Volume 163 — Illinois Appellate Court Reports

<p>1. Slander and libel—toliat defense to action. The truth of the publication when made with good motives and for justifiable ends is a complete defense to an action for libel.</p> <p>2. Pleading—effect of surplusage. If a plea in an action for libel sets up a good defense, surplusage contained therein will not render it vicious.</p> <p>3. Pleading—when plea purports to he to whole declaration. Held, that the plea in this ease to a declaration in libel from its reading in the entirety purported to be to the whole declaration.</p> <p>4. Pleading—when defendant entitled to judgment upon overruling of demurrer to pleas. Where a demurrer to one of several pleas is overruled (which plea answers the whole declaration) and the plaintiff elects to stand by his demurrer, the defendant is entitled to judgment.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.

<p>1. Garnishment—token defendant not estopped to deny indebtedness. If a defendant in garnishment prior to action instituted admit liability to the judgment debtor and file an answer containing a like admission, he is not thereby precluded or estopped to show that he was not so liable to the judgment debtor if it is established that his admissions and answer were induced by the solicitation of the plaintiff and his attorney and were not predicated upon correct advice.</p> <p>2. Garnishment—extent of recovery. A creditor may by garnishment recover only such indebtedness as his debtor might recover in an action of debt or in an action of indebitatus assumpsit.</p> <p>3. Garnishment—wkat not subject to. A joint indebtedness cannot be garnished in a suit against one of the joint creditors.</p> <p>4. Estoppel—wkat essential to application of doctrine. A man is only precluded from alleging the truth when his assertion of a falsehood or his silence has been the inducement to action by the other party, which would result in loss if the opponent was permitted to gainsay what he had before asserted, or induced the other to believe by his acts.</p>

<p>Common carriers—when forwarding company entitled to lien. If a forwarding company undertakes to transport merchandise and delivers the same to a carrier, paying the freight but providing for reimbursement through the medium of a draft attached to the bill of lading, the forwarding company has a lien upon the property until the draft is paid, and if the railroad company makes delivery without payment of the draft the forwarding company may recover.</p>

<p>Appeals and errors—when finding by court not disturbed. A finding by the court will not be set aside as against the weight of the evidence unless clearly and manifestly so.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>Contributory negligence—failure to loolc and listen. It is not contributory negligence, as a matter of law, for one seeking to cross railway tracks to fail to look and listen. Held, under the evidence in this case, that the question of contributory negligence should have been submitted to the jury.</p>

<p>1. Writs of error—how statute of limitations must he relied upon. In order to urge a failure to sue out a writ of error within the period fixed by the statute, a plea setting up such defense should be filed.</p> <p>2. Writs of error—amendment of statute of limitations not retroactive. The amendment of 1907, which reduced the period of time in which writs of error must be sued out, is not retroactive and does not apply to judgments rendered before its passage.</p> <p>3. Contributory negligence—what does not affect question of. The fact that the plaintiff claimed that her attention was distracted in the use of a driveway with which she was familiar by a man of whom she was afraid, is not material on the question of contributory negligence.</p> <p>4. Trial—when remarles of court will not reverse. A remark made to a witness after he had indicated a certain lack of knowledge, as follows, “Then you cannot be heard to say much of anything,” is not harmful where it was not made to appear that the statement of the court was contrary to the fact.</p> <p>5. Instructions—defendant’s theory should he presented. The defendant’s theory of a ease should be presented by instructions, and instructions which do this and nothing more are proper.</p> <p>6. Negligence—failure 4o construct sidewalk according to ordinance. A city is not necessarily liable for failure to construct a sidewalk in strict conformity to an ordinance.</p> <p>7. Negligence—what not required of city in construction of sidewalks. It is not incumbent on the city to establish sidewalks and crossings of such a character as to present a smooth, even surface for foot passengers throughout the city.</p>

