Volume 176 — Illinois Appellate Court Reports

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

<p>Mortgages—taxes uñé grouné rents. An intervening petition by. the assignee of the purchaser at foreclosure, praying that taxes due on the property during the period of redemption and ground rent due for a portion of that time he paid out of money claimed by the owner of equity of redemption in the hands of receiver from rents and profits after paying the deficiency decree and other items allowed by the court, is properly dismissed for want of equity.</p>

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

<p>Action for libel. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>Highways—when evidence of truck striking boy on sidewalk is not impossible. Where there is evidence that a boy walking close to the street edge of the sidewalk was struck behind his left leg by the end of a .whiffletree on a heavily loaded truck drawn by three horses and was thrown on the sidewalk with his right hand on the walk and left hand extending into the street where the right hand wheel of the truck passed over it, and there is evidence to the contrary that he was trying to pick up a book, and defendant, on attempting to demonstrate mathematically that the accident could not have happened as described, must assume that the right wheels of the truck as loaded and drawn by three horses could not have been nearer than thirteen inches from the curb and that the boy’s body was wholly on the sidewalk, the evidence as to the way the accident happened is not so contrary to common experience and inherently improbable as to require a reversal.</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>Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthhjo, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</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, 1911.</p>

<p>1. Evidence—objection to hypothetical question. An objection that a hypothetical question includes elements not based on the evidence must point out specifically such facts assumed in the question.</p> <p>2. Damages—excessive. A judgment for $1,750 for injuries to a child resulting in what is known as a flat foot will be sustained as not being excessive where the verdict of the jury does not appear manifestly to be against the weight of the evidence.</p>

<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>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

<p>1. Municipal court—stenographic report. Where a stenographic report from the municipal court is presented for signature within thirty days to a judge who did not hear the case, and after thirty days is certified and signed by the trial judge nunc pro tunc as of the date presented to the first judge, the Municipal Court Act, § 23, is not complied with and the report is properly stricken from the files on motion of defendant in error.</p> <p>2. Municipal court—where stenographic report is stricken from, files. Where the stenographic report is stricken from the files and there are no errors presented in an assignment of errors aside from those based on such report, the judgment is affirmed.</p>

<p>1. Carriers—damage for delayed express shipment. Where a reporter company expresses a credit hook to a subscriber and the express company is not notified of the. existence of the contract or that the hook is shipped in part performance thereof, and has no knowledge of the purpose of the shipment from the circumstances1, there is no liability either in contract or tort to the reporter company for the whole amount agreed to be paid by the subscriber who rescinded the contract on the hook not being delivered.</p> <p>2. Carriers—damages for delayed express shipment. Where a subscriber to a credit. service rescinds the contract owing to delay of an express company in delivering a credit hook, and there is no evidence as to what part of the payment under the contract was to he for the use of the book, or of the market or rental value of the hook, the measure of damages in an action against the express company cannot be based on the difference between the market value at the time the hook was delivered and the time it should have been delivered, or, if the book has no market value, the rental value for the time it was delayed.</p> <p>3. Carriers—value stated in express receipt. Where a reporter company agrees for sixty dollars to give credit service to a subscriber and expresses a credit book and takes a receipt with knowledge that the value is stated to he ten dollars, on a rescission of the service contract by the subscriber owing to a delay in delivering the book, the reporter company cannot recover in excess of ten dollars from the express company.</p>

<p>1. Cauhtbbs—limitation of liability. A contract exempting the carrier from liability for damage by heat is reasonable and not against public policy where such heat is not caused by the carrier’s negligence.</p> <p>2. Cabbiers—when not negligence to fail to re-ice a car. It is not negligence for a carrier to fail to re-ice a car of apples shipped fifth class from Battle Creek to Chicago, though injury thereto results from heat, where the bill of lading exempted the carrier from liability for injury caused by heat, the official classification properly filed and posted provided that consignors should furnish ice at their own cost for property classified less than third class, and plaintiff knew that the ice would not last and that re-icing would be at his cost but gave no order therefor.</p> <p>3. Cabbiers—when consignor should order car re-iced. If the consignors of a car of apples wish the car re-iced or consider it necessary they should make a request therefor, where the contract of affreightment exempts the carrier from liability for damage by heat and the official classification properly filed and posted provides that consignors shall furnish ice at their own cost for property classified less than third class.</p> <p>4. Cabbiers—knowledge that damage would result if car not re-iced. A carrier is not bound to know that apples in a car without ice would be damaged in shipment from Battle Creek to Chicago where loading was finished Wednesday and the car arrived in Chicago the next day.</p>

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

<p>1. Judgments—practice on motion to vacate. It is proper practice to hear a motion to vacate a judgment on affidavits and counter-affidavits.</p> <p>2. Judgments—motion to vacate. On a motion to vacate a judgment the action of the court will be largely controlled by the promptness with which the application is made and by the consideration whether or not the irregularity is one which could have operated to the prejudice of the applicant.</p> <p>3. Appearance—answer of garnishee. In an action of the fourth class in attachment in the Municipal Court of Chicago, an “answer” of a garnishee stating that it was not indebted to and had no assets of the debtor constitutes its appearance.</p> <p>4. Garnishment—time to file motion to vacate judgment. Where, in an action of the fourth class in attachment in the Municipal Court of Chicago, a judgment against the garnishee is entered without fixing a day for the trial of the garnishment issues as provided by the Municipal Court Act, section 45, an application to vacate the judgment made almost three months thereafter is made with reasonable promptness.</p> <p>5. Garnishment—when judgment may he vacated for irregularities. Where, in an action of the fourth class in attachment in the Municipal Court of Chicago, a garnishee appears by filing an answer and is defaulted for failure to appear, and the judgment is entered without fixing a day for the trial of the garnishment issues as required by the Municipal Court Act, section 45, for the amount of the debt, and also ordering the garnishee to turn over a chattel to' a bailiff, the irregularities in the judgment are prejudicial and it may be vacated.</p>

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

<p>1. Master and servant—constructive service. Where plaintiff was employed for a definite time and was paid in full up to the time he quit or was discharged before the expiration of the definite time, he cannot recover for salary or wages after such payment on the theory of constructive service.</p> <p>2. Municipal court—action of fourth class. An action of the fourth class in the municipal court is whatever the evidence makes it, and if the evidence shows a right of action for the amount recovered, judgment should be affirmed on appeal.</p> <p>3. Master and servant—implied warranty of competency. An employee impliedly contracts that he is competent to discharge the duties for which he is employed, and a breach thereof warrants his discharge.</p> <p>4. Master and servant—when discharge of employee not wrongful. One employed by a decorator as a foreman and cutter is incompetent or negligent, or both, and his discharge before the expiration of his contract is not wrongful where on being furnished plans and sketches of the work he makes numerous errors in expensive hangings, curtains and valances.</p> <p>5. Appeals and errors—when defendant’s damages not considered. Where judgment for plaintiff for damages is improper and it seems that defendant on appeal asks only that judgment be reversed, it is not material to determine his damages.</p>

