Volume 170 — Illinois Appellate Court Reports

<p>Error to the Municipal Court of Chicago; the Hon. Michael F. Gusten, Judge, presiding. Heard in the Branch Appellate Court at</p> <p>the October term, 1910.</p>

Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Thomas Gr. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910. Certiorari denied by Supreme Court (Making opinion final).

<p>Suretyship—when recovery by surety company for costs paid proper. If a surety company is given a cost bond upon an agreement of indemnity, upon the payment by it of a judgment for costs it may recover notwithstanding the judgment for costs was given upon a dismissal for want of jurisdiction, where it appears that the court entering the order of dismissal initially, by virtue of the allegations made in the pleadings, had jurisdiction of the case.</p>

<p>Contracts—how to he construed. In construing a contract the sense in which the person making the promise believed the other to have accepted it, if he in fact did so understand and accept it, must control.</p>

<p>1. Mechanic’s liens—section 28 of Act construed. The statute eon-templates that only owners and principal contractors shall be made defendants in suits at law by subcontractors.</p> <p>2. Assumpsit—vfhat essential to recover in actions upon contracts. In actions on contracts expressed or implied wherein several parties are made defendants recovery must be against all or none.</p>

<p>1. Appeals and errors—when exceptions property preserved. Held, upon this record, that due objections and exceptions were taken to the proceedings sought to be reviewed.</p> <p>2. Civil service commission—what does not vitiate order of dis. missal. The fact that but two commissioners have investigated and determined charges, does not vitiate an order of dismissal entered by the commission.</p> <p>3. Civil service commissions—what does not vitiate order of dismissal. The fact that the commission permitted the assistant general superintendent of police to sit with them in hearing charges, does not vitiate an order of dismissal.</p> <p>4. Civil service commission—when sufficiency of charges cannot he questioned. If at the trial before the commission the sufficiency of the charges made was not questioned, they cannot subsequently be questioned in a mandamus proceeding.</p> <p>5. Civil service commission'—what proceedings not subject to review. Whether or not the charges against an officer were sufficiently proved is not a question which is subject to review by the courts, where the officer was accorded a trial in the manner provided by law, and a finding .by the commission or trial board upon evidence tending to show guilt, has been approved by the civil servicé commission.</p>

<p>Action of debt. Error to the Municipal Court of Chicago; the Hon-William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

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

Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; 'the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>1. Fraternal benefit societies—when designation of beneficiary void. If a person designated as beneficiary does not fall within one of the classes permitted to be named as beneficiaries under the statute the designation is void.</p> <p>2. Fraternal benefit societies—phrase “legal beneficiary of the deceased member’’ defined. The words “legal heirs of the deceased member,” as used in the statute pertaining to designation of beneficiaries, do not include the widow of the deceased member.</p> <p>3. Fraternal benefit societies—extent of rights of beneficiary. The beneficiary in an insurance certificate issued by a mutual benefit society has no vested rights in the contract of mutual benefit insurance during the life of the assured.</p> <p>4. Fraternal benefit societies—when designation of beneficiary sufficient. Where no formalities or specific directions are required by the constitution, by-laws or certificate, for directing the payment of the fund in ease the legal beneficiary named in the certificate is dead, any clear definite direction or designation of the beneficiary by the insured to whom he desires the fund to be paid will suffice provided such designated beneficiary is one of a class who can legally receive the fund.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</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 March term, 1912. Certiorari denied by Supreme Court (Making opinion final).

<p>Appeals and errors—when finding by eowt not distwbed. A finding by the court is given the same effect as the verdict of a jury and will not be set aside as against the evidence unless clearly and manifestly so.</p>

<p>Foreclosure. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p> <p>Certiorari denied by Supreme Court (Making opinion final).</p>

Action, in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.

<p>Contested claim in court of probate. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, .Judge, presiding. Heard in the Branch Appellate •Court at the March term, 1910.</p>

<p>Contracts—when charitable institution liable for breach. If a charitable institution is guilty of a breach of contract recovery may be had against it.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas Gr. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Bill for injunction. Interlocutory appeal from the Superior Court of Cook coun'ty; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

Action* in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSubely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910. Certiorari denied by Supreme Court (Making opinion final).

Bill for injunction. Appeal from interlocutory order of the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Reversed.

