Volume 174 — Illinois Appellate Court Reports

<p>Error to the Criminal Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.</p>

<p>1. Contracts—what is preventing of performance. Where one party to a contract deliberately makes performance impossible by some act prior to the time for performance, such act is a prevention of performance.</p> <p>2. Contracts—performance. If one party to a contract shows that the other prevented performance, it is to be taken as prima facie true that he would have accomplished itiiif not so prevented.</p> <p>3. Contracts—implied obligation not to prevent performance. If one party contracts that another shall do a certain thing, he impliedly obligates himself to do nothing to hinder performance by the other.</p> <p>4. Sales—duty of seller when buyer hinders or prevents performance. Where a contract is made for the sale of specific automobile bodies but the buyer purchases them from the maker before the time for delivery, the seller is not required to ascertain whether such bodies can be bought elsewhere, or to buy them if any are found, simply to tender when acceptance would probably be refused and the buyer by his own act has prevented delivery.</p> <p>5. Sales—evidence that goods were satisfactory. Where a contract is made for the sale of specific goods but the buyer purchases from the maker, before time for the seller to deliver, the purchase is sufficient evidence that the goods were satisfactory.</p> <p>6. Sales—when buyer who prevents seller from, performing cannot claim, that seller had no contract with malcer of goods. If a contract is made for the sale of specific goods and the buyer purchases from the maker thereof, before time for delivery by the seller, but refuses to pay damages caused by the breach, the buyer is in no position to claim that the seller should not recover because he shows no binding contract with the maker to deliver to him, especially where such buyer threatened to sue the maker to prevent breach of the contract to deliver to the buyer.</p> <p>7. Damages—when defendant cannot object to award. A buyer cannot object to the damages awarded on action for breach of contract for the sale of goods because of the incompetency of evidence as to the measure thereof, where counsel for the seller stated and assumed by his questions that a certain town was the nearest market at which the goods could be bought and it was proved that the market price and cost price to the seller were the same but no objection was made that the proof failed to show the market price at the pr.oper date.</p>

<p>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. Judgments—when delay of attorney will prevent vacation of default judgment. A crowded condition of the hallways and elevators in a municipal court building, delaying an attorney, and the fact that he only received a statement of the claim a few minutes before the cause was called for trial, and was delayed in entering his appearance, are not grounds for vacating a default judgment where no showing is made as to when the attorney was employed or that he made his presence known to the court when he learned of the default.</p> <p>2. Judgments—negligence of attorney malting default will not be ground for vacating judgment. Where a judgment is entered by default on the nonappearance of an attorney, his negligence in waiting until a few minutes before court meets to enter an appearance will be imputed to his client and will prevent a vacation of the judgment.</p> <p>3. Judgments—diligence to be shown to cause vacation of judgment. Where proper diligence in entering an appearance is not shown, a judgment entered on a default thereon will not be vacated.</p>

<p>Mechanic’s lien. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Res judicata—settlement of estate. An administrator cannot set up the doctrine of res judicata as a defense to an action for attorney’s fees for services rendered in probating the estate, where he personally undertook payment of said claim after the probate court had entered an order approving his report and declaring the estate settled.</p> <p>2. Orders—nunc pro tunc cannot increase ad damnum. An order after judgment granting leave to increase the ad damnum, nunc pro tunc, as of the date judgment was entered is nugatory, since a nunc pro tunc order cannot supply the omission to make an order but only an omission in the record of an order.</p> <p>3. Judgments—in excess of ad damnum. A judgment which exceeds the ad damnum in the declaration or statement of claim does not justify a reversal where appellee is willing to enter a remittitur.</p>

<p>Error to the Municipal Court of Chicago; the How. Johw D. Tukwbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October, term, 1910.</p>

Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.

<p>1. Sales—motion to direct verdict. In an action to recover the price of a car of coal, it is error to direct a verdict where there is evidence of delivery, the mine weight, and selling price.</p> <p>2. Account stated—admission of correctness question for jury. It is a question for the jury as to whether holding an invoice a week, without objection, is an admission of its correctness.</p> <p>3. Account stated—account rendered. Where defendant receives an invoice for a car of coal purchased from plaintiff, and retains the same a week without objecting, it is to be regarded as prima facie correct and raises a question for the jury as to whether there is an account stated.</p>

<p>1. Sales—burden of proof as to warranty. In an action for the price of a mare, the buyer who claims she is not sound as warranted has the burden of proof.</p> <p>2. Appeals and ebboes—when court of review does not disturb judgment. Where there is doubt as to the evidence, and no errors of law, a judgment will not be disturbed.</p>

<p>Appeals and errors—findings of court held conclusive. The findings of a court sitting without a jury, held to be conclusive where they appear to be supported by the preponderance of the evidence.</p>

<p>Suit for penalty for violation of ordinance. Error to the Municipal Court of Chicago; the Hon. J. C. Scovel, 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>1. Chattel mortgages—rights of second mortgagee. The provision of a note, secured by a chattel mortgage, to the effect that the monthly payments shall be taken out of the monthly bills for livery furnished mortgagee, may be waived, and although such bills are applied on' other indebtedness existing between the parties, a second mortgagee cannot complain, since he has only a right to redeem from the first mortgagee.</p> <p>2. Chattel mortgages—mortgage on livery stable does not cover the business. The general proposition, that proceeds realized from specific property will be applied toward payment of indebtedness against such property, does not apply where a livery stable is under chattel mortgage, since the mortgage is only a lien on the livery stock and not on the business.</p> <p>3. Chattel mortgages—mortgagor may pay first mortgagee a commission. An agreement that a chattel mortgagor, a liveryman, shall pay the mortgagee a percentage of the gross income on a hearse and ambulance left at the stable, and a commission on business sent by him, is not fraudulent with reference to a second mortgagee.</p> <p>4. Chattel mortgages-—not fraudulent for first mortgagee to wait until entire debt is due. -While a chattel mortgagee has the option to declare forfeiture upon default in one of a series of payments, .he is not bound to act until the entire debt is due, and such delay is not fraudulent with reference to a second mortgagee.</p> <p>5. Chattel mortgages—new note does not release lien. In an action in chancery, by second chattel mortgagee against the mortgagor and first mortgagee, a new note taken by first mortgagee for balance unpaid will not be held to release the mortgage lien as to the unpaid part.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Jessb A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).

