Volume 156 — Illinois Appellate Court Reports

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Cbaiq, Judge, presiding.

<p>1. Covenants—how questions of construction determined. Whether a covenant contained in a deed which provides for the construction and maintenance of a culvert or cattle-pass, runs with the land, is to be determined by ascertaining the intention of the parties which is to be arrived at upon a consideration not alone of the language employed but of the facts and circumstances constituting the situation with reference to which such language was employed, and parol evidence is competent for the purpose of disclosing such situation.</p> <p>2. Covenants—when parol evidence incompetent. Parol evidence under the guise of showing the consideration is incompetent to vary or add to the terms of a deed containing a covenant.</p> <p>3. Baieroads—when deed imposes obligation to maintain cattle-guards. Held, that the deed containing a covenant to erect and maintain a culvert or cattle-pass imposed a continuing obligation upon the railroad, and such convenant ran with the land.</p> <p>4. Damages—when incompetent evidence will not reverse. The admission of incompetent evidence upon the question of damages will not reverse if the amount of the verdict is amply sustained by competent evidence.</p>

<p>1. Assault and battery—what pleading essential to self-defense as answer to civil action. In the absence of a plea of son assault demesne, self-defense or justification is not available by the defendant as a substantive ground to a civil action of assault and battery.</p> <p>2. Instructions—when omission of word “unlawful” harmless error. In an instruction defining an assault and battery the omission of the word “unlawful” is harmless error if the evidence sustains the unlawful character of the assault.</p> <p>3. Appeals and errors—what instructions cannot he complained of. A party cannot complain of instructions which contain a vice common to other instructions given at his own instance.</p>

<p>1. Guardian and ward—right of surety upon bond to discharge, A surety upon a guardian’s bond has a right by petition to require his principal to account , and to give a new bond.</p> <p>2. Guardian and ward—when petition by surety should not be dismissed. It is error for the court to dismiss a petition by a surety which prays for some relief to which he is entitled.</p>

<p>Instructions—requests for contradictory. A party cannot complain of the action of the court in refusing an instruction which contradicts in its statements of law another instruction given at the instance of the same party.</p>

<p>Bill in equity. Appeal from the Circuit Court of Moultrie county; the Hon. William C. Johns, Judge, presiding.</p>

<p>1. Administration or estates—when purchase hy executor illegal. An executor is a trustee and as such is forbidden to acquire in his own right any part of the trust estate. A purchase by an executor of a portion of the trust property, which purchase is conducted through the intervention of a third person, is fraudulent, and in order to set aside the transaction by which an executor acquired assets of the trust estate, it is not necessary to show that the estate has suffered loss thereby.</p> <p>2. Trusts—jurisdiction of equity. Equity has jurisdiction in all matters relating to trusts, and of the conduct of trustees in their dealings with property held or controlled by them as such trustees, and of . the obligations of such trustees respecting the trust property to the beneficiaries of such trusts.</p>

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

<p>Common carriers—lohen instruction m action against erroneous. In an action to recover the value of property alleged to have been lost or destroyed by the negligence of a carrier, an instruction given at the instance of such carrier predicated upon the effect of a limitation of liability by contract, is erroneous if it ignores the question of the negligence of such carrier and authorizes a verdict for such carrier regardless of its negligence.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Moultrie county; the Hon. William G-. Cochran, Judge, presiding.</p>

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

<p>Assumpsit. Appeal from the Circuit Court of McDonough county; the Hon. H. M. Waggoner, Judge, presiding.</p>

<p>Action in case. Appeal from the Circuit Court of Clark county; the Hon. E. B. E. Kimbrough, Judge, presiding.</p>

<p>Mechanic’s liens—when fee as well as leasehold interest subject to. If the owner of the fee in a lease authorizes the making of improvements, the fee is subject to a lien in so far as improvements are permanent in character and inure to the benefit of the owner, but in so far as such improvements are temporary and subject to removal by the lessee, a lien should not. be awarded as against the fee.</p>

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

<p>1. Appeals and errors—ialien additional evidence properly heard after remandment with direction to enter decree. After remandment with directions to enter a decree, additional evidence is properly heard if essential to fully and properly carry out such remanding order.</p> <p>2. Appeals and errors—what questions not considered upon second appeal. A question which might have been but which was not presented upon one appeal, will not be considered upon a second appeal of the same cause.</p> <p>3. Costs—what action of chancellor will not he disturbed. The awarding of costs is discretionary with the chancellor and the exercise of such discretion will not be interfered with in the absence of abuse.</p>