<p>1. Evidence—agreement prior to written contract. A contract providing for the sale of specified lumber at a certain price, delivery on dock by plaintiff, shipment and payment by defendant at certain times, is complete, and in an action for the price evidence is not admissible concerning an alleged previous oral agreement by plaintiff that defendant might carry the lumber on a certain barge and that plaintiff would dredge the harbor so that a full cargo could be taken.</p> <p>2. Conteacts—written or oral. Whether the parties to a written contract intended to embody the whole contract in the writing is to be determined in the first instance from an inspection of the writing.</p> <p>3. Evidence—agreement prior to written contract. Where by a written contract defendant is under an unqualified obligation to ship lumber at certain times after it is piled on the dock, evidence to the effect that by a previous oral agreement such lumber need not be taken away until the harbor is dredged to accommodate a certain barge is inadmissible.</p> <p>4. Contracts—construed. Where lumber piled on a dock, and some to be thereafter sawed and piled there, is sold under a contract providing that “lumber to be carried on the docks ninety days, provided we have room, if not, there should be enough of said lumber moved after being sixty days in pile to give us the room,” such provision for removal applies to the lumber then on the dock as well as that to be sawed.</p> <p>5. Contracts—extension of time where performance delayed by buyer. Where the seller’s failure to have lumber in pile at the time specified in the contract is due in part to the buyer’s failure to remove certain lumber as agreed, the seller is entitled to a reasonable extension of time.</p> <p>6. Contracts—waiver of notice of breach. Where the seller gives the buyer notice before time for complete performance that the lumber contracted for cannot be delivered on the date specified, the contract is kept alive for the benefit of both parties if the buyer shows no intention to treat the notice as a breach but announces an intention to take certain lumber to which it has no right unless the contract is still in force, and insists on its right to have the contract quantity delivered.</p> <p>7. Contracts—when divisible. Where a contract for the sale of lumber provides, “Terms 2% off in ten days or sixty days’ acceptance; lumber to be shipped sixty days from completion of each one-half million sawed,” and is for delivery of two and one-half million feet within a certain time, the contract is divisible and the buyer’s promise is to pay for each separate shipment and not when the two and one-half million feet is delivered.</p> <p>8. Contracts—set-off. In an action for the price of lumber delivered under a contract, defendant, to maintain a claim of set-off, must show that he is not in default on such contract; and to recoup, the burden is on him to prove that he is not in default and that plaintiff failed to perform.</p> <p>9. Damages—measure of. The measure of damages for breach of contract to deliver lumber at a certain place at a certain time is the difference between the market price and the contract price at the place of delivery, and if no market there then at the nearest market with freight therefrom, with compensation for time, trouble and expense involved in procuring the lumber.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in this court at the October term, 1909.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

G-boroe A. Carpenter, Judge, presiding. Heard in this court at the October term, 1912. Petition for certiorari denied by Supreme Court making opinion final.

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

<p>1. Evidence—of agent as to agreement. In an action for the price of lumber delivered under a contract, where defendant alleges that a subsequent agreement was made with an agent of plaintiff whereby only the suitable lumber from the quantity delivered was to be used and paid for, testimony by such agent that such an agreement was made with defendant is erroneous and highly prejudicial where the evidence tends to show that such agent had no authority to bind plaintiff.</p> <p>2. Evidence—when admissions of agent competent. In an action for the price of lumber delivered, where defendant alleges breach of warranty as to quality, testimony as to statements made by - an agent of plaintiff as to the quality is erroneously admitted where the evidence tends to show that such agent had no authority to bind plaintiff.</p>

<p>1. Principal and surety—what constitutes contract. An instrument reciting an obligation to answer for defalcations, stated to be a formal declaration of obligation and guaranty, that is drawn in the form in use in the civil law and contains no condition of defeasance, is not a bond, but, the obligor declaring himself as surety, expressly binding himself to be “directly” responsible and to “answer directly” to the -obligee, it is a contract of suretyship, although the word “guarantees” is used therein.</p> <p>2. Appeals and errors—harmless error. In an action against a surety of a financial secretary of an organization which is tried before the court, testimony of a member of an auditing committee who claimed to have examined the secretary’s books and accounts and to have interviewed members and made a report of a shortage, is inadmissible, and likewise the report itself, but the admission of such evidence will not reverse where sufficient competent evidence of a shortage is admitted, since it will be presumed that the incompetent evidence did not influence the court.</p>

<p>Munich?An courts—when statement of facts is insufficient. A purported statement of facts by a judge of the Municipal Court of Chicago that is merely a statement that a witness gave testimony in relation to certain things is not sufficient.</p>

<p>1. Appeals and errors—harmless error. Improper exclusion of evidence as to elements of damage sustained when an automobile is injured in a collision will not necessarily work a reversal if the jury finds there was no liability.</p> <p>2. Appeals and errors—record must contain instructions given. Error in the giving of instructions will not be reviewed where instructions appear in the abstract of the record and none are contained in the record.</p>

<p>Telegraphs—hearsay evidence. Where a labor agent sues a telegraph company for failure to deliver a telegram, whereby laborers that he had procured in another city were not met on their arrival at their destination, evidence by plaintiff that he had been told that the men had left their city and had arrived at their destination is incompetent.</p>

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

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

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

<p>1. Innkeepers—who are guests. A weekly rate and a lengthy stay do not, in the absence of taking up a permanent abode at a hotel, take from a person the status of a “hotel guest.”</p> <p>2. Innkeepers—bailee may recover for articles lost. A guest of a hotel who had possession as bailee, gratuitous or otherwise, of articles that he properly entrusted to the hotel keeper, is entitled to maintain an action for their value.</p> <p>3. Innkeepers—bailee can recover entire value of lost articles. Where an innkeeper loses articles entrusted to his care by a guest, a bailee, the guest is not restricted to the recovery of the value of his special interest in the property, but can recover the whole value and will hold the amount' so recovered in excess of his own interest for the general owner.</p> <p>4. Innkeepers—limitation of liability. The liability of an innkeeper for a valise and contents entrusted to his care is not limited to fifty dollars, by the Act of 1909, for the protection of innkeepers, where the valise is lost through his negligence.</p> <p>5. Innkeepers—presumption of negligence in loss of goods. A presumption of negligence arises when luggage is handed by a guest to an authorized employee or agent of a hotel for custody and cannot be afterwards found or heard of.</p> <p>6. Evidence—owner may testify as to value of wearing apparel. In an action by a father against a hotel company for the loss of a valise containing wearing apparel and related articles belonging to his daughter, which he entrusted to the hotel for custody when he was a guest, the testimony of plaintiff and his daughter as to the value of the articles is not only competent evidence but is also the best evidence.</p>