<p>Contracts—breach. Where defendant contracts to furnish and put in certain steps for plaintiff, who changes the plans whereby an additional step is required and dimensions of others are changed, refusal by defendant to perform without additional compensation is not a breach, but where plaintiff hires another, there is a breach for which defendant may recover if damaged.</p>

<p>1. Attachment—when personal judgment improper on special appearance being entered. Where a defendant not served with process in a nonresident attachment case files a special appearance for the exclusive purpose of pleading to the jurisdiction of the court and files an appropriate plea, the court is without power to enter a personal judgment against such defendant.</p> <p>2. Attachment—how jurisdiction of nonresident defendant may be acquired. Where there is no personal service on a defendant in a nonresident attachment case, and no general appearance, and the suit is dismissed, as to the garnishee, a levy on property of the defendant is the only way in which jurisdiction can be acquired to render a judgment even in re.m.</p> <p>3. Attachment—issues that may be tried under plea to jurisdiction. Where a corporation in a nonresident attachment case has been garnished, and the defendant enters a special appearance and a plea to the jurisdiction setting tip that he is a nonresident, has not been served with process, and has no property within the county, the guestions, whether Hurd’s Statutes, 1911, ch. 77, sec. 53, can be construed to authorize a levy of an attachment writ on a share of stock in the manner therein provided for the levy of an execution, and whether a certain return is sufficient to show a levy, are issues that may be tried out under the plea.</p>

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

<p>1. Appeals and errors—when affirmance will be ordered where instructions are irreconcilable. Where a contractor appeals from a judgment in a suit against a sanitary district and the instructions are so irreconcilable one with another that the jury could have received from them no proper conception of the law, the judgment cannot be affirmed unless the court concludes that no result more favorable to the plaintiff could properly have been reached.</p> <p>2. Appeals and errors—when inaccurate instructions not injurious. Technically erroneous instructions advising a jury that a contractor is not entitled to recover on certain claims are not injurious when such claims cannot be allowed.</p> <p>3. Building and construction contracts—when recovery cannot be had where approximate work in contract is not required. Where a contractor enters into an excavating contract with a sanitary district by bidding, the parties are dealing at arms length, and, on the actual quantity of earth being found to be less than the estimate, the contractor cannot recover a larger amount per cubic yard for excavating than was mentioned in the contract, where from the contract itself and other sources he could have determined himself the approximate amount of the entire excavation.</p> <p>4. Building and construction contracts—rights of contractor when changes are made. WThere a contract is made for a gross sum for the construction of a piece of work and changes are after-wards made in the material used, as to size or quality, the contractor may refuse to make the changes unless by the contract he is in terms required to do so, and may acquiesce in the forfeiture of the contract and recover upon a quantum meruit for the material furnished and his labor.</p> <p>5. Building and construction contracts—when provision in contract is unilateral. A provision in a contract between a sanitary district and a contractor that nothing in the contract shall be construed to affect the right reserved by the district to reject the whole or any portion of the work should the certificate to be given on completion be found to be inconsistent with the terms of the contract, or otherwise improperly given, is unilateral, and is not binding on the contractor.</p> <p>6. Building and construction contracts—when bill for extras is not binding on contractor. Where the purpose of a contract requiring a contractor to furnish a “hill for extras” is to advise defendant of the extra labor or material furnished, an instruction stating that no recovery could be had upon any claim for extra compensation not included within a claim for extras is erroneous in so far as it limits the amount of recovery to the amount claimed in an itemized “bill for extras.”</p> <p>7. Building and construction contracts — when instruction should apply to facts of the case. In an action to recover on a construction contract, an instruction merely reciting the provisions of the contract without applying them to the facts of the case should not ordinarily be given.</p> <p>8. Evidence—what proper in rebuttal. A trial court may in its discretion refuse to receive in rebuttal evidence properly receivable as part of a plaintiff’s case in chief.</p> <p>9. Evidence—when proper foundation is not laid for admission of record. Where a contractor is suing a sanitary district for additional compensation, a record of the time the contractor’s employees spent on the work, made by a sanitary district engineer from reports furnished him by his men, is not admissible in evidence when none of the men who furnished the information testified as to the correctness of their reports.</p>

<p>1. Pleading—when affidavit of merits of defense improperly stricken. Where the practice in. the Municipal Court of Chicago requires a defendant to set up his defense by an affidavit of merits and a rule of court provides that if a defense is “clearly unfounded in law” the affidavit may be stricken out, in an action for salary and commissions, an affidavit that the employee was discharged for cause on working for a competitor in violation of his contract and asking for a recoupment, alleging that the affiant does not know the “exact length of time during which the plaintiff sold goods for a competing firm,” nor the amount of goods so sold, should not be stricken.</p> <p>2. Municipal courts—right to assessment of damages by jury. If a defendant in the Municipal Court of Chicago pays the jury fee, he is entitled to have the damages assessed by a jury, even if the affidavit of merits is stricken, provided he demand that there be such an assessment by a jury.</p> <p>3. Master and servant—when employee working for competitor may be discharged. Where an employee contracts to devote his entire time to his employer and secretly sells goods of a competing firm, he may be discharged and is not entitled to either his salary or commission.</p>

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

<p>1. Cabbiees—when not liable for conversion. Where plaintiff has accepted and paid the freight at destination on several cars of watermelons consigned by him, he cannot afterwards maintain an action of conversion against the initial carrier for misrouting them.</p> <p>2. Bills of lading—parol evidence cannot vary. Parol evidence cannot be introduced to prove that carrier agreed to ship by a certain route, even though the agent of carrier erased words designating route before the bill of lading was issued.</p> <p>3. Bill of lading—when silent as to route. Where a bill of lading is silent as to route, it is as though there were a provision therein giving the carrier a right to select any usual route, and such provision thus inserted by law is as unassailable by parol evidence as any of- the express terms of the contract.</p>

<p>1. Attorney and client—no lien on fund acquired through suit. An attorney has no lien for legal services upon moneys coming into his possession through bringing suit for an administratrix, and the Attorney’s Lien Law of 1909 (R. S., c. 82, § 55), has no application.</p> <p>2. Attorney and client—right to contract with beneficiaries in action for wrongful death. Where an attorney receives money through an action for wrongful death brought in the name of an administratrix, he cannot retain the money for legal services by virtue of a contract made with some of the beneficiaries, and must account to the administratrix.</p> <p>3. Death—right of usees to control suit. All of the usees In a suit for damages on account of wrongful death cannot he bound by the action of one or more of them, less than the full number.</p> <p>4. Attorney and client—right to contract with employee appointed administrator. It is doubtful whether attorneys may cause an employee to he appointed administrator of an estate and then make a binding contract with such administrator fixing the amount of fees to be allowed them for their legal services.</p>

