Volume 171 — Illinois Appellate Court Reports

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding. Heard in this court at the October term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>1. Landlobd and tenant—contract. A lease is the contract and not the correspondence or conversations prior to its execution.</p> <p>2. Landlobd and tenant—construction of voidable lease. When a lease provides that it may he avoided at any time during its life if no license is granted to conduct a dramshop in the premises it is broad enough to authorize avoidance at any time on refusal of a license.</p> <p>3. Landlobd and tenant—when lessee may avoid lease. In the absence of bad faith by the lessee where a lease provides that if no dramshop license is granted the lessee may avoid it any time during its life and such license is subsequently refused on application, he may declare the lease void.</p>

<p>1. Negotiable instruments—when demand not necessary. Demand Is not necessary before suit on a note due and for interest' on others nor before filing a bill to foreclose a mortgage as security therefor.</p> <p>2. Mortgages—when may foreclose. Where a mortgage provides that in case of failure to pay any note when due the legal holder may at his option declare the principal note and interest payable and foreclose, on default such holder may so elect and to collect may proceed both at law and by foreclosure bill and proceed with the foreclosure after payment of part due and an agreement to dismiss the suit, unless an agreement for consideration to dismiss the bill is shown.</p> <p>3. Stipulations—what not included therein. Where on default on mortgage notes the legal holder proceeds at law and files a bill to foreclose but accepts part payment and agrees to dismiss proceedings, the mortgagor cannot maintain his contention that the agreement to dismiss included the bill, where he was ignorant of it at the time of payment.</p> <p>4. Contracts—when no consideration for agreement to dismiss proceedings against mortgagor. Where a mortgagee may at his option declare the principal note and interest payable on default on any of the notes and where he proceeds at law and files a bill to foreclose on default, though the mortgagor believes that an agreement to dismiss proceedings on part payment included all proceedings, yet the mortgagee may continue with his election to declare all the notes due since there is no consideration for the new promise.</p>

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

<p>1. Appeals and errors—when appellate court competent to pass on evidence. The appellate court is as competent to pass on the evidence as the trial court where the trial court did not hear the witnesses testify and where the evidence was taken and reported by a master and findings made thereon by the court.</p> <p>2. Evidence—when secondary evidence of letters admissible.</p> <p>Secondary evidence of the contents of letters is admissible where the preliminary proof shows that the writer either destroyed or mislaid them after the transaction was closed and that he is unable to find them and has no knowledge of their existence or whereabouts.</p>

<p>1. Verdicts—when excessive. A verdict for $750 for personal injuries is excessive and a remittitur of $250 should be required where it rests almost entirely on the testimony of the plaintiff and a witness who is her employer, which it seems exaggerates the damages and is unreliable, and where physicians testify that the injury is not permanent, that plaintiff was incapacitated and suffered for about six weeks, and that her actual expenses were $66.</p>

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

<p>1. Motion fob new trial—what rulings need not he assigned as error therein. Trial court rulings which, appear upon the record need not be assigned -as error on motion for new trial, since such errors save themselves unless waived by the party insisting thereon.</p> <p>2. Bill of exceptions—when not necessary. A bill of exceptions is not necessary to save questions as to the trial court’s rulings on the pleadings.</p> <p>3. Demurrer—when properly sustained. Where, pending litigation on a contract for the sale of land, a contract is made which supersedes the prior one as to possession, special pleas setting up the original contract in an action on the second contract for rent due are demurrable, since the prior contract is no defense to an action on the second concerning possession.</p> <p>4. Set-off—when vendee not entitled thereto. Where a contract for the sale of land becomes void by its own terms because of the vendor’s inability to furnish a merchantable title, but the vendor sues for rent under a second contract concerning possession made pending litigation as to title, the vendee is not entitled to set-off for damage because of the vendor’s failure to furnish such title.</p> <p>5. Contracts—when action cannot he brought thereon. No action can be maintained by either party to a contract which is void ah initio or which becomes void by the terms and conditions expressed and agreed to.</p> <p>6. Errors—when waived. Alleged errors in holding and refusing propositions of law are waived if not argued.</p>

<p>1. Corporations—contracts. Where, to procure a sale of stock, certain officers of a corporation enter into an agreement to purchase it at any time at the price paid, such agreement is part of the original undertaking and consideration therefor passes to the corporation and is sufficient, and consideration or benefit to the officers is unnecessary.</p> <p>2. Contracts—when an agreement does not lack, mutuality. A written agreement by promoters of a corporation to purchase stock sold at any time at the price paid, entered into to procure a sale, does not lack mutuality but is a part of the purchase transaction, and the fact that the written agreement taken alone lacks mutuality will not necessarily defeat an action thereon.</p> <p>3. Statute of limitations—when agreement is in parol thereunder. It would seem that where an agreement rests partly in writing it is contrued as a parol agreement and controlled by the Five-Year Statute of Limitations.</p> <p>4. Statute of limitations—when agreement is not partly in writing and partly in parol. Where a written agreement by promoters of a corporation to purchase stock at the sale price at any time is so complete that acceptance by the party seeking to enforce it need only be shown, such agreement does not rest partly in parol and partly in writing and come within the Statute of Limitations as to parol agreements.</p> <p>5. Assignment—when not necessary. Where a purchaser of stock receives an agreement by the promoters to purchase the stock at any time for the amount paid, and pledges the stock and agreement as security for a loan, no assignment is necessary to invest the pledgee with the right to accept the pledge and to sue in the purchaser’s name.</p> <p>6. Practice—when immaterial to defendant that action is for another’s use. Where the purchaser of stock who received an agreement from the promoters to purchase at any time for the price paid is plaintiff in an action on such agreement, it is immaterial to the defendants whether the action is for the use of a pledgee or the assignee in bankruptcy.</p> <p>7. Tender—when unnecessary. Where demand is made for performance of an agreement to purchase stock at the price paid but ■ liability is denied and performance refused, no tender is necessary before action.</p> <p>8. Practice—court’s discretion as to filing of additional count. The court may in its discretion allow plaintiff to file an additional count after the close of the evidence.</p> <p>9. Tender—what is sufficient. On refusal to perform an agreement to purchase stock at the price paid and denial of liability, the plaintiff need only bring the certificates of stock into court for delivery to defendant.</p> <p>10. Contracts—what is not a defense to action on an agreement. On action on an agreement hy promoters to purchase stock at any time for the price paid, recovery cannot be defeated on the ground of unreasonable delay because the plaintiff held it for two years when it was at par, and then for more than five when the corporation was insolvent, before compelling performance.</p>

<p>Error to County Court of Champaign county; the Hon. W. G-. Spubgin, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Petition for mandamus. Appeal from the Circuit Court of Vermilion county; the Hon. Mobton W. Thompson, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Action on a policy of insurance. Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the October term, 1911.</p>

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

<p>Action for damages for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Error to the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the October term, 1911.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

Action in case for personal injuries. Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1911.