<p>1. Mechanic’s liens—who not necessary party to an action by a subcontractor. A person who was a member of the firm of general contractors at the time the original contract was signed is not a necessary-party to such an action where after the retirement of such person from said firm all parties treated the firm as thereafter constituted as the general contractors.</p> <p>2. Mechanic’s liens—when statement of contractor in compliance with section 84 of act. A statement furnished by the contractors to the owner if actually sworn to is not rendered insufficient by the absence of a jurat or certificate by the officer, who actually administered the oath. It may be shown by evidence aliunde that the statement was in fact 1 sworn to.</p>

<p>Action in case. Appeal from the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. J. B. Newcomer, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the March term, 1910.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court. at the October term, 1909. Certiorari denied by Supreme Court (Making opinion final).

<p>Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in this court at the March term, 1&10.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>1. Municipal court—when two judgments not shown against defendant. Held, under the record in this ease that the first judgment rendered against the defendant was set aside and that only one judgment remained of record against him.</p> <p>2. Pleading—effect of filing general issue upon pending demurrer. If a demurrer is pending and the defendant files a plea of the general issue to the whole declaration he thereby waives such demurrer, and it is not error to enter judgment without disposing of such demurrer.</p> <p>3. Pleading—when non-disposition of dermrrer cannot he complained of. Where there is no bill of exceptions and so far as the record shows the defendant went to trial without a demurrer to a part of a declaration being disposed of, he will not be heard to complain of the action of the court in rendering judgment against Mm without disposing of such demurrer.</p> <p>4. Abatement—when substitution of plaintiffs proper. Held, that upon the death of the original plaintiff in tMs action the substitution made was proper under section 23 of chapter 1 of the Revised Statutes.</p> <p>5. Interest—when allowance upon note proper. After the maturity of a note which does not bear interest an. allowance of interest at the statutory rate is proper.</p>

Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Makcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1909.

<p>Error to the Municipal Court of Chicago; the Hon. Max- Eberhardt, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>1. Instructions—when should be accurate. Where the evidence is closely conflicting the instructions should be accurate.</p> <p>2. Instructions—assumption of facts. An instruction is improper which assumes the existence of facts in dispute.</p> <p>3. Instructions—how facts to be determined. Instructions should require that the essential facts be established by the evidence.</p> <p>4. Instructions—when as to duty of master to furnish safe place erroneous. An instruction is erroneous which in effect unqualifiedly announces it to be the duty of the master to keep reasonably safe the premises or place where the servant was injured regardless of the question whether it was necessary or proper for such servant in the performance of Ms duties to go there.</p>

Action in case. Appeal from the Superior Court of Cook county; the Hon. Parhn Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910. Certiorari denied by Supreme Court (Making opinion final).

Action in case. Appeal from the Superior Qourt of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910. Certiorari denied by Supreme Court (Making opinion final).

<p>Assumpsit. Error to the Superior Court of Cook county; the' Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>1. Verdicts—when not set aside as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.</p> <p>2. Instructions—when refusal as to punitive damages will not reverse. Notwithstanding an instruction on the subject of the allowance of punitive damages is improperly refused, the error will be deemed harmless where the verdict was one of not guilty.</p> <p>3. Instructions—when inaeeuracies will not reverse. Notwithstanding instructions may not be strictly accurate a reversal will not be awarded if it is improbable that the jury could have been misled.</p>

<p>Judgment by confession. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>1. Corporations—effect of declaration of dividend. When a dividend has been duly declared by a corporation it becomes a debt due from the corporation to each stockholder in proportion to the number of Ms shares and he may sue for and recover the same at law.</p> <p>2. Corporations—when proof malees prima facie showing that profits have been earned. Proof that all stockholders but the plaintiff have been paid dividends in pursuance of resolutions declaring dividends ‘1 payable out of the profits, ’ ’ establishes prima facie that sufficient profits have been earned.</p> <p>3. Assumpsit—when lies. When a dividend has been declared nothing remains to be done except to pay the money on demand and where, such is the ease indebitatus assumpsit is a proper form of action.</p> <p>4. Pleading—when ruling upon demurrer immaterial. It is of no consequence how the trial court ruled on a demurrer to a rejoinder to a replication to a plea of set-off where no evidence was offered in support of the plea of set-off.</p>