<p>1. Fraternal benefit societies—when not estopped to assert that. designation of beneficiary was ultra vires. Where a by-law of a fraternal benefit society restricts payment of benefits to cousins of the member, to cousins of the first degree, such society is not estopped by its description of a beneficiary in a certificate as a “cousin” from setting up the defense that its action in naming such person as a beneficiary was ultra vires if the word “cousin” is to be construed as meaning a blood relation further removed than a first cousin.</p> <p>2. Fraternal benefit sogtetles—power to limit payment to classes of blood relatives. Though the statute relating to fraternal benefit societies provides that payment of death certificates may be made to blood relations of the member, such societies may limit such payment with regard to cousins of members, to first cousins.</p> <p>3. Fraternal benefit societies—burden of proof as to whether beneficiary is one who can take. Where a by-law of a fraternal benefit society limits payment of death certificates as respects cousins of the member, to first cousins, in an action by a beneficiary named as a “cousin” of the member, the burden is on the society to prove that such person is not such a cousin as can take.</p> <p>4. Fraternal benefit societies—beneficiaries. One named as a beneficiary is shown not to be within the class permitted by a by-law providing that cousins further removed than the first degree cannot recover benefits where he states that the member told him ten years before that he was a first cousin, but also states that neither his father or mother was a brother or sister of the member’s father or mother, and such statement is not contradicted.</p>

<p>1. Contracts—when question for jury. Where the evidence is sharply conflicting whether defendant ordered plaintiff to “take care of” certain defective plumbing, the question is for the jury.</p> <p>2. Appeals and errors—harmless error. In an action for plumbing work performed, where defendant was asked on direct examination what he said to plaintiff about taking care of the plumbing, and answered that he did not tell plaintiff or anyone to take care of it but stated to plaintiff that he would go down to see what was necessary and that the agent was taking care of the building, such answer, though not entirely responsive, was improperly stricken, but the striking will not reverse where substantially the same matter was previously admitted.</p>

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

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

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

<p>Error to the Superior Court of Cook county; the Hon. William Fenimobe Coopeb, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>Municipal courts—judgment. Where within thirty days a Judgment in the municipal court is set aside and another judgment entered for less, nune pro tune as of the date of the former judgment, it is* not error, since there are no terms in the municipal court and such procedure is authorized under the Municipal Court Act, § 21.</p>

<p>1. Appeals and ebeors—briefs. Where appellant files a volume entitled “Statement, Brief and Argument of Appellant,” consisting of 325 pages, in which many of the points are not briefly stated but are long and involved, there is not a compliance with appellate court rule 21.</p> <p>2. Election op remedies—what constitutes. In assumpsit for money had and received, pleas that an attachment suit was begun to recover the money in question in which defendant was summoned as garnishee, that the suit was dismissed for want of prosecution and that the institution of such attachment suit constituted an election by plaintiff and estopped him from maintaining assumpsit, are demurrable.</p> <p>3. Evidence—pleas held bad on demurrer. An objection to the introduction of evidence to support a plea held bad on demurrer is properly sustained.</p> <p>4. Interest—improperly withholding money after demand. Where defendant received a deposit with the understanding that it should be held to abide the result of a contract between plaintiff and a third party, to be returned to plaintiff in the event that the third party should fail to comply with the contract, there being a breach of the contract by the third party, defendant refusing to return the money on demand of plaintiff is liable for interest from the time of refusal.</p> <p>5. Interest—assumpsit for money had and received. In determining liability for interest on money wrongfully withheld after demand by rightful owner, it is immaterial that the action is in assumpsit for money had and received when it might have been in trover.</p>

<p>Appeal from the County Court of Cook county; the Hon. William C. De Wole, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Master and servant—allegations of duty. After verdict for plaintiff, a count will be held to allege sufficient facts from which a duty on defendant’s part not to drive a car towards plaintiff can be inferred and to set forth a sufficient causal connection between the negligence and the injury, where it alleges that defendant ordered plaintiff to work near a car on an elevated structure and while he was exercising due care defendant negligently ordered a car to be moved towards and against plaintiff, while he was discharging his duties as a servant of defendant, whereby plaintiff was struck by the car and injured.</p> <p>2. Master and servant—negation of act of fellow-servant. A count which alleges that plaintiff’s injury was due to the negligence of defendant, a corporation, is not fatally defective after verdict because of failure to state that the injury was not caused by a fellow-servant of plaintiff.</p> <p>3. Master and servant—evidence. Evidence held to support a verdict for plaintiff, a switch repairman, in an action for negligence in driving a car on defendant’s elevated railroad against him and brushing him from the structure.</p> <p>4. Master and servant—fellow-servants. In an action by a switch repairman against an elevated railroad company for negligence in driving a car against him, held not error to refuse an instruction that as a matter of law the motorman of such car and plaintiff were fellow-servants.</p> <p>5. Damages—not excessive. Verdict for §10,000 is not excessive where plaintiff’s wrists were broken, the bones at the lower end of his arms dislocated, his left ankle broken and his right broken or dislocated, and after coming from the hospital the motion of his left hand was limited, the joints in his ankles were very stiff, one foot was turned in and he was bowlegged, all of which conditions were permanent.</p> <p>6. New trial—affidavits of jurors to impeach verdict. On motion for new trial after verdict for plaintiff in an action against an elevated railroad company for negligence, affidavits of three jurors that they visited the place of the accident and viewed the structure from below will not be received to impeach their verdict.</p> <p>7. Evidence—instructions. In an action for personal injuries it is not improper to instruct the jury that plaintiff is not bound to prove his case beyond a reasonable doubt, but only by a. preponderance of the evidence.</p> <p>8. Master and servant — abstract instruction. In an action against an elevated railroad company by a servant for injuries caused by alleged negligence in driving a car against him while he was performing his duties, while it seems that the abstract proposition that the master is under a duty to exercise reasonable care to furnish the servant a reasonably safe place to work should not have been given to the jury, it could not have been misleading where all the grounds of recovery under the declaration were fully explained by other instructions.</p>

<p>1. Highways—injury to child at crossing. Where evidence that a thirteen-year-old child was not running while crossing a street at a busy corner, heard no noise and did not hear nor see an approaching team that was running fast until too late to avoid being knocked down, is contradicted by evidence that the team was slowed down as it approached the crossing, that the driver was looking straight ahead and that the track was clear, and that the child suddenly attempted to cross without looking and collided with a man, resulting in her being knocked against the horses, a verdict for the child will be sustained.</p> <p>2. Highways—when injured person’s exercise of care is for the jury. Where a thirteen-year-old child was not running, heard no noise and did not hear nor see an approaching team that was running fast until too late to avoid being knocked down, whether the child was exercising reasonable care for her safety at the time of the accident is a question for the jury.</p> <p>3. Master and servant—evidence of ownership of wagon driven liy employee. Evidence by the driver of a wagon that ran over a girl that at the time of the accident the defendants did business as “B- Brothers,” that he was working for them or was paid by them, that the horses and wagons belonged to them, that he gave a policeman a printed sales slip bearing the name “B—■— Bros.,” with evidence by defendants’ attorney that they were partners at the time of the accident, and evidence that the wagon bore the sign “B- Brothers,” establishes that defendants owned and controlled the horse and wagon.</p> <p>4. Evidence—speed of horse. To establish how fast a horse and wagon were going, nonexpert witnesses may testify that “that they were going at á fair speed,” “the horses were going at a pretty fast gait,” “the horses were just running” and “the horses were running fast.”</p> <p>5. Damages—when instruction on child’s loss of earnings is proper. Where an action is brought for injuries sustained by a child, an instruction permitting the jury to consider the effect of the injury upon plaintiff’s ability or disability in the future to work or to attend to affairs generally is not erroneous as permitting the jury to take into consideration plaintiff’s ability to work and to earn compensation during her minority, where the suit was brought in the name of the father as next friend.</p> <p>6. Damages—when not excessive. Where a wagon passes over the leg of a female child in perfect health and fractures it so that it becomes deformed and considerably shorter than the other leg, and the lameness and deformity are permanent, and the lameness will become more aggravated with time, a verdict for $7,500 is not excessive.</p> <p>7. Appeals and errors—harmless error. Where counts are by amendment superseded by other counts and both parties have instructions granted that refer to the negligence charged in the declaration, it is not prejudicial to refuse an instruction offered by the defendant requiring the jury to disregard the superseded counts.</p>