Action in case for personal injuries. Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the May term, 1910.

<p>1. Partition—solicitor’s fees. Solicitor’s fees should not be taxed as costs in a partition proceeding where the rights of the complainants and defendants are not properly set forth in the bill of complaint and when the complainant had joined herself as administrator of her husband’s estate claiming a right to have the entire premises sold, thus necessitating the hiring of counsel by the defendants to protect their interests, and where it further appears that the proceedings were not amicable.</p>

<p>Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>1. Grain inspection—when shipper is bound thereby. Where a person ships grain to a dealer with full knowledge of the conditions, method and manner of inspection in vogue at that place, he is bound by the grade placed on such, grain in the absence of fraud or unfairness. •</p> <p>2. Brokers—purchase of shipper's grain merely voidable. Where a grain broker purchases the shipper’s grain on his own account, such sale is not void but merely voidable.</p> <p>3. Brokers—hurden of proof. The burden is upon the shipper to establish the contention that the broker did not follow instructions relative to the sale of grain and that loss was sustained thereby.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1910.

<p>1. Fraternal benefit societies—construction of rules. Clauses in the rules of a fraternal benefit society which provide that certificates in force two years shall be incontestable except for fraud, violation of the constitution and laws or failure to pay assessments, and also that benefits of a member who commits suicide will not be paid except in certain cases, are contradictory and should be construed most favorably to the insured permitting the incontestable clause to prevail.</p> <p>2. Fraternal benefit societies—constitution. The constitution of a fraternal benefit society merely has the force of a by-law and does not take away the power to adopt such other by-laws as the charter permits.</p> <p>3. Fraternal benefit societies—rules regarding payment of benefits. A beneficiary, on suicide of the insured, has no claim except for the amount paid to the fund by insured where the certificate provides that the member shall comply with the laws in force or that may be in force thereafter, and thereafter a clause providing that certificates shall be incontestable after two years, except for certain causes, is duly repealed and a clause is left in force which provides that only the amount paid to the fund shall be paid in case of suicide except in certain cases.</p>

<p>Action on written contract. Error to County Court of McDonough county; the Hon. Conrad G. Gtjmbardt, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. Habry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>1. Municipal corporations—when bill to enjoin city from, acting under a contract is not demurrable. A bill to enjoin a city from acting under a contract with a well drilling company is not demurrable where it alleges non compliance with R. S. c. 24, art. IX., § 50, as to bids on public work, and certain ordinances, sets forth ordinances containing certain requisites as to contents of advertisements, estimate of cost and preparation of plans and avers noncompliance therewith, and tha,t the advertisement called for bids for boring wells while a contract was let for boring wells and installing pumps and other equipment, and that the price is excessive.</p> <p>2. Municipal corporations—necessity of setting up defense of laches in answer. Where a taxpayer suing to enjoin a city from acting under a contract has not in his pleading undertaken to excuse the delay, if the city desires to make avail of the defense of laches it must set it up in its answer, so as to give the complainant an opportunity to amend by making allegations accounting for the delay.</p> <p>3. Municipal corpobations—when delay in bringing cause to hearing is not harmful. On a proceeding to enjoin a. city from acting under a contract it cannot urge laches and delay in bringing the cause to a hearing where the only work done under the contract was not objected to by the complainant and the city could have expedited the hearing as well as the complainant.</p> <p>4. Officers—authority to act. Where public officers derive their powers from and their duties are prescribed by statute, all persons dealing with them in reference to public affairs are bound to take notice of their powers and duties and to see that such officers are acting within the scope of their authority.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1911.

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

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

<p>1. Assignment—when not error to credit assignee to pay debts with payments. Where a husband and wife by agreement assign all of their property with power to the assignee to sell and pay certain enumerated claims and to turn over the balance to the wife, and it is provided that the assignee may take necessary steps to carry out the true spirit of the agreement and that the claims are subject to slight correction in amounts, it is not error to credit the assignee with a payment of $210.26 more on the claims than the amount enumerated when such excess consists in costs on the judgments against the assignors or in claims being larger than inventoried, since possession of the property could not have been secured without paying the liens against it.</p> <p>2. Assignment—when credit for payment correctly allowed to assignee to pay debts. It is not error to credit a person to whom property is assigned with power to sell and to pay certain claims, with payment of a sum which was a lien on certain property where such payment was necessary to obtain possession thereof.</p> <p>3. Evidence—when oral statements made by parties after malting written contract competent to shoio separate contract. Where husband and wife by written contract assign all their property to be sold to pay certain enumerated debts and agree that the balance is to be paid to the wife and provide that the assignee may take necessary steps to carry out the true spirit of the agreement, evidence by the assignee that the parties stated that all debts should be paid and that there were some they couldn’t think of, and evidence by the clerk at the sale that the wife stated that the indebtedness of both was to be paid and that the assignee was to pay it, is competent to prove a separate oral contract as to matters not inconsistent with the incomplete written agreement.</p> <p>4. Assignment—when credit correctly allowed to assignee to pay debts. Where a husband and wife by a written agreement assign all their property and give power to pay enumerated debts and to pay the balance to the wife, it is not error to credit the assignee with $63.20 paid on an unenumerated debt of the husband, where the parties subsequently stated that all debts were to be paid and where the wife so informed the clerk at the auction sale.</p>

<p>1. Criminal law—verdict. A verdict of guilty of assault and battery and a judgment thereon cannot be sustained on a count charging assault with a deadly weapon.</p> <p>2. Criminal law—conviction on single count. A verdict of guilty on the second count of an information containing three counts, the second and third of which charge the same offense, is equivalent to an acquittal as to the others.</p> <p>3. Assault with deadly weapon—assault and battery. The statutory misdemeanor of assault with a deadly weapon is a different offense from assault and battery.</p> <p>4. Assault and battery—assault with deadly weapon. The element of battery included in the ofiense of assault and battery is not included in the offense of assault with a deadly weapon.</p> <p>5. Assault and battery—verdict. It would seem that a verdict of guilty of assault and battery might be sustained under a count charging assault with a deadly weapon and battery.</p> <p>6. Criminal law—correcting verdict. It is not the province of the court to correct a verdict by correcting the number of the count on which conviction is had.</p> <p>7. Assault and battery—verdict. A verdict of guilty of assault and battery acquits of a charge of assault with a deadly weapon.</p>

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

<p>Appeal from the Circuit Court of Shelby county; the Hon. J. C. McBbide, Judge, presiding. Heard in this court at the October term, 1911.</p>

<p>Error to the County Court of Coles county; the Hon. Chables A. Shuet, Judge, presiding. Heard in this court at the October term, 1911.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1911.