<p>1. Corporations—when chancery mil not order declaration of dividend. Unless a very strong case is made a court of equity will not order the directors of a corporation to declare a dividend inasmuch as equity has no jurisdiction unless fraud or breach of trust is involved.</p> <p>2. Corporations—discretion of directors as to dividends. The declaration of a dividend from a surplus or a division of profits is within the discretionary powers of the directors and in the exercise of their discretion will not be controlled or interfered with by the courts unless they act oppressively or unreasonably.</p>

<p>1. Brokers and factors—when real estate commissions earned. If a broker is the procuring and efficient cause of the sale of property he becomes entitled to his commissions.</p> <p>2. Brokers and factors—what not abandonment precluding right to commissions. After a broker has produced a purchaser who has entered into a contract of purchase, the fact that he endeavors to sell such purchaser other property does not constitute an abandonment of the first transaction and deprive him of the right to commissions if he has produced a purchaser ready, able and willing to purchase.</p> <p>3. New trial—ichen newly discovered evidence not ground for. Newly discovered evidence will not require a new trial if it was not so clearly material and conclusive that its production would probably lead to a different result upon a new trial.</p>

<p>1. Warranty—what essential to enforcement. One who seeks to enforce a warranty imposing mutual and dependent obligations and covenants must show compliance upon his part. Provisions in a warranty relative to notice of breach and return of property warranted are material and substantial parts and cannot be disregarded by the vendee.</p> <p>2. Warranty—who unauthorized to waive conditions. If a contract containing a warranty expressly provides that no agent shall have power to change the same in any respect, an agent of the vendor is unauthorized to waive conditions or requirements of the contract of warranty.</p>

<p>1. Common carbiebs—when restriction of liability inoperative. Limitations of a carrier’s liability contained in a shipping contract are not binding upon the shipper unless his assent thereto is established by a preponderance of the evidence.</p> <p>2. Common cabeiebs—effect of violation of Interstate Commerce Act. The fact that a contract between a shipper and a carrier violates the Interstate Commerce Act does not prevent or affect the shipper’s right to recover for injuries or damages occasioned by the negligence of the carrier in the shipment.</p> <p>3. Evidence—of what judicial notice not taken. Judicial notice will not be taken of an official classification of freight rates made under the Interstate Commerce Act.</p>

<p>Common carriers—what makes prima facie case of negligence. Held, in an action to recover for the value of a horse alleged to have been killed through the negligence of the defendant carrier, that proof of delivery of such horse in live and good condition and of its death while in the custody of the carrier, made a prima facie ease against it, subject to be rebutted by proof that the death of such horse was not caused by the failure of the carrier to exercise the degree of care which the nature of the property required.</p>

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

<p>Appeal from Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge presiding,</p>

<p>1. Instructions—when peremptory properly refused. A peremptory instruction is properly refused if there is evidence tending to establish a right of recovery.</p> <p>2. Instructions—must not ignore element essential to recovery. In an action for personal injuries an instruction which authorizes the jury to find a verdict for the plaintiff if certain facts are found, is erroneous if it ignores .any element essential to a recovery.</p> <p>3. Master and servant—doctrine of assumed rish defined. A servant assumes not only the ordinary risks incident to his employment but also all dangers which are obvious and apparent notwithstanding the master may have failed in his duty to furnish the servant with a place ordinarily safe in which to work.</p> <p>4. ISTegligence—what not as a matter of law. In an action for personal injuries suffered by a mule driver while employed in a mine, held, that it was not negligence, as a matter of law, to fail to provide a car with a bumper.</p>

<p>Vendor and vendee—what constitutes merchantable title. In order that a title to real estate be merchantable, it must be good beyond a reasonable doubt, and this must appear from the abstract itself. It is not sufficient that the title may, in fact, be good, or that it may be made good. The abstract on its face must show that there is no reasonable doubt about it. It is not sufficient if the court has a favorable opinion of it, or thinks that it is probably good. It must be such a title as will not detract from the salability of the land, or depreciate its value on the market, or expose the vendee to possible litigation or to the danger of being defeated in an action concerning it. On the other hand, an objection cannot be founded on unsubstantial trifles; a bare possibility that the title may be affected by the existing causes which may subsequently be developed, when the highest evidence of which the case admits, amounting to a moral certainty, is given that no such cause exists, is not to be regarded as a sufficient ground for a refusal to perform the contract of purchase.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the- Hon. James A. Ckeighton, Judge, presiding, Certiorari denied by Supreme Court (making opinion final).

