumpsit. Appeal from the County Court of Cook county; the Hon. W. C. De Wolf, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.</p>

<p>1. Verdict—when not disturbed. A verdict will not be set aside on review as against the evidence unless clearly and manifestly so.</p> <p>2. Instructions—when upon permanent injury appropriate. Held, that the evidence justified an instruction to the jury by which they were told among other things that they might take into consideration “the effect which such injury may have, if any,- on the future health of the plaintiff."</p> <p>3. Instructions—as to pain and suffering sustained. Held, that the instruction made the subject of complaint in this case did not authorize the jury to find damages for any pain or suffering except that caused by the injury.</p> <p>4. Instructions—when refusal of correct not error. It is not error to refuse a correct instruction if its substance is substantially contained in other instructions given.</p> <p>5. Instructions—when upon care required of minor^ defective. An instruction upon the subject of the care and caution required of a minor is defective if it omits the word "experience.”</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Mancha Bruggbmeyer, Judge, presiding.</p>

<p>1. Contbacts—against whom, ambiguities resolved. If words of a contract are of doubtful import, then he who creates the doubt must have it resolved against his interest and in favor of the party upon whom he caused it to be imposed.</p> <p>2. Contbacts—when and how rescission made. A rescission ■ should be made at the earliest practicable moment and notice of rescission must be given to the party in interest.</p> <p>3. Damages—when purchase in open marlcet aptly made. A party who has contracted for the purchase of merchandise has a right to assume that the other party will carry out his contract and make delivery and until such other party has definitely declined so to do a purchase in the open market need not be made. A purchase made upon the day after definite refusal to make delivery is in apt time.</p> <p>4. Measube oe damages—in action for failure to deliver merchandise. In an action for failure or refusal to deliver merchandise as per contract, the measure of damages is the difference between the contract and the market price at the time of such failure or refusal.</p> <p>5. Evidence—when admission of erroneous, will not reverse. Where the trial was before the court without a jury the Appellate Court will assume that the trial judge based his judgment on relevant testimony to "the exclusion of all to which objections made could be sustained.</p> <p>6. Appeals and eeeobs—what abstract should contain. Abstracts filed to facilitate the review of a cause should comply with the rules with respect thereto and among other ■ things should contain indices.</p>

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

<p>1. Cities, villages and towns—section 20 of Township Organization Act construed. Section 20 of chapter 139 has no application to villages.</p> <p>2. Cities, villages and towns—section 11 of article 11 construed. In virtue of the power conferred by section 11 of article 11, chapter 24, the president and board of trustees of a village have the sole appointing power as to a village treasurer.</p>

<p>1. Instructions—when errors reverse. An error of law in instructions to the jury of such a nature as to constitute a mis-statement of a legal proposition will in cases where the evidence is close or in sharp conflict require a reversal and the awarding of a new trial by the court of review.</p> <p>2. Instructions—erroneous as to credibility of testimony of detective. The impeaching instruction following is erroneous, in that it exceeds the rule which requires the testimony of a private detective to be received with caution.</p> <p>“You are instructed that the testimony of a detective may be disregarded by the jury, except when it is corroborated by other and credible testimony.”</p> <p>3. Instructions—when as to presumption of innocence erroneous. It is error in an action for divorce to give an instruction telling the jury that in determining the issue of adultery they may take into consideration the presumption of innocence; such instructions are inappropriate in civil causes.</p> <p>4. Divorce—when estoppel precludes. A husband who either procures or connives at the debauching of his wife is thereby estopped from improving his marital condition by securing a divorce the grounds for which were brought about by his own perfidy.</p>