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1911.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Action in assumpsit on a note. Appeal from the Circuit Court of DeWitt county; the Hon. Fred C. Hill, Judge, presiding. Heard in this court at the October term, 1911.</p>

Action in assumpsit on written contract. Appeal from the Circuit Court of Pike county; the Hon. Habby Higbeb, Judge, presiding. Heard in this court at the October term, 1911. Certiorari denied by Supreme Court (making opinion final).

Action of covenant on a warranty deed. Appeal from the 'Circuit Court of Mason county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the October term, 1911.

Action in case for personal injuries. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1911.

<p>Error to the Circuit Court of'Coles county; the Hon William B. Scholfield, Judge, presiding. Heard in this court at the October term, 1911.</p>

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

Action in case for malpractice. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the April term, 1911.

<p>Error to the Circuit Court of Edgar county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Action on a policy of insurance. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Executors and administrators—sufficiency of declaration in action on bond. Where a husband as administrator of his wife’s estate gives bond to account for the proceeds of real estate sold to pay debts in a suit thereon by heirs, a declaration in substance averring such sale and that out of the proceeds the husband paid a certain sum of his personal debts on which his wife was surety, and that he has failed and refused to inventory and charge himself with that sum as due from himself to the estate, is not demurrable.</p> <p>2. Judgments—when approval of administrator’s report is not res adjudicata of his liability. Where a wife signs notes as surety for her husband and he as administrator allows them as claims against her estate, and the Probate Court approves his report without being informed of his primary liability on the notes, there is no adjudication which will preclude heirs suing on a bond given by the administrator to account for the proceeds on a sale of real estate.</p> <p>3. Executors and administrators—charges. A husband being financially able to pay notes that his wife had signed as surety for him, paying as administrator such debts out of the proceeds of his wife’s real estate, should charge himself with such sums.</p> <p>4. Executors and administrators—fraudulent payment of personal debts. Where a wife signs notes as surety for her husband, he cannot sell her real estate and pay the notes and then inherit as personal property the claim of the estate against him on the notes, but he must account to the heirs who would have inherited a portion of such real estate.</p> <p>5. Descent—when estate descends subject to debts. On the death of a wife her estate descends to her heirs subject to the payment of her debts, but not her husband’s debts, and after payment of her debts the division of the estate among the heirs should be made; and its descent is regulated by the nature of the estate at the time of her death.</p> <p>6. Executors and administrators—approval of report. An order of the County Court approving an executor’s report, declaring the estate settled and discharging the executor, has the effect only of closing the account up to the time the report is approved, and is void as to unsettled matters of the estate.</p> <p>7. Executors and administrators—discharge. The approval of the final report of an administrator does not operate to discharge him as administrator.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the April term, 1912.

<p>1. Criminal law—instructions. It is reversible error to single out in an instruction in a criminal case and lay specific stress upon particular statements and acts of the defendant where the defendant denied such statements and acts.</p> <p>2. Criminal law—instructions. An instruction in a criminal case that the jury may disregard the statement of all' witnesses who had been successfully impeached, except in so far as such witnesses have been corroborated by other credible evidence, is improper where they' are no other instructions explaining the meaning of “successfully impeached,” and is also bad for the further reason that it would authorize the exclusion of evidence where the witness was only impeached on an immaterial question.</p> <p>3. Criminal law—instructions. It is reversible error to refuse a properly worded instruction on the presumption of innocence on the part of a person charged with a crime and as to the impartial consideration of his testimony.</p> <p>4. Criminal law—instructions. It is reversible error to refuse a properly worded instruction that the question of guilt or innocence of the defendant should be determined solely upon the evidence adduced upon the trial and the instructions of the court.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the November term, 1910.

<p>1. Fraud—sufficiency of declaration. , A declaration hy the buyer of an automobile alleging that the seller falsely and fraudulently warranted the machine to be as therein stated, the falsity of the warranty; that the same was made with the intention of inducing the purchase; that the seller had knowledge as to the falsity; that the buyer relied thereon and suffered injury, substantially presents all the essential elements of fraud and deceit.</p> <p>2. Fraud—ignorance of false warranty. Where the buyer of an automobile claimed that certain warranties were false, his ignorance of the falsity of the warranties may he inferred from the fact that he relied thereon.</p> <p>3. Fraud—waiver of defect in pleading. A defendant in fraud, pleading to an inartificially drawn count after demurrer is overruled, cannot thereafter complain of its informality.</p> <p>4. Fraud—aider by verdict. A good cause of action in deceit stated in a faulty manner may he cured by the verdict.</p> <p>5. Principad and agent—binding effect of agent’s false statements to buyer. Where an agent of an automobile manufacturer falsely states that the car has a certain capacity and is as good as a car of a certain make and that it is impossible to tell where the tonneau is joined to the rest of the body, such representations are binding upon the manufacturer in an action of deceit.</p> <p>6. Fraud—instruction omitting essential requirements. An instruction by a buyer of automobile, suing in deceit, peremptory in form, setting out certain false representations, that omits to state that the representations must have been fraudulently made for the purpose of inducing the purchase, and that the plaintiff must have relied upon such representations and have been deceived and damaged, is improper.</p>

Action in case for damages for killing of horse. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1911.