<p>1. Municipal courts—when partial invalidity of section of act does not destroy entire section. The fact that part of section 22 of the Municipal Court Act, relating to the filing of records on appeal, has been declared unconstitutional, does not render the entire provision relating to appeals unconstitutional.</p> <p>2. Appeals and errors—when appellee estopped to question defective hill of exceptions. An amendment to a bill of exceptions improperly allowed by the successor of the trial judge cannot be complained of by an appellee where the record shows that the amendment was expressly agreed to.</p> <p>3. Appeals and errors—when hill of exceptions will he presumed regular. Where a bill of exceptions signed November 23, 1910, bears the file mark of December 8, 1910, when the trial judge was no longer in office, and the question of its regularity is not otherwise raised, in the absence of any showing to the contrary, the presumption of regularity will be indulged.</p> <p>4. Municipal courts—objections need not be saved to refused propositions of law. The Municipal Court Act, sec. 38, permits a review of a cause when no exceptions to refused propositions of law were saved.</p> <p>5. Innkeepers—who are guests. Where a person registers at a hotel and is given a weekly rate for no definite period, such arrangement of itself does not change the person’s status from a transient or guest to a mere lodger.</p> <p>6. Innkeepers—what shows negligence. Where a guest of the hotel hands the clerk in charge of the office a box of jewelry for safe-keeping and it is placed in a safe and a key in the inner door of the safe is left in the lock, so that one opening the outer door would have easy access to the jewelry, which is stolen by a night elevator boy, it would seem to show a failure by the proprietor to exercise reasonable care.</p> <p>7. Innkeepers—what shows negligence. Where a hotel keeper posts notices of the existence of a safe for the keeping of valuables of guests, and a box of jewelry given the office clerk for safekeeping is placed in a safe used mainly for keeping stationery and similar articles, and is not placed in a safe in the manager’s room constructed for keeping money and jewelry, the proprietor is liable for its loss by theft.</p> <p>8. Innkeepers—guests need not state value of jewelry deposited. Under the Act of 1909, for the protection of innkeepers, it is not necessary for a guest to acquaint the innkeeper with the approximate value of jewelry delivered for safe-keeping in a safe.</p> <p>9. Appeals and errors—when final judgment will be entered in the appellate court. Where on reversal of a case heard by the court without a jury, the undisputed record shows damages in excess of plaintiff’s own estimate, the Appellate Court will enter judgment for at least that amount even though there was incompetent evidence of value received.</p>

<p>1. Remase—of one joint debtor. A release of one joint debtor, wherein the creditor reserves his right against the others, is construed as a covenant not to sue.</p> <p>2. Judgments—motion for order of satisfaction. The only proper issue that may be raised on motion for an order of satisfaction of a judgment is whether the judgment has been satisfied.</p> <p>3. Covenants—what agreement is covenant not to sue. An agreement not to sue certain debtors, but not to discharge them from demands on a certain judgment, and to release only such debtors from all rights of action, etc., thereon and that the agreement is to be construed as a covenant not to sue such debtors to release another debtor from liability thereon, and that in three years the creditor will discharge of record such specified judgment as to said debtors so released, will be construed' merely as a covenant not to sue such debtors.</p> <p>4. Judgments—when motion for order of satisfaction properly denied. Motion for an order of satisfaction of a judgment is properly denied where the only evidence of satisfaction is an agreement that is construed merely as a covenant not to sue two of the debtors thereon.</p>

Action in case for person injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

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

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Bdwabd M. Margan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme Court (making opinion final).

Action in case for death by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, March term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>1. Elevated railroads—damages. In an action on the case, where plaintiff avers damage to real estate resulting from the construction and operation of an elevated railway, he cannot contend that the issues are limited to damage from construction.</p> <p>2. Elevated railroads—instructions with reference to damage. In an action on the case, where the issues are as to the damage to realty from an elevated railway, instructions using the words “operation and maintenance” will be construed to include “construction,” and the omission of the word “construction” is not error.</p> <p>3. Elevated railroads—instructions as to damages. Instructions giving a “before and after” rule of benefit or damage in an action for damages to realty by an elevated railway are not erroneous because they fail to eliminate other elements, such as increase of population, better business conditions, etc.</p> <p>4. Elevated railroads—damages. In an action for damages to real estate by an elevated railway, it is not error to refuse instructions which exclude from the consideration of the jury travel benefits or so much of the travel benefits as the property shared with other property in the neighborhood.</p> <p>5. Elevated railroads—evidence of damage. In an action for damage to real estate by an elevated railway, it is not error to exclude testimony tending to show that benefits to property a block away would be greater.</p> <p>6. Elevated railroads—evidence as to damages. It is not error to exclude testimony of a witness as to depreciation in the market value of property, considering the railway alone and without operation, when the action was for damages caused by construction and operation.</p> <p>7. Evidence—testimony of agent that he signed petition for construction of railway. In an action for damage to real estate by an elevated railway, it is not error to permit a witness to be asked as to whether, as agent for plaintiff, he signed a consent petition, to have the railway constructed.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. William B. Scholfield, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