<p>1. Service by publication-—when affidavit sufficient. Held, that the form of affidavit (not set forth in the opinion) was sufficient upon which to predicate service by publication.</p> <p>2. Foreclosure—who necessary parties. A mortgagor is a necessary party in a proceeding to foreclose filed against his grantee.</p> <p>3. Stipulations—power of chancery to relieve against. It is within the power of a court of chancery to permit a party to withdraw a stipulation made in a cause if it appears that such stipulation was executed by the solicitor of such party without authority and without full knowledge of its contents and that the action of such solicitor in so doing was subsequently repudiated by the client.</p> <p>4. Trust deeds—effect of extension of payment beyond maturity. An agreement by which the payment of a debt secured by a trust deed is extended beyond the time of maturity, does not affect the right of the holder of such deed to declare, pursuant to the terms of the trust deed, the whole debt due for breach of a covenant to pay taxes.</p> <p>5. Trust deeds—when election to declare whole debt due sufficient. It is not essential in order to declare a whole debt secured by a trust deed due for breach of a covenant to pay taxes that notice of the election made pursuant to the terms of the trust deed be given; the filing of the bill is sufficient evidence of such election.</p> <p>6. Tender—effect of, as admission. A tender of a sum of money in payment of a specific item is prima facie an admission that such item is correct as to the amount tendered.</p> <p>7. Parties—when objection to, waived. If a party who seeks to urge the nonjoinder of necessary parties in a bill to foreclose has by his answer sought to set up the names of all the parties in interest in the cause and has failed to mention the particular party claimed not to have been joined, he is thereby precluded from urging on review the nonjoinder of such party.</p> <p>8. Appeals and errors—application of maxim de minimis non curat lex. Held, that a reversal would not be awarded even- though it might appear that there had been an excessive computation of interest, the amount of such excess being claimed as $1.20.</p> <p>9. Appeals and errors—when statutory damages not awarded. Notwithstanding the Appellate Court may be of the opinion that the contentions of the appellant are clearly without merit,_yet statutory damages will not be awarded where it may be that upon a further appeal a different judgment will be rendered by the Supreme Court.</p>

<p>1. Contracts—how far consideration may be attacked by parol. Parol evidence which tends to show an absence of consideration is competent, but such evidence which attacks the consideration to such an extent and in such a way as to contradict the terms of the contract or to overthrow the same, is incompetent.</p> <p>2. Principal and agent—when consideration sufficient to support undertaking by latter with third person. The contract by an agent with a third person may be supported by a consideration moving to the principal.</p> <p>3. Releases—when receipt cannot be attacked by parol evidence. A receipt of money recited by an instrument, which is both a receipt and a contract, cannot be attacked by parol evidence, so as to overthrow the contract portion of the receipt.</p>

<p>Bill for receiver. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Contempt—effect of appeal as supersedeas. An appeal from a decree punishing for contempt operates as a supersedeas and strips the court until the appeal is disposed of, of the power to proceed to punishment.</p>

<p>Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.</p>

Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.

<p>1. Notices—when of accident given to city pursuant to statute insufficient. The statute requires that the notice in question he in writing and give “the date and about the hour of the accident.” A notice which states that the accident occurred upon any other day than the true one is insufficient and will not support a recovery.</p> <p>2. Notices—hoiv insufficiency of, given of accident to city pursuant to statute may he availed of. The insufficiency of the notice of an accident given to the city, pursuant to statute, may be availed of by a motion for a peremptory instruction.</p>

<p>1. Negligence—when evidence in collision case establishes. Where the Injury to the plaintiff occurred by reason of a motor car being run upon a railroad track, and being there struck by a railroad engine, the evidence of such manner of occurrence, coupled with the testimony of the motorman to the effect that he knew that it was his duty to bring his car to a full stop within a safe distance of the railroad crossing, establishes a prima facie case of negligence in favor of the plaintiff, which, under the evidence in this case, it was held was not rebutted.</p> <p>2. Verdicts-—when not excessive. Held, in an action on the case for personal injuries, that a verdict for $3,000 was not excessive, where the evidence tended to show that as a result of an accident both' bones in one of the plaintiff’s feet and arms were broken—■ the ulna near the elbow and the radius near the wrist; that the first union of the ulna was not satisfactory and the union was broken up and the bone re-set; that, in consequence, the arm is deformed and its motion limited and that these conditions are permanent; that other serious effects followed, and that the sum of $700 was expended for medical attendance and nursing.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthili,, Judge, presiding.</p>

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

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.