<p>Appeal from the Circuit Court of Cook county; the How. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

<p>1. Instbuctions—directing verdict. It is a well settled rule that where there is no evidence, or but a scintilla of evidence tending to prove the material averments of the declaration, a verdict should be directed for the defendant, yet when there is evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments have been proved, the case should go to the jury.</p> <p>2. Negligence—places attractive to children. As a general rule the law does not require that premises be kept in safe. condition for the benefit of trespassers, yet there is an exception in favor of young children where the things causing the injury have been left unguarded and are of an attractive character such as appeals to their curiosity and instincts.</p> <p>3. Negligence—when error to direct a verdict. In an action for the death of a child caused by falling into a river while playing on a sand pile on the premises of defendant, it is error to direct a verdict for defendant where there is evidence that children were permitted by the defendant’s watchman to play on the premises, that there was a thickly populated district near and also a street along the premises, and the sand pile was so situated that a fall from it would naturally cause a fall into the river.</p>

<p>1. Injunctions—interlocutory order not appealable, when. Where it is ordered that a temporary injunction issue against defendants upon complainant’s filing a specified bond, and the time within which to file the bond is not fixed, and on appeal the record does not show that any bond was filed or injunction issued, such an order is erroneous in not limiting the time for filing bond, and considered in connection with Practice Act, § 123, is not appeal-able.</p> <p>2. Injunctions—when order has no restraining influence. An order that a temporary injunction issue against defendants upon complainant’s filing a specified bond, the time within which to file the bond not being fixed, has no force or effect as an injunction until the prescribed condition is performed.</p> <p>3. Waeuhousembn—duties. The owners of a warehouse are public trustees charged with a duty to the public which does not permit them to own, directly or indirectly, any of the grain stored in their own warehouses.</p> <p>4. Injunctions — when complaint must show special injury. Where the holder of warehouse receipts seeks to enjoin defendants, owners of the warehouse, from storing any of their own grain in it, or from cleaning grain and mixing it for the purpose of storing it in such warehouse, he must show actual damage or special injury to his rights beyond the fact that defendants are indulging in a general practice affecting all holders of warehouse receipts in the same manner, which is contrary to their duty as public trustees.</p>

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

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

<p>Municipal court—certificate of trial court. The appellate court may on motion-strike from the transcript of the record an instrument designated “a correct statement of facts of the proceedings on the trial and of such other proceedings in the case to be reviewed,” where there is no certificate of the trial judge that it is a correct statement of facts appearing on the trial and of the questions of law involved and of the decisions of the court thereon as required by the Municipal Court Act.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Adelob J. Petit, 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>Error to the Circuit Court of Cook county; the Hon. William M. Scholpield, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>1. Witnesses—conversation with agent since deceased. In establishing the fact that a contract was made with a corporation, witnesses may be competent to testify to a conversation with an officer since deceased, if another officer was present at the time.</p> <p>2. Sales—evidence estahlishing contract. Where plaintiff had manufactured a large number of similar articles for defendant, contradicted evidence that plaintiff had a certain number made specially and defendant said he would take them, that he did take and pay for a part of them, and that for lack of room he refused to take the remainder, but stated he would take them as soon as he could find available room, establishes a liability to pay for such articles.</p>

<p>1. Mechanics’ liens—recovery upon a quantum meruit. On a bill by a contractor to foreclose an alleged mechanic’s lien, if the contract was not fully performed, recovery, if at all, must be upon a quantum meruit.</p> <p>2. Building and construction contracts—when improper performance is fault of contractor. Where the specifications and contract require that the basement of a building shall be of a certain height, habitable and conform to ordinances as to height and size of windows, and an experienced contractor, after the building is partly erected, lessens the height of the basement by filling in the basement excavations made by the owner so that the basement might be properly drained, and makes the windows of a certain size and height contrary to the ordinances, held under conflicting evidence, that the failure to fulfill the contract properly was the fault of the contractor.</p> <p>3. Building and construction contracts—delay caused by strike. A delay in the completion of a building is not excused by a strike where the contract does not so provide.</p> <p>4. Building and construction contracts—when contractor cannot recover surveying charge. A recovery by a building contractor against an owner for having the premises surveyed is not sustained where the name of the surveyor does not appear in the record and a receipted bill was not produced.</p>

<p>Error to the Superior Court of Cook county; the Hon. Richasd E. Bubke, 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. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>1. Attachment—priorities between creditors. Where money Is advanced by a bank under a verbal agreement that certain fruit is to become its property, and such fruit is sold and the bills of lading and drafts in its favor are delivered to the bank and sent to its agents, who collect the proceeds, an equitable lien exists in behalf of the bank superior to that of a subsequent attaching creditor.</p> <p>2. Garnishment—rights of equitable owners. In garnishment courts of law will notice and protect the interests of equitable owners.</p> <p>3. Pledges—rights of pledgee who makes advances. Where fruit and the proceeds therefrom are pledged to a bank as security for advances and on sale thereof the bills of lading with drafts attached are delivered to the bank, a special property is vested in the bank entitling it to the proceeds of the sale to the extent required for the payment of such advances.</p> <p>4. Pledges—what shows intention that pledgee receive proceeds of sale of goods. It is the intention, where fruit and the proceeds therefrom are pledged as security for advances, that the pledgee shall receive the proceeds of the sale thereof in payment of such advances, when drafts attached to the bills of lading are made out to the pledgee, and on rejection of the fruit, a sale is made on his orders, the.proceeds are garnisheed in the hands of his agents, and the pledgor exercises no independent authority over the fruit after the delivery of the bills of lading to the pledgee.</p> <p>5. Pledges—attaching creditor of pledgor. Where goods and the proceeds therefrom are pledged and the proceeds are collected by the pledgee’s agent, the possession thereof so far as an attaching creditor of the pledgor is concerned is the possession of the pledgee.</p> <p>6. Attachment—nonresidence of debtor. Where attachment is on the mere ground of nonresidence of the debtor, the attaching creditor can acquire only the debtor’s rights existing when attachment was levied and the question of the ownership of the property at that time is raised.</p> <p>7. Pledges-—rights of pledgee to proceeds of sale of goods pledged. Where fruit and its proceeds are pledged for advances for which notes are given, 'and a creditor of the pledgor attaches the proceeds in the hands of an agent of the pledgee, the pledgor cannot assert rights thereto as against the pledgee, and such pledgee’s right is not affected by taking additional evidence of the indebtedness from the pledgor while title to the proceeds is in controversy.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. William B. Soholfield, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