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

<p>1. Contracts—construction of Tetter from charitable organization engaging operatic society. Where a charitable organization is to give an entertainment and its president writes to the president of an operatic society, “we understood that the society is to be paid nine hundred dollars which would include the payment of the chorus for the rehearsals, their payment for the two performances coming from the proceeds,” the comma between “rehearsals” and “their” does not indicate that the society is to be paid absolutely if the money is not realized, in view of the fact that the other party is a charitable organization.</p> <p>2. Contracts—evidence not showing a meeting of minds. An agent of a charitable organization negotiated with the president of an operatic society as to the giving of an entertainment, and the president desiring a confirmation informed the president of the organization that he expected a certain sum whether it was realized by the entertainment or not. In reply he was informed that there was no such understanding but that the society was to be paid a certain sum, which would include payment to the chorus for the rehearsals, their payment for the performances coming from the proceeds, and that all expenses were to be paid from the proceeds and the surplus to go to the charity. Held, there was no meeting of the minds to constitute a contract to pay the sum if it was not realized.</p>

<p>Appeal and error—when decree dissolving partnership will he sustained,. Where the controversy between partners in a suit to dissolve a partnership and for an accounting is one of fact, and the decree is sustained by the evidence, it will be upheld.</p>

<p>1. Partnership—principal and agent may cancel contract without regard to agent’s partner. Where a paving company gives an agent exclusive sales rights, the parties may terminate the contract even though the principal has knowledge that the agent had formed a partnership for the purpose of making sales.</p> <p>2. Peincipai, and agent—commissions denied where contract is against public policy. Where a paving brick company gives an exclusive agency, for the sale of its brick to a city, to a person who forms a partnership with the wife of the official city brick tester, it appearing that the official was the real partner and not his wife, the agency contract is against public policy, and commissions on sales cannot be recovered.</p> <p>3. Principal and agent—when pleadings need not disclose contract was against public policy. Where a paving brick company gives an exclusive agency, for the sale of its brick to a city, to a person who forms a partnership with the wife of the official city brick tester, it being claimed that such official was the real partner, in an action for commissions on sales it is not necessary that the pleadings disclose that the transaction was against public policy.</p>

<p>1. Appeal and error—effect of absence of bill of exceptions. In an action of assumpsit the absence of a bill of exceptions may preclude the consideration of various assignments of error other than error in overruling a motion in arrest of judgment.</p> <p>2. Fraud—when motion in arrest of judgment will not lie. Where a declaration in assumpsit avers that the defendant sold the plaintiff an interest in bis ticket brokerage business for a certain sum upon representations that the business was paying a certain income when it was paying an income greatly less, and that the defendant knew he was enjoined from continuing the business of selling certain tickets and withheld the fact, a motion in arrest of judgment is properly overruled.</p>

<p>1. Master and servant—averment of due care. In an action by an employe for injuries sustained through negligence of the employer, it is necessary to aver in the declaration that the employe at the time of the accident was in the exercise of due care and caution for his own safety.</p> <p>2. Master and servant—proof of due care by habits. Where there are no eyewitnesses to an accident to a servant resulting in death, due care and caution may be proved by evidence that the habits of the deceased, as to carefulness and caution, were those of a careful man.</p> <p>3. Master and servant—when evidence of due care is not sufficient. In the absence of eyewitnesses in attempting to prove that a servant killed in an accident was a careful man, a witness testified that as far as he observed the deceased appeared to be careful, but it did not appear that the witness had had opportunities of acauiring knowledge. Two witnesses gave positive testimony that the habits of the deceased were careless. Held, there was no justification for a finding the deceased was habitually prudent, cautious and temperate.</p> <p>4. Master and servant—choosing a dangerous instead of a safe route. A malting company habitually moved empty grain cars by bumping loaded cars against them. A servant permissively going on errands for fellow-servants was familiar with the situation and was ordered not to use the route he did. In using this route he was crushed between an empty car, that he must have known was empty, and a loaded car. There was no eyewitness, no evidence that he was known to be in danger and evidence as to his habits of care was conflicting. Held, he was guilty of contributory negligence as a matter of law.</p> <p>5. Master and servant—absence of negligence by master where servant voluntarily chose a dangerous route. A malting company habitually moved empty grain cars by bumping loaded cars against them. A servant permissively going on errands for fellow-servants was familiar with the situation and was ordered not to use the route he did. In using this route he was crushed between an empty car, that he must have known was empty, and a loaded car. There was no eyewitness, no evidence that he was known to be in danger, and evidence as to his habits of care was conflicting. Held, the master, as a matter of law, was not negligent.</p> <p>6. Master and servant—contributory negligence as the proximate cause as a defense. Where a servant permissively going on errands for fellow-servants is crushed between railroad cars used by his master, the servant acting at the time in disregard of an order not to use such dangerous route; that the order was habitually disregarded will not preclude his contributory negligence from being the proximate cause of his death, and such negligence may be availed of as a defense.</p>

<p>Appeal from the Superior Court of Co ok county; the Hon. Mabcijs Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Fostbb, 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>Action of replevin. Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Brokebs—commissions on lease. Where an owner expressly stipulated that he would pay no commissions to a broker until a deal, the making of a ninety-nine year lease, went through, the broker is not entitled to commissions until a lease or valid contract to execute a lease is entered into between the owner and the party procured.</p> <p>2. Bbokebs—terms that proposed lessee must meet. Where an owner informs an experienced broker of the amount of rent and value of improvements that will be demanded on a ninety-nine year lease of valuable property, such terms do not constitute the entire advance terms; and a broker securing a party able, ready and willing to meet such terms is not entitled to commissions unless the proposed lessee enters into a binding agreement as to other particulars that are as essential to a ninety-nine year lease as the rent and buying of improvements.</p>

<p>1. Building and construction contracts—improper performance. Where a subcontractor lays cement floors and it appears from the evidence that the floors were poorly laid; that the cement did not bond, and that the work and materials was full of voids and that it quickly cracked to pieces; that the architect ordered the floor torn up and replaced; and that the contractor expended in replacing the floor and in paying for the subcontractor’s material an amount equal to the contract price, a verdict for the contractor will not be disturbed.</p> <p>2. Building and construction contracts—supervision not a •waiver of improper performance. "Where a subcontractor defectively lays cement floors, that the contractor’s foreman or superintendent watched the progress of the work and made no complaint will not be a waiver nor constitute an estoppel.</p> <p>3. Building and construction contracts—waiver of defects not admissible under declaration alleging performance. Where it is Claimed that a subcontractor laid cement floors defectively, under a declaration in an action against the contractor alleging proper performance, waiver of defects cannot be proved.</p> <p>4. Appeal and error—necessity of proposition of law to save question for review. Where a subcontractor defectively lays cement floors and no propositions of law on a non jury trial are presented as to whether the defects were waived, the question of waiver cannot be urged on appeal.</p> <p>5. Building and construction contracts—proof necessary to recover on quantum meruit. "Where "a subcontractor performed his work in an improper manner, so that the greater part of certain cement floors had to be replaced, in an action against the contractor he cannot recover on a quantum meruit for the properly performed work if there is no proof as to the value of suc'h work.</p> <p>6. Appeal and error—necessity that objection to evidence be specific. Where a contractor is compelled to relay cement floors that have been defectively laid by a contractor and introduces evidence of the market value of the material used in relaying, objection that the witnesses were not qualified to testify to such market value will not be considered where the only objection made to such evidence was that the price of material was immaterial under the issues.</p> <p>7. Building and construction contracts—right to use night labor in replacing defective worts. "Where a subcontractor defectively lays cement floors so that they have to be replaced, the contractor may use night labor, costing more than day labor, in replacing the defective work where the subcontractor had had time and opportunity to lay the floors in acccordance with the terms of ■the contract.</p>