<p>1. Master and servant—what essential to ■ recover where unsafe place alleged to have been furnished. Held, under allegations of the declaration in this case, that it was necessary for the plaintiff to prove, first, that a certain incline and grooves were defectively constructed and negligently maintained and that the maintenance of such defective condition was the proximate cause of the servant’s injury; second, that .the master had knowledge or in the exercise of ordinary care would have had knowledge of thg defect; third, that the servant did not know and did not have equal opportunities with the master of knowing of the defect or if the servant did know of the defect that she did not know and was not chargeable with knowledge of the danger arising from the existence of the defect.</p> <p>2. Master and servant—what essential to application of doctrine of assumed risle. The ° doctrine of assumed risk will not defeat a recovery unless two conditions concur; the servant must not only have had knowledge or be chargeable with knowledge of the defect but the facts must also charge him with knowledge of the danger as well.</p> <p>3. 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>4. Verdicts—when excessive. Held, in a personal injury action, that a verdict reduced by remittitur to $4500 was excessive where it appeared that the plaintiff had partially lost the use of her left arm and was earning at the time of the accident 5 or 6 dollars per week, it further appearing that the plaintiff did not assist as well as she might in the endeavor to cure her of the injuries complained of.</p> <p>5. Instructions—when does not erroneously ignore defense of assumed rislc. An instruction which correctly states as an abstract proposition of law the duty of the master to exercise reasonable care to furnish the servant with a reasonably safe place to work is not erroneous (if it does not conclude with a direction as to the verdict to be rendered) if it ignores the defense of assumed risk.</p> <p>6. Instructions—when cannot he complained of. A party cannot complain of an instruction as erroneous where he has tendered and the court has given an instruction containing substantially the same language as that urged as vicious.</p>

<p>Contributory negligence—driving upon railroad tra&cs. One familliar with his surroundings Who drives .upon railroad tracks without looking, is guilty of contributory negligence which will bar his recovery if there are no conditions or circumstances which excuse the failure to look.</p>

<p>Action of debt. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>Action in case. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott,'Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>Action in case. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>Evidence—what prima facie, of license to practice law. If a person testify that he has practiced law in the particular territory in question for a period of years this establishes prima facie that he was duly licensed to practice.</p>

<p>Foreclosure. Appeal from the Circuit Court .of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

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

<p>1. Negligence—obligation to guard excavation. The law does not impose upon an owner or one in possession and control of real property any duty towards strangers upon adjoining property to guard the excavation upon such property not adjacent to the highway unless they come upon the premises by his invitation.</p> <p>2. Negligence—endangering private walk. An owner of premises has a right to establish a walk or private way over his premises and his rights to do so and to travel over the same without being endangered by pit falls and obstructions are as inviolate as the right of the public to travel the public highway without encountering such dangers. If other persons are given the right by the owner to travel a private way they cannot be lawfully endangered thereon by pitfalls or obstructions by the owner of the way or by strangers.</p> <p>3. Contributory negligence—when cannot be imputed to minor. A child of the age of 4 years cannot be guilty of contributory negligence.</p> <p>4. Municipal Court—when jury not required. If neither party to an action of the 4th class demands a jury trial nor pays or offers to pay the jury fee, a jury need not be called, and this is true in a ease where the plaintiff is a minor suing by his nest friend, there being no evidence or claim that such minor was the victim of any fraud or hardship; and the failure of the court to call a jury cannot be complained of by an adult defendant who has failed to exercise his option to demand, pay for and have a jury trial.</p>

<p>Action in case. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

Certiorari. Appeal from the Superior Court of Cook county; the Hon. M. M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Certiorari denied by Supreme Court (making opinion final.)

Certiorari. Appeal from the Superior Court of Cook county; the Hon. M. M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Certiorari denied by Supreme Court (making opinion final.)

<p>Principal and agent—when authority to eolleet established. Held, under the evidence, that the authority of an attorney to collect a balance remaining due upon a note secured by a trust deed and to receipt for the same was established.</p>

<p>1. Municipal court—when hill of particulars sufficient. A bill of particulars is sufficient if it enables the adverse party to know with reasonable certainty what he is required to meet.</p> <p>2. Bills op particulars—-power of court with, respect to. Whether or not a plaintiff shall be ruled to furnish a bill of particulars in a given case is a matter resting in the sound legal discretion of the court and the action of the court in making or refusing the rule will not be reviewed, unless it be shown clearly that such discretion was abused.</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>Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>1. Appeals and errors—when finding by court not disturbed. A finding by the court will not be disturbed as against the evidence unless clearly and manifestly so.</p> <p>2. Municipal court—what proceedings not subject to review. Questions of practice arising in the municipal court will not be reviewed by the appellate court except "to prevent a failure of justice."</p>