<p>1. Mobtqages—what establishes prima facie case for foreclosure. Where it is sought to foreclose a deed of trust which is contended to have been given only to secure the payment of an annuity, and neither the execution of the deed nor its proper transfer to its holder is put in issue by the pleadings, and the execution and transfer is proved and substantially admitted by the grantor, a prima facie case for a decree of foreclosure is established.</p> <p>2. Mortgages—presumed to be what it is. The presumption is that a mortgage or deed of trust is what it purports to be, security for the note evidencing the indebtedness secured thereby.</p> <p>3. Mortgages—burden to establish that it is not what it purports to be. A person asserting that a trust deed and note are only collateral security for the payment of an annuity, and that an instrument in writing was executed which changed and modified the purport of the note and trust deed, has the burden of establishing that claim by proof sufficiently clear, satisfactory and convincing to overcome the presumption arising upon the execution and delivery of the papers.</p> <p>4. Mortgages—when evidence insufficent to establish that trust deed was not for a debt. It was attempted to alter and avoid a trust deed and note by proof of a collateral, contemporaneous agreement executed between a parent and children that the deed be given as collateral security for the payment of an annuity to the father. Witnesses testified that a contract was made, but could not state positively that an annuity was mentioned, and there was other testimony by a person who did not see the agreement after it was executed. Held, the testimony was too loose, indefinite and unsatisfactory to justify a court of equity in decreeing that the trust deed was given as security for the annuity.</p> <p>5. Mortgages—when evidence as to conversation is inadmissible in avoiding a trust deed. In establishing that a trust deed was given merely as security for the payment of an annuity as evidenced by an agreement, a person who was present when the agreement was being drawn may not testify as to a conversation between the alleged annuitant and a justice of the peace who drew the papers.</p> <p>6. Mortgages—when evidence as to collateral agreement is inadmissible. In establishing that a trust deed was given merely as security for the payment of an annuity as evidenced by an agreement, a person who advised the making of the agreement, who was not present when it was signed and who did not know that it was in the same condition when signed, cannot testify whether a conversation he had with the alleged annuitant and another was embodied in the agreement.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

<p>Appeals and ebbobs—final orders. Orders quashing a writ “of capias ad respondendum and discharging defendant’s hail, and overruling motion to impose terms in connection with the order quashing the capias, are not final and appealable.</p>

<p>Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Louis Bebnbeutee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>1. Appeals and errors—when objections and exceptions not essential. Where a guardian sues in equity on behalf of an insane ward, the fact that no objections to the master’s report or exceptions to a decree were made by the complainant, may not prevent him, as guardian, from asserting error in the decree.</p> <p>2. Deeds—when grantee is relieved of charge upon real estate. Where a charge upon real estate, for the support of a daughter confined in an insane asylum, is created by a deed from a father to another daughter, payments by the father to the asylum for the support of his daughter will relieve the grantee from liability.</p> <p>3. Deeds—-when interest not allowed in enforcing charge upon real estate. Where a charge upon real estate for the support of a person is created by deed, in obtaining a decree enforcing the payment of long overdue instalments for which no demand was made, it may be proper not to allow interest.</p> <p>4. Deeds—disposition of proceeds in enforcing charge upon real estate. A charge upon real estate, for the support of a person as long as she might live, was created by deed and the grantee mortgaged the property. Instalments were long overdue and in enforcing the charge it appeared that it was for the best interests of the parties that the property be sold. Held, it was not proper to direct a sale subject to a continuing charge, but that a surplus from the proceeds of the sale should be burdened with the charge.</p>

<p>1. Witnesses—discretion in excluding testimony of child. The trial court did not abuse its discretion in excluding the testimony of a ten-year-old girl where it does not appear that such court acted arbitrarily without examining the child as to competency, and especially where it appears that the finding of the court sitting without a jury seemingly would not have been different if the child had testified as stated in the bill of exceptions.</p> <p>2. Appeals and errors—presumption that child was examined as to competency to testify. It is presumed on appeal, in the absence of a contrary showing, that where the trial court excluded the testimony of a ten-year-old girl it made an examination as to the child’s age, moral sense, intelligence and understanding.</p>

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

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

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

<p>Appeals and errors—abstract. A judgment of the Municipal Court of Chicago may he affirmed where the abstract does not contain a “complete index, alphabetically arranged” and is not “sufficient to fully present every error and exception relied on,” as required by Appellate Court Rule 19.</p>

<p>Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Contracts—construction. Where the proprietor of a poultry journal employs a person as “foreign advertising” representative and the contract provides that the term “foreign advertising” shall not apply to any line of advertising belonging strictly to the breeding, marketing or handling of poultry, but shall apply to advertising foreign to the poultry business, commissions may be recovered for securing advertisements of squabs or pigeons.</p> <p>2. Contracts-—effect of failure to comply with contract. Where a contract of employment of an advertising solicitor provides that he shall be given copies of live advertising contracts that are in force, and that on a failure to furnish the copies such advertising contracts shall be considered as “new” business, if such copies are not furnished, commissions for such advertisements may be recovered.</p>

<p>Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Russel P. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</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, 1911.</p>

<p>Chattel mortgages—maker’s defenses against assignee. Under the Act of June 21, 1895, § 1, providing that notes secured by chattel mortgages, when assigned by the payee, shall be subject to all defenses existing between the payee and payor, in an action by an assignee for value before maturity, without knowledge of defenses between the maker and payee, the maker may show that he did not receive the property mortgaged though the mortgage recites that such property “is situated” in his place of business, and this is especially true in. case of a judgment by confession.</p>

<p>1. Attobney’s lien—administrator not liable individually. Where the attorney for plaintiff administrator, in an action for damages caused by death of plaintiff’s intestate, obtains judgment, and settlement is paid to' plaintiff, and the attorney files an intervening petition to hare his fee for services made a lien on said fund, an order by the court that plaintiff pay the fees is. erroneous if intended against plaintiff as an individual.</p> <p>2. Attorney’» lien—does not apply to funds held by administrator. The Attorney’s Lien Act of 1909 does not give an attorney a lien on funds held by an administrator, since the administrator has no authority to charge such funds with payment of attorney’s fees.</p>

<p>1. Mechanic’s lien—where oxoner and contractor exchange work. Where a contractor signs a contract with the owner, a dentist, that he will take price of decorating in dental work, and the owner does not refuse to fulfil the agreement one who furnishes materials cannot obtain a money judgment against the owner under the Mechanic’s Lien Act, since he is presumed to have contracted with reference to the terms of the original contract.</p> <p>2. Mechanic’s lien—owner must owe contractor. One who furnishes material to a contractor must show that money was due from the owner to the contractor before he can obtain a money judgment under the Mechanic’s Lien Act.</p> <p>3. Judgment—partly erroneous. A judgment which is a unit, if erroneous as to one party, is erroneous as to all.</p>

<p>Railroads—when process cannot Be served on commercial agent. A person employed merely to solicit freight and passenger business for a foreign corporation, and having no power to sell any ticket or make any contract for the corporation, is not an agent upon whom process against the corporation may he served, where it has no other agent within the state nor any property except the office furniture of the solicitor.</p>