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

<p>1. Appears and errors—master's report. A master’s report inserted in an alleged certificate of evidence, certified as an original document and by stipulation incorporated into the transcript of record, is not properly in the record and is not considered by the court of review.</p> <p>2. Judgments—vacation. A decree or judgment may be vacated at a subsequent term where the motion is made during the term at which it is entered and continued.</p>

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

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

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

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Beitleb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>1. Contributory negligence—instructions. Where there is serious doubt whether plaintiff’s intestate, who was injured when one of defendant’s cars collided with his wagon, was not guilty of contributory negligence, and none of the instructions attempt to apply the law to the evidence, it is error to refuse an instruction that if from the evidence the jury belieye that ordinary care required deceased to stop and look and listen to ascertain whether a car was approaching the crossing so as to make it unsafe to drive thereon, and deceased failed to do so, and that if he had he would have discovered the approach of said car in time to have avoided the injury, then plaintiff cannot recover.</p> <p>2. Street railroads—instructions. Where plaintiff’s intestate was injured when one of defendant’s cars collided with his wagon, and there is serious doubt whether intestate was not guilty of contributory negligence, and none of the instructions attempt to apply the law to the evidence, it is error to refuse an instruction that if the jury believe from the evidence that just before driving on defendant’s track deceased heard the crossing bell or saw the reflection of the car headlight, or would have heard such bell or seen said reflection had he been exercising ordinary care, but drove on the track without stopping, then defendant should be found not guilty.</p>

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

<p>1. Railroads—imputed negligence. In an action for the destruction of personal property struck by defendant’s engine, the negligence of a teamster, an independent contractor engaged in hauling the property, is not chargeable against plaintiff with whom he is under contract.</p> <p>2. Railroads—negligence at crossings. The question of whether defendant railroad was guilty of negligence in crossing a country road at a high rate of speed without giving an effective warning is for the jury.</p> <p>3. Railroads—negligence. In an action for personal property struck and destroyed by defendant’s engine, the mere performance of all the statutory duties does not necessarily relieve defendant of negligence.</p> <p>4. Negligence—concurrent. Where an injury is the result of the negligence of defendant and a third person, the plaintiff may recover if the negligence of the defendant is an efficient cause of the injury.</p> <p>5. Railroads—concurrent negligence. Where plaintiff’s . goods, while being hauled by an independent contractor, are destroyed by defendant’s engine, and the contractor and defendant are both negligent, yet defendant’s negligence contributed directly to the accident, plaintiff is entitled to recover.</p>

<p>1. Street railroads—evidence. Plaintiff’s intestate, while driving a loaded wagon over a crossing, was struck by an electric car and killed. Plaintiff’si testimony tended to prove that the motorman was negligent in propelling the car at a high rate of speed, not having the car under control and without sounding the bell, and three witnesses testified that the car was going at a speed of eighteen to twenty miles an hour. Defendant introduced evidence that the motorman rang the bell in ample time but that deceased disregarded the warning, that stopping appliances were employed and that the car was going at a speed of four to six miles an hour. Held, that the evidence was not clear that the car was under proper control, and a verdict for plaintiff was not against manifest weight of evidence.</p> <p>2. Instructions—preponderance of evidence. An instruction requiring the jury to determine from certain enumerated circumstances upon which side the weight of evidence is, is erroneous.</p> <p>3. Instructions—not referring to the-evidence. An instruction which does not require the jury to look to the evidence to ascertain a certain fact is properly refused.</p> <p>4. Street railroads—instructions. An instruction that if deceased saw or was aware of the approach of a car “at the time and place in question” no negligence is attributable to defendant, is misleading, since the question of whether a bell was rung or not is properly omitted only in case the car was seen by deceased in time to avoid the accident.</p> <p>5. Instructions—When assuming facts not in evidence. An instruction to find defendant not guilty if the jury believe that a motorman was led to believe that deceased would stop a wagon before going on the track is properly refused where there is no evidence tending to prove that fact.</p> <p>6. Damages—when not excessive. A verdict for $5,000 for causing the death of a teamster, forty-two years old, who had been in good health and who left a widow and four minor children is not excessive.</p>

<p>1. Bbokebs—recovery of commission where negotiations discontinued. A broker is entitled to recover commissions, if he finds a buyer who is ready, able and willing to purchase the property on the terms of the original contract, or to whom his client finally sells the property upon other terms agreed upon by the latter and the purchaser.</p> <p>2. Bbokebs—discontinuance and abandonment of negotiations. In order to constitute an abandonment of negotiations between a broker and a prospective purchaser so as to defeat recovery of commissions, mere discontinuance for a short time is not sufficient, •but the evidence must also show an abandonment of all intention of purchasing the property.</p>

<p>1. Usury—no defense where debt assumed by third party. -Where an indebtedness has been assumed by a third party as part consideration for a business, he cannot take advantage of the fact that the original contract ■ was usurious:</p> <p>2. Set-off and counterclaims—mutual account necessary. An arrangement to offset a partnership claim against an indebtedness of one of the partners does not affect the creditor of the latter unless he consents thereto.</p>

<p>1. Bills and notes—maturity of demand note. An instruction that if a demand note which was negotiated a year after its date was so negotiated before demand, a set-off against the payee could not be urged against it is erroneous.</p> <p>2. Bills and notes—when question of set-off for the jury. It is for the jury to decide whether defendant has a set-off against the assignee after maturity of notes sued on for rent alleged to be due from the original payee, where the evidence is very conflicting.</p> <p>3. Judgment—trifling error. Where a judgment on notes is excessive by eleven cents, the maxim, de minimis non curat lex, should be applied.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Pleading—plea in abatement. When the statute has not given defendant the right to plead over a plea in abatement and he takes the initiative and produces all his evidence on the issue of abatement and is defeated thereon, nothing remains but to ascertain the amount which the plaintiff is entitled to recover.</p> <p>2. Abatement— another action pending. When the parties are the same to two suits, the only diffprence being that the plaintiff in the one is the defendant in the other, both suits may be maintained at the same time, although such proceedings are unusual.</p> <p>3. Pbactioe—what constitutes commencement of suit. The issuing of a summons and its delivery to the sheriff is the beginning of a suit at law.</p> <p>4. Bill of exceptions—amendment. An amendment to a bill of exceptions may properly be made on notice within the time granted for filing it and before it is filed, to correctly show what transpired at the trial,</p> <p>5. Abatement-—repleader. Where defendant has proved the facts averred in a plea of abatement and moves to withdraw the plea and replead before default is taken or judgment rendered on the plea, it is error not to grant a repleader that substantial justice may be done.</p>