<p>Action in case. Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Action in case. Error to the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.</p>

<p>1. Corporations—what does not establish fact of having ceased to do business. A certificate of the secretary of state that the charter of a corporation has been canceled is a circumstance which tends to show that it is no longer acting as a corporation but such certificate does not conclusively establish such fact.</p> <p>2. Appeals and errors—when remarks of counsel not subject to review. Unless the remarks of counsel complained of are preserved in the bill of exceptions they will not be considered on review.</p> <p>3. Variances—when objection for comes too late. An objection of variance first made in the Appellate Court comes too late and will be deemed to have been waived.</p>

<p>Action in case. Appeal from the Circuit Court of. McLean county; the Hon. Colostin D. Myebs, Judge, presiding.</p>

<p>1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Pleading—when pleas amount to _general issue. A demurrer is properly sustained to several pleas which set up matters competent under the general issue.</p> <p>3. Instructions—when party not entitled to have theory of case presented. The rule that a party has a right to have the jury instructed upon his theory of the case does not apply where his theory is contrary to the law applicable to the case.</p> <p>4. Instructions—must not invade province of jury. To tell the jury that certain facts would constitute an acceptance of work is to invade the province of the jury.</p>

<p>Bill of interpleader. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Piatt county; the Hon. W. G-. Cochran, Judge, presiding.</p>

<p>Separate maintenance. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding.

<p>Action in case. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Common carriers—when limitation of UabiUty not effective. The rule of law in this state applicable to contracts of shipment applies also to interstate commerce and before a carrier can invoke the aid of a contract containing limitations of liability it must be shown that the shipper assented thereto.</p> <p>2. Pleading—upon what recovery may be predicated. No recovery can be predicated upon any theory not supported by the declaration in the case.</p> <p>3. Measure oe damages—in action against carrier for delay in transportation. Eeld, in such an action that an expenditure for care of a race horse not growing out of or occasioned by reason of the delay charged, was not a proper element of damage.</p>

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

<p>Bill in chancery. Appeal from the' Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Verdicts—when set aside. A verdict will be set aside on review where the same is clearly and manifestly against the weight of the evidence.</p>

<p>1. Accord and satisfaction—when established. If an offer is made in full settlement and it is accepted, the acceptance will satisfy the demand, although the creditor protests at the time that the amount received is not all that is due or that he does not accept it in full satisfaction' of his claim.</p> <p>2. Appeals and errors—when presumption indulged that evidence supports verdict. If the bill of exceptions does not contain a certification that it contains all the evidence heard in the cause, the presumption will be indulged that the evidence actually heard was sufficient to support the verdict. A certification made by a reporter is not a substitute for the judge’s certification.</p>

<p>1. Master and servant—when doctrine of assumed, risk does not apply. The doctrine of assumed risk will not defeat a recovery by a servant where he was injured while in the performance of work which he was directed to do by the foreman of the master, such work not being a part of such servant’s general work and employemnt.</p> <p>2. Instructions—when cannot he complained of. A party cannot complain of the giving of an instruction containing an alleged vice common to an instruction given at his own instance.'</p> <p>3. Instructions—must not he argumentative. An instruction is properly refused which is argumentative in form.</p> <p>4. Instructions—when refusal of co -red will not reverse. It is not error to refuse a correct instruction if its contents is substantially contained in another instruction given.</p> <p>5. Instructions—when failure to give as to fellow-servant rule, not error. It is not error for the court to fail to instruct the jury upon the doctrine of fellow-servants where no instruction containing a correct statement of the law as to what constitutes fellow-servants was asked or tendered.</p>

<p>1. Administration or estates—when question of legal appointment of administrator cannot he raised. Ihe County Court having jurisdiction to appoint an administrator and not being a court of limited jurisdiction for that purpose, unless the record shows that the court for some reason did not have jurisdiction to make an appointment and such failure of jurisdiction is disclosed by the record, his appointment cannot be questioned.</p> <p>2. Administration of estates—what does not discharge administrator. The approval of the final report of an administrator does not operate to discharge him.</p> <p>3. Administration of estates—jurisdiction to appoint adminisistrator de bonis non. The fact that an estate may be declared settled and the final report of the administrator approved and the administrator discharged, does not deprive the County Court of its power to appoint an administrator de bonis non upon a proper showing that the estate was not settled, that the debts were still unpaid and assets were available out of which debts should be paid.</p> <p>4. Administration of estates—what does not affect rights of creditors. Upon the death of an ancestor the real estate descends to the heir with, the charge of all liability thereon. The heir does not acquire an absolute title and he cannot make any conveyance that will defeat the rights of the creditors of the ancestor in having the same sold for the payment of debts.</p> <p>5. Administration of estates—what not laches barring right to sell real estate to pay debts. If the real estate available represents the homestead of the widow and children of the deceased the creditors must wait until the extinguishment of such homestead estate before they may proceed to sell such real estate to pay their debts and it is not necessary for such creditors to take any steps to reach the homestead property although it may have increased in value.</p> <p>6. Administration of estates—jurisdiction with respect to allowance of claims. The County Court being a court of record and having jurisdiction of the matter the law presumes that it had complete jurisdiction to render judgment on claims presented until the contrary is shown, and the fact that no summons or entry of appearance may be on file, cannot overcome the presumption of jurisdiction.</p>