<p>Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Instbuctions—when upon right of recovery erroneous. If the court instruct the jury to the effect that if the jury believe from the preponderance of the evidence that the defendant was guilty of the negligence charged in the declaration, or either count thereof, then the plaintiff is entitled to recover, error is committed if there was no evidence to sustain one or more of the counts of the plaintiff’s declaration.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Suretyship—parol evidence competent to identify instrument referred to in contract of guaranty. If a guaranty purports to guarantee the partial payment of a note to an extent described with accuracy, parol evidence is competent to fully connect the instrument of guaranty with the note referred to therein.</p> <p>2. Suretyship—what consideration sufficient to support guaranty. Forbearance in the enforcement of an antecedent debt is a good consideration for the guaranty of a note given to represent the same which note is made payable in the future.</p> <p>3. Suretyship—when lack of diligence no defense to action upon guaranty. The unconditional guarantor of an indebtedness may not require that the owner institute proceedings against the maker.</p> <p>4. Statute of Frauds—when guaranty not within. A written guaranty which does not on its face state a consideration is not within the Statute of Frauds if actually supported by a valid consideration.</p> <p>5. Interest—in action again guarantor. If a contract of guaranty is not performed interest may be recovered against the guarantor to the same extent that it could be recovered against the principal debtor.</p> <p>6. Municipal Court—when objection of variance unavailing. If the statement of claim sufficiently advised the defendant of the nature . of the plaintiff’s action, an objection of variance will not be considered.</p>

<p>Municipal Court—how record may he amended. The record of the Municipal Court may be amended after such court has lost jurisdiction of the judgment if a contemporaneous memorandum of the judge exists which establishes the misprision and supplies the information to correct it.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.</p>

<p>Waterworks companies—when action for breach of contract does not lie. If a water company is under obligation by virtue of contract to supply water to a municipality for fire protection and it fails so to do, in consequence of which failure the dwelling house of a resident is destroyed by fire, an action sounding in contract does not lie by such resident against such company where no privity of contract appears.</p>

<p>1. Contracts—when mutual consent essential to extension. Held, upon construction of the ensuing provision, that the contract in question in this ease could not be extended except by mutual consent of the parties thereto:</p> <p>“It is further agreed that should both parties be desirous of continuing this agreement after September 30, 1908, the prolongation of this contract for the term of one year on the same terms and conditions may be had by either parties giving to the other notice of two weeks before the expiration of this agreement.”</p> <p>2. Assumpsit—when implied does not arise. If moneys come into the hands of the owner of premises by virtue of the continued use of such premises against the will of the owner who has been enjoined from interference, such owner cannot after such use has been determined as improper be called to account for the money so derived by him.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Host. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Negotiable instruments'—when title to checlc passes. If the maker of a check drawn on his own funds endorses the name of the payee thereon, the check becomes payable to bearer, and this notwithstanding the cheek was before endorsement countersigned by a third party pursuant to an understanding with the bank upon which it was drawn, it appearing that the check had never been in the hands of the payee named therein and that title thereto had never passed to such payee; title to such a check passes after delivery.</p>

<p>Passenger and carrier—what evidence competent in action for injuries. In an action of assumpsit for injuries sustained, held, that the conversation of the Pullman conductor who was participating in the running of the train was competent.</p>

<p>Municipal Court—when judgment not disturbed. The judgment of the Municipal Court will not be disturbed if the Appellate Court is satisfied that substantial justice has been done thereby.</p>

<p>1. Municipal Court—when election of causes of action not regwred. If the plaintiff in a bill of particulars sets up three separate causes of action, he is not required upon the trial to elect as to which one he will proceed upon.</p> <p>2. Torts—what does not remove imputation of malice. If a physician apply a treatment not sanctioned by medical science which resulted in injury and which such physician was bound to know would result in injury, the law imputes a malicious intent.</p>