<p>1. Instructions—preponderance of evidence. An instruction requiring the plaintiff to satisfy the minds of the jury by a preponderance of the evidence is properly refused.</p> <p>2. Instructions—giving undue prominence to particular facts. An instruction which singles out an inconclusive fact and directs a verdict thereon, or which particularly directs the attention of the jury and gives undue prominence to certain facts and portions of the evidence, is properly refused.</p> <p>3. Instructions—not duty of court to modify. The court may modify erroneous instructions requested, but it is not bound to do so.</p>

<p>1. Vendos and purchaser—receipt of abstract. Where a contract for the sale of land requires that the vendor shall furnish by a certain date an abstract of title showing a good title in the vendor, the vendee receiving an abstract after the date provided waives his right to rescind because the abstract was not furnished at the time agreed, but does not waive his right to rescind because the abstract does not show a good title.</p> <p>2. Vendos and purchases—when contract may be rescinded if abstract does not show good title. Where a contract for the sale of land gives the vendee a reasonable opportunity to have examined the abstract of title that is to be furnished by the vendor and is to show a good title, but contains no provision for an opportunity thereafter for the vendor to amend the abstract or cure defects in the title, if the title is not shown to be a good title by the abstract when it is furnished, the vendee has a right to rescind the contract, and it is immaterial that Ms attorney made suggestions as to how several of the defects could be cured, and sent a copy of his opinion to the abstracter.</p> <p>3. Vendos and purchases—abstract must show whether grantor is married or single. Where a contract for the sale of land requires that the vendor shall furnish an abstract of title showing a good title, the failure of certain conveyances in the abstract to show whether the grantors were married or single is a defect relating to the substance of the title and gives the vendee a right to rescind the contract.</p> <p>4. Vendos and purchases—rights of vendee when abstract is defective. Where a contract for the sale of land requires that the vendor shall furnish an abstract of title showing a good» title and does not give the vendor any right to cure defects after the abstract is furnished, if the abstract does not show a good title, the vendee may either treat the contract as inoperative and demand the return of payments made, or he may pay the balance of the purchase money and demand a deed of the premises.</p>

<p>1. Husband and wife—wife may acquire property from husband. Since the Married Woman’s Act of 1874 a wife may acquire property from her husband.</p> <p>2. Husband and wife—wife’s property is not subject to disposal by husband. Since the Married Woman’s Act of 1874, if a husband, not being in debt, gives his wife money and she buys property with it, or if she buys property and her husband pays for it, or if he gives her property without prejudice to the rights of any of his creditors, the property is not subject to the disposal, contract or interference of the husband.</p> <p>3. Husband and wife—when husband may not dispose of wife’s property. Where a wife buys a piano which is paid for by the husband, and a person knowing that the wife claims it obtains it from the husband in a trade against her protest, in trover by the wife against such person, it is error to give a peremptory instruction to find for the defendant.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Appeals and ebbobs—administration of estates. R. S., c. 3, § 123, as to appeals from the circuit court to the supreme court, R. S., c. 37, § 25 (Appellate Court Act, § 8), as to the jurisdiction of the appellate court, R. S., c. 37, §§ 212 and 213, as to appeals from the county court, and the Practice Act of 1907, § 118, as to appeals from the circuit court to the appellate court, must be construed together in determining whether an appeal from the circuit court on the allowance of a claim against an estate should properly be taken first to the appellate court.</p> <p>2. Administbation of estates—when appeal from allowance of claim should he taken to appellate court. An appeal from the circuit court on the allowance of a claim against the estate of a deceased person is properly taken first to the appellate court.</p> <p>3. Administbation of estates—when sufficient that appeal is perfected hy only one of several administrators. Where a record shows that an appeal from an allowance against an estate was prayed for and granted to administrators severally or jointly, it is immaterial that only one of the administrators perfected the appeal.</p> <p>4. Bills and notes—evidence of absence of consideration. A person made claim against an estate based on a note of the decedent claimed to have been given for services to be performed as a nurse, and testified to such effect. Numerous witnesses testified that claimant stated that she was working for wages and that she was paid, and letters written by the decedent to her during an absence requested her to return as a favor and not as a matter of right. Seld, the note was without consideration.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. • Myers, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Telegraphs and telephones—delayed message. The fact that certain wires of a telegraph company went “dead” will not avoid liability for damages for delay in dispatching a message if there was time enough before to have sent it or other means of transmission were available.</p> <p>2. Appeals and errors—harmless error. Where the court improperly sustains an objection to a question of defendant and a verdict is rendered against defendant, it is not reversible error if the verdict is supported by the evidence notwithstanding the particular matter covered by the question.</p> <p>3. Evidence—leading questions. A question is leading which puts into the mouth of the witness the words to be echoed back or plainly suggests the answer desired.</p> <p>4. Appeals and errors—appellate court hound hy its own decisions. The decisions and announced propositions of law of the appellate court are binding on that court and will not be departed from in a subsequent appeal of the same case, nor will it review its former opinions.</p>

<p>1. Appeals and errors—failure to comply with section 81 of the Practice Act. Where a full transcript of all proceedings is filed, the failure to comply with section 81 of the Practice Act, in regard to giving notice, is not necessarily a ground for affirming a judgment, but may be a reason for taxing unnecessary costs.</p> <p>2. Mines—unsafe tracks. Section 18 of the Mining Act of 1907, which requires a mine examiner to inspect all places where men are expected to pass or work, and when a dangerous condition is discovered to place a mark thereat, applies to dangerous and unsafe hauling tracks.</p> <p>3. Evidence—conversations before accident. In an action for personal injury to a mule driver caused from unsafe hauling tracks in a mine, conversations between miners and the mine examiner in which complaint was made about the tracks a week or two before the accident are admissible for the purpose of showing that the company had notice and knowledge of the defective condition.</p>

<p>1. Administration of estates—allowance of claims. On a claim for material and labor used in constructing buildings on a farm, where there is a set-off for rent, an instruction to the effect that proof that plaintiff used and occupied the farm cast upon him the burden of showing payment for such use and occupation, and that the law does not require him to show payment by direct evidence, but that it is sufficient if the jury believe from the evidence, facts and circumstances that such payment was made, is not erroneous where there is testimony that rent was paid.</p> <p>2. Administration of estates—claims. In an action on a claim for boarding and nursing deceased, the question whether plaintiff was a member of the family is one of fact.</p> <p>3. Administration of estates—claims for services. In an action on a claim for boarding and nursing deceased, an instruction given for plaintiff which imperfectly defines a family relation as that state or condition of affairs which makes it the moral duty of the person performing such services to perform the same without compensation, is not reversible error where a second instruction given for defendant supplements it so that the jury are fully and fairly instructed on the question.</p> <p>4. Appeals and errors—waiver of errors. Where errors are not raised either by assignment of error or in argument, they are waived.</p>