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

<p>Good will—when purchaser not enjoined from, incorporating company using name of bankrupt. Where a business of supplying remedies for the hair and scalp is made valuable by advertising and can be conducted by clerks filling orders by supplying labeled packages of uniform size and shape, it is a business of a commercial and nonprofessional character; and on a sale of the business and good will by a trustee in bankruptcy an incorporation of a company, using the name of the bankrupt with the addition of the word “company,” to take over the purchase cannot be enjoined by the bankrupt.</p>

<p>1. Judgment—when transcript of, rendered 'in justice court cannot he filed. Chap. 79, Art. XII, Sec. 135, relative to the filing of transcripts, does not permit a transcript of the judgment in a justice court to he filed so as to continue the same in force where a new judgment on the motion of the party receiving such prior judgment has been rendered in the Circuit Court on the same cause of action.</p> <p>2. Judgment—effect of, rendered hy Circuit Court on appeal from justice court. A judgment rendered-by the Circuit Court on appeal from a justice court is a new judgment and does not operate as an affirmance, if rendered for the same party, of the judgment rendered in the justice court.</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>Appeal from the Municipal Court of Chicago; the Hon. W. H. Dietrich, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Instbuctions—elements necessary when verdict is directed. An instruction which directs a verdict for the plaintiff if certain facts are found should include all the elements necessary to sustain the cause of action.</p> <p>2. Death—when presumed that widow suffered pecuniary loss. Pecuniary loss to the widow of a teamster killed in a railroad accident, though not shown by the record, will be presumed.</p> <p>3. Instructions—when reversible error. In an action for wrongful death, an instruction directing a verdict is reversible error, where it does not require a finding that the deceased was in the exercise of due care at the time of the accident and states that damages may be awarded for pecuniary loss to the next of kin, when one of the chief elements of the case was proof of want of contributory negligence and when there is nothing in the record to show that the next of kin suffered damages.</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. Special interrogatories—when refusal not reversible error. An Appellate Court will not reverse the judgment of the court he-low because of its refusal to give special interrogatories, where if such interrogatories h^d been given and answered in favor of the party propounding them they would not have controlled the general verdict because of the fact that such interrogatories did not reach all the good counts in the declaration supported by evidence.</p> <p>2. Special interrogatories—when trial court need not submit. The trial court is not required to submit special interrogatories unless they relate to ultimate facts of such character as to control a general verdict.</p> <p>3. Negligence—when manufacturer liable to third person for injuries sustained, because of defects in construction of machinery. A firm holding itself out to be the manufacturer of certain saw frames and representing the same to be perfect, safe and thoroughly tested is liable for injuries sustained by an employe of the purchaser of such saw frames by the explosion of a balance wheel which was improperly cast, resulting in a weakened and porous condition.</p> <p>4. Damages—when not shown to be excessive. The mere fact that the income on the damages awarded by a jury in a personal injury case would be more than twice the earning capacity of the plaintiff at the time of the injury does not show that such verdict is excessive, as the mental and physical suffering, the crippled condition of the plaintiff and the fact that his earning capacity might have increased are all elements to be considered in estimating damages.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Masteb and servant—when machine is not defective. It cannot be maintained that a metal punching machine is improperly or defectively constructed where the evidence satisfactorily shows that the construction and use of the machine in the respects complained of was usual and like that of similar machines used in other establishments.</p> <p>2. Master and servant—when evidence of negligence in furnishing defective punching machine is insufficient. Where it is contended that the tail stock of a metal punching machine contained no set screw for holding a die and the evidence shows that there had never been a set screw since the injured servant was employed; that prior thereto the use of one had not been satisfactory; and the contentioh that the shoulder of the tail stock had worn away, allowing a die to become tilted, is directly contradicted by the only witness who testified upon the point; it further appearing that the machine was such as was customarily used in other shops, there is no evidence of negligence on the part of the master.</p> <p>3. Master and servant—when rislc of using defective punching machine is assumed. An experienced boilermaker, familiar with a metal punching machine, was struck in the eye by a flying piece of steel while operating it. The steel was not from the metal being punched and it did not appear where it came from or what was the cause of its flying off, the plaintiff contending that a die became loose and out of alignment with the punch, which struck it, causing the splinter to fly off. The die had become loose several times that day and was fixed by the plaintiff and a small hand-wheel was provided for moving the punch up to test the proper alignment. The handwheel was not used by the plaintiff and at the time of the injury he was operating the punch continuously at forty strokes a minute. Held, the plaintiff assumed the risk.</p>

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

<p>Appeal from 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>Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Soanlan, 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. Abthub H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Death—liability of owner of premises. In an action for death caused hy a fallen electric wire, an instruction that no recovery can be had against the owner of the premises on which the injury occurred and for whose use the electricity was supplied, if the sole cause of the accident was defective insulation, is proper where deceased was employed thereon by an independent contractor and where the alleged defective insulation was caused by another independent contractor.</p> <p>2. Electricity—when negligence not presumed. There is no presumption of negligence against the owner of premises on which plaintiff’s -intestate was working when a wire, through which electricity was conducted for the sole use of the owner, broke and fell to the ground, deceased having been employed by an independent contractor and the wiring having been done by another independent contractor.</p> <p>3. Master and servant—when owner of property liable to employes of independent contractor. Owners of property are only liable for injuries to employes of independent contractors when they participate in the negligent act or where there are latent dangers on the premises which cause the injury which are known to them but are unknown to the contractor or employes.</p> <p>4. Death—directed, verdict. In an action against the owner of property for the wrongful death of an employe of an independent contractor caused by the breaking of an electric wire, on the ground that the wire was on such owner’s property and was used solely to supply electricity to such owner, a verdict should be directed for the defendant where the wire was placed in the position it occupied on request of deceased’s employer and another independent contractor, and where deceased was warned of the danger and where the injury was caused by the negligence of fellow employes of deceased.</p>