<p>Replevin. Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Instructions—approved form as to rights of public at street crossings, etc. An instruction upon this subject as follows, approved:</p> <p>‘ ‘ The court further instructs you as law that it is lawful for individuals to walk and pass and repass upon public streets and highways, and in doing so to cross and recross street car tracks, exercising ordinary care in doing so, and that it is the duty of the servants of the street ear companies, operating cars upon public streets, to be on the lookout and take reasonable measure to avoid injuries to persons on the street. ’ ’</p> <p>2. Instructions—when upon exercise of ordinary eare erroneous. An instruction upon the exercise of ordinary care by the plaintiff is erroneous if it excludes the plaintiff from recovery if he " omitted to do anything for his own safety which an ordinarily careful, prudent and cautious person under like circumstances would have done. ’ ’</p> <p>3. Instructions—when upon preponderance of evidence erroneous. An instruction upon this subject is erroneous if it does not restrict the reference to the issues essential to the maintenance of the action.</p> <p>4. Instructions—when upon question of negligence erroneous. An instruction which exonerates the defendant from the charge of negligence is erroneous if it refers merely to the effort to avoid the accident when the situation which resulted therein had arisen; such an instruction should not ignore the question as to whether the defendant was guilty of negligence in creating such situation.</p> <p>5. Instructions—effect of repetition of words “not guilty.’’ It is improper to repeat the same proposition of law in many different terms. It is likewise improper to repeatedly and unnecessarily employ the words "not guilty.”</p>

<p>Attachments—when amendment does not set up new cause of action. Held, that the amended affidavit of attachment filed in this ease by leave of court did not state a new cause of action.</p>

<p>1. Injunctions—what essential to, restraining collection of judgment. A preliminary injunction should not be granted to restrain the collection of a judgment unless the bill sets up such facts, not conclusions, as show a ground for equitable relief.</p> <p>2. Injunctions—when do not lie to restrain collection of judgment. Courts of equity will not disturb a judgment of a court of law because some accident or some misfortune or a mistake as to the proper practice has prevented a party from taking an appeal and securing a review of the judgment; nor can a court of equity sit as a court for the correction of errors committed at law.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Consolidated for Hearing.</p> <p>1. Municipal Court—in what cases writ of error lies. A writ of error lies to review proceedings supplemental to a judgment, including an order committing for contempt.</p> <p>2. Municipal Court—what without jurisdiction. It is not within the jurisdiction of the Municipal Court to set aside a conveyance as in fraud of creditors.</p> <p>3. Municipal Court—what without jurisdiction. It is not within the jurisdiction of the Municipal Court in supplemental proceedings to order the defendant in a judgment to pay money not shown to be in his possession or control.</p> <p>4. Municipal Court—extent of power in supplemental proceedings. The power of the Municipal Court in supplemental proceedings is limited to personal property.</p> <p>5. Appeals and errors—what subject to review in contempt proceeding. A writ of error to review a judgment of commitment brings up as well the order for the disobedience of which the commitment was made as the order of commitment itself.</p> <p>6. Constitutional law—when questions waived. As the Appellate Court has no jurisdiction to determine constitutional questions, all such questions are waived by prosecuting an appeal to the Appellate Court which involves by the assignments of errors other questions than those of constitutional law.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Sales—what justifies rescission. If an entire contract be made to purchase and sell a lot of merchandise, a rescission is justified if the delivery made does not conform to the articles purchased.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Judson E. Going, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>1. Instructions—when giving of peremptory erroneous. On a motion to direct a verdict the trial court may not weigh the evidence and if there is any evidence which with all reasonable inferences to be drawn therefrom fairly tends to prove the plaintiff’s case it should be submitted to the jury.</p> <p>2. Gambling—when transaction in stock not. Held, under the evidence, that the transaction in question in this case, did not appear to be gambling in nature and that the evidence introduced upon the part of the plaintiff was sufficient to cast the burden upon the defendant to show that the transaction in question was illegal and void.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>Action in case for personal injuries. Error to Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Certiorari denied by Supreme Court (making opinion final).

