Volume 177 — Illinois Appellate Court Reports

<p>Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1912.</p>

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

<p>Insurance—reinstatement of policy. Where a life insurance policy has lapsed for nonpayment of premium and an application for revival is made to an agent, subject to acceptance by the company, the requisite premium being paid, and the company’s examining physician delays the examination several days, the right of the company to insist on the forfeiture is not thereby 'waived, and there exists no contract of insurance until the new proposal is accepted by the company and the minds of the parties meet.</p>

<p>1. Replevin—essentials to judgment in the alternative. To sustain an alternative judgment under the Replevin Act, § 22, which provides that if the property was held for payment of money the judgment may require the plaintiff to pay the amount for which it was rightfully held or return the property, it must appear that the property was being rightfully held for the payment of money.</p> <p>2. Replevin—when judgment in the alternative is improper. Where a person acquires an automobile from a purchaser at an execution sale, takes it apart, claims it as an owner, refuses to return it to the chattel mortgagee and on selling it to the mortgagee’s assignee makes repairs and does work to again assemble the car to make the sale, on the machine being replevied by the assignee, it was not rightfully held for the payment of the repairs and work, and it is error to enter an alternative judgment as provided by the Replevin Act, § 22, that the plaintiff pay a sum of money for the repairs and work done or return the machine.</p>

<p>1. Architects and engineers—when defense that plans were incomplete is irrelevant. Where an architect sues to recover for services in drawing plans and specifications and preparing estimates of the cost of a building, and it is established that the plans were only preliminary and for the purpose of obtaining an estimate of cost, testimony tending to establish a defense that the plans were incomplete and defective is irrelevant.</p> <p>2. Architects and engineers—amount of compensation. Where in an action by an architect to recover for drawing plans and specifications and preparing estimates of the cost of a building, it appears that the plans were only preliminary and for the purpose of obtaining an estimate of cost, and witnesses on both sides testify that one per cent, of the estimated cost is the proper price for such services, only such amount can be recovered.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Appeals and errors—former appeal. Where a case comes before court of review the second time and the questions involved are the same, the former decision is binding and the judgment is affirmed.</p>

<p>Appeals and errors—former appeal. Where a case comes before court of review the second timé and questions involved are the same, the former decision is binding and the judgment is affirmed.</p>

Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus Kavahagh, Judge, presiding. Heard in this court at the October term, 1910.

<p>1. Accord and satisfaction—where remittance “to close” disputed account is retained an unreasonable time. Where a draft of a third person is sent, by a debtor to a creditor, together with a statement of an account which is in dispute, and the statement and an accompanying letter show that the remittance is to be in full settlement, and the draft is retained by the creditor over three months without notifying the debtor of his refusal so to accept it, it is retained an unreasonable time as matter of law, and the creditor must be held to have accepted the remittance in full accord and satisfaction.</p> <p>2. Accord and satisfaction—where check to “be in full" is cashed. Where a debtor sends a check or draft, whether his own or that of a third party or a bank, for a less amount than claimed,, with a statement that it is in full of the account, and the creditor reduces it to money, he will be held to have acceded to “the accord and satisfaction.” If he is not willing to take the lesser amount in full, he must return the remittance without using it, and although it is not his intention to receive a bankers’ or other third person’s draft in full payment, if he retains it an unreasonable time 'without repudiation, the law infers such intention.</p> <p>3. Accord and satisfaction—where bona fide dispute. The law of Illinois recognizes an accord and satisfaction by the payment and acceptance of a sum less than that due if there be a bona fide dispute as to the sum which should be paid by the debtor to the creditor.</p> <p>4. Questions of law and fact—reasonable time. While the term “reasonable” is a relative term and the facts of the particular controversy must be considered before the question of what constitutes a reasonable time can be determined, yet, when the facts of the case are clearly established or undisputed, the question of what is a reasonable time within which an act should have been done becomes a question of law.</p> <p>5. Evidence—effect of conversations after commencement of suit. A conversation during the pendency of a suit does not alter the rights of the parties at the commencement of the cause.</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>1. Negligence—destruction of unlawful structure. In an action for the negligent destruction of a storm door, it is no defense that the construction was unlawful under a city ordinance.</p> <p>2. Master and servant—liability for acts of employee. Where a driver for a transfer company, acting within the line of his employment, negligently destroys a storm door, the company is responsible.</p> <p>3. Negligence—management of team. In an action for damages from destruction of a storm door, where it is showti. that the door was struck by a load of timber in charge of defendant’s driver, there is sufficient evidence of negligence to raise a question of fact.</p>