<p>1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Warranty—how question determined. Whether certain language claimed to have been employed constituted a warranty, is a question of law for the court to determine; whether such language was in fact employed is á question of fact for the jury to decide.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>Petition to sell, etc. Appeal from the County Court of Logan county; the Hon. Donald McCobmick, Judge, presiding.</p>

<p>Bill to construe will. Error to the Circuit Court of Scott county; the Hori. Owen P. Thompson, Judge, presiding.</p>

<p>1. Contracts—what illegal option. The illegal contract for an option the so-called “option contract” which the legislature of this State has branded with illegality irrespective of the intent of the parties is one wherein A for a consideration gives B an option binding upon A, under which B has the right,- as he may please to buy or not to buy from A within a specified time, a certain quantity of grain.</p> <p>2. Contracts—what essential to- make illegal as gambling in nature. To make contracts for the purchase and sale of grain gambling in nature and illegal there must have been a mutual gambling intent; an intent to settle on differences, which must have existed at the time the contracts were made; a subsequent settlement on differences is only evidence of the prior intent; and so, too, the fact that no grain is actually received by a purchaser, or that prior to the time for the receipt thereof, he sells an equal quantity through the same broker and is paid the profit or pays the loss does not of itself compel the conclusion that the transaction contemplated a mere gambling on differences and was therefore illegal.</p> <p>3. Contracts—when eannot be enforced notwithstanding absence of mutual intent to gamble. A party who makes a contract with a gambling intent cannot enforce it even though such gambling intent is not participated in by the other party to the transaction. This is not because the contract is in itself illegal (mutual illegal intent is necessary for this) but because it is against a sound public policy to permit one who has entered into a transaction with an illegal intent to recover thereon.</p> <p>4. Contracts—what does not render illegal. The law does not prohibit a man from entering into a contract for the purchase of property to be delivered to him in the future or from ordering an agent to enter into such a contract even though he may expect under certain contingencies to sell his rights before maturity and to take his profit or suffer his loss. Such a transaction is legitimate business speculation.</p> <p>5. Contracts—when indemnities in grain valid. If an insurable interest exists contracts of indemnity in grain are valid.</p> <p>6 Contracts—when indemnities in grain invalid. If no actual interest in grain exists which bona fide it is sought to insure against on the rise and fall of the market, contracts of so-called indemnity are mere options and illegal under the" Criminal Code.</p> <p>7. Assumpsit—recovery upon account stated. If any part of the consideration entering into an account stated is illegal, there can be no recovery of any part of the claim under the count of account stated.</p>

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

<p>1. Malicious peosecutioít—what essential to establish at common law. At common law a plaintiff is not liable for bringing any suit, civil or criminal, or for causing the seizure through a judicial order of the person or property of another, if the court has jurisdiction of the subject-matter and the parties, unless he acts maliciously and without probable cause.</p> <p>2. Bankruptcy—section 8, subsection 3, fixing . liability for obtaining receiver construed. This section creates no rights distinct from and independent of the remedy. In actions for malicious prosecution the common law rule still prevails, and malice and want of probable cause must be established.</p> <p>3. Bankruptcy—what does not establish laclo of jurisdiction to appoint receiver. An adjudication that a corporation does not come within the class which may be declared bankrupts, does not operate to nullify all intermediate orders of the courts.</p> <p>4. Jurisdiction—what essential to, of subject-matter. A bankruptcy court has jurisdiction over the subject-matter of a cause irrespective of whether it correctly or erroneously dismisses the petition because of its finding that the alleged bankrupt corporation does not come within the class that, by the act, may be adjudicated bankrupt.</p>