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

Action in case for personal injuries. Appeal from the Circuit- Court of Cook county; the Hon. John A. Gray, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Max Eberhabdt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Forcible detainer. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Statute of Frauds—when lease within. A verbal contract for a lease that cannot be performed in one year from the making thereof is within the Statute of Frauds.</p> <p>2. Statute of Frauds—who may plead. Parties and privies by contract may plead and rely upon the Statute of Frauds. A lessee of the owner of premises may urge the statute as a defense to an alleged oral contract of letting set up by a previous tenant in possession.</p> <p>3. Landlord and tenant—when demand for possession not essential. Demand for possession is not essential where the defendant was in possession under a lease for a certain period which had expired by its own limitations.</p> <p>4. Forcible entry and detainer—who may maintain. A lessee of the owner of premises may maintain forcible detainer against a tenant in possession under a previous expired lease.</p> <p>5. Fraud—when not defense at law. It is only fraud in the execution of an instrument, as where one is induced to sign it under a false representation that it is another and different instrument, that renders a contract void for fraud and it is only such a defense which is available at law in an action on a sealed instrument. False representations inducing the execution of a sealed instrument will not be considered.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Egbert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Landlord and tenant—effect of assignment upon liability of lessee. The assignment of a lease, even when coupled with the delivery of possession to the assignee and- a liability on the part of the assignee for the rent, the acceptance of rents by the lessor from the assignee, and the acceptance by the lessor of the assignee as tenant of the premises, does not discharge the lessee from his liability under the covenants of the lease, but such covenants remain in force notwithstanding the lessee has parted with his interest in the estate, unless the lessor accepts the assignee as sole tenant, and absolves the original lessee from further liability under his covenants.</p> <p>2. Landlord and tenant—what does not discharge obligation of lessee. Change of possession unaccompanied by any new arrangement with respect to the rent, does not discharge the lessee, nor does an unfulfilled promise to malte a new lease to the assignee of the lessee.</p> <p>3. Municipal Court—when objection of variance comes too late. An objection of variance first made on appeal comes too late.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Max Eberhabdt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Agency—when knowledge of agent cannot he imputed to principal. The knowledge of an agent can be imputed to the principal only when it relates to facts within the scope of the agency.</p> <p>2. Agency—extent of authority of agent to collect rent. An agent authorized to collect rents has no authority to change the terms of the lease or to consent to a substitution of tenants or occupants.</p> <p>3. Forcible detainer—when lies. Forcible detainer can be maintained only by persons who claim the right to present possession of the lands and tenements in question, and only against persons who are in such actual possession at the time suit is brought, with the one exception provided for in section 15 of the forcible entry and detainer act, which refers to the joinder of a lessee when a sub-lessee is in possession without the consent of the lessor.</p>

<p>1. Statute of Limitations—when does not run against municipal corporation. The Statute of Limitations will not run against a municipal corporation in actions involving strictly public rights.</p> <p>2. Statute of Limitations—when runs against municipal corporation. Horses owned by the city of Chicago, used in connection with its fire department, paid for with its money collected from its citizens, are held in its private capacity and where injury is done to them the Statute of Limitations runs against the cause of action.</p>

<p>Eoreible entry and detainer. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Bonds—when covers advancements. A surety is liable for advancements on account of commissions not earned and not repaid at the termination of the employment of the principal where the bond executed by him provided at the termination of the principal’s employment for the return of “all moneys then due * * * by reason of * * * said advances. ’ ’</p>

<p>Common carriers—right to recover for unloading freight. If freight is unloaded by the carrier for the consignee at unusual hours and in a special way so as to convenience the consignee and save him expense, imposing special expense upon the earlier, it has a right to charge compensation for such services in addition to the freight rates if it had given notice to the consignee that when such services were performed extra compensation would be charged.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Michael F. Girten, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Municipal Court—how issues formed. Under the provisions of the Municipal Court Act the filing of the statement of claim on the one side and the entry of appearance on the other side form the issues to be tried in cases of the fourth class.</p> <p>2. Municipal Court—what put in issue by affidavit of merits. In an action claiming damages for hold-over, an affidavit of merits denying such hold-over does not put in issue the execution of the lease, the assignment thereof, the ownership of the property described in the lease or the right of such owner to maintain an action for liquidated damages for withholding possession of the premises after the expiration of the term of the leasing.</p> <p>3. Practice-—purpose and effect of amendment of Section 55 of act requiring nature of defense to be set up in affidavit of merits. The purpose of requiring the affidavit of merits to set out the nature of the defense relied on was to give the plaintiff notice of the real defense to be presented and to limit the issues to be tried to the defense set out in the affidavit. All defenses the nature of which are not set up in the affidavit are considered waived and are unavailable on the trial.</p> <p>4. Evidence—when that charge was usual and customary not essential. If the services in question were those of an attorney and the charge made is clearly not excessive, evidence that such charge was the usual and customary one is not essential, inasmuch as the court itself is competent to judge with respect to the value of such services.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>Appeal from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>Error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the March term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Appeals and errors—when evidence in another cause cannot be considered. Evidence adduced in another cause not contained in the transcript on file in the Appellate Court cannot be considered, unless the two causes have been consolidated, unless in some way preserved in the transcript under consideration.</p>

<p>1. Verdicts—when not disturbed. The Appellate Court is reluctant to set aside a verdict as against the weight of the evidence where two juries acting independently have found the same way.</p> <p>2. Evidence—propriety of receiving testimony given upon former trial. If upon a former trial a party called a witness, upon a subsequent trial such party may offer not only the direct but also the cross-examination of such witness.</p> <p>3. Evidence—when secondary competent. Proper foundation having been laid, secondary evidence of the contents of a letter containing the basis of the contract sued on is competent.</p> <p>4. Evidence—when conversation with deceased witness rendered competent. ‘ ‘ If counsel chooses to cross-examine, a witness as to facts which were not admissible in evidence, the other party has the right to examine him as to the evidence thus given. ’ ’</p> <p>5. Contracts—when question to be submitted to jury. If the terms of a contract are disputed the entire question as to the contract rights and obligations of the parties must be submitted to the jury.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Municipal Court—when recovery may he had upon quantum meruit. Held, that the statement of claim, in this ease was sufficient to justify a recovery upon a quantum meruit.</p>

<p>Landlord and-tenant—liability to repair. In the absence of agreement to the contrary at least, it is the duty of the common landlord to maintain in properly safe condition a hallway and stairs used as common entrance and approach to the premises occupied by various tenants and he is liable to his tenants and persons having business with, them if injury results to them from a neglect of that duty.</p>

<p>Error to the Municipal Court of Chicago; the Host. G. F. Going, Judge, presiding. Heard in 'this court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Replevin. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Damages—when amount will not be reviewed. The question of damages will not be reviewed if the sum allowed did not exceed the pecuniary loss which the evidence tended to establish.</p>

<p>1. Garnishment—when garnishee entitled to discharge. If the answer of the garnishee denies property in its hands it is entitled to a discharge unless such answer is overcome by proof.</p> <p>2. Garnishment—when interpleader properly sustained. Held, under the evidence, that the title to a check originally owned by the principal debtors had passed and that the proceeds thereof in the hands of the collecting bank were not susceptible to garnishment.</p> <p>3. Evidence—against whom admissions competent. Admissions against interest are only competent as against those making them.</p>

<p>Sales—effect of acceptance of merchandise sold under executory contract. In the absence of fraud or latent defects, the aeeeptance of articles sold under an executory contract after an opportunity to examine them, is an assent and agreement that the quality and workmanship is satisfactory and as conforming to the contract, bars a claim for compensation for any defect that may exist in the articles and also bars the right of rescission.</p>

Action in ease for personal injuries. Error to the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the October term, 1909.

<p>Common carriers—when proof of custom competent. In order to establish liability against a carrier it is competent to show a custom pursued by the defendant in making a notation on bills of lading when goods are received in bad order, such custom being followed by evidence which shows that no such notation was made on the bill of lading issued with respect to the merchandise nhieh forms the basis of the action.</p>

<p>Statute of Frauds—when, no defense. If the evidence establishes a primary liability upon the part of the defendant, the Statute of Frauds constitutes no defense.</p>

<p>Judgment—when default set aside. If no lack of diligence is shown and the affidavit of merits presents serious questions of law and fact and the fault is that of the court, justice will be best subserved by a trial on the merits and the action of the trial judge in refusing to set aside a default will be reversed.</p>

<p>Municipal Court—when judgment not disturbed. A judgment of the Municipal Court will not be set aside as against the weight of the evidence unless clearly and manifestly so, especially where all of the evidence which was before the trial judge is not preserved on review.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the November term, 1910.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Bill of interpleader. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>Action in debt. Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>1. Local improvements—propriety of issuance of vouchers. By virtue of sections 87, 88, 90 and 91 of the Local Improvements Act vouchers should only be issued against the first instalment provided for and then only when payments on the contract fall due and the first instalment has not been collected. A voucher therefore cannot be a lien upon any instalment succeeding the first unless it has been exchanged for a bond.</p> <p>2. Local improvements—what not payment to contractor. A delivery by the city and the acceptance by a contractor of a voucher which is ineffective for any purpose other than as an admission of liability, is not a payment and does not form the basis of an accord and satisfaction.</p> <p>3. Local improvements—how city cannot liquidate damages suffered through contractor. If a contractor has done defective work or has failed to complete his contract, or both, the city cannot (a bond having been given by such contractor) as against lienors arbitrarily withhold a portion of tho contract price but must resort to the bond so held by it.</p> <p>4. Appeals and errors—who cannot complain of alleged error. A party not prejudiced cannot complain of an error alleged to have been committed.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the November term, 1910.</p>

Action in case for personal injuries. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1910.

<p>1. Service or process—when confers jurisdiction. Service upon the person of the defendant in a county other than where defendant resides, confers jurisdiction of the person and the only way that the question of jurisdiction can be availed of is by the defendant served appearing and challenging the jurisdiction of the court.</p> <p>2. Judgments—presumption as to jurisdiction to enter. Every presumption is indulged in favor of the jurisdiction of a court of general jurisdiction and a collateral attack cannot be made upon the judgment of such a court predicated upon the claim that the service was had upon the defendant in a county other than that of his residence.</p> <p>3. Gambling—power of legislature to enact laws against. The legislature has authority to pass laws prohibiting gambling and to permit the recovery of money lost at gaming, and for the purpose of preventing gambling, to pass an act subjecting the property in which gambling is permitted to take place to the payment of any loss by reason thereof.</p>

<p>Appeal from the Circuit Court of Clark county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Montgomery county; the Hon. J. C. McBride, Judge, presiding. Heard in this court at the May term, 1911.

<p>Justice of the peace—what confers jurisdiction. Even though no valid service has been had the appearance of the defendant without objection waives jurisdiction.</p>

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. Heard in this court at the May term, 1911.

<p>Statute of frauds—when defense to action for damages for refusal to convey land. In the absence of a contract executed by the owner of land or by his duly authorized agent, a recovery of damages cannot be had for an alleged failure to convey.</p>

<p>1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Instructions—when refusal of correct will not reverse. The refusal of correct instructions will not reverse where their contents are substantially contained in other instructions given.</p>

<p>Trover. Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>Pleading—how hill of complaint construed. A bill of complaint, like' all other pleadings, is to be construed most strongly against the-pleader.</p>

<p>■1. Attachment—what not within the jurisdiction of the County Court. It is not within the jurisdiction of the County Court in an attachment proceeding to determine the title and ownership to real estate as between the defendant and a garnishee.</p> <p>2. Garnishment—what not Subject to. Equitable estates are not subject to garnishment.</p>

<p>Mandamus. Appeal from the Circuit Court of Clark county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>1. Assault and battery—what does not justify. While a person may defend his own home against attack the law does not allow him to afterwards inflict revengeful punishment upon one who has played a prank upon him while in such home, he realizing that at the time of inflicting such punishment that neither his home nor himself nor any member of his family is in danger.</p> <p>2. Assault and battery—how proximate cause of injury determined. Whether an injury is the result of the assault committed is a question of fact to be determined by the jury from the .evidence.</p> <p>3. Trial—exhibition of injury. It is within the discretion of the trial judge to permit a plaintiff suing for injuries to exhibit the same to the jury.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Cumberland county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.

<p>Appeal from the City Court of Pana; the Hon. J. E. Dunnegan, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>Error to the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1911.</p>

Quo warranto. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>1. Damages—when notice to remove obstruction essential to recovery. If the embankment in question was originally constructed by a company other than the defendant and that embankment created a nuisance or obstruction of the natural flow of water and said obstruction continued after the acquirement of the right of way by the defendant company, before the laintiff can recover he must show that the defendant had notice of such condition and that a demand had been made upon the defendant to remove the same.</p> <p>2. Damages—right to recover for continuing nuisance. Where damages occur by reason of a continuing nuisance a new cause of action is created whenever the loss or damage is occasioned by reason of the continuance of such nuisance.</p> <p>3. Instructions-—must not exclude theories. Instructions must not exclude from the jury the consideration of theories of recovery relied upon in the declaration which the evidence tends to sustain.</p>

<p>Appeal from the County Court of Jersey county; the Hon. H. P. Noble, Judge, presiding. Heard in this court at the November term, 1910.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Brown county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the November term, 1910.