<p>Bastardy—what does not bar proceeding. The fact that the child was bom in another country and was necessarily a citizen thereof does not bar the mother’s right to maintain bastardy proceedings.</p>

<p>1. Instructions—when upon quantum of proof erroneous. In an action of debt for the recovery of a penalty more than a preponderance of the evidence is necessary to authorize a recovery and an instruction which 'permits a recovery upon a mere■ preponderance of the evidence is erroneous.</p> <p>2, Instructions—when should he aecurate. Where the evidence is conflicting the instructions should be accurate to sustain the judgment rendered on the verdict.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Stephen Á. Foster, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>1. Pleading—when eross-hill may he maintained. A cross-bill may be maintained to obtain full relief and a complete determination of all controversies which arise out of the matters set up in the original bill.</p> <p>2. Pleading—when eross-hill will support decree. Where a cross-bill is germane to the issues made by the original bill and answer and the original complainant makes no objection to its filing and treats it as a proper pleading by answering it, the court may properly make it the basis of its decree.</p> <p>3. Divorce—what not hona fide offer ■tó return. If an answer to a cross-bill setting up desertion alleges a willingness to return, relief may be granted upon the cross-bill if such allegation is traversed by replication and no evidence is offered to support it.</p> <p>4. Divorce—what not prevention of return preeluding decree on ground of desertion. If the plaintiff charged with desertion is enjoined from going to the office of the other party she is not deemed to have been prevented from returning.</p>

<p>1. Contracts—when for exchange of properties hvnding. A contract for the exchange of real estate is mutually binding notwithstanding the other party thereto does not hold the legal title to the property agreed to be exchanged by him if such party is in fact the equitable owner of such property.</p> <p>2. Brokers and factors—what not defense to action to recover real estate commissions. A party who has agreed to make an exchange of real estate and who has entered into a contract to that effect is not in a position to take advantage of a want of title in the party contracted with to defeat a claim for commissions without showing that he was willing to perform.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, judge, presiding. Heard in this court at the March term, 1910.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>Municipal court—what not within criminal jurisdiction. On December 17, 1909, the municipal court had no jurisdiction to entertain a prosecution for petit larceny.</p>

<p>1. Chancery—when will not talce jurisdiction of ecclesiastical dispute. A court of chancery will not ordinarily concern itself with the action of an ecclesiastical institution in removing its officiating priest.</p> <p>2. Injunctions-—token appropriate to maintain status guo. Where it is alleged that the offices of trustees and inspectors of a church organization have been illegally usurped a court of equity may properly grant an injunction to maintain the status guo.</p>

<p>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, 1910.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Res judicata—effect of former opinion. The opinion of the appellate court upon a previous appeal is binding alike upon the parties to the cause and the appellate court on a subsequent appeal.</p>

<p>1. Municipal court—“practice” as used in act construed. Construing the municipal court act in the light of its manifest purpose and scope the term “practice” is to he regarded as general and as including within it the term “pleadings.”</p> <p>2. Municipal court—validity of rules changing pleadings in first class cases. A rule of the munieipal court which provides that the pleadings in cases of first class shall be like those prescribed for cases of the 4th class is valid.</p> <p>3. Assumpsit—what not defense to action for money advanced. If the money sued for was actually advanced by the corporation plaintiff, and retained by the defendant, the fact that it may have been loaned for the purpose of deceiving the public and the insurance departments of various states constitutes no defense.</p> <p>4. Corporations—when defense of ultra vires unavailing. A party who has received a loan of money from a corporation and has had the benefit of such loan will not be permitted' to interpose the defense that the loan was ultra vires the corporation in an action brought to recover the money so loaned.</p>

<p>1. Statute of limitations—what not new cause Of- action. A mere change of parties plaintiff does not, of itself, change the cause of action.</p> <p>2. Statute of limitations—when involuntary non-suit suffered. Held, in. this case, that the plaintiff had suffered an involuntary non-suit in a previous action which had been brought by it upon the same cause of action and that the action of the supreme court upon a review of the^ original action was such as to foreclose the question as to the identity of the causes of action.</p> <p>3. Pleading—when plea in abatement defective. A plea in abatement setting up a non-joinder is bad if it fails to give plaintiff a better writ.</p> <p>4. Assumpsit—when plea insufficient to bar action. If a special plea does not confess or avoid and does not deny the allegations of liability, it is insufficient to bar an action.</p>

