Volume 166 — Illinois Appellate Court Reports

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

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

<p>1. Judgments — u'hat essential to require setting aside. In. order to require that the court set aside a judgment entered by default, two things must he made to appear: First, that the moving party was not chargeable with negligence; second, that he had a meritorious defense.</p> <p>2. Judgments — how affidavit of merits upon motion to set aside construed. Such affidavits are to be construed most strongly against the party in whose behalf they are presented.</p> <p>3. Judgments — when refusal to set aside will not reverse. A refusal to set aside a judgment entered by default will not reverse unless it appears that there has been an abuse of discretion by the trial court.</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>1. Pleading1 — when recovery may be had under common counts. If a contract has been fully performed and nothing remains to bo done but the payment of the compensation, the plaintiff may recover under the common counts.</p> <p>2. Contracts — how building to be construed. Building contracts are liberally construed and a literal compliance -with their terms is not necessary to entitle a recovery, but a substantial performance in good faith is sufficient.</p> <p>3. Contracts — what does not preclude recovery for extras furnished under building contract. Notwithstanding a building contract provides that all extras must be ordered in writing the owner may waive such provision and if he orders extras verbally he is liable therefor.</p>

<p>Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, 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. Charles E. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Statement by the Court.. This appeal brings up for review the action of the court below in entering a decree dismissing a bill of complaint brought by the appellants represented by their mother, Madeline G. Kirk, as guardian (the complainants being minors), against appellees.

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

<p>Action of debt. Appeal from the Superior Court of Cook county; the Hon. Willaed M. ' McEwen, 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. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the Oe-tober term, 1909.

<p>1. PRESUMPTIONS — as to receipt of checks. If cheeks are placed in envelopes and properly addressed and mailed to the payee the presumption arises that they were received by such payee in the regular course of business.</p> <p>2. Negotiable instruments — effect of delivery of checks. Delivery of a check to the payee thereof constitutes an assignment pro tanto of the funds of the drawee in the bank and vests a right of action thereon in the payee, and the maker thereupon loses control over the cheek and the funds represented thereby.</p> <p>3. Negotiable instruments — in whom right of action vests on payment of check upon forged endorsement. If the bank pay a check upon a forged endorsement, the right of action to recover the fund thus diverted is vested in the payee of the cheek.</p> <p>4. Negotiable instruments — duty of depositor to notify ha.nik of forgery. It is the duty of a depositor to notify the bank immediately upon his discovery of a forgery and a depositor who fails to notify his hank of a forged endorsement as soon as it is discovered, loses all right of action against the hank.</p>

<p>1. Negotiable instbtjments — burden to establish want of consideration. The burden of proof to establish want of consideration of a note, is upon the party raising such issue.</p> <p>2. New trial — when newly discovered evidence requires. A new .trial should be granted if after the trial new evidence is discovered which in connection with the evidence already given would demonstrate that upon another trial a different result would be arrived at.</p>

Action in case for personal injuries. 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.

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthild, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

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

Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Statement by the Court. This is an appeal from a final decree snstaining a plea filed by the defendants to the hill of complaint, and dismissing the bill for want of equity.

<p>Appeal from the Superior Court of Cook county; the Hon. William IT. Cooper, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chet-lain, 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.

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

<p>Assumpsit. Appeal from tbe Circuit Court of Cook county; the Host. Heney G. Ereeman, Judge, presiding. Heard in tbe Branch Appellate Court at tbe October term, 1909.</p>

Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Statement by the Court. This is an appeal by the Chicago, Burlington & Quincy Railway Company and The Pullman Company from an order of the Circuit Court and the judgment entered pursuant thereto permitting appellee to take a non-suit.

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Statement by the Court. This appeal is prosecuted by The 'Metropolitan West Side Elevated Railway Company to reverse a judgment rendered against it in the Circuit Court of Cook county, in favor of appellee for $2,500 for personal injuries.

Henry V. Freeman, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909. Statement by the Court. In this case G-regorio Noceto recovered a verdict in a jury trial of $1,000, as damages to Ms building and against Manrice Weill. A remittitur of five dollars being entered by Noceto, judgment was rendered in bis favor and against Weill for $995, from wbicb tbe latter has appealed.

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Judgment by confession. Writ of error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this 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 this court at the October term, 1909.

Action in case for personal injuries. Error to the Circuit Court of Cools county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the October term, 1909.