<p>Judgments—joint judgment. Where a joint judgment is entered and the evidence fails to prove a joint liability, the judgment cannot be sustained. In this case the evidence is held not so to fail.</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. Cities and villages—hoard of election commissioners. The members of the Board of Election Commissioners of Chicago are municipal officers within the meaning of the State Constitution, art. IX, § 11, providing that “The fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office shall be increased or diminished during such term.”</p> <p>2. Officers—hoard of election commissioners. The Election Commissioners of Chicago are public officers.</p>

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

<p>1. Evidence—admissibility of unstamped instrument. Although, a stamp he required by the revenue laws of a foreign state before a document can be received in evidence there, such document may nevertheless be admitted in evidence without the stamp in the country wherein the suit is brought.</p> <p>2. Corporations—unstamped stock certificate. The New York Stock Transfer Law of 1905, providing that no transfer of stock on which a tax stamp is not attached shall be made the basis of suit or admitted in evidence, is a revenue measure, and in an action in Illinois to recover the purchase price of stock sold in New York, the sale agreement and certificate of stock are admissible in evidence although they are without a stamp.</p> <p>3. Executors and administrators—foreign letters. In an action by a foreign administrator to enforce a claim of the estate, that letters of administration had been granted to him cannot he proved by a certificate of the clerk of the appointing court which was not authenticated otherwise than by the signature of the clerk.</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. Max Eberhardt, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>Corporations—when liable for fraud of servants. Where employees of a corporation advertised as a “Museum of Anatomy,” having “doctors and specialists in all kinds” of certain diseases, represented themselves as such physicians and specialists and fraudulently induced plaintiff to believe that he was suffering from a certain disease, thereby obtaining money from him for supposed treatment and medicine, and the corporation availed itself of such fraud and retained the benefit, the corporation is presumed by law to have authorized and ratified the acts of its servants and cannot claim immunity on the ground that the fraud was perpetrated by its servants and not by the corporation.</p>

<p>Landlobd and tenant—damages for breach of covenant of quiet enjoyment. Where a landlord commits a breach of his implied covenant for quiet enjoyment by entering the demised premises, taking out and boarding up the front of the building arid raising it, proof of loss of trade and daily receipts by the tenant in consequence thereof, where there is no evidence showing what profits he had previously made and thereby lost, is not sufficient to warrant a verdict for damages.</p>

<p>1. Contracts—promise for benefit of another. Where defendant for a valuable consideration has promised another party to pay-plaintiff brokerage fees, the latter may maintain an aetioii thereon.</p> <p>2. Practice—parties in action on contract under seal for benefit of third party. Under the Practice Act an action, on a promise under seal may be brought in the name of the party for whose benefit the promise is made, though not a party to the instrument.</p> <p>3. Contracts—where no consideration between promisor and third person beneficiary, A valuable consideration for a promise between the principal parties to an undertaking is sufficient to support an action thereon by a third person who is the beneficiary.</p>

<p>1. Carriers—evidence of negligence. Where plaintiff testified that while she was hoarding a car which was standing still the car was started and she was thrown off and injured, and her testimony was corroborated by one witness, and defendant’s conductor testified that when the car was started no one was attempting to board the same, and that he saw no one hurt, a verdict finding defendant guilty of negligence is justified by the evidence and must be held conclusive.</p> <p>2. Witnesses—when cross-examination unduly restricted. Where a trial court should have allowed greater latitude in cross-examination, when such limitation and restriction will not justify a reversal on that ground alone, the judgment is affirmed.</p>