<p>1. Sales—rights of purchaser where article is unsatisfactory. Where an article of personal property is sold with an express warranty and upon the understanding that it may he returned and the purchase price refunded if found unsuitable or unsatisfactory, the buyer has an election either to retain the article and sue for a breach of the warranty, or to return the article, if found unsatisfactory, in the manner provided 'by the contract, and sue for the purchase price.</p> <p>2. Sales—necessity of proving value in suit for breach of 'warranty. Where a typewriter is sold under a warranty with a right to return it and have the purchase price refunded if it proves unsuitable, if the buyer affirms the sale and sues for a breach of warranty, a judgment cannot be sustained if there is no evidence tending to prove the value of the machine as furnished.</p> <p>3. Sales—measure of damages for breach of warranty. Where a buyer of a typewriter, having certain rights, elects to affirm the sale and sues for a breach of warranty, the measure of damages, apart from any special damage, is the difference between the value of the machine as warranted and its actual value in its defective condition.</p> <p>4. Sales—when right to disaffirm is waived. Where a typewriter is sold under an agreement that it might he returned if unsuited to use in an accounting system, the right is waived by the continued and constant use of the same without offering to return it for six months after the buyer was aware of its defects and unsuitableness, and it is immaterial that the seller knew that attempts to adjust the machine did not satisfy the stenographer, where such defects were not considered of sufficient importance to cause the buyer to assign that as a reason for not keeping the machine after its use.</p>

<p>Error to the Superior Court of Cook county; the Hon. Geobob A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Brokers—when judgment not against weight of evidence. Where plaintiff testifies that he was to buy property as cheap as he could and defendant testifies that it was to be bought for a certain price, and there are no corroboratory facts and circumstances, a judgment for compensation will not be disturbed as against the manifest weight of the evidence.</p> <p>2. Brokers—that broker had no license cannot be first urged on appeal. In an action on a special contract to recover compensation for buying property for another, it cannot be first urged on appeal that plaintiff did not have a real estate broker’s license.</p> <p>3. Brokers—when license not required. In the absence of proof that a plaintiff is engaged in the business of buying and selling real estate for others on commission, he is not prevented from recovering compensation on a special contract merely by the fact that he has no license as a real estate broker.</p>

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

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

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

<p>Disobderly conduct—what constitutes. One making a speech on the public streets of Chicago with verbal but not written permission from the police. captain of the district should not be found guilty of violating section 1454 of the city ordinances relating to disorderly conduct.</p>

<p>1. Evidence—excluded where question is for jury. In an action for injuries alleged to hare been received when a stairway placed against a wall by the landlord fell on plaintiff, it is not error to exclude testimony as to whether prior to the accident, it seemed likely to fall, since whether the landlord should have known of that probability is for the jury from all the circumstances.</p> <p>2. Negligence—maintenance of premises. A finding that defendant did not exercise reasonable care to maintain steps in a reasonably secure position, and that it might reasonably have been expected that they would fall if jostled, is warranted where they were placed against a wall, in a nearly perpendicular position without being secured, though there was evidence that cinders were placed around the bottom.</p> <p>3. Negligence—sufficiency of evidence. A verdict for plaintiff is not against the manifest weight of evidence where two relatives of plaintiff testify that steps placed in a passageway by defendant’s husband with her knowledge fell upon him, and defendant and two relatives testify that plaintiff was injured while playing some distance away.</p>

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

<p>1. Forcible detainer—against party who has no title. Where children of intestate, who were deprived of title hy sale under decree of prohate court, refuse to surrender possession after notice in writing by one who secures title from the purchaser by foreclosure proceedings, such owner may proceed against them in a forcible detainer action.</p> <p>2. Jurisdiction—decree presumed to he regular. On collateral attack, the decree of a court of general jurisdiction will be presumed to be regular as to jurisdiction of both persons and subject-matter.</p>

<p>Trial—propositions of law must he marked. Where, within proper time and with leave of court, several propositions of law are handed to the court, to he held as the law of the case, by virtue of the Practice Act (R. S., c. 110, § 61), it is mandatory upon the court to indicate his disposition thereof by writing thereon, and he cannot decline to consider or mark them.</p>

<p>Brror to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge; presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.

<p>1. Appeals and buboes-—when judgment on appeal bond map he vacated. It is sufficient ground for setting aside a judgment on an appeal bond, that the judgment Is for damages in nearly double the amount of the bond and by its terms it is to be satisfied only upon the payment of such damages.</p> <p>2. Appeals and errors'—when failure to set aside a verdict on appeal bond is waived. Failure to set aside a verdict on setting aside a judgment on an appeal bond is waived by the action of the plaintiff in consenting to the rendition of a judgment in his favor for costs.</p> <p>3. Dismissal and nonsuit—when failure to comply with rule to reply is ground for dismissal. Where a plea puis darrien continuance to an action upon an appeal bond, upon an appeal from a circuit court, sets up that pending the suit the amount of damages attempted to be recovered had been paid by the payment of a judgment on a bond given at the time appeal was taken from a justice of the peace, on a refusal of the plaintiff to comply with a rule to reply, the case may be dismissed.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme" Court (making opinion final).</p>

Action in case for malicious prosecution. Appeal from the Superior Court of Cook county; the Hon. H. C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judges presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

<p>Appeals and ebrobs—when hill of exceptions is necessary to review. Where no bill of exceptions appears in the record, no question is preserved for review by assignments of error relating wholly to questions of evidence.</p>

<p>Appeal from the Superior Court of Cook county; the How. Charles A. McDonald, 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 H. Dietrich, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

<p>Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Municipal court—affidavit of defense setting up proper subject of recoupment is improperly stricken. Where an affidavit of defense to an action on a promissory note sets up that plaintiff and defendant mutually contracted to pay each other one-half of the profits of each other’s business and to make settlements, that the agreement was not to constitute a partnership and that the note sued on was given in evidence of a settlement and accounting, but that since then large profits exceeding the amount of the note have been made by the plaintiff who refuses to account, the demand may he recouped and the affidavit is improperly stricken as insufficient.</p> <p>2. Municipal court—affidavit of merits disclosing cross accounts may be sufficient. The fact that an affidavit of defense discloses and renders necessary to the trial of the case cross accounts between the parties does not deprive a court of law of jurisdiction.</p> <p>3. Set-off and counterclaim—«Aero refusal to divide profits may be adjusted by recoupment. Where two dealers mutually contract to pay each other one-half of the net profits of their respective businesses and to make settlements when demanded, if one gives a note in evidence of his accounting and settlement and the other subsequently refuses to account for the profits, in an action on the note the mutual demands may be adjusted by recoupment.</p> <p>4. Partnership—when agreement as to division of profits does not constitute partnership. Where two dealers mutually contract to pay each other one-half of the net profits of their respective businesses, a clause that the agreement should not be construed as a partnership controls, and as between themselves the agreement is not one of partnership.</p>