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

<p>Petition for appointment of conservator. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of Mercer county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Mandamus. Appeal from the Circuit Court of Rock Island county; the Hon. W. H. Gest, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>Replevin. Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Action on the case. Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding.</p>

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

<p>Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Kankakee county; the Hon. Fbank L. Hoopeb, Judge, presiding.</p>

<p>1. Instructions—when peremptory properly denied. A peremptory instruction is properly denied if the evidence is conflicting and there is no clear preponderance either way.</p> <p>2. Instructions—when inaccuracy as to exercise of ordinary care cured. An instruction if subject to the criticism that it limits the exercise of ordinary care to the precise time of the accident, may be cured by other instructions contained in the series which require the exercise of ordinary care both before and at the time of the injury.</p> <p>3. Instructions—when upon question of negligence properly refused. An instruction which directs attention to particular acts as showing or tending to show the exercise of care, is properly refused.</p>

<p>1. Corporations—status of preferred stock. Preferred stockholders are not creditors of the corporation and are entitled to no dividends except as declared by the directors from profits earned by the corporation.</p> <p>2. Corporations—by whom, dividends declared. The directors, and not the stockholders are empowered to declare dividends.</p> <p>3. Corporations—what essential to recovery of dividends. A preferred stockholder cannot recover a dividend from a corporation unless he establishes the fact that the directors have duly declared such dividend.</p>

<p>1. Res judicata—when judgment sufficient to establish. The same formality and technical accuracy is not required of a judgment of a justice of the peace as is re piired of the judgments of courts of record; in determining the effect of such a judgment as supporting the defense of res judicata, the substance should be regarded rather than its form.</p> <p>2. Evidence—question calling for speculation upon future contingencies. A question which asks for the result of a contingency which may or may not happen, is improper.</p> <p>3. Evidence—right to re-examine witness. It is within the sound discretion of the court to permit or to refuse to permit the reexamination of a witness.</p> <p>4. Evidence—when admission of opinion harmless error. Eeld, that even though the admission of an opinion might have been erroneous, yet such error was harmless in view of the fact that the facts upon which such opinion was based had previously been stated, and likewise in view of the further fact that both sides had examined their witnesses in the same manner.</p> <p>5. Instbuctions—must not submit questions of law. An instruction which permits a jury to determine what covenants if any are “implied by law,” is erroneous.</p>

<p>Divorce—what does not bar, for extreme and repeated cruelty. No matter how many times the parties may have been married and divorced upon the ground of extreme and repeated cruelty, the right to a divorce arises upon a recurrence of extreme and repeated cruelty following a new ceremony.</p>

<p>1. Employee and employe—6urden to show ground for discharge. The burden of showing good and sufficient grounds for discharge rests upon the employer invoking such a defense when the servant has proven the contract, its performance up to the time of his discharge and his readiness to perform at the time of the discharge.</p> <p>2. Evidence—when cross-examination as to document improper. Held, that to ask a witness as to the customary manner of making reports without first showing him the reports which had been previously made by him, was improper.</p>

<p>1. Insanity—section H of chapter 86 construed. Notwithstanding the provision of this statute which makes void the contract of a person made after his adjudication as insane, a contract made by him during a lucid interval is binding without an adjudication of restoration to reason.</p> <p>2. Insanity—presumption as to continuance. If a person has been adjudged insane the presumption of insanity continues until the adjudication of restoration to reason has been made, and where the issue is as to whether reason has been restored, the burden is upon the party who alleges such restoration to reason, to establish it by a preponderance of the evidence.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Gbeen, Judge, presiding.

<p>Bill in equity. Appeal from the Circuit Court of Will county; the Hon. Fbank L. Hoopeb, Judge, presiding.</p>