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

<p>Appeals and errors—when order of county court interlocutory. If the assets of an estate are under the control of the county court, the orders made therein from time to time are merely interlocutory and subject to adjustment by the entry of the final orddr, and the assignee is not entitled to appeal from an order of such court setting aside a previous order directing a distribution of assets.</p>

<p>1. Pleading—what not denied 5y general issue. Ownership averred in a declaration in an action for personal injuries is not put in issue by a plea of the general issue.</p> <p>2. Contributory negligence—what not as a matter of law. Standing upon the platform or step of a traetion ear when it is in motion is not prima facie evidence of negligence.</p>

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

<p>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, 1910.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Municipal court—when charge not subject to review. The oral charge given by the court is not subject to review on appeal in the absence of objection or exception.</p> <p>2. 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>3. Interest—when allowance not subject to review. The question as to the allowance of interest is not preserved for review in the absence of objection or exception.</p>

<p>1. Mechanic's, liens—when decree not disturbed, A decree awarding a mechanic's lien will not he disturbed if predicated upon the report of a master approved by the court, unless it appears either that errors of law have intervened or that the findings of fact or some of them are clearly and palpably against the weight of the evidence.</p> <p>2. Mechanic’s liens—when architect’s certificate not essential. A decree awarding a mechanic’s lien will not be disturbed notwithstanding no final certificate was issued by the architect as provided for in the contract which formed the basis of the action, if it appears that the work had been accepted by the architect and that the issuance of the final certificate was deferred in deference to the owner.</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>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>I. Instructions—what question presented by motion for peremptory. The question presented to the court by motion at the close of the evidence for a peremptory instruction, regardless of whether such an instruction has been refused at the close of the plaintiff’s evidence is, whether there is any evidence in the case either offered by plaintiff or defendant which, with all the legitimate and natural inferences to be drawn therefrom, is sufficient to sustain a verdict for the plaintiff.</p> <p>2. Negligence—doctrine of turntable eases. An essential element of the turntable or allurement rule is that a child of tender years cannot be regarded as a trespasser on the premises of the defendant, because he was attracted to its premises by the dangerous thing that caused the injury.</p> <p>3. Negligence—when doctrine of allurement does not apply. If the child is attracted to the premises because of an object which was not dangerous, the doctrine of allurement does not apply, even though his injury result from dangerous machinery located upon such premises.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. George A. Dtjpuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Trial—when remarles of counsel will not reverse-. Improper remarks -will npt reverse where g,n objection thereto was sustained, and no motion was made to strike the remarks from the record, and no instruction was asked directing the jury not to consider them.</p>

<p>1. Verdicts—what not considered in determining question as to whether it is against the weight of the evidence. In determining whether the verdict rendered was against the manifest weight of the evidence the appellate court will not consider at whose instance a jury trial was had.</p> <p>2. Verdicts—power of appellate court to set aside, rendered for attorney’s fees. The appellate court is as free to set aside an excessive verdict in favor of a lawyer against his client as it is to set aside any other verdict which is contrary to the manifest weight of the competent evidence. Indeed, its power, if anything, should be the more readily exercised, inasmuch as the evidence is largely of opinion character and the element of seeing the witnesses and observing their demeanor is not so important.</p> <p>3. Verdicts—when set aside as against the evidence. When the verdict of a jury is contrary to the weight of the evidence, it is the duty of the appellate court to so declare, and to set aside the judgment based upon such finding.</p> <p>4. Attorney and client—how value of services to he determined. While opinion evidence is proper and should be considered the appellate court is qualified to form and is entitled to exercise an independent judgment.</p> <p>5. Attorney and client—how value of services to he determined. In determining the compensation which should be awarded for legal services, the question is as to the usual, customary and reasonable charge for like services, and such rule is to be followed notwithstanding there exists wide differences of opinion between the lawyers called as experts.</p> <p>6. Evidence—when competency of expert not subject to review. If the qualification of an expert to express an opinion as to the value of legal services Is not preserved by objection, the question of such competency is not «pen for review, but the infirmity of the testimony given may be considered by the court.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

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

<p>Action in debt. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Statute op Limitations—what “evidence of indebtedness in writing.” Held, that the instrument set forth in this opinion was an ‘‘ evidence of indebtedness in writing ’ ’ withing the meaning of section 16 of the Statute of Limitations notwithstanding it did not fix a time of payment for the merchandise provided to be delivered.</p>

<p>Tort. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard.in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Informations—when lack of endorsement does not affect validity. A defendant after being arrested, appearing, giving bail, waiving trial by jury, etc., cannot question the validity of the information upon the ground that it lacks endorsement by a judge of the municipal court, as provided by statute.</p> <p>2. Variance—when objection comes too late. In a criminal case an objection of variance comes too late if first raised on appeal.</p>

<p>1. Information—effect of omission of word “unlawful.” The omission of the word "unlawful” from an information is not materia] where it concludes "contrary to the form of the statute,” etc., as such allegation is equivalent to the employment of the word unlawful.</p> <p>2. Labels and trademarks—what proof not essential in prosecution for use of counterfeit. If the label alleged to have beeú counterfeited is shown to have been the property of a dc facto corporation it is sufficient notwithstanding the information charge ownership in a corporation organized under the laws of a specified state.</p>

<p>1. Practice—when affidavit of claim sufficient. An affidavit of plaintiff's claim may be made by agent or attorney.</p> <p>2. Practice—when affidavit of merits properly stricken. If an affidavit of merits interposed by a defendant is insufficient it is properly stricken and the right of the plaintiff to judgment necessarily follows.</p>

<p>1. Brokers and factors—when real estate commissions may he recovered. A real estate broker is entitled to his commissions when the purchaser and seller enter into a valid and enforceable contract and this right of the broker is not affected if one or both of the parties subsetquently refuse to carry out the contract.</p> <p>2. Assumpsit—when third party may sue upon contract. Where one enters into a simple contract with another for the benefit of a third person, such third person may maintain an action directly on the contract.</p>

<p>Action in ease for personal injuries. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p> <p>Vertiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Municipal Court of Chicago; the Hon. Judson P. Going, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Injunctions—what does not affect action at law upon bend. A failure to assess damages upon the dissolution of an injunction does not bar an action at law to recover damages predicated upon the bond.</p>

<p>Principal and agent—obligations of latter. An agent is bound to act fairly and truthfully with his principal and not to deceive him to his injury for the purpose of obtaining. some advantage to himself.</p>

Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910. Certiorari denied by Supreme Court (making decision final).

<p>Error to the Municipal Court of Chicago; the Hon. Freeman K. Blase, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Quo warranto—what may he determined upon application for. Upon an application for leave to file an information in quo warranto it is proper for the court to determine a question of law presented which is decisive of the entire controversy.</p> <p>2. Elections—when judges to he chosen not to he classified. Where two sets of judges for the same court whose terms are to begin and end at the same time are to be elected, one set of which are to fill expiring terms of previous incumbents and the other set to assume office by reason of an act creating additional judgeships, all judges so to be chosen are to be voted for without classification and of. those voted for the ones receiving the highest number of votes are to be declared elected, regardless of whether some of them were nominated at primaries held and others by conventions.</p>

<p>1. Municipal corporations—when contract enjoined. An injunction will be granted restraining the making or carrying out of a contract which increases the indebtedness of the municipality in excess of the constitutional limitation.</p> <p>2. Municipal corporations—what indebtedness considered in determining whether constitutional limit of indebtedness exists. Payments not matured are to be considered in determining whether a municipality is indebted up to its constitutional limit.</p> <p>3. Municipal corporations—what considered in determining whether constitutional limit of indebtedness esxists. A sum of money for which the municipality has been adjudicated as liable in special assessment proceedings will be considered in determining whether the constitutional limit of indebtedness has been reached.</p> <p>4. Municipal corporations—what indebtedness not considered in determining whether constitutional limit of indebtedness exists. An indebtedness or evidence thereof will not be considered if there is money in the treasury to meet the same.</p> <p>5. Municipal corporations—when bonded indebtedness and warrants do not equal constitutional limit. Held, upon the showing in this case, that the outstanding bonded indebtedness and warrants of the municipality did not reach in the aggregate the constitutional limit.</p> <p>6. Judgments—how cannot be attacked. A judgment rendered in special assessment proceedings cannot be collaterally attacked.</p> <p>7. Injunctions—when right of complainant to maintain will not be determined. Whether a complainant in an action to enjoin a municipal corporation from entering into a contract is a mere dummy will not be determined finally if the showing is not conclusive upon affidavits presented in connection with the motion for a preliminary injunction.</p>

<p>Appeals and errors—effect of disclaimer. A decree will be affirmed as to a party who repudiates the only instrument from which he could acquire title or interest in the subject-matter of the litigation where such decree imposed no burden or charges of costs upon him.</p>

<p>1. Instructions—when peremptory should not be given. A peremptory instruction should not be given where there is any evidence which, with all reasonable inferences and intendments to be drawn therefrom, fairly tends to prove the plaintiff’s case.</p> <p>2. Contracts—what does not establish contract of employment for definite period. “I told him that the least I would go for was fifteen hundred a year and he said ‘all right,’ ” does not establish a hiring for a year.</p> <p>3. Statute of frauds—when contract within. A contract of employment not to be fully performed within a year is within the Statute of Frauds.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hugh B. Stewabt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Appeal from the Circuit Court of Cook County, the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Appeals and errors—how joint prayer for appeal must he perfected. If an appeal be jointly prayed it must be jointly perfected. A several appeal cannot be predicated upon a joint prayer and an irregularity in perfecting such an appeal cannot be corrected in the Appellate Court.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Municipal Court—when preliminaries essential to filing information waived. By appearing and submitting to trial any preliminaries essential to the proper filing of an information are waived.</p> <p>2. Municipal Court-—when defects in information are waived. A defendant waives defects in an information by failing to make a motion to quash.</p> <p>3. Municipal Court—when has jurisdiction of criminal offense. The Municipal Court has jurisdiction of the offense of pandering, the same being punishable by either fine or imprisonment in the county jail or both.</p>

<p>Dram-shops—statute pertaining to fixing status as antv-saloon territory construed. If a town has voted that its territory shall be anti-saloon a village located therein is bound thereby, and re-submission cannot take place until the expiration of 18 months, and then only to the voters of the town.</p>

<p>Negligence—what essential to application of doctrine res ipsa loquitur. In order that the doctrine res ipsa loquitur may be availed of the plaintiff must aver that the causal act or omission was one that a reasonably prudent person in the defendant's plane would have foreseen might cause the injury.</p>

<p>Replevin—when demand not essential to maintenance. If the original possession of the defendant was wrongful a demand of possession is not essential to the maintenance of an action of replevin.</p>

<p>Pledges—who not authorized to make. Personal property turned over to another, to sell and turn over the proceeds, or else to return the property, cannot by such person be pledged even though the pledgee be an innocent third party without notice.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Pleading—what general issue does not deny. The plea of the gener-al issue does not put in issue the character in which the plaintiff sues or the character or capacity in which the defendant is sued.</p> <p>2. Verdicts—when excessive. A verdict for $6,000 in a death case is excessive where it appears that the plaintiff’s intestate, was 20 years of age earning from 12 to 15 dollars per week, that he gave his mother 7 or 8 dollars per week for his board and to help her, that such mother was 61 years of age and that the next of kin consisted of such mother, a brother and two sisters.</p>

<p>Contracts—“adjacent” construed. The word "adjacent” does not include a town 300 miles away, such word being used in connection with a vaudeville service contract.</p>

<p>Error to the Municipal Court of Chicago; the Hon. McKenzie Oleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Contracts—effect of agreement to perform satisfactory service. An employment contract by which an employe agrees to render services ‘ ‘ satisfactory ”, to his employer may be terminated by the employer if the services rendered are not satisfactory to him and such employer is the sole judge as to whether the Services are satisfactory.</p>

<p>1. Fraternal benefit societies—how intention to withdraw way he shoipiu. An intention to withdraw from an association may be shown by conduct as well as by evidence of oral declaration of a resignation.</p> <p>2. Fraternal benefit societies—wheni withdrawal established. If the member voluntarily resign and such resignation is accepted he ceases to Tpe a member and a restoration of membership is not effected by the financial secretary of the organization accepting dues after his death.</p>

<p>Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.. Heard in the Branch Appellate Court at the October term, 1911,</p>

<p>1. Negligence—when doctrine of attractive nuisance cannot he availed, of. The doctrine of attractive nuisance cannot be availed of as a basis for recovery unless the declaration in some count or counts relies thereon.</p> <p>2. Instructions—when estoppel to complain arises. “A party has no right to complain of an error in an instruction, when a like error appears in an instruction given at his own request. ’ ’</p> <p>3. 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>