<p>1. Equity—necessity of averments to support proof. A party is not entitled to relief, though the evidence may establish a clear right to such relief, unless there are averments in the bill to support the case made by the evidence.</p> <p>2. Mobtgages—when hill of foreclosure must allege complainant is entitled to rents. Where a bill to foreclose a deed of trust contains no allegations as to rents collected by a receiver of the premises until the expiration of the period of redemption and does not pray for an accounting or a decree respecting them, such rents cannot be decreed to the complainant.</p> <p>3. Mobtgages—right to rents during redemption period. Where a deed of trust pledged the rents from the premises, but not during the redemption period, and provided that they should be paid to the purchaser on foreclosure until the expiration of the period of redemption, and on foreclosure a receiver is appointed to collect the rents until the expiration of such period, and the premises are sold under a decree to the grantee of the trust deed, the decree not disposing of the rents in any manner, the owner of the equity of redemption, not made personally liable for the incumbrance by the decree, is entitled to the rents collected by the receiver after the sale.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Eablin Q. Ball, 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. Chables M. Walkee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Municipal coubts—when stenographic report must he presented. A stenographic report must be presented to the judge of the Municipal Court of Chicago for signature within thirty days from the date of the judgment.</p> <p>2. Municipal coubts—effect of holiday on time for presenting stenographic report. That the last of thirty days from the date of a judgment in the Municipal Court of Chicago was a- legal holiday under the Negotiable Instrument Act, as amended in 1909, does not affect the provision that a stenographic report must be presented to the judge for signature within such thirty days.</p>

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

<p>1. Appeal—when not dismissed where insufficient abstract of record. Although the abstract of the record filed In an appeal from a divorce decree is insufficient under the rules of the court, such appeal will not be dismissed as the public has a substantial interest in the case.</p> <p>2. City Court—process cannot extend beyond limits of city. A City Court has no power to send its process beyond the territorial limits of the city in which it is established.</p> <p>3. Divobce—void process not valid as a constructive service. A voi.d process served on the defendant in a divorce proceeding cannot he held a valid constructive or substituted service.</p> <p>4. Divobce—jurisdiction. The statutes must be followed strictly to secure jurisdiction in a divorce proceeding.</p> <p>5. Divobce—appearance. A special appearance and plea do not give a court general jurisdiction of the defendant in a divorce proceeding.</p>

<p>1. Injunctions—appeal. An appeal from an interlocutory injunction does not remove the entire cause from the lower court but only the order appealed from, and on reversal a remanding order is unnecessary.</p> <p>2. Injunctions—damages. Where an order granting an interlocutory injunction is reversed by the Appellate Court, a suggestion of damages may be made in the trial court though there is no remanding order.</p>

<p>1. Appeal and ebror—correction of transcript incorrect through a misprision of cleric. Where the record of a trial court is corrected after the transcript is filed on appeal hy an order of the trial judge reciting that the original record was incorrect through a misprision of the clerk of the court and that it was corrected on inspecting his written minutes and the records and files of the court, it is proper to make the correction and proper to show it hy an additional transcript on appeal.</p> <p>2. Evidence—when evidence of telephone conversation is inadmissible. It would seem that the evidence of a witness as to a telephone conversation may he stricken if the identity and authority of the person at the other end of the wire is not sufficiently established.</p>

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

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

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

<p>Sales—damages where one of two articles is defective. On a contract to make an artificial leg satisfactory to the purchaser and to furnish a temporary artificial leg, for which legs a certain amount was paid with an agreement to pay an additional larger amount when the permanent leg was finished, if the temporary leg is painful and unsatisfactory and suit is brought for the amount paid, even if the plaintiff is liable on defendant’s claim of set-off for the larger amount to be paid, he is not liable for the entire contract price.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Abitold Heap, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding. Heard in this court at the March term, 1910.</p>

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

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

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

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

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

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

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

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

<p>Release—when release sufficient to lar action for injury. A passenger on a street car received a scalp wound from a falling trolley shank. The following day a representative of the railway company on learning that his wages were from $2.40 to $2.60 per day, stated that he would not he incapacitated more than ten days and offered him $25. He receipted therefor and signed a release from liability. His wife and daughter were present at times during the conversation. The passenger was not in the employ of the company. He alleged that he thought that the payment was for wages and that the papers were receipts and that he was dizzy and could not see during the transaction. The signatures did not indicate that he was suffering from dizziness or want of sight. He could read and write and seemed reasonably intelligent. The releases were brief and plainly written. Bight witnesses testified that he subsequently stated that he had settled with the company. Held, the release barred action for the injury.</p>

<p>1. Appeal and error—presumptions.. It will be presumed on appeal that a chancellor considered only proper evidence.</p> <p>2. Creditor’s bill—not denied though judgment creditor and beneficially interested. A judgment creditor will not be denied the right to bring a creditor’s bill because he is not beneficially interested.</p> <p>3. Judgments1—effect of appeal from order removing stay of execution. Where an appeal from an order removing an order staying execution has been perfected, the stay is revived.</p> <p>4. Judgments—when entitled to priority over homestead. A judgment lien antedating a homestead is entitled to priority.</p> <p>5. Judgments—doctrine of inverse order of alienation applies. Property acquired and sold by a judgment debtor subsequent to a sale of other property held by .him is the first subject to the satisfaction of the judgment lien.</p> <p>6. Judgments—priority of lien. A chancellor’s decision that a judgment lien is to be given priority over a trust deed of certain premises purchased by the judgment debtor subsequent to the rendition of the judgment will not be disturbed when all the circumstances taken together justify the inference of an attempt to delay creditors.</p> <p>7. Appeal and error—argument. A printed argument which is in parts flippant and in passages abusive of opposing counsel is improper.</p> <p>8. Judgments—time of judgment lien. "Where execution is stayed one month and eighteen days after judgment and thereafter an erroneous order allowing execution is issued, but in one month and three days an appeal is taken from such order and it is reversed but the cause is remanded to the Superior Court with directions to enter a judgment order which will remove the stay, there are nine months and ten days during which the judgment lien remains without the issuance of an execution.</p> <p>9. Judgments—duration of lien. Where execution was stayed and a subsequent order allowing execution was appealed from and reversed but the case was remanded with directions to enter a judgment order which would remove the stay, the matter is not complicated by the fact that an unauthorized memorandum of a judgment which was never entered was added and a void execution violating the stay order issued and void proceedings had thereon, and the party against whom the original judgment was had, at whose instance the unauthorized memorandum and proceedings were expunged, cannot complain of it.</p> <p>10. Creditor’s biel—deposits in court. The rights of a complainant on a creditor’s bill are not affected by an agreement on conveyance of homestead property, whereby money was to be held in escrow for the defendant subject to the judgment lien, and a clause of the decree is correct which orders the holders of such money who tendered it into court to pay it to the complainant.</p>