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

<p>1. Appeals and errors—when assignment of error is necessary. On an appeal from a decree granting an injunction and appointing a receiver, an assignment of error in appointing the receiver does not bring the restraining order before the court for review.</p> <p>2. Receivers—hand. It is error to appoint a receiver without requiring a bond by the complainant, unless the order of appointment contains a statement or finding that a receiver ought to be appointed without such bond.</p>

<p>Appeals and errors—dona. An appeal must be dismissed where defendant was allowed an appeal but no appeal bond was filed by him and the bond in the record was given by one not a party to the suit and runs to defendant.</p>

<p>1. Appeals and errors—sufficiency of abstract. An assignment of error that the verdict is against the weight of the evidence will not be considered where only part of the testimony and almost none of the exhibits are abstracted and the abstract presents no adequate idea of the character and nature of the evidence relied on and refers to no objection taken.</p> <p>2. Appeals and errors—abstract of instruments. An instrument is not abstracted where a mere reference is made to it in the abstract.</p> <p>3. Appeals and errors—abstracts. Errors relied on for reversal must appear by the abstract, and the Appellate Court will not search the record for grounds of reversal to give proper consideration to errors assigned.</p> <p>4. Appeals and errors—sufficiency of abstract. Judgment may be affirmed on appeal where the rule requiring the abstract to be sufficient to fully present every error and exception relied on is not complied with.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, 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. William F. Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>Champerty—action for attorneys’ fees where contract champertous. An attorney does not forfeit his right to compensation for services by entering into a champertous contract, and 'where the illegal contract may be disregarded and recovery had on proof of the reasonable value of the services rendered, he has the right to recover under a quantum meruit count.</p>

<p>Bills and notes—instrument not negotiable where payee uncertain. Where a written promise to pay a certain amount does not designate with certainty the payee, it is not a negotiable instrument.</p>

<p>1. Master and servant—when foreman does not assume to Be a fellow-servant. Where a foreman in special charge of the hoisting machinery of a structural steel construction company caused a hook through which a cable ran to be attached to a tower, ordered plaintiff, a construction workman, to assist in the hoisting, and when the hoisting was started by the foreman’s order the hook became unfastened, resulting in the cable striking the plaintiff, the mere fact that the foreman was not upon the ground and did not initiate the movement of the hoisting apparatus does not tend to show that he had laid aside,his position of foreman and assumed the character of colaborer with plaintiff.</p> <p>2. Master and servant—negligence in management of hoisting apparatus. Where a foreman in charge of the hoisting apparatus of a structural steel construction company caused a hook through which a cable ran to be attached to a tower and ordered plaintiff, a construction workman, to assist in the hoisting, and he knew or should have known that the hoisting apparatus was not in condition to permit hoisting in safety or that attaching the hook to the tower was an improper manner of doing the work, and ordered the starting of the engine which resulted in the hook becoming detached and' the cable striking the plaintiff, the foreman is guilty of negligence, and such negligence is that of the company.</p> <p>3. Damages—when $6,500 for fractures is not excessive. A plaintiff was thrown from a bridge and received a fracture of the leg which remained out of alignment, of a bone in an elbow, of a rib and of the outer table of the skull. The injuries necessitated eight weeks confinement in a hospital and further treatment thereafter and were likely to be permanent. Held, a verdict for $6,500 was not excessive.</p>

<p>1. Insurance—when examining physician is not agent of applicant. An examining physician did not remember whether a question whether any of the applicant’s relatives had been affected with tuberculosis, to which he placed the answer “No,” was so answered by the applicant. The question was translated and not asked in the exact language inserted in the application, and if an applicant did not have the knowledge the examiner used his own judgment and usually put down “No.” There was evidence that the insured stated she did not know of what various relatives died. Held, the physician was acting as agent for the insurer.</p> <p>2. Insurance—validity not affected by false answers inserted by an agent. Where one makes true answers to the questions in an application for life insurance, the validity of the insurance is not affected by the falsity of the answers inserted by the agent of the company.</p> <p>3. Insurance—when answer in application is not that of applicant. The father and uncles of an applicant for life insurance had died of quick consumption. The examining physician did not remember whether a question whether any of the applicant’s relatives had been affected with tuberculosis, to which he placed the answer “No,” was so answered by the applicant. The question was translated and not asked in the exact language inserted in the application, and if an applicant did not have the knowledge the examiner used his own judgment and usually put down “No.” There was evidence that applicant stated that she did not know of what disease the relatives died. The insured died of tuberculosis. Held, in an action on the death benefit certificate, the jury were warranted in finding that the answer was not that of the applicant.</p>