<p>Error to the Circuit Court of Cook county; the Hon. Paul McWil-liams, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Error to the Superior Court of Cook county; the Hon. Earlin Q. Ball, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Mechanic’s lien — what not equivalent to filing of intervening petition by subcontractor. The mere appearance of a party to a bill pursuant to an allegation made by the complainant that he had been informed that the party appearing claimed some interest, is not the equivalent of “filing a petition’’ or “commencing a suit’’ or filing an answer, intervening petition or cross-bill, arresting the running of the statute.</p>

<p>Petition for mandamus. Heard in this court at the October term, 1910.</p>

<p>Municipal court — when stenographic report stricken. A stenographic report not filed within thirty days after the judgment date or within an extension of time granted within such period of thirty days, will he stricken.</p>

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Ear-lin Q. Ball, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles 1ST. Goodnow, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Bill for injunction. Appeal from the Superior Court or Cook county; the Hon. Wit. Eenimore Cooper, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Action in ease for death causéd by alleged wrongful act. Error to the Circuit Court of Cook county; the HoN. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. W. Benimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Partition. 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> <p>Statement by the Court. Tbis appeal brings before ns for review a decree of tbe Superior Court of Cook county, entered July 12, 1909, ordering a partition of certain premises, (wbicb are known as No. 15 Blue Island avenue, Chicago), as prayed for in tbe bill, and dismissing for want of equity, a cross-bill filed by one of tbe defendants, Prank A. Stabl.</p> <p>On August 18, 1900, Fredericka'L. Stabl, tbe mother of most of tbe parties to this litigation, conveyed tbe real estate in question to her son, Frank A. Stahl (cross-complainant) by warranty deed. She died February 11, 1901. On the 5th of September, 1902, Frank A. Stahl conveyed the premises by warranty deed to his brother, John Stahl.</p> <p>November 2,1903, Gustave A. Stahl, another brother, filed a bill in the Superior Court, making defendants therein all his brothers and sisters and the tenants of the premises in question. This bill averred that Fred-ericka L. Stahl died intestate, leaving her surviving as her only heirs at law, Emma 0. Haas, Robert G. Stahl, Louisa F. Righeimer, Frederick W. Stahl, Frank A. Stahl, John Stahl, and the complainant, Gustave A. Stahl.</p> <p>It further averred that the estate of Fredericka L. Stahl had never been administered. It set out the two deeds mentioned and sought to have them both set aside upon the ground that they were fraudulent as against the other children, and asked for an accounting, averring that Fredericka L. Stahl was induced to execute the first deed by her son, Frank A., while she was, in fact, under improper restraint and undue influence, in her dotage, and with her mind so impaired that she was incapable of comprehending the effect of the deed, —and that the second deed was without consideration and accepted with notice and in fraud of the rights of complainant.</p> <p>Louisa F. Righeimer, a sister, became a co-complainant with her brother, Gustave A. Stahl. Answers were filed by Frank A., John and Frederick W. Stahl, and Emma 0. Haas, in which they denied the allegations of fraud and undue influence. The bill was subsequently so amended as to charge that the conveyance was inequitably made by the mother to Frank A. Stahl, without any consideration, and was, in effect, made in trust for the benefit of the heirs of said Fredericka L. Stahl.</p> <p>Upon a hearing, the court dismissed the bill on July 21, 1904, for want of equity, npon the ground that, though the court found the property was deeded to and held by the defendants, Frank A. and John Stahl, under an express parol agreement for the benefit of the heirs of Fredericka L. Stahl, yet as the Statute of Frauds had been pleaded, and as there was no writing to manifest the existence of such trust, said Statute of Frauds was an absolute bar to the proceeding.</p> <p>On February 21, 1905, this decree was reversed by the Supreme Court (Stahl v. Stahl, 214 Ill. 131), that court holding, in substance, that the children of Freder-icka L. Stahl were the equitable and beneficial owners of the property. The cause was remanded, and another decree was entered by Judge Kavanagh of the Superior Court April 11, 1905, in which it was provided that the court retain jurisdiction of the cause for the purpose of administering the trust estate, etc. This last decree was reversed by the Supreme Court (Stahl v. Stahl, 220 Ill. 188), and the court below was directed to enter a decree, embodying the conclusion of the Supreme Court, that the conveyances were constructively fraudulent and were, in equity, in trust for the benefit of all the children of Fredericka 'L. Stahl, and that each of said children had been, since the conveyance to Frank A. Stahl, the equitable owner of and entitled to the rent, income and profits of an undivided one-seventh part of the property in question, and requiring John Stahl to convey to each of the children, other than himself, an undivided one-seventh part thereof. Upon the mandate of the Supreme Court being filed, Judge Gary, in the Superior Court, entered a decree on March 27, 1906, in conformity therewith, and the bill was amended to pray for a partition of the real estate,</p> <p>February 27, 1905, Emma O. Haas, one of the defendants in the original bill, filed a bill in the Circuit Court, praying for a partition of the property in question. This bill the Circuit Court dismissed, holding that the Superior Court had first obtained jurisdiction of the parties and of the subject-matter. This action was affirmed by the Supreme Court. (Haas v. Righeimer, 220 Ill. 193.)</p> <p>On the 23rd of February, 1905, Frederick W. Stahl w^s appointed administrator of his mother’s estate, and there were allowed in Probate Court the claims of Frank A. Stahl, John Stahl, and Emma 0. Haas, for large amounts. The administrator filed a petition to sell the real estate in question to pay debts. This petition was dismissed by the Probate Court for want of jurisdiction, and upon appeal, the Supreme Court approved the action of the Probate Court in dismissing the' petition. (In re Estate of Fredericka L. Stahl, Deed., 227 Ill. 529.)</p> <p>On the 27th of March, 1906, G-ustave A. Stahl filed a verified petition in the original suit, alleging that on October 18, 1904, he had transferred his interest in the premises to Morse Ives, Esq., as security on account of service rendered and to be rendered in the cause; that on May 13, 1905, he had conveyed the remaining interest in the property to his wife, Emma M. Stahl, and praying that a conveyance be made to her of the share otherwise coming to him, subject to the rights of Ives. Emma M. Stahl and Morse Ives both appeared and were, on that date, substituted as complainants in lieu of Gustave A. Stahl. The bill was, at that time, amended to show, among other things, that one Hugo Munzer claimed the ownership of a one-seventh interest in the property, by reason of bankruptcy proceedings in the matter of Robert G. Stahl, bankrupt, in which Munzer claims to have purchased from the trustee in bankruptcy, the interest of said Robert G. Stahl to the premises in question.</p> <p>The amendment further averred that the records of Cook county showed a trust deed, purporting to secure a note of Fredericka L. Stahl for $5,000, and alleging that the indebtedness secured thereby had been fully paid; that, in fact, the indebtedness was that of Frank A. Stahl, and that the trust deed and note were executed for his benefit, and that he was primarily obligated to pay said indebtedness, which he had done on August 2, 1902, on which date the Northern Trust Company, trustee, executed and delivered to him a release of said trust deed, but that such release had never been recorded. By the amendment, it further appeared that Frederick W. Stahl, as administrator of the estate of Fredericka L. Stahl, claimed an interest in the real estate in question, — that is, the right to sell it for the benefit of certain alleged creditors, to-wit, Frank A. Stahl, John Stahl and Emma 0. Haas.</p> <p>The amendment further averred that complainants, Gustave A. Stahl and Louisa F. Bigheimer, had expended large sums and incurred obligations for costs, disbursements, and solicitor’s fees, to the amount of $4,000, in and about establishing the right of the parties in and about the cause in and to the property as a trust estate, and averred that said amount should be a just charge or lien upon the premises, to be first paid from the proceeds of any sale thereof, and prayed that an account might be taken of the expenses and obligations for costs, etc., incurred and to be incurred by the complainants in and about obtaining the relief prayed for, and that a partition of the property might be made.</p> <p>On the 11th of April, 1906, answers were filed by all the defendants, except the Northern Trust Company, which had been made a party defendant and was subse - quently defaulted, and except Frederick W. Stahl, administrator, who had been made a party and who answered later.</p> <p>The answer of Frank A. Stahl and his cross-bill, filed October 27, 1906, did not admit that Hugo Munzer had any interest in the premises, but insisted that if he had any, it was subject to the claim of Frank A. Stahl against Robert C. Stahl for $200; admitted the trust deed for $5,000 to the Northern Trust Company, and that the indebtedness and note secured thereby had been paid by Frank A. Stahl, but denied that the indebtedness was his own, or that the trust deed and note were executed for his benefit, or that he was under obligation to pay the indebtedness; admitted its payment and claimed that at the death of his mother on the 11th of February, 1901, he was in no way indebted or obligated to her, but that on the contrary, she was heavily indebted to him; that on August 2,1897, he was not indebted to her at all.</p> <p>The amended bill (designated in this record as “engrossed bill”) was answered by Hugo Munzer, who admitted its allegations, except those averring that defendants were entitled to solicitor’s fees for the establishing of a trust estate.</p> <p>Defendants, Frank A. Stahl, John Stahl, Robert G-. Stahl, Frederick W. Stahl, Emma O. Haas, and John F. Haas, filed answers consenting to a partition and accounting, but insisting that it should be subject to the. payment of a claim of Frank A. Stahl for $5,000, plus accrued interest thereon, which had been paid by him to secure a release of the trust deed of the Northern Trust Company, on account of which Frank A. Stahl claimed to be equitably entitled to be subrogated to the rights of the Trust Company; also that the partition and accounting must be subject to the payment of the debts of the deceased, Fredericka L. Stahl, and to the claims of the creditors of any of the parties, and denying the right of Morse Ives, Esq., to the solicitor’s fee claimed by him. The administrator, Frederick W. Stahl, answered, setting up the allowance of claims in favor of Frank A. Stahl, aggregating $4,489.25, John Stahl $4,125, and the additional claim of Frank A. Stahl, amounting to $7,596.43, for the payment of a note executed by the deceased, August 2, 1897, for $5,000, with interest thereon, already allowed in the Probate Court, and insisting that any partition or accounting must be subject to the payment of the debts of the deceased.</p> <p>October 27,1906, Frank A. Stahl filed a cross-bill, alleging that he was not obligated to pay $5,000, but that on August 1, 1899, at the request of his mother, he paid the sum of $3,500 thereon, with the express understanding that he was to be subrogated to the rights of the Northern Trust Company, the then holder and owner of the $5,000 note and interest notes, and to its rights of foreclosure; that after the death of his mother, and believing himself to be the owner of the premises by virtue of her deed to him, dated August 18, 1900, he paid the remaining $1,500, on August 2, 1902, with interest; that his claim-, therefor, aggregating $7,596.43, was allowed hy the Probate Court against the estate of his mother, for which amount he prayed a foreclosure of the property in question; and he further averred that John Stahl recognized his claim upon the premises as a valid and subsisting lien.</p> <p>By amendment, he alleged the insolvency of Gustave A. Stahl, Emma M. Stahl, and Louisa F. Righeimer, and prayed that the conveyance to Morse Ives and Emma M. Stahl be declared subject to the payment of the debts of Gustave A. and Emma M. Stahl.</p> <p>The allegations of the cross-bill were confessed by all the defendants excepting Gustave A. Stahl, who disclaimed, and excepting also, Morse Ives, Emma M. Stahl, Louisa F. Righeimer, and Hugo Munzer, all of whom denied its allegations and insisted in addition that the cross-bill was multifarious, and not germane.</p> <p>The cause was then referred to a master in chancery, who filed his report on July 24,1908.</p> <p>This report included an accounting, which showed a balance of $443.93, due from Frank A. Stahl, on account of rents collected by him, after allowing his commissions therefor, and showed due from John Stahl, $1,234.79, rents collected, after allowing his commissions therefor. The report also found that Morse Ives, solicitor, was entitled to solicitor’s fees for impressing a trust upon tlie property, and that said fee should he sixteen per cent, of the value of the trust estate.</p> <p>As to the cross-hill, he found that in August, 1892, Fredericka L. Stahl borrowed the sum of $10,000 from the Northern Trust Company, which sum she gave to Frank A. Stahl, and which he used; that this loan was reduced by the payment of $4,000, prior to August 2, 1897, at which time a new loan was made by the Trust Company to her for the unpaid $6,000; that on August 2, 1897, she made a trust deed to the Trust Company, as trustee, to secure two notes, one for $1,000 and the other for $5,000, with interest at five and one-half per cent, conveying the property in question; that this $6,-000 was paid by Frank A. Stahl, to whom the Trust Company delivered a release on August 4, 1902.</p> <p>The master further found that the conveyance by warranty deed from Fredericka L. Stahl to Frank A. Stahl, which had theretofore been declared constructively fraudulent, was executed and delivered on August 18, 1900; that Fredericka L. Stahl died February 11, 1901; that the notes which were secured by the trust deed were paid in full on August 2, 1902; that Frank A. Stahl transferred the premises to his brother, John Stahl, on September 5, 1902; that on the trial before Judge Kavanagh, Frank A. Stahl had stated that he transferred his interest to his brother John Stahl, and that he then had no claim at all against the property, though now contending that during all of that time he had a claim against the premises for $6,000, and was entitled to be subrogated to the rights of the Northern Trust Company as trustee; that from August 2, 1902, until October 27, 1906, Frank A. Stahl made no attempt to assert his right to subrogation, although having in his possession the release deed which had never been filed; that said Frank A. Stahl contended he had a right to be subrogated because of an oral agreement between bis mother and himself, whereby she was to assume the payment of the notes secured by said trust deed, amounting to $6,000, although he was in fact the original debtor,' the money having been given to him; that such alleged oral agreement between himself and his mother was made on account of alleged payments made by him to his brother, Gustave A. Stahl, at the request of his mother; that because of the numerous conflicting statements by Frank A. Stahl in his testimony, the master did not regard his evidence as entitled to much consideration; and accordingly the master found that the cross-complainant, Frank A. Stahl, was not entitled to be subrogated.</p> <p>The master further found that cross-complainants, Frank A. Stahl, John Stahl and John F. Haas, introduced evidence to support certain individual claims against other parties to the suit, but that the court had no jurisdiction, in this proceeding, to pass upon claims of that character.</p> <p>The master further found the respective interests of the parties to the suit in the trust property to be as follows: Emma Madeline Stahl (subject to the rights of Morse Ives), Frank A. Stahl, Frederick W. Stahl, Emma 0. Haas, Louisa F. Righeimer, John Stahl, and Hugo Munzer, each entitled to one-seventh. The master found the material allegations of the bill proven, and recommended a decree in accordance therewith; and he further recommended thajt the cross-bill of Frank A. Stahl be dismissed, and that he be required to record the release deed in question.</p> <p>To this report numerous objections were filed (which objections were allowed to stand as exceptions) and were heard and overruled by the court below on the 12th day of July, 1909, and there was then entered a decree in conformity with the master’s report, requiring Dr. Frank A. Stahl to pay to the trust estate the sum of $443.93, John Stahl the sum of $1,234.79, and Emma O. Haas the sum of $553.50 for rent of the premises down to the 27th day of March, 1906, and requiring her to account to herself as receiver of the premises, at the rate of $9 per month, from said last date to the date of the decree; directing the payment of solicitor’s fees in the amount of sixteen per cent of the value of the trust estate to Morse Ives, solicitor for complainants, for establishing the trust; finding that cross-complainant, Dr. Frank A. Stahl, paid out the money set forth in his cross-hill and testimony, but that such sums were not advanced under any contract upon which a lien upon the premises can arise,' and dismissing the cross-hill for want of equity, and directing him to forthwith file for record the said release deed; decreeing the respective interests of the parties in the trust property to he found by the master, and directing a partition of the premises to he made in conformity therewith, and appointing commissioners to make said partition, etc.</p> <p>Appellants insist, first, that the court below erred in not granting the relief prayed for in the cross-hill of Frank A. Stahl; second, that the court below erroneously allowed Morse Ives, solicitor for the complainants, solicitor’s fees to he paid out of the proceeds of the property; third, that the court erred in failing to find that the various parties to the suit are entitled upon the accounting, “to receive the amounts of the respective claims by certain of the appellants, as against the other parties entitled under the decree of this court to a share of the proceeds of the property described iu the bill of complaint herein;” fourth, that the court below erred in failing to make Louisa F. Eigheimer account for rent moneys and receipts appropriated by her; fifth, that the fees allowed the master in chancery are excessive and unreasonable; sixth, that the court erred in assessing the sum of $360 as costs against Frank A. Stahl, and the sum of $90 as costs against the defendants to the amended bill, who did not disclaim.</p>

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

<p>CORPORATIONs — when directors personally liable. If directors assume to exercise corporate powers of a de facto corporation before all of the stock named in the articles of incorporation has been subscribed in good faith, they are personally liable for the debts thereof.</p>

<p>1. Abatement — what actions do not survive. A cause of action created by statute does not survive unless declared to do so by tbe statute itself or unless provision is made by some other statute for such survival.</p> <p>2. Abatement — what actions do not survive. A proceeding to assess damages upon tbe dissolution of an injunction, does not survive either in favor of the representatives of the party moving for the assessment or against the executors of the parties against whom the assessment is sought.</p>

<p>1. Bkokers and factors — what does not defeat claim for commissions. Seld, in this case, that the party claiming commissions who was not a real estate broker but was a mere middleman, that in view of Ms undertaking being to obtain a certain price specified by the owner, he was under no obligation to undertake to obtain a higher price and eyen if without the knowledge of the owner he arranged to receive commissions from both sides, he was notwithstanding entitled to recover his compensation for effecting the transaction.</p> <p>2. Brokers and factors — what does not establish person as real estate broleer required to have license. Negotiating a single sale of real estate does not make one a real estate broker within the meaning of an ordinance requiring the obtaining of a license.</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>1. Landloed and tenant — how appraisal cannot be impeached. An appraisal made pursuant to the terms of a lease cannot -be impeached in the absence of fraud by the testimony of a party participating in making such appraisal.</p> <p>2. Landlord and tenant — what does not disqualify appraiser. The fact that an appraiser had previously acted in making an appraisement of the same property under the same lease, does not disqualify him from acting in the making of a second appraisal.</p> <p>3. Landlord and tenant — what does not vitiate appraisal. Held, under the circumstances of this case, the fact that the owner of the fee had paid the appraisers for their services In making the appraisal in question, as well as appraisals with respect to other property, did not vitiate such appraisal.</p> <p>4. Landlord and tenant — what does not vitiate appraisal. The fact that the appraisers whose appraisement was attacked were appointed or arranged for by one act of the owner of the fee to establish values upon a number of.pieces of property instead of being appointed and arranged for specifically and by one act to pass upon the value of the property involved, does not vitiate the appraisement made.</p> <p>5. Landlord and tenant — when provision as to appraisal not mandatory. Held, that a provision in a lease by which the appraisers were at liberty in forming their judgment of the value of the land without including the value of the improvements thereon, to take into consideration the improvements on such land, was permissive rather than mandatory.</p> <p>6. Landlord and tenant — what essential to set aside appraisal. In order to set aside an appraisal made pursuant to the terms of a lease, strong reasons must be shown.</p> <p>7. Evidence — when testimony given in similar action incompetent. Testimony given by a witness in a similar action where the parties are different, is incompetent.</p>

<p>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, 1911.</p>

<p>Contributory negligence — when attempting to cross railroad tracks constitutes. Meld, under the evidence, that the plaintiff’s intestate, in attempting to cross the railroad tracks upon which he was killed, was guilty of such contributory negligence as to bar a recovery.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. VbRdicts — when set aside as against the evidence. A verdict which is against the clear preponderance of the evidence will for that reason he set aside on review.</p> <p>2. Evidence — as to what expert testimony competent. Opinions of experts may properly he received as to the character of an injury disclosed hy an X-ray sciagraph.</p>

Action in case for personal injuries. 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>Costs — when taxation will not l>e reversed. Where neither the motion to retax costs nor the report of the master upon which the action of the court in taking the master’s fees was predicated, is incorporated in the transcript, such action of the court will not be reversed on review.</p>

<p>Appeal from the Circuit Court of Cook county; the HoN. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 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>Suretyship — effect of failure to allege non-performance by principal. In an action upon an undertaking oí suretyship it is not essential that the plaintiff allege notice of non-performance by the principal and a demand for performance by the surety; such matters go to the defense of the action and the burden of their proof is upon the surety.</p>

<p>Bill for injunction. Appeal from tbe Circuit Court of Cools; county; the Hon. W. M. Vandeventer, Judge, presiding. Heard in tbe Braneb Appellate Court at tbe October term, 1909.</p>

<p>Assumpsit. Appeal from the County Court of Coot county; the Hon. William C. DeWole, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>1. Instructions — what essential to granting of peremptory. Such an instruction can properly be given only when there is no conflict in the evidence and it is of such a character that without weighing it or passing upon the credibility of the witnesses no two reasonable minds, acting within the limitations prescribed by the rules of law, could differ as to the plaintiff’s right to recover.</p> <p>2. Contracts — how undertaking to make bequest must be established. When such a contract is made the basis of an action the evidence in support thereof should be looked upon with great jealousy, and weighed in the most scrupulous manner, and the character, conduct and testimony of the witnesses should be such as to inspire confidence that they are telling the truth. Such a contract can only be enforced when it is clearly proven by direct and positive testimony, and when the terms of the contract are definite and certain. The most stringent doctrines of the court should be applied in such cases.</p>

<p>Appeal from the Municipal Court of Chicago,- the Hon. Frederick L. Fake, 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. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

<p>1. Contracts — when deviation in performance of building, will not preclude recovery. Recovery may be bad for a balance due under a building contract notwithstanding the wort was not done in exact compliance with the original specification if the deviation is clearly shown to have been instituted by changes subsequently made in such speci-cations.</p> <p>2. Contracts — effect of decision of architect. Where parties to a contract have agreed to submit all questions to the decision of an architect or other umpire and to.pay upon his certificate of performance, his acceptance and certificate is final and binding unless fraud or mistake can be shown.</p> <p>3. Contracts — when final certificate of architect not condition precedent to recovery. Notwithstanding a contract provides for the payment of certain work upon the certificate of an architect in charge of the work, such a certificate is not a condition precedent to recovery where a good and sufficient excuse is shown for a failure to obtain it.</p>

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

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. Bobert B. Shirley, Judge, presiding. Heard in this court at the November term, 1910.

<p>1. Pleading — when cross-hill may he filed. When a party defendant in a chancery proceeding has filed an answer, that defendant may as a matter of right file a cross-hill germane to the orginal hill.</p> <p>2. Pleading — when cross-hill germane to original hill, pi a partition proceeding a cross-hill which requires an accounting as to rents and profits after the death of the ancestor, is germane to the original bill.</p> <p>3. Jurisdiction — when question cannot he urged. No question can he raised that a court of law was the proper forum in which to determine a particular issue if the parties have submitted such issue to a court of chancery without question.</p> <p>4. Witness — when party in interest competent. Notwithstanding the adverse party sues in a representative capacity a party in interest is compétent to testify as to matters against his interest.</p> <p>5. Administration of estates — propriety of allowance of claim where another party is jointly liable. A claim is properly allowed against the estate of a deceased person who with respect to such claim was jointly and severally liable with another person.</p> <p>6. Administration' of estates — when allowance of claims not binding upon heirs. The rendering of a judgment in the probate court in the settlement of an estate, is not binding upon the heirs. When it is sought to subject the real estate of the deceased to the payment of such judgments, the heir has a right too show either that the judgments are not proper claims against the estate, that the personal property has been misapplied or wasted, that there are personal funds which the administrator has not reduced to possession, or, in fact, anything that will defeat the right of the administrator to proceed against the real estate.</p> <p>7. Partition — what cannot he determined in proceeding for. In a partition proceeding it is not proper for the court to determine the validity or invalidity of the action of the probate court in allowing claims against the deceased owner.</p>

<p>Common carriers — burden of proof to establish assent of shipper to limitations upon liability. The burden of proof is upon the carrier to show that a contract of shipment was signed by the shipper with full knowledge of the conditions and terms expressed in the contract which limited the liability of the carrier.</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1911.</p>

<p>Error to the Circuit Court of Macoupin county; the Hon. Truman A. Snell, Judge, presiding. 'Heard in this court at the October term, 1911.</p>

Action in ease for personal injuries. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the October term, 1911.

<p>Brokers ' and factors- — when commission cannot he recovered. A broker is not entitled to compensation for services rendered in effecting a sale of property if be bas not acted in good faitb towards tbe vendor.</p>

<p>1. Evidence — when admissions competent. Where admissions are made by a party to a suit, sueh admissions are original and substantive evidence against him, and not necessarily for impeachment, and may be proved without laying á foundation by asking him if he made the statements.</p> <p>2. Assumpsit — when recovery cannot be had on quantum meruit. In the absence of evidence as to the value of the services sued for, a recovery cannot be had upon a quantum meruit.</p>

<p>1. Contempt — upon what decree cannot he predicated. Contempt for the violation of a decree will not he adjudged if such decree was obtained by consent and by corrupt means.</p> <p>2. Fraud — how may he established. Fraud is rarely proved by direct evidence, but is proved by facts and circumstances which raise an inference of fraud.</p>

<p>Bill to construe will. Error to the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1911.</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.

Action commenced before justice - of the peace. Appeal from the Oireuit Cotírt of Pulton county; the HoN. E. J. (íriek, Judge, presiding. Heard in this court at the October term, 1911.

Contested claim in court of probate. Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1911.

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in this court at the October term, 1909.</p>

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

<p>Contempt — when conviction reversed. A conviction for violating a prohibitory injunction forming a part of the decree will be reversed where such decree has been reversed.</p>

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the HoN. George A. Duptjv, Judge, presiding. Heard in this court at the October term, 1909.

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1909.</p>

<p>Evidence — what declarations to physician not competent. The declarations of an injured party to a physician during treatment are admissible in evidence so far as they relate to the mental or physical condition of such party; such rule does not permit in evidence the declaration of the cause of the accident.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1909.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Thomas C. Windes, Judge, presiding. Heard in this court at the October term, 1909.

<p>Injunctions — when preliminary injunction presumed properly issued. On a praecipe record, held, that the court would presume that the interlocutory injunction complained of was issued on notice, or that sufficient showing was made to the chancellor by affidavit on which to base the injunetional order.</p>

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

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

<p>1. Common carriers — who not 'bound by limitations of liability. A consignee who lias not participated in any way in tlie fraud in connection with obtaining a low rate at the time of shipment and who has not assented to the terms of limitation, is not barred of a recovery where he sues for loss resulting from the negligence of the carrier.</p> <p>2. Common carriers — when presumption of negligence arises. If the carrier does not claim that the loss sustained was by fire or other mischance, the presumption obtains that the same was occasioned by the negligence of such carrier.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>Landlokd and tbnant — folien latter cannot cancel. If the right to cancel a lease is reserved if a saloon license cannot he obtained or is revoked, such right cannot he exercised for failure to obtain a license, if no bona fide effort was made to that end.</p>

<p>Accord and satisfaction — when established. If there is a dispute between the parties at the time a cheek is sent in payment of an amount its acceptance under such circumstances constitutes an accord and satisfaction.</p>

<p>Error to the Municipal Gourt of Chicago; the HoN. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.</p>

<p>Error to the Superior Court of Cook county; the Hon. Axel Chy-traus, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>Banks and banking — when deposit cannot be recovered. Held, under the evidence that the deposit sued for in this case could not be recovered by the depositor, first, because it did not appear that the bank had received the plaintiff’s money -which in justice and fair dealing it could be compelled to return to the plaintiff; second, because the bank had not improperly disbursed the money received by it, and third, because a delay of ten months in repudiating the action of the bank in paying out the money, amounted to a ratification of what the bank had done.</p>

<p>1. Fraternal benefit societies — what does not destroy rights of beneficiary. An incorrect description will not defeat a recovery upon the part of an eligible person properly named as beneficiary.</p> <p>2. Fraternal benefit societies — 6enefieiary may be changed. Strict compliance with the regulations prescribed by the by-laws and officers of a society is not essential to a valid change of beneficiaries; if the transaction amount to a designation of a particular eligible person as beneficiary, it is sufficient.</p>

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

Action in case for personal injuries. Appeal from the Superior Court of Gook 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 Snperior Court of Cook county; the HoN. WILLnn M. MORWEN, Judge, presiding. Heard in the Braneh Appellate Court at the October term, 1909.

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

<p>1. Attachment and gaknishment — effect of wrongfully suing out. If an attachment is -wrongfully sued out an action for damages lies.</p> <p>2. Damages — when award of jury not disturbed. An award of damages in an action for wrongfully suing out a writ of attachment will not he disturbed unless the court is satisfied that the verdict is manifestly against the weight of the evidence or that it is the result of passion, prejudice or mistake.</p>

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

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate court at the October term, 1909. Statement by the Court. This is an action on the case brought by the administrator of the estate of Carl J. Hokum against appellant, The J. W. Eeedy Elevator Company, for having, as alleged, wrongfully caused the death of said Hokum.

<p>1. Municipal Court — character of court. The Municipal Court of Chicago is a court of record.</p> <p>2. Municipal Court — how determined whether malice is gist of action. Whether malice is of the gist of an action which has resulted in the judgment of the Municipal Court, is to he determined from an examination of the record and particularly from the statement of claim filed in such action.</p>

<p>Decrees — how order dismissing can he set aside. If a cause be duly consolidated with another which other is subsequently dismissed while the merged cause is retained upon the docket for some undisclosed reason, an order cannot after the lapse of the term, without notice to the complainants in the consolidated cause so dismissed, thereafter be entered in the merged cause setting aside the dismissal of the consolidated cause and likewise setting aside the order of consolidation.</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>Interlocutory appeal from the Circuit Court of Cook county; the Hon. C. M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>1. Amendments and jeofails — when amendment of order appointing receiver proper. Within the term of entry a misprision in an order appointing a receiver may properly be corrected.</p> <p>2. Receiverships — what approval of bond. The mere signing by a judge of his name upon a bond 'without the word "approved” and without the entry of an order of approval, is a sufficient approval.</p> <p>3. Receiverships — when irregularity does not vitiate bond given upon appointment. Held, that a material omission in the condition of a bond given' upon the appointment of a receiver, will not affect the validity of the appointment as upon application the court would undoubtedly require a corrected bond to be given.</p> <p>4. Receiverships — appointment for solvent corporation. A receiver of a solvent corporation should not be appointed in a suit brought by minority stockholders claiming mismanagement by the officers who were the majority stockholders, except in rare cases. Held, however, in this case, that the facts justified the appointment made.</p> <p>5. Receiverships — when appointment should not be without notice. A receiver should not be appointed without notice unless there appear absolute necessity for so doing in order to protect the complainant’s rights.</p>