<p>Appeals from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Master and servant—what evidence and allegations raise question of assumed risk. Evidence that a work train of dump cars with an engine in the rear and a crew consisting of an engineer familiar with the method of work and a helper, was standing still, and that a similar train coming from behind collided with it and injured the engineer, together with allegations that sufficient and competent help was not employed to properly warn, guard and protect the plaintiff and to operate the trains, raises a question of assumed risk.</p> <p>2. Master and servant-—when assumed risk is for the jury. Where an engineer in an engine at the rear of a work train is injured by a similar train coming up from behind, and the accident is caused by the operation of trains without a sufficient number of men, if the engineer had been doing the work for a month knowing the condition and acquiescing therein, it is a question of fact whether he assumed the risk,</p> <p>3. Master and servant—when instruction as to sufficient averments ignores question of assumed risk. Where a question of assumed risk is raised in a case where an engineer in an engine at the rear of a work train was injured by a collision with a similar train coming up from behind, and it is averred in sundry ways that sufficient and competent help was not employed to properly warn, guard and protect the plaintiff and to operate the train, an instruction that the plaintiff need not prove all the averments of negligence and that if there is sufficient evidence of any one of the allegations of negligence he may recover, is improper in ignoring the question of assumption of risk.</p> <p>4. Master and servant—where particular phraseology in instruction ignores question of assumed risk. Where an engineer in an engine at the rear of a work train is injured by a similar train coming up from behind, and a question of assumed risk is involved, an instruction directing a verdict, detailing the risks that are assumed and permitting recovery if the plaintiff was injured in an accident the risk of which he had not assumed “or” that was due to defendant’s failure to use ordinary care, is defective • in ignoring the question of the assumption of risk, in that the word “or” conveys the idea that if the plaintiff was injured by the defendant’s failure to use reasonable care he should recover.</p> <p>5. Master and servant—when defective instruction cannot he aided hy other instructions given. An instruction in a master and servant case that is erroneous in ignoring a question of assumed risk and directing a verdict cannot be aided by other instructions given.</p> <p>6. Master and servant—when instruction on duty of master ignores questions of assumed rislc. Where an engineer in an engine at the rear of a work train is injured by a similar train coming up from behind, and from the evidence and a declaration charging a failure to furnish sufficient and competent employees a question of assumed risk is raised, an instruction directing a verdict if an adequate number of fit and competent men was not employed to safeguard the plaintiff is erroneous in ignoring the question of assumed risk.</p>

<p>Account stated—when defense of, not established. In an action for goods sold and delivered, a defense of account stated held not established.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Hoard in the Branch Appellate Court at the March term, 1911.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

<p>1. Injunction—when decree is proper. Where the breach of restrictive building covenants has been enjoined and the case decided on a former appeal adversely to the defendants, if additional points raised by the defendants do not appear to be well taken the decree should be affirmed.</p> <p>2. Injunction—when decree enjoining breach of covenant should be limited. A decree enjoining the breach of restrictive building covenants may properly cover the term fixed in the covenants.</p>

<p>1. Dismissal and NONSUiT-^uAew dismissal for want of prosecution is proper. If, on a plaintiff filing a challenge to an array of jurors, a demurrer to the challenge is properly sustained and plaintiff elects to stand by the challenge and declines to proceed with the trial, the suit may be dismissed on motion of defendant for want of prosecution.</p> <p>2. Jury—when municipal court judges may not participate in selecting jury commissioners. On a challenge to an array of jurors in the circuit court of Cook county, it is no objection that the judges of the Municipal Court of Chicago did not participate in the selection of the jury commissioners drawing the panel.</p> <p>3. Municipal courts—status. The Municipal Court of Chicago is a court “in” Cook County but not “of” Cook County and the judges thereof are not entitled to participate in the selection of jury commissioners of Cook county:</p> <p>4. Jury—when acts of de facto commissioners valid'. If judges of the Municipal Court of Chicago are entitled to participate in the selection of jury commissioners of Cook county, but do not participate, the acts of such Ae facto commissioners in drawing a panel are not thereby invalidated.</p>

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

Action in case for death by alleged wrongful act. Appeal from the. Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1910. Certiorari denied by Supreme Court (making opinion final).

<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>Appeal from the Superior Court of Cook county; the Hon. Faklin Q. Ball, Judge, presiding. 'Heard in this court at the March term, 1910.</p>

<p>1. Contracts-—formation 6y telegrams. A telegram asking for an offer for eggs, an answer by telegraph, “Por good stock will give $8.25, Chicago, prompt acceptance,” and a reply the same day also by telegraph, “Accept offer of $8.25 per case,” constitute a contract.</p> <p>2. Judgments—verdict sufficient to support. A judgment cannot be attacked because among the names signed to the written verdict were certain names not contained in the panel of jurors sworn, since the recorded verdict pronounced in open court must be regarded as the verdict.</p> <p>3. Appeals and errors—error cannot 6e first urged on appeal. On appeal it is no ground of objection to a judgment that among the jurors who signed the written verdict were certain names not contained in the panel of jurors sworn, where the attention of the trial court was not called to the objection. • •</p>

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

<p>1. Tender—rules in equity. The rules in respect to tender are much more liberal and flexible in equity than in law.</p> <p>2. Tender—qualified by conditions. A tender of performance may be accompanied with such conditions as were, by the terms of the contract between the parties, conditions precedent to be performed by the party to whom the tender is made, and the same rule applies where the acts to be performed by the respective parties are concurrent acts.</p> <p>3. Mortgages—sufficiency of tender. Where a trust deed provides that a solicitor’s fee shall be paid if foreclosure proceedings are instituted, and that on payment of the indebtedness a reconveyance of the premises shall be made by the trustee, a tender before proceedings instituted need not include a solicitor’s fee for preparing a bill to foreclose, and it is not impaired by being accompanied by a demand for a release deed, and a refusal of the tender on the sole ground that it did not include a solicitor’s fee is a waiver of all other grounds of objection.</p>

<p>Appeal from the Probate Court of Cook county; the Hon. Charles S. Cutting, Judge, presiding. Heard in this court at the March term, 1910.</p>