<p>1. Descent—section 11 of Act construed. This does not apply to and control the construction of benefit certificates payable to the widow and children of the deceased member of a fraternal benefit society.</p> <p>2. Fraternal benefit societies—particular form of certificate as to beneficiaries construed. A certificate payable to the widow and “children” does not include grand-children.</p>

Action commenced before justice of the peace. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.

<p>Assumpsit. Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.</p>

Action in case for personal injuries. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1910.

<p>Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>1. Negligence—when owner of automobile guilty of. If one driving an automobile over a road in bad condition seeks to pass another who is upon horseback, it is his duty to so manage and control his automobile under the conditions of the road prevailing that he will not inflict injury, and failing to do so he is guilty of negligence for which a recovery may be had.</p> <p>2. Contributory negligence—when person injured by being struelc by automobile not guilty of. One who is upon a public road at a place where he has a right to be and who affords an automobile sufficient room to pass, is not guilty of contributory negligence in refusing to leave the beaten path.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>Appeal from the City Court of Litchfield; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>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>Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>Brokers and factors—when commissions not earned. In order that a successful claim for commissions may be made for effecting a sale, proof of employment or the acceptance of services rendered with knowledge of the claim for commissions must be established.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1910.</p>

<p>Bill of interpleader. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1910.</p>

<p>1. Service of process—when upon foreign corporation confers jurisdiction. Service upon the representative designated for service pursuant to statute is good as to a foreign corporation even though the transaction involved in the litigation took place outside of the state of Illinois.</p> <p>2. Abatement—what not former suit pending. An action pending in a foreign jurisdiction cannot be pleaded in abatement or in bar of an action in this state.</p> <p>3. Parties—when demurrer properly sustained. If it appear that the defendant is neither a necessary nor a proper party to the bill, a demurrer interposed by such party is properly sustained.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Fulton county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the November term, 1911. Certiorari denied by Supreme Court (making opinion final).

Action in case for personal injuries. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1911.

<p>1. Sales—what not essential to warranty. No exact words aro necessary to constitute a 'warranty. If from all the circumstances in evidence, including the representations made by the vendor, the vendor has knowledge of the use for which the article sold is desired, a warranty is established and an action for its breach will be sustained.</p> <p>2. Instructions:—predicated upon evidence. An instruction is erroneous which is not predicated upon any evidence in the cause.</p> <p>3. Instructions—must he confined to issues. Instructions which are not confined to the issues in the cause and which are calculated to mislead are erroneous and should be refused.</p> <p>4. Instructions—must not he argumentative. Instructions argumentative in form and calculated, to mislead are erroneous and should be refused.</p>

<p>1. Contracts—how liability determined. Where an agreement or contract is signed hy parties, or a person is obligated by the execution of a certain written instrument, that instrument must control, and the question of liability depends upon the construction of this instrument.</p> <p>2. Banks—when liable as trustee. If a bank receive money in trust to be paid out by it only when certain conditions exist if it pays out such money before such conditions exist it is liable to the person from whom it received such money.</p> <p>3. Evidisnce—when conversation out of presence of party ineompetent. Material conversations had out of the presence of a party are incompetent as to him unless he is in some way connected therewith.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>Appeal from the Circuit Court of Edgar county; the Hon E. B. E. KIMBROUGH, Judge, presiding. Heard in this court at the May term, 1911.</p>

<p>1. Brokers and factors—when commissions earned. If a real estate agent is the procuring cause of a sale upon the terms which he was authorized to sell, he is entitled to his commission even though he had not disclosed to the owner who was his prospective purchaser.</p> <p>2. Appeals and errors—ivhen slight errors will not reverse. Even though slight errors have intervened a reversal will not be ordered if substantial justice has been done.</p>

Action commenced before justice of the peace. Error to the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the November term, 1911.