<p>1. Corporations—fraud on subscribers. Where promoters and officers of a corporation agree with subscribers for stock that money and notes therefor shall remain in Illinois until the proposed corporation obtains a license from another state to do business therein, it is a fraud on such subscribers if certificates of deposit for such money are issued in the name of the corporation and with such notes are sent out of Illinois before such license is obtained.</p> <p>2. Corporations—situs of stock subscriptions. Where subscribers for stock of a corporation to. be organized in Missouri are entitled to have their subscriptions canceled for fraud, and it was agreed that the proceeds of such subscriptions should remain in Illinois until a license to do business was obtained in Missouri, the fact that receivers are appointed in Missouri does not justify the taking of such proceeds in Illinois by such receivers when they are appointed before authority to do business was obtained by the proposed corporation, since in equity the situs of the proceeds remained in Illinois.</p> <p>3. Evidence—parol. In equity where fraud in securing stock subscriptions is alleged, parol evidence is admissible to add to the terms of the written subscription.</p> <p>4. Receivers—competency to act. A party to a suit or a master in chancery is incompetent to act as receiver.</p> <p>5. Receivers—when appointment of one incompetent to act harmless error. The appointment of a master in chancery, who is a party to the suit, as receiver, is harmless error if the decree is otherwise harmless.</p> <p>6. Decrees—when erroneous. Where a bill in the circuit court only asks relief concerning moneys and notes given by the complainants for stock of a proposed foreign corporation, which are held by a bank and by a trustee, a decree is erroneous which directs such bank and such trustee to turn over to the receiver appointed by the court all moneys, notes and- papers in their possession claimed by receivers of such proposed corporation appointed in a foreign jurisdiction, when the record shows that there are subscribers to the stock of such corporation residing in the county who paid money or gave notes on their subscriptions but are not parties to the suit, and that there is more money on deposit in such bank than complainants paid on their subscriptions.</p> <p>7. Courts—delegation of duties. A decree is erroneous which directs a receiver to fix and retain his compensation as receiver and to fix and pay his solicitors’ fees.</p>

<p>1. Agency—evidence. A judgment for plaintiff for goods sold to an alleged agent of defendant is not supported by the evidence, where, from the draft on defendant given to plaintiff by such alleged agent, and from the evidence, it seems that no agency existed, that the goods in question were bought by the alleged agent for himself, that the defendant did not receive such goods and that authority was given to draw on defendant only when goods shipped to him covered the amount of the drafts.</p> <p>2. Agency—evidence. Payment of checks to- which the name of the payor is signed by a third party tends to prove an agency.</p> <p>3. Payment—presumptions. Payment of drafts drawn on a party by a third party is presumed to be made from funds of the drawer in the hands of the drawee.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbekhiton, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the April term, 1912.'</p>

<p>Appeal from the Circuit Court of Sangamon county;' the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Appeals and ebbors—presumption. .Where a case is tried without a jury and no written propositions of law are submitted to the court and no complaint is made concerning rulings on the admission of evidence, it is presumed that all questions of law were correctly decided.</p> <p>2. Appeals and ekboks—validity of contract of employment. In an action for damages resulting from appellee’s discharge, appellant cannot question the validity of the contract of employment where it is not raised by any assignment of error.</p> <p>3. Damases—mitigation. In an action by an employee for wrongful discharge, where the employer seeks to mitigate damages, he has the burden of proving what the employee earned or might have earned.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Practice—improper argument of counsel. Argument of counsel to the jury as to the propriety of a ruling of the court and the effect of excluded evidence, commenting on objections of opposing counsel, when within their legal rights, and appeals to prejudices of the jury, violate the rules of practice, are improper and unprofessional, and constitute ground for reversal.</p> <p>2. Practice—reading of law try counsel to jury. In addressing the jury tn civil cases, an attorney may present a view of the law, but he has no right to read from law books.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.</p>

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

<p>Appeal from the County Court of DeWitt county; the Hon. Heed C. Hill, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Chancery—commencement of suit. A chancery suit is not commenced within the provisions of R. S. c. 22, §§ 4, 8, 9, relating to the commencement of such a suit, where an executor’s report is marked “In Chancery” and placed upon the files without petition or bill in chancery, without prayer for relief or summons and without complainants or defendants.</p> <p>2. Chanceby—limits of relief. Relief under a bill in chancery must be confined within the limits of the prayer of the bill.</p> <p>3. Chanceby — sufficiency of facts. Sufficient facts must be stated in a bill in chancery that issue may be made by the proper pleading.</p> <p>4. Chancery—when proceeding not within practice act. Where an executor’s report is marked “In Chancery” and placed upon the files without petition or bill in chancery, without prayer for relief of summons and without complainants or defendants, the proceeding does not come within the Chancery Practice Act, providing that under certain circumstances chancery courts are open to deal with wills, estates, trusts and proceedings of that character.</p> <p>5. Chanceby—jurisdiction. The trial court does not acquire jurisdiction of the subject-matter of proceedings where an executor’s report is marked “In Chancery” and placed upon the files without petition or bill in chancery, without prayer for relief or summons and without complainants or defendants.</p>

<p>Appeal from the Circuit Court of De Witt county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Sams—duty of seller making resale. In the absence of any limitation as to time or place, a seller making a resale of goods that have been refused by the buyer must exercise reasonable diligence and care to obtain the highest price, and he is not confined to the market at the place of delivery.</p> <p>t 2. Cashiers—refused goods need not be sold within the state. R. S. ch. 14, § 2, concerning sales by carriers of perishable property that owners, refuse to receive, does not require a railroad company to sell cattle at a market within the state, and it is required only to use a reasonable discretion in selecting the market.</p>

<p>* Schools—;power of boards of education to introduce manual training. Under School Law ch. 122, §§ 91, 114, 179, boards of education of township high schools have power to discharge the duties of school directors, to direct what branches of study shall be taught and to establish instruction in such other branches as they may prescribe, including manual training, without submitting the question to the voters of the district, but if they fail to act, the latter may prescribe instruction in such other branches.</p>

<p>Appeal from the Circuit Court of Jersey county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Criminal law—duty of court to form issue before trial. It is the duty of the court upon the trial of all misdemeanor cases to require the defendant to plead, or to incorporate a plea of not guilty into the record, and thereby make an issue before trial.</p> <p>2. Criminal law—record must show plea of not guilty was made. The Criminal Code, div. Ill, § 3, as to arraignment and plea, contemplates an arraignment and plea of not guilty before trial and before a conviction can be sustained in a misdemeanor case the record must show that an issue was made by a plea of not guilty.</p> <p>3. Criminal law—when absence of plea of not guilty is not cured. Where it is alleged in a motion for a new trial that a plea of not guilty had not been entered and that no issue had been formed, an amendment of the record of the proceedings in the trial court by the entry of a nunc pro tunc order stating that defendant appeared in open court and “stated he was ready for trial” is not sufficient to cure the defect.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. William G-. Cochran, Judge, presiding. Heard in this court at the April term, 1912.</p>