<p>1. Master and servant—rish is not assumed where ordinance requires machinery to be guarded. Where a person in a workshop stumbles and his hand comes in contact with a machine driven by belting that was left unguarded by the master in violation of an ordinance requiring such machines to be guarded for the protection of employees, he cannot be held to have assumed the risk.</p> <p>2. Master and servant—evidence admissible to prove violation of safety ordinance. Where an ordinance requires employers to guard machinery driven by belting and an employee is injured by coming in contact with such a machine that is unguarded, evidence that it was practicable to cover and guard the machine is competent and relevant to prove that the employer violated the ordinance.</p> <p>3. Trial—violation of ordinance may be proved before the ordinance is proved. Where a servant is injured by coming in contact with an unguarded machine and he relies on an ordinance requiring such machines to be guarded, evidence that it was practicable to cover and guard the machine, to prove a violation of the ordinance by the master, is admissible before the ordinance is put in evidence.</p>

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

<p>Bbokebs—liability for commissions. The vendor, by accepting services of a real estate broker and his employee, adopted their acts and became liable for the commission njcntioned, where the sale was made after the employee informed the vendor who desired to sell, that he was working for the broker and had taken a possible vendee to see the premises, and the vendor was informed by the broker that a certain commission would be charged if the sale was made.</p>

<p>Appeals and ebbobs—conflicting evidence. In an action on a verbal lease defendants’ motion for new trial on the ground that the verdict is contrary to the evidence is properly denied where it does not appear to the court on a review of the evidence that the jury did not find properly on each of the issues,</p>

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

<p>1. Justices of the peace—effect where papers on appeal are files in wrong court. Where an appeal bond in a justice’s case recites that the defendants had taken an appeal to the Superior Court of Cook county and the papers are inadvertently filed in the Circuit Court, the Circuit Court has no jurisdiction of the cause, and the fact that the defendants appealed and issues were joined does not aid.</p> <p>2. Justices of the peace—when appeal need not be formally prayed. It is not necessary that defendants should pray an appeal when they give an appeal bond which is approved by the justice.</p> <p>3. Justices of the peace—when judgment inadmissible in action on appeal bond. Where an appeal bond given by defendants in a forcible detainer suit before a justice recites that defendants had taken an appeal to the Superior Court of Cook county, and the papers are inadvertently filed in the Circuit Court where issue was formed, trial had and judgment obtained, the court had no' jurisdiction, and in an action on the appeal bond a transcript of the judgment is not admissible.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the How. Charles A. McDonald, Judge, Certiorari denied by Supreme Court (making opinion final).

<p>1. Municipal cobporations—power to compel railroad to repair viaduct approaches. A city ordinance, requiring a railroad to repair an approach to a viaduct, to be valid must either be referable to a contractual relation between the city and the railroad or be an order by the city council for the enforcement or exceution of a police power belonging to the city.</p> <p>2. Municipal corporations—city estopped to require repavement of approach to viaduct. Where a railway agrees with city to erect and maintain a viaduct and construct approaches, it does not thereby become obligated to repave approaches, and the city is estopped, years later in the exercise of its police power, to require repavement of approaches when both parties have acted in reliance on a distinction between approaches and viaduct.</p> <p>3. Municipal corporations—authority of city officer. Where a contract between a city and a railway has been followed by the expenditure of thousands of dollars, and both parties have acted under it for many years, it is too late to question the authority of the officer who signed it.</p> <p>4. Municipal corporations—city may he estopped to exercise police power. Although a city cannot by contract alienate its police power, yet it may be equitably estopped by circumstances which make it unconformable to right and justice to exercise such power.</p>

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

<p>1. Bankruptcy—evidence not showing value of asset. In a proceeding by a trustee in bankruptcy to recover the value of a bar concession in an amusement park claimed to have been wrongfully forfeited, an offer of a creditor to buy the concession for a certain amount is not entitled to great weight as evidence of value, as the return from the investment to the witness would include a refund to him of that proportion of it which his claim bore to all the liabilities.</p> <p>2. Conspiracy—evidence insufficient to show conspiracy to deprive concessionaire of property. An amusement park by contract granted a license to a concessionaire to conduct a bar. The contract provided that the park’s percentage of the receipts should be paid daily and had other stringent provisions, noncompliance with which would work a forfeiture. The principal stockholder, the substantial' owner, permitted settlement from time to time to be deferred for many days. He showed an eagerness to bring the relations to an end and upon a check from the concessionaire being returned because of insufficient funds, he declared a forfeiture of the license. Held, the evidence was insufficient to show a conspiracy to deprive the concessionaire of his property.</p> <p>3. Contracts—when forfeiture of license may he declared. Where a contract granting a license to a person to conduct a bar in an amusement park provides that the park’s percentage of the receipts shall be paid daily and on a default a forfeiture may be declared, on a return of a check given by the concessionaire because of insufficient funds, a forfeiture of the license may be declared even though the park company from time to time permitted settlement to be deferred for many days.</p> <p>4. Bankruptcy—when concession license does not pass to trustee. Where a contract by an amusement park company granting a license to a concessionaire to conduct a bar provides that it must not be assigned or transferred without the consent of the park company, on the concessionaire becoming bankrupt the license does not pass to his trustee in bankruptcy.</p> <p>5. Equity—when remedty is at law. Where a bill by a trustee in bankruptcy of a person having a license by contract to conduct a concession in an amusement park alleges that by a conspiracy between the park and the principal stockholder the license was forfeited and that property was withheld from the concessionaire, and the decree ordered the forfeiture to be set aside and awarded a sum of money for the value of the concession, the theory of the bill and the decree is fallacious, since the remedy is at law for a breach of the contract.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in this court at the March term, 1910.

Bill to foreclose deed of trust. Appeal from the Superior Court of Cook county; the Hon. George A. Dupoy, Judge, presiding. Heard in this court at the March term, 1910.