<p>1. Warehouseman—surrender of warehouse receipt before action necessary. Where a negotiable warehouse receipt has been issued with, the consent of the owner of the goods to a third party, surrender of the receipt, or enjoining its negotiation, or causing it to be impounded by the court, is necessary before an action can be. maintained against the warehouseman for conversion.</p> <p>2. Replevin—where warehouse receipt not surrendered, replevin does not lie. Under sections 25 and 54 of the act respecting warehouse receipts, a warehouse company must be given the benefit of all provisions of the act which are made for its protection, and these provisions should be construed as liberally as is consistent with a fair interpretation of the language employed, and where the receipt is held by a third party and not surrendered when no decree has been obtained enjoining such party from transferring the receipt, or the warehouse company been otherwise secured against its negotiation, action of trover or replevin will not lie.</p>

<p>Appeals and errors—dismissed when parties have no interest. When the appellants are shown to have no interest in the subject matter of the suit, the appeal will be dismissed on the court’s own motion.</p>

<p>1. Appeals and errors—questions of fact. The Appellate Court will not set aside a verdict in an action for personal injuries not manifestly against the evidence as to defendant’s negligence and plaintiff’s contributory negligence, though. the court might have found differently as to plaintiff’s contributory negligence.</p> <p>2. Evidence—testimony in rebuttal. It is not error for the court in its discretion to permit plaintiff to testify in rebuttal, in an action for personal injuries, concerning a matter not covered in his original examination but covered by some of his witnesses.</p> <p>3. Appeals and errors—harmless error. Repetition by witnesses of testimony given in chief by them when called in rebuttal should not be permitted, but may not call for reversal.</p> <p>4. Master and servant—instructions. Where in an action for personal injuries the evidence tends to support the theory of plain- - tiff, who helped in handling a ladle containing molten metal used in soldering street railway rails and in pouring the metal remaining into sand piles, that snow which lodged upon such piles was partly scraped off and fresh sand spread thereon and that the metal when poured into a certain pile, as negligently ordered by defendant’s foreman, came into contact with the snow and exploded, injuring plaintiff, it is not error to give an instruction which defines the foreman as a superior servant for whose negligence defendant is liable.</p> <p>5. Master and servant—when knowledge of unsafe condition 6y foreman presumed. If snow lodges on a sand pile into which molten metal used in soldering street railway rails is poured, and is partly scraped off and fresh sand placed thereon so thinly that the metal will come in contact with the snow, knowledge thereof by the foreman in charge of the work is presumed.</p>

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

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

<p>1. Evidence—presumption that services are rendered for compensation. There is a rebuttable presumption of law that where services were rendered by one in his calling, trade or profession, the person rendering such services did so for a compensation to be paid to him.</p> <p>2. Evidence—presumption that livery company's carriage was hired by or for occupant. Where a person returning from a funeral in a conveyance belonging to a livery company engaged in the business of letting conveyances and drivers for hire, and driven by the company’s driver, is killed in a collision, and in an action against the company there is no evidence by the other occupants of the conveyance or by any one that the conveyance was hired, it' will be presumed that it was hired by the intestate or by some one in his behalf, especially as the company, who alone knew the circumstances of the letting, offered no testimony on the question.</p>

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

<p>1. Bbokers—when entitled to commission. Where a broker produces a prospective purchaser and his principal gives the exclusive agency to another broker and closes a deal through the latter with such purchaser, when it is shown that the principal has not been neutral or fair between the two brokers but wrongfully prevented his first broker from bringing about an agreement, he is liable to him for commission.</p> <p>2. Brokers—must bring about agreement, except when. A broker, in order to be entitled to his commission, must bring about an agreement, unless he is wrongfully prevented by his principal from so doing.</p>

<p>1. Damages—when $1,000 for injuries to head is not excessive. Where a steamfitter forty-five years old, in good health, working “pretty steady” and receiving $5.50 a day, is struck on the head by a five-pound bolt falling from an elevated railroad structure and he suffers almost constantly with headache and dizziness, so that up to the time of the trial two years later he had been unable to work at his trade more than four months, a verdict for .$1,000 is not excessive.</p> <p>2. Appeals and ebrobs—discretionary act. To permit a physician to testify in rebuttal in a personal injury case is so far a matter of discretion that error may not be assigned thereon.</p>

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

<p>1. Reformation of instruments—mutual mistake of fact. Where parties have executed a lease under a mutually mistaken impression that the weekly rental therein provided for was at the rate of a certain amount per day, and an erroneous figure has been inserted by the stenographer, the court will decree reformation of the instrument according to the true intent and meaning of the parties.</p> <p>2. Reformation of instruments—effect. Where a lease is reformed by a court, rent found to be due is due as of the date of execution, and the costs are taxable against the party who has failed to perform the agreement as really intended to be made.</p>

<p>1. AssocaATiorrs^saZe of real estate by officers. Where certain officers of an association have been authorized to negotiate a sale of real estate, such officers must act jointly in order to bind the association.</p> <p>2. " Chanceet—admissions. Where a fact alleged in a bill in chancery is admitted in the answer, such admission is conclusive and precludes the necessity of establishing the fact by proof.</p>

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

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

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

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

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

<p>Error to the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon.' John D. Turnbaugh, 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. Marcus Kavakagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Practice—when diligence not shown on motion to set aside an order. Defendant’s motion to set aside an order to satisfy a judgment for costs on payment of a certain sum is properly denied where such motion is made two days after the entry of the order and it appears that all the facts relied on in the motion were known to defendant when complainant’s motion for the order to satisfy was made, which was allowed five days later, but no effort was made to bring the facts to the court’s attention.</p>

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

<p>1. Pabty walls—windows and projections. Where owners of adjoining property agree that a wall to be built by one of them “shall bo and remain a party wall,” and the builder, nine years after constructing a solid wall, cuts holes in the wall and places windows therein, and causes window shutters, exhaust pipes and other projections to extend over the adjoining premises, a court of chancery will order the solid wall to be restored and the projections removed.</p> <p>2. Pabty wall—defined. The term “party wall” means a solid wall throughout its entire length and height, and implies permanency.</p> <p>3. Pabty wall—estoppel. Where more, than one-half of the foundation. of a party wall has heen placed on complainant’s premises contrary to the agreement, where it was so located with his actual knowledge and acquiescence, he is estopped by such acquiescence.</p> <p>4. Equity—entire contract enforced. On the principle that he who asks equity must do equity, complainant cannot have a contract enforced in equity which he himself has first violated, nor will a court in chancery order defendant to perform his agreement without requiring complainant thereupon to fulfil his own obligations.</p> <p>5. Equity—when court of equity acquires entire jurisdiction it will dispose of matter. Where a court of equity has acquired jurisdiction of the subject-matter in litigation and of all the parties interested therein, it will determine and dispose of the entire matter, regardless of the prayer of the original bill.</p>

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

<p>1. Mortgages—foreclosure of lien. It would seem that no suit can be brought by an heir of the grantor of a trust deed given to secure a note, whereby the owner thereof can be required to file a cross-bill to foreclose his lien.</p> <p>2. Abatement—when plea of pendency of prior suit properly overruled. In a suit to foreclose a trust deed given to secure a note, a plea of the pendency of a prior suit by the heir of the grantor of such deed is properly overruled where it fails to set forth with certainty the nature, character and objects of such prior suit and the precise relief prayed, or that the proceedings were taken for the same purpose, or that any process was issued requiring complainant’s appearance.</p>

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

<p>Corporations—money paid for stock not trust fund. Money received by a corporation from stock subscriptions constitutes a trust fund for all its creditors, and where it is insolvent, no preference can be given by impressing a trust on a fund paid by a purchaser, whether his subscription was induced by fraud or not.</p>

<p>,1. