Volume 168 — Illinois Appellate Court Reports

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

<p>Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetiain, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.</p>

<p>Master and servant — when doctrine of assumed rislc applies. If the risk is apparent to the servant, and the danger is appreciated by him, and he proceeds, notwithstanding, the risk is deemed to have been assumed and will bar a recovery by him if injured.</p>

<p>1. Judgment — when against one defendant improper. In an action of assumpsit where one defendant is in default and the other has appeared and demanded a jury trial, a judgment against the defendant in default should not he entered until such time as the issue joined by the other defendant appearing has been determined.</p> <p>2. Judgments — when two improper. In an action of assumpsit two judgments should not be entered against the same defendant.</p> <p>3. Municipal Court — when without jurisdiction to amend. After the lapse of thirty days from the time of the final order in a cause, the Municipal Court is without jurisdiction to amend its record.</p>

<p>Mandamus — when writ does not issue. Mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may he that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives.</p>

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

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

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

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

<p>Notices — when of injuries received upon sidewalk sufficient. Such a notice if signed hy the attorney of the party claiming to have been injured is sufficient to satisfy the statute. Held, further in this case, that the notice in question otherwise complied with the provisions of the statute.</p>

<p>Writs of error — when dismissal will be ordered. Where one defendant sues out a writ of error and makes the plaintiff below the only defendant in error and takes no steps whatever to summon or sever his co-defendants in the cause, a dismissal of the writ will be ordered.</p>

<p>Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.</p>

<p>Contracts — when full performance excused. Held, in this case, that the failure of the defendant to perform its obligation to pay city inspection fees, put it out of the plaintiff’s power to connect an electric sign which it had agreed to construct and put in operation without violating an ordinance and incurring a penalty and that the plaintiff notwithstanding its failure fully to perform was entitled to recover the contract price.</p>

<p>1. Common carriers — burden to establish assent to limitations of liability. Under the law of Illinois the burden is upon the carrier to show assent of the shipper to the terms of a contract limiting its common law liability.</p> <p>2. Common carriers — when law of sister state governs contract of shipment. The law of the place of mating controls in the interpretation and effect to be given to a contract of shipment.</p> <p>3. Common cabriers> — when limitations of liability valid in sister state enforced. If a carrier is permitted by the laws of a sister state to limit its common law liability, such a limitation of liability will be recognized and enforced in the courts of this state even though the carrier fail to establish the assent of the shipper to the conditions of limitation imposed by the bill of lading.</p> <p>4. Comity — how law of sister state determined. If the reported decisions of the courts of a sister state are relied upon to establish the law thereof they should be read to the court and not to the jury, and the court should determine what the law of such sister state is. Held, further, in this case that the reading of the law to the court in the presence of the jury was a mere technical error which would not wort a reversal.</p>

<p>1. Sales — how warranty cannot be established. The general rule is that preliminary negotiations for the purchase of existing merchandise are merged in the written contract of sale and if no warranty is provided for in the written contract" the purchaser is precluded from claiming one.</p> <p>2. Contracts — when local trade meaning of words may be established by parol. Where certain words used in a written contract have acquired a particular meaning by local or trade usage and such usage is shown to have been so general, uniform and frequent as to warrant the inference that the parties had knowledge of and contracted with reference to the usage, it is competent to show that meaning by parol.</p> <p>3. Contracts — when words employed in written, not subject to interpretation. When the contract is expressed in words well understood by the parties and that are not equivocal or uncertain in meaning the parties are bound by the terms used in the contract, but where the true meaning of the terms used is doubtful, then the court may legally take into consideration all that was said by the parties and all their acts that tend to shed light on the meaning of the words used, whether such statements and acts are contemporaneous or subsequent to the contract.</p> <p>4. Practice — effect of non-submission of propositions of law or fact. If no written propositions of law or fact are submitted to the court the Appellate Court will presume that the trial court did not consider any immaterial or improper evidence in reaching its decision, if there is proper evidence to justify the judgment.</p>

John H. Houston, Judge, presiding. Statement by tbe Court. This writ of error is prosecuted by Abraham Bernstein to review a record of the Municipal Court by which it appears that I. Lurya Lumber Company obtained a judgment at law in the sum of $312.42 against plaintiff in error, and Harry Stone, Max Hanoch and Barnet Luntz.

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

<p>1. Mechanic’s liens — who not necessary party in action at Taw by subcontractor. If one member of a partnership who are the contractors is eliminated by the action of the owner and the remaining members of such partnership, a subcontractor is not required to join the retired partner in an action at law to recover.</p> <p>2. Mechanic’s liens — when notice of subcontractor sufficient. Held, that the notice set forth in this opinion was a substantial compliance with the statute.</p> <p>3. Mechanic’s liens — what notice of subcontractor need not recite. The statute does not require that the notice of the subcontractor shall state that the material was delivered or when payment therefor would become due. Notice to one of two partners is notice to both. The notice may be signed without the seal of the corporation attached and must necessarily be signed by an agent where the subcontractor is a corporation.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell. Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>Foreclosure. Appeal from the Circuit Court of Will county; the Hon. Dobrance Dibell, Judge, presiding.</p>

<p>1. Appeals and errors — when transcript not stricken. A portion of a record omitted by the appellant but supplied by the appellee will not be stricken at the instance of the appellant.</p> <p>2. Appeals and ekrobs — when certificate of evidence stricken. If a certificate of evidence be signed at a time when the court is without power to sign the same it will be stricken.</p> <p>3. Appeals and ebeobs — when finding by County Court presumed supported by evidence. Findings of fact contained in a decree of th3 County Court ordering the sale of real estate will be presumed supported by the evidence heard where no certificate of evidence is preserved.</p> <p>4. Appeals and errors — when assignments deemed waived. Assignments of error not argued are deemed to have been waived.</p> <p>5. Certificates of evidence! — when proper in County Court. If an appeal is properly taken from the County Court to an Appellate Court a certificate of evidence may be properly signed and sealed by the judge of the County Court.</p> <p>6. Certificates of evidence — when must be signed. A certificate of evidence must be prepared and signed at the time unless by an order of court it is permitted to be thereafter prepared and signed within a later time fixed by such order.</p> <p>7. Administration of estates — when laches no defense to application to sell real estate to pay debts. If all the assets have been exhausted except the homestead not worth over $1,000 which the widow continues to occupy as a homestead, holders of unsatisfied claims may wait till the homestead estate is extinguished before applying for a sale of the property no matter how long the lapse of time.</p> <p>8. Interest — when allowance upon balance of widow’s award proper. Where a money judgment has been entered providing for the payment of a balance due upon a widow’s award interest may be awarded from the time of the entry of such judgment.</p>

<p>1. Corporations — when defense of ultra vires unavailing. In an action by a corporation to recover money disbursed by it, stockholders who have received the benefit of the disbursement of such money cannot defend against their promise to repay the same upon the ground that such disbursement was ultra vires the corporation; especially is this true where such stockholders occupy positions of trust and confidence.</p> <p>2. Instructions — when errors will not reverse. Errors in instructions will not effect a reversal if no substantial defense was interposed.</p> <p>3. Pleading — when estoppel available. While estoppel may be pleaded specially yet it may also be proved without pleading it.</p>

<p>Action in case for personal injuries. Appeal from tlie Circuit Court of La Salle county; tlie Hon. Edgar Eldbedge, Judge, presiding.</p>

<p>1. Appeals and errors — 'effect' of appeal from supplemental decree. An appeal from a supplemental decree does not search the whole record as does a writ of error, but only questions the decree appealed from, and leaves all previous final decrees unassailed.</p> <p>2. Pleading — when plea setting up former proceeding in equity insufficient. Held, that the allegations of the plea which relied upon the pendency of a former chancery proceeding from the decree rendered in which the appeal had been taken were insufficient.</p> <p>3. Jurisdiction' — when question of may he raised, on appeal. It is only where it appears upon the face of the bill that there is no jurisdiction in equity, that the jurisdiction of the court can be defeated on appeal where the question has not been raised by demurrer, plea or answer.</p> <p>4. Accounting — when fair cash rental value may he shown. Held, under the facts of this case, that a doweress entitled to an account of rents from the owners of the fee was properly allowed to make out a prima facie case by showing a fair cash rental value of the premises in question.</p> <p>5. Judicial notice — of what taken. The court takes judicial notice that the rental value of land which is cropped, does not accrue until the crop matures.</p>

<p>Mines and minees — when act does not avvly. Tbis statute bas no application until tbe actual mine is in operation and tbe mere fact that in tbe actual work preparatory to operation it is necessary that coal shall be removed does not render it an actual mine in operation.</p>

<p>Assumpsit. Appeal from the Circuit Court of Henry county; the Hon. Emeby C. Gbaves, Judge, presiding.</p>

<p>Admissions — husband cannot bind wife. A husband cannot bind bis wife by admissions made in ber absence if be is not ber agent.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Pbost, Judge, presiding.</p>

<p>Assumpsit. Appeal from tbe Circuit Court of Kane county; tbe Hon. Mazzini Slusseb, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of Henry county; the Hon. Emeey C. Geaves, Judge, presiding.</p>

<p>1. Appeals and errors — effect of appeal as distinguished from, writ of errar. An appeal does not search the entire record as does a writ of error. An appeal simply causes the court to determine the propriety of the particular order appealed from.</p> <p>2. Divorce — when order granting alimony not reduced. Unless it is apparent that the court has committed error in determining the amount of alimony to be paid, an appellate court will not disturb the award made.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>1. Pleading — what defense available under a general issue'. Release may be shown under the general issue.</p> <p>2. Release — what essential to avoid at law. In an action at law a release cannot be avoided except by proving fraud in securing its execution, such as misreading it to the party signing it, or the surreptitious substitution of one paper for another or some trick or fraud in procuring the signature, or where it is represented to a signer who is unable to read that the paper is- of some other character or for some other purpose.</p>

<p>1. Dram-shops — what proof sufficient in action to recover for loss of means of support. In an action of tort the allegations of the declaration are divisible in their nature and if enough of the facts alleged in the declaration are proved to constitute a cause of action, there can be a recovery.</p> <p>2. Dram-shops — what proof sufficient to recover for loss of means of support. Proof by a plaintiff that the defendants sold or gave the plaintiff’s father intoxicating liquors which caused the intoxication and that in consequence of such intoxication he killed himself and thus injured the plaintiff in his means of support establishes a cause of action authorizing a recovery. So, too, if the plaintiff proves that the defendants sold or gave to the plaintiff’s father intoxicating liquors by the use of which he became intoxicated and crazed and violent and possessed of a suicidal mania and because of that mental condition he killed himself and injured the plaintiff in his means of support, this also would establish a cause of action.</p> <p>3. Dram-shops — what does not preclude recovery in action for Toss of means of support. In order to recover under the dram-shop act the intoxication caused by the defendants need not be shown to be the sole cause of the injury resulting.</p> <p>4. Dbam-shops — effect of failure of proof as to part of the defendants in action for loss of means of support. In actions of tort a plaintiff is not required to prove that each defendant is guilty but may prove that a part of them are guilty and may have a verdict against so many of the defendants as the proof warrants.</p> <p>5. Evidence — what not competent as dying declaration. A note written by a party prior to committing suicide if not part of the res gestae is not competent as a dying declaration.</p>

<p>Damages — what may he recovered in action for wrongful discharge. An employe discharged without cause “may treat the contract of hiring as continuing and bring an action for a breach of the contract of employment against his employer for discharging him, and if the suit is not commenced or if commenced before but not tried, until his term of employment has expired he may recover the contract price of his wages, less what he has earned or by reasonable diligence could have earned in other employment subsequent to his discharge.”</p>

<p>1. Insurance — when defense of encumbrance existing prior to application unavailing. In an action upon two insurance policies, held, that if prior to the second application the agent of the company had notice of an existing- encumbrance upon the property covered the defense predicated upon the existence of such encumbrance was unavailing.</p> <p>2. Insurance — when mortgaging after issuance no defense. If the agent of the company is notified that the insured has mortgaged the property covered and the company does not cancel the policy and return the unearned premium, a defense predicated upon such mortgaging will be deemed to have been waived.</p> <p>3. Insurance — when second mortgaging after issuance no defense. If after a policy has been issued the insured mortgages the property covered and the insurance company does not elect to cancel the policy and return the unearned premium after it has received notice of such mortgaging, the giving of the second mortgage by the insured to secure the debt covered by the first mortgage, will constitute no defense to an action upon the policy.</p> <p>4. Insurance — when existence of mortgage at time of issuance no defense. If after one policy has been issued the insured mortgages the property covered thereby and the company upon notice of such mortgaging does not cancel the policy and return the unearned premium the issuance by it of a second policy with knowledge of such mortgage upon the property covered by the second policy will preclude a defense predicated upon the failure of the application to recite the existing mortgage.</p>

<p>1. 'Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.</p> <p>2. Statutes — Title of construction as to inconsistent provisions. Where two inconsistent provisions become the statute law at the same time, the specific prevails over the general.</p> <p>3. Practice — section 52 of Act construed. The “execution” referred to in section 52 of the Practice Act required to be proved by the plaintiff because of a verified denial is modified by virtue of the Act of 1907 so that it no longer requires proof of delivery where the instrument is not in the possession of the signer.</p>

<p>Certiorari. Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>1. Appeals and errors — effect of failure to abstract pleadings. If pleadings are not abstracted the Appellate Court will assume that they are sufficient to support the judgment.</p> <p>2. Negotiable instruments — rule requiring direct forwarding defined. By requiring that a check be forwarded directly to the bank upon which it is drawn the rule does not mean that the check shall be sent in a direct line as a bird might fly, but by the usual commercial route.</p> <p>3. Negotiable instruments- — how proof of demand for payment, etc., made. Demand for payment, refusal, protest and notice of protest may be proved by the certificate of a notary public under his notarial seal.</p> <p>4. Negotiable instruments — to what classification check belongs. Held, that the check in question in this case was a foreign bill of exchange.</p> <p>5. Negotiable instruments — effect of illegible endorsement. An illegible endorsement excuses notice of protest.</p> <p>6. Judicial notice — of what taken. The court will take judicial notice of the geographical features of Illinois and other states and countries so far as the same may be fairly presumed to be within the general knowledge of persons of ordinary intelligence living in Illinois.</p>

<p>1. Appeals and errors — when judgment appealed from not deemed to have been entered at the instance of the party appealing. If the court fails to enter a judgment as it was the duty of the court to do, a party directing the court’s attention to such omission in order that an appealable order may he obtained is not deterred from reviewing the judgment entered.</p> <p>2. Pleading — how instruments relied upon must be set forth. An instrument relied upon in a common law pleading must he set out therein, either according to its legal effect or in haec verba. Common law pleading cannot he done by exhibits. If, however, an instrument is set forth by way of an exhibit the point should he raised by special demurrer.</p> <p>3. Pleading — how question of abandonment of cause of action stated in original declaration determined. The question whether the cause of action stated in one declaration has been abandoned by filing an amended declaration must depend upon a comparison of the amended declaration with the original.</p> <p>4. Statute of Limitations — what nomsuit within meaning of section 25. If, when a cause is regularly called upon the docket, and the plaintiff not appearing, the court dismisses his action, an involuntary non-suit, within the meaning of section 25 of the Statute of Limitations, is deemed to have been suffered.</p>

<p>Bastardy. Appeal from the County Court of DuPage county; the Hon. Charles D. Clark, Judge, presiding.</p>

<p>Bill in equity. Appeal from tbe Circuit Court of Peoria county; tbe Hon. N. E. Worthington, Judge, presiding.</p>

<p>1. Bills of review — when lie. Bills of review will lie in the same court which pronounced the decree, either for error in law apparent on the face of the decree as applied to the facts found hy the court, and stated in the decree, or for newly discovered evidence.</p> <p>2. Bills of review — what considered, where errors of law charged. Upon a hill of review for errors of law, the court will not reconsider the evidence hut will only inquire whether the law was improperly adjudged upon the facts which the record shows were found by the court on the former hearing.</p> <p>3. Homestead — who not entitled to. Homestead rights cannot he asserted after the abandonment of the homestead premises.</p>

<p>This case is controlled by the decision in Commercial Nat. Bk. v. Kirkwood, 172 Ill. 563.</p>

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

<p>Contested claim in court of probate. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>Contbibtjtoby negligence — encountering known danger. One who is injured as a result of a danger well known to him and which he should have avoided cannot recover.</p>

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

<p>Instructions — refusal of, containing theory of defense. It is error to refuse the only instruction which fairly and fully presents the theory of the defendant’s defense.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.</p>

<p>Dram-shops — section J/9 of act construed. This section which prohibits the sale of intoxicating liquors etc., upon “any general or special election day” includes an election held for the purpose of electing a trustee of schools.</p>

<p>Elections — for what expenses county not liable. A county is not liable for reasonable compensation to one who at the instance of the Election Commissioners of a city which has adopted the City Election Act, delivers for use at a primary election “the booths, ballot boxes, ballots, guard rails and other necessary articles for the conducting of said election.”</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>Error to the County Court of McHenry county; the Hon. D. T. Smiley, Judge, presiding.</p>

<p>Forcible detainer. Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeroy, Judge, presiding.</p>

<p>Forcible detainer. Appeal from the County Court of Lee county; the- Hon. Robert H. Scott, Judge, presiding.</p>

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

<p>Action in case. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.</p>

<p>Appeal from tbe County Court of La Salle county; tbe Hon. W. H. Hinebaush, Judge, presiding.</p>

<p>Bills to remove cloud — when option should he cancelled of record. An option given by tbe complainant wbicb bas been filed for record should be cancelled if no performance or proper tender of performance thereunder has been made.</p>

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

<p>Action in case for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slussek, Judge, presiding.</p>

<p>Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.</p>

<p>Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Fareand, Judge, presiding.</p>

<p>Divobce — what essential to establish impotency. In order to establish. the right to a decree of divorce on the ground of impotency such impotency must be established by a preponderance of the evidence.</p>

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

<p>1. Appeals and errors — effect of failure of justice to return summons etc. Whilé it is the duty of a justice of the peace to return the summons and other papers with the bond and transcript to the Circuit Court a failure to discharge that duty does not deprive that court of jurisdiction to hear and determine the case on its merits.</p> <p>2. Justices op the peace — function of transcript of justice on appeal. The justice’s transcript performs the office of the declaration in original suits in courts of record.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Fabrand, Judge, presiding.</p>

<p>1. Negligence — when gas company not guilty of. A gas company is under no obligation to inspect attachments upon the premises of a consumer where such attachments have been selected by the consumer.</p> <p>2. Instructions — when as to evidence to he considered improper. It is improper to tell the jury that the sufficiency of material used is to be determined by expert evidence only. Such a question is one to be decided from all the evidence hearing upon the subject.</p>

<p>Assumpsit. Error to the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.</p>

Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.

<p>1. Instructions — effect of motion to direct verdict. The motion to direct a verdict is in the nature of a demurrer to the evidence and admits the truth of all that the evidence proves or tends to prove.</p> <p>2. Instructions — what upon quantum of proof proper. An instruction is proper which tells the jury that the plaintiff is not hound to prove his case beyond a reasonable doubt but is merely hound to prove it by a preponderance of the evidence.</p> <p>3. Instructions — effect of refusal of cautionary. The refusal of a cautionary instruction is not ordinarily ground for reversal.</p> <p>4. Instructions- — effect of refusal of an instruction directing jury to disregard particular counts. If there is one good count in the declaration upon which the verdict rendered can be sustained it is harmless error for the court to refuse an instruction which directs the jury to disregard a particular count or counts.</p> <p>5. Master and servant — limits of application of doctrine of assumed risk. The rule is that the servant assumes the ordinary risks incident to his employment but the law pre-supposes that the master has performed the duties of care, caution and vigilance which the law has placed upon him.</p> <p>6. Master and servant — what risks not assumed. The employe does not take the risk of dangers known to the master and unknown to himself which could not have been known to him by the exercise of reasonable care and which could be avoided by the exercise of reasonable care on the part of the master.</p> <p>7. Evidence — what not proper cross-examination. Questions pertaining to matters not touched upon on direct are improper upon cross-examination.</p>

<p>Partnership — when not established. Held, in this case, that the partnership claimed was not established.</p>

<p>1. Appeals and errors — when rulings upon instructions saved for review. If the hill of exceptions shows an exception to the action of the court in refusing an instruction the propriety of such action is saved for review without a motion for a new trial appearing in the hill of exceptions.</p> <p>2. Appeals and errors — when sufficiency of evidence not saved for review. If the motion for a new trial has been withdrawn the sufficiency of the evidence to support the verdict is not saved for review.</p> <p>3. Instructions — when motion for peremptory should he denied. Upon a motion for a peremptory instruction a question as to where the preponderance lies is not to be considered hut the instruction asked is to he refused if there is evidence tending to prove the plaintiff’s contentions.</p>

<p>Assumpsit. Appeal from tbe Circuit Court of Lee county; tbe Hon. Richard S. Farrand, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Rock.Island county; the Hon. Frank D. Ramsay, Judge, presiding.</p>

<p>1. Sales — what not waiver of right of inspection. Neither an inspection and approval of patterns for castings nor a waiver of the right of inspection at the place of manufacture is a waiver of the right of inspection at the place of delivery.</p> <p>2. Appeals and eeroes — when assignments waived. Assignments of error not argued are deemed to have been waived.</p>

<p>1. Automobiles — when duty of driver to stop. When the driver of an automobile sees that a horse is frightened, he has no discretion, — it is his absolute duty to stop.</p> <p>2. Appeals and eeeoes — when rulings upon evidence not saved for review. If evidence received is complained of the compiaint will not be considered upon review in the absence of an objection having been interposed.</p> <p>3. Appeals and eeeoes — when rulings upon evidence not saved for review. If the evidence claimed to have been erroneously omitted is not abstracted or if set out in the brief the record page is not given the complaint will not be considered on review.</p> <p>4. Appeals and eeeoes — hoto motion to exclude should he made. If a motion to exclude evidence is made and a part of the evidence is competent the motion should be specific as to the incompetent part, otherwise it will not be considered.</p> <p>5. Evidence — when medical expert may predicate opinion upon subjective symptoms. Where a physician giving an opinion obtained subjective symptoms while treating the plaintiff for his injuries such opinion is competent.</p> <p>6. Instructions — when not erroneous in failing to limit jury to actual pecuniary damages. An instruction is not wrong which tells the jury that in making an estimate of damages 'they shall exercise their judgment upon the facts in proof by connecting them with their own knowledge and experience. where the reference is to their general knowledge “which they are supposed to possess in common with the generality of mankind.”</p> <p>7. Verdicts' — when not excessive. Held, in an action on the case for personal injuries, that a verdict for $250 was not excessive where the plaintiff received injuries to his back and ankle and used crutches for three months.</p>

<p>Judgment by confession. Appeal from the Circuit Court of De Kalb county; the Hon. Duane J. Cabnes, Judge, presiding.</p>

<p>1. Appeals and errors — when motion to strike certified copy of pleas properly denied. Held, that it was not error for the court to refuse to strike certified copies of pleas which had been duly filed in the Probate Court and that a denial of such motion was the equivalent of approving the filing of such certified copies which filing had been without leave previously granted.</p> <p>2. Evidence — what competent upon genuineness of note. Where the genuineness of a note filed as a claim against a deceased maker is in question the financial condition of the alleged lender at the time of the alleged making of the note for money borrowed as well as the financial condition of the deceased maker together with other circumstances are competent to be shown.</p> <p>3. Evidence — how impeachment cannot he made. Impeachment of a witness cannot be predicated upon an immaterial matter.</p> <p>4. Evidence — when will competent where question of genuineness of note of testator involved. Held, that the will of the testator was competent where the alleged note was filed as a claim to show the hostility of such deceased to the alleged payee, and that comparison of the signature to the will with the alleged signature to the note was proper.</p> <p>5. Instructions — when singling out evidence of expert witnesses not error. If neither side could gain an advantage the singling out of expert witnesses in the instructions of the court will not effect a reversal.</p> <p>6. Negotiable instruments — what material alteration. So to change the date of a note as to bring it within the Statute of Limitations is a material alteration.</p>

<p>1. Principal and agent — who not general agent. Held, under ■the evidence, that the agent in question in this case was not a general one and that he was not authorized to hind his principal to the transactions in grain involved in this case.</p> <p>2. Principal and agent — obligation to ascertain extent of authority. Persons dealing with an assumed agent are hound at their peril to ascertain not only the fact of the agency hut the extent of the agent’s authority.</p> <p>3. Principal and agent — doctrine of ratification stated. The doctrine of ratification of an unauthorized act is that the principal shall he fully and fairly informed of all the facts and circumstances.</p> <p>4. Negotiable instruments — who not agent to execute etc. To constitute an agency to execute promissory notes etc., it is essential that the authority be express or be established by showing that like acts have been performed by the agent and authorized or ratified by the principal.</p> <p>5. Amendments and jeofails — when leave to file verified plea at close of all evidence will not reverse. In the absence of an abuse of discretion the so granting of leave to file a verified replication to pleas will not reverse.</p> <p>6. Interest — when cross-error assigned for failure to allow interest upon verdict not sustained. In order that a cross error complaining of the failure of the court to allow interest on the verdict from the time of its rendition to the time of the entry of judgment may be sustained it must appear that the omission of the court so to do was pointed out in the trial court.</p>

<p>1. Suretyship — when obligation arises. As between principal and sureties, the obligation to make good a default is upon the principal so long as he has anything with which to do so; it is only after the exhaustion of his resources that the obligation of the sureties arises.</p> <p>2. Contribution — when doctrine of enforced. As between co-sureties the doctrine of contribution is recognized and enforced.</p>

<p>1. Justice of the peace — how form of action determined. In a suit begun before a justice, tbe action is wbat tbe proof makes it, regardless of tbe name which the plaintiff or the justice may give it.</p> <p>2. Landlord and tenant — extent of lien of former. Where a tenant removes from demised premises the landlord having a lien for his rent may take possession and having done so may proceed to perform the tenant’s unperformed covenants and it is only the surplus of property remaining that has to be turned over to the tenant or to his assignee.</p> <p>3. Trover — when action does not He. If the original taking was rightful and if the detention was rightful there is no conversion and trover does not lie.</p>

Action in case. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Certiorari denied by Supreme Court (making opinion final). Statement by tbe Court. In this action appellee seeks to recover for personal injuries resulting in the death of one Yirgil Knox April 20,1907. The deceased was an employe of the defendant, and was at work when injured in the private enclosure of the Western Steel Car and Foundry Company at Hegewisch, Illinois.

<p>1. Appeals and errors — when findings of chancellor not disturbed. Where the testimony is conflicting, a court of review will not disturb the finding of the chancellor upon a question of fact unless it is clearly apparent the chancellor has committed error.</p> <p>2. Appeals and errors — when decree presumed supported by the evidence. Notwithstanding a certificate of evidence may he certified as containing all the evidence if upon its face documentary evidence which may he material appears to' have been omitted therefrom the decree rendered will he presumed to have been supported by the evidence actually before the chancellor.</p> <p>3. Lis pendens — when chancery action not. Until summons is served a chancery action is not Us pendens.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Certiorari denied by Supreme Court (making opinion final). Statement by tbe Court. This is an action by appellee to recover damages for personal injuries, in which the court entered judgment in his favor for $10,000.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Remittitur filed and judgment affirmed March 21, 1912.

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

<p>1. Costs — statute as to mileage of witnesses construed. If a witness attend a trial for more than one day he is entitled to mileage for each day, if his daily travel claimed for is necessary.</p> <p>2. Costs — what affidavit of witness claiming fees need not set forth. It is not required in his affidavit that the witness shall state the particular term of court at which he attended as a witness.</p> <p>3. Costs — propriety of counter affidavits upon motion to retax. It is not improper for the court to permit the amendment of witnesses’ affidavits, nor is it improper for the courts to consider counter affidavits upon a motion to retax predicated upon affidavits.</p> <p>4. Costs — What not essential to taxation of witness’ fees. Fees of witnesses not actually called in a case may be taxed if they attended for the purpose of testifying and their attendance was reasonably required.</p>

<p>1. Pleading — what general issue does not deny. Supervision and control is not denied by the plea of the general issue. A special plea is required for that purpose.</p> <p>2. Ordinance — providing for protection of employes construed. Held, that the ordinance in question in this case, which provided for the construction of a temporary floor when certain buildings were being remodeled, was applicable to the evidence in this case and was properly admitted.</p> <p>3. Negligence — when violation of ordinance constitutes. A violation of a protective ordinance is prima facie evidence of negligence if such violation contributed to the injury.</p> <p>4. Master and servant — liability for injury occasioned hy fall of scaffold. While there is some difference of opinion in the reported cases as to whether or not a master is liable for a servant’s injuries occasioned by the fall of a scaffold because of some latent defect, where the master directs the servant to make use of such scaffold and which scaffold the servant had no part in constructing and which had been abandoned by those who erected it, still the current of authority seems to be that the master having adopted the scaffold as his own is consequently liable under the rule that it is the duty of the master to furnish the servant with a reasonably safe place in which to work.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

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

<p>1. Verdicts — effect of inconsistency with evidence. If the verdict is inconsistent witli any legitimate theory of the evidence and cannot be accounted for except as the result of prejudice or bias it will be set aside on review.</p> <p>2. Costs — when attorney’s fees may be included in judgment. If attorney’s fees are provided to be taxed as costs in an action on a contract, if recovery be obtained tbe amount of sucb attorney’s fees may be included in tbe judgment rendered.</p>

Foreclosure. Error to the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Statement by tbe Court.

Charles M. Walker, Judge, presiding. Statement by the Court. This is a companion case to No. 15672 between the same parties, in which an opinion is rendered at this term of court. Ante, p. 525. The facts in the two cases are very nearly the same.

<p>1. Instructions — when refusal as to effect of failure to introduce evidence reversible error. Held, that it was error for the court to refuse to instruct the jury “that from the mere fact alone that the defendant offered no evidence the jury is not warranted in drawing any inference against the defendant.”</p> <p>2. Negligence — what essential to recover. In order to recover for personal injuries charged to have resulted from the negligence of the defendant, it must appear not by speculation or hy guess hut hy competent legal evidence that the defendant was guilty of some negligent conduct which resulted in the injury sued for.</p>

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

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

<p>1. Judgments — when against receiver erroneous. It is error to render judgment against a receiver in his individual capacity and to award execution against him. A proper form of judgment should provide for payment in due course of administration.</p> <p>2. Statute oe Limitations — when new cause of action not set up. Held, in this case, that the amended counts which differed from the original counts in that they charged conduct tending to show that the defendant as receiver was responsible while the original counts did not so state, a new cause of action is not set up where it appears that tbe original declaration began by complaining against tbe defendant as receiver.</p>

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

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

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

<p>Error to the Municipal Court of Chicago; the Hon. Freeman K. .Blake, Judge, presiding.</p>

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

<p>1. Contributory negligence — when not question of law. Unless the court can say that all reasonable minds would agree that the conduct of plaintiff under the circumstances in evidence was a failure on his part to exercise due care for his own safety then the question of contributory negligence is one of fact to be left to the determination of the jury.</p> <p>2. Negligence — operation of traction car. Held, under the evidence, that it was for the jury to determine whether or not the conduct of those operating the street car in approaching the street crossing in question on a dark evening without ringing any bell or sounding any warning, was negligence which proximately caused the accident in question.</p>

<p>1. Municipal Court — when finding and judgment at close of plaintiff’s case proper. Where a case is tried by the court and the court is of opinion that upon the evidence produced on behalf of the plaintiff no recovery can be had, it is proper to find against the plaintiff and to enter judgment against him.</p> <p>2. Brokers and factors — what essential to recovery of real estate commissions. The rule requiring the purchaser produced by the broker to be “ready, willing and able to purchase”, means that such purchaser must possess these qualifications before the broker is entitled to demand that the owner do anything in the matter.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. Michael F. Girten, Judge, presiding.</p>

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

<p>Assumpsit. Error to the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.</p>

<p>Accord and satisfaction — what .essential to establish. A check accompanying a purported statement will not be deemed as tendered in full settlement of the claims of the creditor, unless a condition is made to the effect that if the check be accepted, it' must be in payment of all demands.</p>

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

<p>1. Contracts — when rebates cannot be set off. If a proposition to rebate is conditioned upon the meeting of all the requirements of the proposition the right to such rebates does not arise unless such requirements have been observed, and then only at the time .and in the manner specified in the proposition.</p> <p>2. Contracts — when offer to rebate not illegal. A proposition offering to rebate with respect to purchases already made if the proposee shall voluntarily make certain additional purchases, is not illegal.</p> <p>3. Contracts — when violation of antitrust laws constitutes no defense; when such defense available. The fact that the plaintiff in an action of assumpsit was and is an unlawful combination and had violated the federal anti-trust laws, will not defeat a suit by such plaintiff for the recovery of the purchase price of property sold by it under a contract collateral to such wrong committed by it. In order for such a defense to prevail, the contract sought to be enforced must have been to further the objects of the illegal combination.</p> <p>4. Contracts — when section 6 of State antitrust act of 1891 no defense. In order to avail of section 6 of the State anti-trust act of 1891 as a defense to an action upon a contract, a violation in this state of such act must be shown; and such a violation is not established by showing that the plaintiff with respect to the particular subject-matter of its manufacture enjoyed a monopoly in Illinois.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creigi-iton, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Common carriers — burden to excuse delay in transportation. If injury results to property in transit by reason of delay, tbe burden to justify such delay is upon tbe carrier.</p>

<p>1. Common carriers — burden to establish termination of relation of carrier. By showing delivery to the carrier and failure to deliver by the carrier the burden is cast upon the carrier to show that at the time the loss sued for occurred its liability as a carrier had ceased.</p> <p>2. Warehousemen — extent of liability of. A warehouseman is liable only for ordinary care and diligence in the preservation of property committed to its care.</p> <p>3. Instructions — ignoring_ material issue. An instruction which ignores a material issue in the cause is erroneous if it concludes with a direction to the jury to find in a particular way, and such an instruction is not cured by the contents of other instructions given.</p>

<p>Insurance — when estoppel to enforce forfeiture arises. If the practice be adopted by a company of accepting premiums after their due date, personal notice must he given to the insured by the company that prompt payment of premiums will thereafter he required, otherwise a forfeiture cannot he made because of failure promptly to pay.</p>

<p>1. Verdicts — when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.</p> <p>2. Instructions — when refusal of correct will not reverse. The refusal of an instruction containing a correct abstract proposition of law will ordinarily not effect a reversal of a judgment.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. CkeiGhton, Judge, presiding.</p>

<p>Masters in chancery — when findings of fact not disturbed. Unless the evidence is clearly contrary to the findings of fact by the master, such findings will not be disturbed on review.</p>

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

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochean, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Vermilion county; tlie Hon. M. W. Thompson, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Mandamus. Appeal from the Circuit Court of De Witt county;' the Hon. W. G. Cochean, Judge, presiding.</p>

<p>Error to the County Court of Champaign county; the Hon. W. G. Spurgin, Judge, presiding.</p>

<p>1. Corporations — what not doing business in this state. Where an agent employed by a foreign corporation in a state having a restrictive statute, solicits orders, and an order so procured is sent by such traveling salesman to the home office of such foreign corporation, in a foreign state, for acceptance, and the same is there accepted and filled by direct shipment from the home office to the customer, the corporation is not deemed to be doing business -within the meaning of the restrictive statute.</p> <p>2. Pleading — when plea nul tiel corporation not essential. A plea of nul tiel corporation is not necessary in trials before justices of the peace or de novo on appeal therefrom. The question of corporate existence is sufficiently raised if counsel at the inception of the trial states that the corporate existence of the plaintiff is denied.</p>

<p>Bill in equity. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Action in case. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson,' Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.</p>

<p>Railroads — duty in constructing railway. The law casts a duty upon a railway company when constructing its railway so to construct the same as not to interfere with the natural drainage of the lands over which and adjacent to which it passes. If the flow of surface water in the natural condition of the land before the railroad was constructed, is across the proposed right of way of the railroad, means must be furnished whereby it may flow after the construction in the same manner as prior thereto. If an embankment is built, culverts and drains sufficient in size and number must be constructed to carry across the right of way the natural .drainage of the adjacent lands; that is to say, such quantities of water as are produced by rain-falls common in the vicinity, or such large or heavy rains as from the history of the community are reasonably to be expected or anticipated. A railway company is not required however to furnish better means of drainage for surface water than existed previous to the construction of its railroad. It is only required to refrain from interfering or obstructing the means of drainage provided by nature. Nor is it bound to provide sources of egress for accumulations of water produced by rains that are extraordinary in their nature and quantity and without precedent in the vicinity of its road, even though it might by the exercise of extraordinary means coupled with unusual foresight, have provided against damages by the same.</p>

<p>1. Roads and bridges — effect of prescriptive use. Where there has been an adverse, uninterrupted user for a period of twenty-years, the public acquires an easement in the land over which the high-way passes, and the right of entry of the landowner is barred, and if he obstructs the highway he will be liable. The fact that the highway may have been laid out in the first instance by the town authorities does not change the principle.</p> <p>2. Roads and bridges — when question of jurisdiction in action to recover penalty for obstruction of highway, waived. If such an action be instituted in the individual names of the commissioners rather than in the name of the district in which the offense was committed, the question is waived by the defendant proceeding to trial upon the merits.</p> <p>3. Justices of the peace — jurisdiction in action to recover penalty for obstruction of highway. Justices of the peace within the county where the district is located have jurisdiction to determine such an action.</p>