<p>1. Principal and agent—evidence of agent’s authority to contract. Where a principal suing a sales agent, who has repudiated his contract of employment, contends that the principal’s representative, who signed the contract, had only special limited authority, a letter from the principal answering an inquiry as to the authority, stating that the representative “has a contract with us giving him authority to make and sign contracts for this company,” is competent evidence as tending to show a general authorization.</p> <p>2. Principal and agent—when contract of employment is evidence of agency. A contract headed “Agency Contract” providing that a salary he paid a sales agent; that the principal shall provide circulars, naming the minimum amount of sales that shall he made, giving an optional right to cancel the contract, providing for the price on sales; that the agent shall purchase a certain number of articles which will be repurchased if not sold; and that the agent shall have the right to collect all moneys for sales, remitting the surplus after deducting his salary, established a relation of principal and agent and not of vendor and vendee.</p> <p>3. Principal and agent—when contract of employment is obtained by fraud. Where a representative of a company employs a sales agent to sell fire extinguishers under a contract that the agent shall canvass the territory through subagents and shall purchase a certain number of extinguishers, and the representative offers to canvass certain cities and sends in orders that the agent believed were bona fide but were made upon the same form as the agent’s, contract and payment is refused by the parties, there is some evidence that the employment contract was obtained by fraud chargeable to the principal, and the agent may repudiate the contract and return the extinguishers.</p> <p>4. Appeal and error—instruction should be abstracted in full. On abstracting an oral instruction it should be set out in full.</p> <p>5. Appeal and error—necessity of objections and exceptions. An oral instruction will not be reviewed if no objections or exceptions thereto are preserved in the record.</p>

<p>1. Appeals and errors—order to return incorrect certified copy of judgment is not appealable. An order requiring the attorney for defendant to return a certified copy of a judgment, on the ground that such copy is incorrect, does not purport to change the judgment entered, does not tend to affect the merits of the cause and is interlocutory and not appealable.</p> <p>2. Dismissal and nonsuit—when order reciting nonsuit may be corrected. Where an order reciting that a plaintiff elects to take a nonsuit entered a judgment which seemed to determine the merits of the case in favor of the defendant, the court on examining the record, files and minutes may enter an order correcting the former one so as to show no such determination.</p> <p>3. Appeal and Essos-^when bill of exceptions necessary to review order correcting incorrect order. An order, correcting an order reciting that a plaintiff elects to take a nonsuit, that enters a judgment which seems to determine the merits of the case in favor of the defendant may be affirmed, if a bill of exceptions is not filed.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torbison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>1. Chancery—maxims. The maxim that persons seeking relief in equity “must do so with clean hands” does not apply where the parties are brought in on interpleader and on dismissal of the complainant and decree for one of the parties the other appeals.</p> <p>2. Mortgages—ownership of certificate of sale on foreclosure. Where real estate dealers paid the cost of foreclosure proceedings and the certificate of sale was in the possession of their lawyer or of themselves practically all of the time and only in the possession of their agent for a few minutes, and such agent gave them an assignment of his title to any certificates standing in his name, such facts tend to show that the dealers owned the certificate and that it was taken in the name of the agent for convenience, though one of the dealers testified falsely in the foreclosure proceedings that the agent owned the note.</p>

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

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

<p>1. Administration—attorney’s fees. In determining what is a reasonable allowance for attorney’s fees the inquiry should be as to the usual charge.</p> <p>2. Evidence—competency as to attorney’s fees. Testimony of reputable attorneys as to the reasonable fee, though not based on the usual and customary charge, for attorney’s services is competent.</p> <p>3. Attorney’s fees—how reasonableness may be determined. A court may form an independent judgment, based on its own knowledge and the testimony of two reputable attorneys, as to what is a reasonable attorney’s fee though there is no testimony as to what is the usual and customary charge.</p>

<p>1. Master and servant—oil tank car. It is negligence on the part of the owner of an oil tank car to order an employe to test such tank, which is in a weak condition, with air pressure, when there is stearin therein.</p> <p>2. Master and servant—assumption of risk. An employe does not assume the risk of dangers known to the employer or which, by the exercise of reasonable care, could have been known by the employer, or which could have been avoided by the employer and which are unknown to the employe.</p> <p>3. Master and servant—assumption of risk. Where one employed as a boilermaker is ordered to repair an oil tank, the walls of which are lined with stearin, he does not assume the risk of explosion, resulting from chemical action produced by air pressure used in testing the tank, on the stearin, when he did not know of such risk.</p> <p>4. Evidence—admissibility of custom. In an action to recover for injuries sustained as a result of the explosion of an oil tank; while it was being tested, it is not reversible error to permit the plaintiff to introduce evidence as to the customary way to test tanks, where the defendant first introduced the subject on cross-examination and later-produced the same kind of evidence on the defense.</p> <p>5. Evidence—expert testimony. A trial judge does not abuse his discretion by permitting expert witnesses to be asked, in a suit to recover for injuries sustained by explosion of an oil tank, whether the application of air into the tank was reasonably safe or not.</p> <p>6. Appeal and error—harmless error.' Where a person offering an instruction is not injured by its refusal he cannot assign error thereon.</p> <p>7. Instructions—basis on evidence. An instruction on the effect of latent or hidden defects is properly refused where there is no evidence on which to base it.</p>

<p>1. Electricity—master and servant. Where a lineman has been injured by an electric shock alleged to have been caused by an uninsulated feed wire coming in contact with a wet pole, it is a question of fact for the jury to determine whether such construction constituted negligence on the part of the defendant.</p> <p>2. Telephones—maintenance of feed wires. Where a telephone company is informed by its superintendent of construction that a certain high voltage feed wire is in a dangerous condition, it is culpable negligence to permit it to remain in that condition for four more days.</p> <p>3. Master and servant—assumption of risk. Whether a lineman' employed as a “trouble-shooter” assumed the risk attending the faulty construction of a feed wire, on the ground that from the nature of his work he should have observed its condition, is a question for the jury.</p> <p>4. Master and servant—contributory negligence. Whether a lineman employed as a “trouble-shooter” is guilty of contributory negligence in climbing a pole without inspecting the construction of a feed wire is a question for the jury.</p> <p>5. Master and servant—ordinary and usual risk. The danger attending a loose feed wire coming in contact with a wet pole is not ordinary and usual risk of a “trouble-shooter's” employment, unless he knew of it or was chargeable with knowledge.</p> <p>6. Pleading—variance. A count which alleges that a wire was not insulated is supported by evidence which shows that although there was a “weather-proof insulation” it was not “man-proof.”</p> <p>7. Pleading—aider by verdict. Though a count, predicated on the duty of an employer to furnish an employe a reasonably safe place to work, does not allege that the employe did not have equal means of knowing the matters of which it is alleged he was ignorant and that the exercise of ordinary care would not have disclosed to him the condition complained of, such defect is cured after verdict where there is evidence tending to substantiate such allegations had they been made.</p> <p>8. Instructions—assumption of risk by lineman. An instruction to the effect that if the plaintiff, a lineman, who was injured by an electric shock, by the exercise of reasonable diligence, etc., could have observed and noted the condition of the phase wire with reference to the pole, then he assumed the risk, etc., is not assignable as reversible error because the court added “and the' danger thereof, if any,” after the word “condition.”</p> <p>9. Instruction—on preponderance of evidence. It is not error to strike out the words “although but slightly” from an instruction to the effect that if the jury found the evidence bearing upon the material issues preponderated in favor of the defendant, “although but slightly,” the plaintiff could not recover.</p> <p>10. Evidence—expert. It is not reversible error to exclude questions that call for expert opinions where the evidence will enable the jury to form an opinion for itself.</p> <p>11. Trial—conduct of counsel. The fact that counsel insists upon repeating prejudicial questions after the court has sustained' objections to questions of similar import is not ground for reversal where the court cannot say that such conduct influenced the verdict.</p>

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

<p>Sales—damages for non-delivery. In an action to recover the price of malt delivered under a contract, where the buyer refused to accept future shipments under the contract because the quality was_ not as represented, he cannot claim a verdict for plaintiff was against the manifest weight of the evidence because but a small part of a set-off was allowed, where such set-off was based mainly on the excess of the market price over the contract price on the , undelivered malt some time after defendant refused to accept it and where it further appeared that the period during which deliveries could have-been made would not expire, for several more months.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Action on a replevin bond. Error to the Municipal Court of Chicago; the Hon. Max Eberhabdt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Criminal law—contributing to delinquency of female child. A conviction of knowingly and wilfully contributing to the delinquency of a female child under age of seventeen years, on hearing without a jury will be reversed where the state’s evidence shows that the child was not a delinquent and where the record contains nothing to show guilt of the offense charged.</p>

<p>Error to the Muncipal Court of Chicago; the Hon. Edward A. Dickeb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Husband and wife—when evidence insufficient to show wife abandonment. A conviction under the Act of 1903 for abandonment and nonsupport of a wife is not sustained where the husband denies the charge and proves an uncontroverted, distinct and specific offer to provide for his wife, and further proves a sufficient cause for abandonment that is not denied by his wife.</p>

<p>Indemnity—when premium on indemnity dond is earned. Where an ordinance permitting a person to lay a switch track provides that it is to take effect upon its acceptance and the filing of an indemnity bond to the city with the city clerk within a certain time, which is done, the granting of a permit by the city clerk is not a condition precedent to its taking effect, and the refusal of the clerk to grant a permit will not preclude the collection of a premium earned by supplying the bond, the premium being “for the life of the bond.”</p>

<p>Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Error to the Criminal Court of Cook county; the Hon. George Kersteet, Judge, presiding. Heard in the Branch Appellate Court at the .October term, 1911.</p>

<p>Error to the -Municipal Court of Chicago; the Hon. Edward A. Diokee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

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

<p>1. Compromise—effect. Where a compromise agreement concerning disputed matters pending litigation is entered into in good faith, neither party can go back of the agreement and inquire into the merits of the original controversy.</p> <p>2. Compromise—validity. In an action on a bill of exchange given pursuant to a compromise agreement concerning the amount due, the fact that prior to the compromise an agent of one of the parties had directed an agent of the other to apply part of a certain draft to the credit of an account covered by the agreement is not conclusive as to the invalidity of the agreement.</p> <p>3. Corporations—notice of order by agent. A company is chargeable with notice of an. order given by an officer and agent thereof to another company.</p> <p>4. Compromise—when valid. A bill of exchange given pursuant to a compromise as to money due is valid if the compromise was entered into without actual or constructive fraud though the claim could not have been enforced.</p> <p>5. Compromise—fraud. No fraud invalidating a compromise of a disputed amount due on account can be predicated upon the' contention by one party that it had not been directed to apply a certain payment to the account where the other party at the time of the settlement knew of such contention and knew that the application had not keen made.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Geobge A. Dubuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p> <p>Certiorari.denied by Supreme Court (making opinion final).</p>

<p>Exemptions—burden on whom, to show wages are exempt. The . burden under the general exemption law is on the garnishee or judgment debtor to show that wages are exempt by proof that such judgment debtor does not have property to exceed in value the amount exempted.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, pro Siding. Heard in the Branch Appellate Court at the March term, 1910.

<p>1. Brokers—commissions. The verdict of a jury awarding a broker one-half of the commission realized on a sale of stock will not be disturbed where, under conflicting evidence, the broker claimed, the agreement called for half and defendant claimed that nothing was said in regard to the amount of commission.</p> <p>. 2. Accord aetd satiseactioet—what does not constitute. The retaining of a check by a broker for services will not constitute an accord and satisfaction where good faith is lacking on the part of the principal or where there is no afiirmative proof that the check was tendered in full payment of the claim.</p> <p>3. Brokers—commissions. Where conflicting evidence tends to show that a broker suggested certain parties as prospective purchasers and a sale resulted therefrom, the verdict of a jury allowing his commission for finding a purchaser will not be disturbed.</p>