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

<p>1. Appeals and errors—how hill of exceptions impeached. Affidavits will not be received to impeach either the recitals of the bill of exceptions or the presumptions arising from such recitals.</p> <p>2. Practice—what operates as discontinuance. The granting of leave by the court to discontinue as against one defendant followed by the filing of an amended bill by leave of court against the other defendant, operates as a discontinuance as to the first mentioned defendant.</p> <p>3. Assault and battery—what evidence competent upon question of damages. It is proper for the court to allow a detailed examination of the defendant as to his wealth where in answer to a question as to how much he was worth he replied that he did not know.</p> <p>4. Verdicts—when not excessive. Held, in an action of assault and battery that a verdict reduced by remittitur to $300 would not be disturbed where it appeared that the defendant was a man of full age and the plaintiff was a girl and that there was evidence justifying the allowance of punitive damages.</p>

<p>1. Contracts—effect of construction by parties. If there is anything doubtful or ambiguous about a contract the construction and meaning put thereon by the parties will be accepted as the true construction where it is not inconsistent with the language used by the parties</p> <p>, 2. Contracts—when not void for want of mutuality. A particular contract in question in this case is considered and construed and held not void for want of mutuality.</p>

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

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

<p>Action in debt. Appeal from the Superior Court Cook county; the Hon. Willard M. McEwbn, Judge, presiding.'</p>

<p>1. Pobpobations—when foreign doing business in this state contrary to statute. Held,, upon the facts alleged in the defendant’s plea admitted by the plaintiff’s demurrer that the plaintiff corporation could not legally begin or maintain this action whether the contract sued on was made in this State or elsewhere, because such plaintiff, a foreign corporation, was doing business in this State without having complied with the statute.</p> <p>2. Corporations—effect of a,ct of 1905 upon status of foreign corporations doing business in this state contrary to provisions of previous act. If under the statutes in force when the action is commenced the plaintiff could not legally institute or maintain the same, the subsequent repeal of such statute without a saving clause does not improve or change the status of such plaintiff.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.</p>

<p>1. Injunctions—when should be obeyed. If the court had jurisdiction to grant the injunction in question it should be obeyed while it remains in force.</p> <p>• 2. Injunctions—who bound to obey. A person having knowledge of the existence of an injunction though not a party to the proceeding in which it was granted is bound to obey the same.</p> <p>3. Injunctions—propriety of in connection with strihes. The right to strike is recognized by the courts but a conspiracy to ruin the business of an employer of labor by means of picketing, boycotting, etc., is unlawful and the injunctive process of the court may be employed to defeat such conspiracy.</p> <p>4. Contempt—'^what not essential to proceeding for. A petition is not essential to initiate contempt proceedings. If a rule to show cause is supported by affidavits the requirements of the law are observed.</p> <p>5. Contempt—when technical objections come too late. Technical objections first made on appeal come too late and are deemed to have been waived.</p> <p>6. Habeas corpus—when order of discharge void. An order of discharge entered in a habeas corpus proceeding by and through the misprision of the clerk is void and may be set aside after the lapse of the term of entry.</p>

<p>1. Contempt—when order of commitment sufficiently definite. Held, that the order of commitment in this case, by construction, was sufficiently definite and that such informality as appeared would not justify a reversal.</p> <p>2. Contempt—when Appellate Court will modify order of commitment. If an order of commitment provides for the imprisonment to commence from the date thereof so that by virtue of an appeal its operation might be-defeated, the Appellate Court will modifiy such order so that notwithstanding the appeal, it will upon affirmance become ef-. fective.</p> <p>3. Appeals and errors'—when costs of additional abstract taxed against appellant. If an additional abstract is required by reason of &. mistake in the appellant’s abstract, the cost thereof will be taxed against such appellant.</p>

<p>1. Bes judicata—what essential to defense of. Identity of parties in the pending and former actions is essential to the defense of res judicata.</p> <p>2. Municipal Court—when common law record only subject to review. If no stenographic report or statement of facts is filed as provided by the statute, and a bill of exceptions which does not purport to contain all the evidence is filed in lieu thereof, there is nothing subject to review by the Appellate Court other than the common law record.</p>

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

<p>Action commenced before justice of the peace. Error to the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>

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

<p>1. Insurance—effect of delay in objecting to proofs of loss. Delay in objecting to proofs of loss waives defects in such proofs but does not waive any defense other than the insufficiency of such proofs.</p> <p>2. Arbitration and award—what testimony competent to impeach. The testimony of an appraiser who has not signed the award is competent to impeach the same.</p> <p>3. Arbitration and award—what invalidates award. An award which is signed by two arbitrators without notice to the third and without giving him an opportunity to be present at the execution thereof, is void.</p> <p>4. Res judicata—effect of former decision. A decision rendered by the Appellate Court in one appeal of a cause is the law of the case in a subsequent appeal to the same court of the same cause.</p>