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

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

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

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

<p>1. Municipal cobpobations—liability for injuries from defeats in streets. A municipal corporation may be liable for personal injuries caused by a defect in a street, though the defect was not open and notorious, if it was the natural and ordinary result of use or climatic influences and such corporation failed to make sufficiently frequent examinations.</p> <p>2. Municipal cobpobations—when question of anticipation of danger for jury. Whether a municipal corporation should have anticipated the accident is for the jury, where the evidence shows that a rusty and worn wire, unused and not examined for six years, which crossed a street over live trolley wires, broke during a wind and fell across such trolley wires and against plaintiff’s mule, injuring him.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Oscar M. Tobrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

<p>1. Contracts—illegal consideration. Where slot machines are constructed so that they may be used for money and permit of gambling if the purchaser so chooses to use them, they are gambling devices and are not valid consideration for a promise to pay their purchase price.</p> <p>2. Contracts—evidence of knowledge of intended unlawful use. Where slot machines capable of a lawful and of unlawful use are sold to one known by the seller to be a gambler, he will be charged with knowledge that the buyer does not intend to use them for the lawful purpose of selling gum.</p>

<p>1. Attobnet and client—agreement to pay judgment not within scope of partnership. Where one member of a firm of lawyers agrees to pay any judgment for costs that may be entered against the adverse party in a pending suit in consideration that the opposing attorneys will stipulate to waive the time limit for filing briefs, such an agreement is not within the general scope of the partnership, and in the absence of consent or ratification is not binding on the firm although it received the benefit.</p> <p>2. Attobnet and client—agreement by attorney to pay any judgment client may obtain is illegal. An agreement by an attorney with opposing counsel to pay any judgment his clients may obtain is illegal and void.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme Court (making opinion final).

<p>1. Caebiees—when wagon tongue striking passenger will not raise presumption of negligence. Where a rapidly moving street car is passing a team of unhitched horses standing between the tracks and the curb with a clear space of one foot between the horses and the car, and the horses become frightened and swing around, the wagon tongue striking a passenger, the accident is due to a cause beyond the control of the company, and a presumption of negligence will not arise.</p> <p>2. Caebiees—when motorman not negligent where wagon tongue strikes passenger. Where a rapidly moving street car is passing a team of unhitched horses standing between the tracks and a curb with a clear space of one foot between the horses and the car, and the horses become frightened and swing around, the wagon tongue striking a passenger, the motorman is not bound to anticipate the sudden fright of the horses, and there is no evidence of negligence.</p>

<p>1. Deeds—effect of acknowledgment. Where a deed purports to be duly acknowledged under the hand and seal of an officer legally authorized to take the acknowledgment and certify thereto, the effect of the certificate as to the due execution cannot be overcome by uncorroborated evidence of the grantor, but such evidence must be supported by clear and conclusive proof which excludes all reasonable doubts.</p> <p>2. Deeds—what evidence insufficient to show forgery. A decree finding that a release deed which was duly acknowledged before a proper officer and purported to be signed by the owner of a note secured by the trust deed released, was a forgery, is not sustained where the only evidence as to the forgery was that of the grantor corroborated only by the fact that he had possession of the trust deed, which had never been canceled, but the release deed did not purport to release all the property described in the trust deed nor all the debt secured thereby.</p> <p>3. Mortgages—credit on mortgage debt when part of property released therefrom. Where four-fifths of property described in a trust deed is released by the owner of the note without reduction of the indebtedness and with knowledge that there have been successive conveyances of parts of such premises and the one-fifth remaining is scant security for the debt, a purchaser of such one-fifth is entitled to credit on the mortgage debt of a sum equal to the value of the property released.</p>

<p>1. Agency—what contract does not create. A contract does not create an agency, though it is1 entitled “Agency Agreement” and purports to grant to plaintiff an exclusive right to sell defendant’s motor cars in a specified territory for a certain time, where plaintiff is prohibited from making contracts or sales in defendant’s name or behalf, or for its account, and must pay cash for cars on delivery, and defendant may collect from plaintiff’s customers only on request and must immediately turn over the difference.</p> <p>2. Contracts—mutuality. A contract is mutual and binding on both parties thereto where it is apparent that plaintiff’s agreement to maintain a sales office, to buy one of defendant’s motor cars and keep it as a sample, and to use all reasonable efforts to sell such cars, formed an important part of the consideration for defendant’s promises to furnish cars, to give an exclusive territory and to give a discount on all sales made therein by either plaintiff or itself.</p> <p>3. Contracts—what not an option contract. A contract is not void as an “option” contract under Crim. Code, § 130, where it provides for the sale of one motor car to plaintiff as a sample and for the sale of additional cars as he sells them to his trade within a specified time at a certain price, though plaintiff is given a “first refusal” on a certain number of cars a month, since such provision is incidental to the main transaction.</p> <p>4. Contracts—when agreement is offer which cannot he withdrawn. "Where a contract provides for the sale of one motor car to plaintiff as a sample and of additional cars as he is able to sell them to his trade within a definite time at a certain price, the agreement is to be construed as an offer which, when accepted, becomes binding, but it is not a continuing offer which may be withdrawn by the seller at any time as to the part not accepted, where plaintiff relying on the whole contract makes large expenditures and devotes time to building up a reputation and thereby creates a demand for the cars.</p> <p>5. Pleading—what averment of tender of performance of contract sufficient. There is a sufficient averment of tender of performance of a contract as against a general motion to strike out the claim as "unfounded in law,” where such contract provides that plaintiff must take delivery or make deposit on a certain number of motor cars within a specified time and the statement of claim in the language of the contract specifies that plaintiff either took delivery or made deposit on such number within the time.</p> <p>6. Pleading—statement of performance of contract. Though a statement of claim for breach of contract does not show that plaintiff ordered a certain number of cars within a time specified by the contract, the court is not authorized to strike out the claim and dismiss the suit where it appears from the statement that plaintiff claims that defendant sold cars in his territory prior to the date fixed and thereby became liable to him for commissions.</p>

<p>1. Appeals and ebbors—6ill of exceptions. Where in garnishment the court makes certain findings from the answer of the garnishee and the “admissions of counsel;” the admissions of counsel made in open court are presumed sufficient to sustain the findings of the trial court where there is no bill of exceptions on file.</p> <p>2. Municipal court—admissions of counsel. Under the Municipal Court Act, § 48, in a fourth class case in the Municipal Court, the admissions of counsel need not be under oath.</p> <p>3. Municipal courts—judgment. The question as to whether in a fourth class action the Municipal Court has power to enter judgment against the garnishee for an amount in excess of $1,000, is not a jurisdictional question, but a question as to the form of a judgment, which should be raised in the trial court and cannot be raised on a petition for rehearing on appeal.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

<p>Appeal from the Circuit Court of Cook county; the Hon. Chasms M. Walkeb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>