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

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Boundaries—restoring original survey. The Acts of May 10, 1901, and May 27, 1911, providing for the permanent survey of lands, confer no power upon the commissioners to run new boundary lines, but their duty is simply to ascertain as near as possible lost corners, and to retrace and to re-establish the lines of the original United States survey and those by which purchasers have been influenced and governed in previous conveyances.</p>

<p>1. Dismissal—voluntary. On assumpsit upon an open account for certain machinery furnished, where defendant alleges breach of warranty as to a machine and that it is of no value, it is the duty of court under the Practice Act, § 39, to allow plaintiff on motion after the evidence is heard to dismiss the part of the account relating to the alleged defective machine.</p> <p>2. Instructions—effect of dismissal. Where a portion of an open account sued on, to which special pleas of breach of warranty and set-off are filed, is dismissed on motion, instructions are proper which provide that upon such pleas and issues the jury must find for plaintiff and that the only issue is whether recovery can be had on the part of the account not dismissed.</p> <p>3. Set-off—pleading. A plea is defective which offers to set off unliquidated damages growing out of a breach of contract, but does not show that it grew out of and was a part of the contract sued on.</p> <p>4. Damages—unliquidated defined. Unliquidated damages are damages which cannot be ascertained by a computation or calculation.</p> <p>5. Damages—when set-off deals with unliquidated. In an action on an account for machines furnished, pleas of set-off deal with unliquidated damages- where they aver, respectively, breach of express and implied warranties as to a machine and claim damages.</p> <p>6. Set-off—effect of dismissal of part of declaration. Where an account is sued on and the part thereof to which set-off is pleaded for alleged breach of warranties and failure of consideration is dismissed, defendant is not entitled to urge his plea of set-off against the remainder of the account.</p>

<p>1. Pleading—stipulation. Where attorneys stipulate that defendant may under the general issue introduce all evidence admissible under any proper pleadings, and shall have the benefit of all proper pleas as though filed and issue joined thereon, and all proper rejoinders, such stipulation permits any defense admissible under any proper pleading, and it is the duty of the court to permit any matter of fact to go to the jury which tends to establish any proper defense.</p> <p>2. Evidence—answers admissible under pleadings. Where, under the pleadings in an action on notes given in payment for a stallion, any fact is proper to be submitted to the jury which relates to a failure of a warranty or of consideration, or supports a contention that the horse is of little value, answers to questions put to the defendants and one qualified to testify should be allowed and should go to the jury where such questions relate in the main to the warranty and an alleged adjustment thereof and to the value of the horse.</p> <p>3. Instructions—peremptory. The asking of a peremptory instruction is equivalent to an admission upon the record of every fact and conclusion in favor of the opposite party which the evidence tends to prove.</p> <p>4. Instructions—when peremptory improperly given. In an action on a note given in payment for a stallion warranted for a year to be an average foal getter, it is error to direct a verdict for plaintiff where the uncontroverted evidence tends to support defendant’s contentions that such stallion was kept after the year expired under a warranty that if he did not make good plaintiff would make it right, that a final settlement on the question of warranty was made but plaintiff failed to comply therewith, and that the stallion failed to make good.</p>

<p>Appeal from the Circuit Court of Piatt county; the Hon. William G. Cochean, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Appeal from the Circuit Court of Pike county; the Ho'n. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Pleading—when plea to merits may be made after plea in abatement. Where service is had upon an alleged agent of a corporation, a plea in abatement by the corporation reciting that it was a resident of a foreign state, had no place -of business in Illinois and no agent upon whom service could be legally had, brings the case within the Practice Act, § 45, as amended by the Act of 1907, which provides that if the issue on certain pleas in abatement is found against the defendant, the judgment shall be respondeat ouster, and the issue being found against the defendant it is entitled to plead to the merits.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Error to the Circuit Court of "Vermilion county; the Hon. Mobton W. Thompson, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the April term, 1912.</p>

<p>1. Insurance—interest. Interest may be recovered on an amount found due on a policy of insurance though not specifically claimed in the declaration.</p> <p>2. Appeals and ebbors—-variance "between claim and judgment. Where judgment was rendered for the amount of an insurance policy and interest, though no. interest was claimed, an objection on the ground of variance between the judgment and the claim cannot be made in the appellate court where it does not appear that such objection was made in the trial court.</p> <p>3. Insurance—when admitted that policy is in force. The fact that an attempt was made by an insurance company to cancel a policy is an admission that the policy was in force at the time of such attempt.</p> <p>4. Evidence—when exclusion of notice to cancel insurance policy proper. In an action on an insurance policy it is not error to exclude a notice that the policy would be canceled for nonpayment of premiums, where the policy provides that it may be canceled by the company by giving five days’ notice and that in matters ¡relating to the insurance no person shall be deemed the agent of the company unless duly authorized in writing, when no attempt is made to show that the alleged agent who served such notice had such written authority.</p> <p>5. Evidence—exclusion of question calling for conclusion. Where action is brought on an insurance policy which provides that in matters relating to the insurance no person shall be deemed the agent of the company unless duly authorized in writing, it is not error to sustain an objection to a question put to an agent of the company as to whether an alleged agent who served notice that the policy would be canceled had authority to serve such notices.</p> <p>6. Insurance—notice of cancellation. A notice to a holder of an insurance policy, which states that “We shall cancel the policy,” is not in itself a cancellation.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Chattel mortgages—sale of mortgaged property. Where personal property has been mortgaged by a man to his wife, and is thereafter sold by the former, the latter may recover from the buyer either on the principle that her husband was acting as her agent and with her consent, or on the principle of a suit for money had and received.</p> <p>2. Chattel mortgages—possession after default. As between a mortgagee and a mortgagor of chattels, or a purchaser from the latter, possession need not be taken upon default, and a purchaser from the mortgagor, before condition broken, is in no better position in relation to it than the mortgagor.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. John R. CaverIíY, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Jttoson F. Going, Judge, presiding. Heard in thy Branch Appellate Court at the October term, 1911.</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, 1911.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

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

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

<p>1. Carriers—how express shipment must he delivered. Express companies must deliver goods to the consignee in person or to his authorized agent at his residence or place of business.</p> <p>2. Cabbiebs — when express shipment is delivered properly. Where an express company is directed to deliver a shipment to a person in care of a steamship, a delivery to the steamship is proper if the consignee was not on the steamship at the time of the delivery and the driver was unable to find him.</p> <p>3. Cabbiebs—when delivery of express shipment to unauthorized agent is sufficient. Where an express company is directed to deliver a shipment to a person in care of a steamship and, the consignee not being on board the vessel at the time of delivery, .the driver makes delivery upon its docks to a receiving clerk of the steamship company, who had no authority to receive the package but whose act is ratified by the company, the package ig delivered to the steamship and the express company is not liable for a delay in a subsequent delivery to the consignee.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

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

<p>Action in assumpsit for goods sold, finding affirmed without de- ■ tailing evidence.</p>