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Geobqe A. Dupdy, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>3. Variance—when does not appear. If the allegation upon which the objection of variance is predicated may be stricken from the declaration as surplusage without changing its legal effect, a legal variance does not appear.</p> <p>2. Safety appliance act—federal law construed. The phrase “any car used in interstate traffic” is to be “held to apply to all * * cars used on any railroad engaged in interstate commerce.”</p> <p>3. Instructions—when under safety appliance act not erroneous. In an action predicated upon the federal safety appliance act requiring the use of automatic couplers, etc., instructions are not erroneous which contain a mere statement of the act of Congress.</p>

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

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

<p>1. Pleading—when declaration states cause of action. Held, that the declaration in question in this case was sufficient after verdict, the plaintiff being injured while driving a wagon which was struck by a trailer of a traction train which had jumped its track.</p> <p>2. Pleading—when defective declaration does not affect verdict. A cause of action defectively stated is sufficient after verdict to base a judgment upon and a judgment so based will not be reversed for such defect in the count.</p> <p>3. Negligence—when doctrine res ipsa loquitur applies. When street cars leave the rails and inflict an injury upon one who is rightfully on the street and in the place where he is injured and who is free from contributory negligence, the maxim of res ipsa loquitur applies.</p> <p>4. Abatement—effect of death of plaintiff in action for personal injuries. If the plaintiff in an action for personal injuries dies as the direct result of the negligence charged in such action the action abates and recovery therefor cannot be had by his personal representative.</p> <p>5. Husband and wife—when incompetency of latter cannot be urged. If the objection to the competency of the wife to testify for her husband is first made on appeal, it will not be considered.</p> <p>6. Appeals and ebbobs—when rulings not reviewed. In the absence of a definite ruling and an exception thereto no review can be had.</p> <p>7. Appeals and ebbobS'—when arguments of counsel not subject to review. In the absence of an objection, a ruling thereon and an exception to such ruling, arguments of counsel urged as improper are not subject to review.</p> <p>8. Damages—when admission of erroneous evidence will not reverse. If incompetent evidence is admitted upon the question of damages a reversal will not be awarded if it does not appear that a consideration of such evidence could have enhanced the verdict.</p> <p>9. Evidence—when admission of erroneous will not reverse. If erroneous evidence is admitted and then stricken out and the jury instructed to disregard all evidence received which has been stricken out, the admission of such erroneous evidence will not reverse unless prejudice appears to have resulted.</p>

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

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

<p>1. Municipal Court—token without jurisdiction to extend time for kill of exceptions. The Municipal Court has no jurisdiction even upon stipulation to allow any extension of time for the filing of a bill of exceptions beyond the expiration of the extension of time allowed within the sixty days referred to in the statute.</p> <p>2. Municipal Court—what does not confer jurisdiction to extend time for kill of exceptions. The settling of a bill of exceptions is a judicial act and when there is now power under the statute to settle such bill the parties cannot, by stipulation, invest the Municipal Court with power in that respect.</p> <p>3. Appeals and ERRORS'—joinder in error will not enlarge court’s powers. Joinder in error does not validate an invalid bill of exceptions and does not empower a court of review to act upon an invalid bill of exceptions or to exercise the judicial power where such power is lacking; nor does it prevent a defendant in error from challenging the validity of a purported bill of exceptions.</p>

<p>1. Negotiable instruments—when payment of draft upon forged endorsement does not confer cause of action. If notwithstanding the name of the nominal payee of a note, an existing person not intended to have any interest therein, is forged as endorsee, payment has in fact been made to the person entitled thereto, there can be no recovery back.</p> <p>2. Negotiable instruments—io7i.cn payment of draft rvpon forged endorsement confers cause of action. Payment made to one claiming through the forgery of the endorsement of the real owner of the paper may ordinarily be recovered back by the drawee who paid in ignorance of the forgery.</p> <p>3. Negotiable instruments—when banh not liable bach as upon forged endorsement. If bearer drafts or drafts intentionally made to a fictitious payee (which in law are bearer drafts) are drawn by an agent either expressly or by implication of law authorized so to do and such drafts are cashed in the belief that the endorsements are the genuine signatures of the payees named ¿herein, a bank so cashing such drafts is not liable but the loss must be borne by the principal who has so expressly or by conduct permitted such agent to operate.</p> <p>4. Election of remedies—when does not arise. If two persons are independently liable, the act of suing one of them is not an election of remedies and does not preclude suit against the other.</p> <p>5. Election of remedies—what does not constitute. Mere suit against an undisclosed principal after the relation has been disclosed is no bar to suit against the agent.</p> <p>6. Agency—when doctrine of undisclosed principal does not apply. The doctrine of undisclosed principal is not applicable to commercial paper.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.</p>

<p>Appeals and errors—what not considered upon review of refusal to vacate judgment. Upon such an appeal alleged errors at the trial or defects in the declaration will not be considered.</p>

<p>Mechanic’s lien. Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Master and servant—when dootrine of assumed, rish applies. If the danger which caused the plaintiff’s injury was obvious and in open and plain view, the servant is charged with knowledge thereof and he cannot recover.</p>

<p>1. Judgments—when equity should not interfere with enforcement. Courts of equity should not restrain the execution of judgments upon the ground that they were obtained by perjury except where such perjury is established beyond reasonable controversy by evidence clear, convincing and satisfactory, and in making the investigation required the chancellor may consider testimony given by the witnesses called both by the complainant and the defendant.</p> <p>2. Judgments—what newly discovered evidence will not justify interference 6y court of chancery. Newly discovered evidence impeaching, cumulative and inconclusive in character, will not justify the interference by chancery with a judgment at law.</p> <p>3. Costs—when reversal will not be awarded because of manner of taxation. If an error is committed in the manner of taxation so that the payment of a fee allowed in favor of a master might be paid twice, a reversal will not be awarded but the parties left to have the error corrected by means of a motion to retax.</p>

<p>1. . Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Instructions—upon exercise of ordinary care approved. An instruction upon this subject as follows, approved:</p> <p>“The court instructs the jury as a matter of law that while it was the duty of the plaintiff at the time and place in question to exercise due care and foresight for her own safety, yet she was obliged to exercise only such care and foresight as is ordinarily exercised by reasonably careful persons under similar circumstances.”</p> <p>3. Instructions—upon consideration of plaintiff’s testimony not error. Held, in view of the other instructions given in the case, that the giving of an instruction upon this subject as follows, was not error:</p> <p>“The court instructs the jury as a matter of law that the plaintiff is a competent witness in her own behalf, and if the testimony of the plaintiff appears to be fair and not unreasonable and is consistent with itself and she has not been in any manner impeached, then they have no right to disregard the testimony of the plaintiff merely because she is the plaintiff, or from mere caprice or without cause. It is the duty of the jury to consider the whole of the evidence and to render a verdict in accordance with the weight of all the evidence in the case and under the instructions of the court, as to the law.”</p>

<p>1. Injuries act—upon whom cause of action conferred. This act is to be liberally construed and so construed it confers a cause of action upon a husband for the death of his wife caused by the wrongful act of the defendant.</p> <p>2. Damages—presumption in actions under Injuries Act. The law presumes damage to have resulted to adult children from the death of their mother.</p> <p>3. Instructions—upon question of damages in action under Injuries Act approved. An instruction upon this subject as follows, approved:</p> <p>“The court instructs the jury that' if, from the evidence in the case and the instructions of the court, the jury shall find the issues for the plaintiff and that the husband and next of kin of said deceased have sustained damages by way of pecuniary loss, as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury themselves may make such estimate from the facts and circumstances in proof, and by considering them in connection with their knowledge, observation and experience in the affairs of ordinary life.”</p>

<p>Principal and agent—effect of ratification. If a letter assuming a liability is unauthorized when written by an agent, a subsequent ratification of such letter by the principal supplies the want of initial authority.</p>

<p>Action commenced before justice of the peace. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.</p>

<p>Municipal court—when without jurisdiction. The Municipal Court has no jurisdiction to proceed by information to the trial of a person accused of petit larceny.</p>

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

<p>1. Sales—when breach of warranty does not justify rescission. Where there is a warranty of the goods sold, and there is no fraud in the sale and no agreement that the goods may be returned, the purchaser cannot annul the contract of sale on a claim of breach of warranty without the consent of the seller; in such a case, in an action for the price of the goods, the warranty and breach may be shown by evidence in mitigation of damages.</p> <p>2. Sales—what essential to rescission. The actual tender of the merchandise sold is indispensable to the exercise of the right to rescission, where that right exists.</p> <p>3. Tender—what does not constitute. An offer by letter to return merchandise is not a tender thereof.</p>

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

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

<p>Assumpsit. Error to Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.</p>

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

<p>Insurance—when, payment of premium to agent puts policy in force. Ií a policy is delivered by the company to an agent for the purpose of its delivery and the collection of the premium thereon if such policy is delivered to the insured who pays the premium therefor to such agent, the fact that such agent fails to turn over the premium so collected to the company, as well as the fact that the policy was issued without prior application by the insured, will not prevent its going into effect as against the company.</p>

<p>1. Municipal Coubt—what not “statement of facts” or “stenographic report” as provided, for by Act. Held, that a document contained in this cause was neither a “statement of facts” nor a “stenographic report” such as is provided for by the Municipal Court Act as a substitute for the common law bill of exceptions.</p> <p>2. Bonds—when demand not condition precedent to maintenance of action upon. In an action upon a constable’s bond brought long after the return day of an execution for his failure to make return thereon, etc., a demand prior to suit for money collected, is not an essential prerequisite to the maintenance of the action.</p> <p>3. Bonds—what evidence competent against surety. In an action upon a constable’s bond the admission of the constable that he received certain money under the execution is admissible against the sureties upon such bond.</p> <p>4. Bes judicata—when judgment upon constable’s bond not. If an action be brought upon a constable’s bond and the judgment rendered thereon is only for the damages of the plaintiff in that suit, it is not a bar to a subsequent action by another plaintiff; had judgment in such case been rendered for the penalty of the bond then a party having a right of action under such bond would have a remedy in the former action by scire facias.</p>

<p>1. Forcible entry and detainer—what omission does not affect sufficiency of complaint. The omission of the word “is” before the words “entitled to possession” in the complaint in forcible detainer is not material and does not affect the validity of the judgment rendered in such an action.</p> <p>2. Forcible entry and detainer—when misprision of clerk in entering judgment will not reverse. If as written by the cleric a judgment in forcible detainer appears to have been entered one year later than it actually was, the error is immaterial and does not affect the validity of the judgment.</p>

<p>Common cabbiebs—when liability terminates. A complete delivery of merchandise by the carrier to the consignee terminates the former’s liability. A complete delivery takes place if the car containing the merchandise is placed by the carrier upon the usual and customary place where the consignee received consignments of freight in cars. Notice of delivery by the carrier to the consignee is not essential to the termination of its liability. Nor does the closing of the place of business of the consignee operate to continue the liability of the carrier for delivery made in accordance with instructions given.</p>

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

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

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

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

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

<p>Assumpsit—when lies for money received for the use of another. If a party receives money from another for the use of property belonging to a third person, such third person may recover in assumpsit the amount in question.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.</p>

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

<p>Attobnet and client—power of former to hind client for printing of hriefs. If briefs and abstract are required by rule of court an attorney has power to bind his client for the printing thereof, and the fact that the charge made is to the attorney, is not conclusive that the obligation is his rather than the clients.</p>

<p>Assault and battery. Error to the Municipal Court of Chicago; the Hon. J. E. Newcomeb, Judge, presiding.</p>

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

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

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.</p>

<p>Executions—what not abandonment of property justifying levy. If a person having merchandise in possession for purposes of delivery does not complete delivery to the person for whom it was intended, in order to justify a levy thereon pursuant to an execution against another person into whose possession it ultimately comes, it must appear that such merchandise has been abandoned, and in order “to constitute an abandonment there must be the concurrence of the intention to abandon and the actual relinquishment of the property, so that it may be appropriated by the next comer.”</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>Contributory neqligence—when person crossing street guilty of. A person crossing a public street is bound to be watchful for teams every moment of the time and if he voluntarily gets himself into a position by reason of which he suffers injury, he is guilty of contributory negligence and cannot recover.</p>

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

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. John A. Gray, Judge, presiding.</p>

Actiop in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.

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

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Bobert W. Wright, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Negligence—when doctrine res ipsa loquitur applies. If a collision occurs between two traction trains the doctrine res ipsa loquitur applies if both of such trains are controlled by the defendant.</p>

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

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>1. Negligence—duty of city with respect to streets. The duty of a city is only to exercise ordinary care to keep its streets and crossings in a reasonably safe condition.</p> <p>2. Instructions—when upon obligation of city with respect to its streets erroneous. An instruction upon this subject as follows, is erroneous as in effect acquitting the defendant of negligence charged:</p> <p>“The court instructs the jury that the city of Chicago, under the law, is not bound to build its sidewalks or crosswalks or streets of the same height or uniformly level, and if a jury believe from a preponderance of the evidence in this case that the accident in question was caused by the plaintiff stumbling against the rail, and if you further find from a preponderance of the evidence that the street and crosswalk was not defective, as alleged, at the time and place in question, then you should find the defendant not guilty.”</p>

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

<p>Vebdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifest; ly so.</p>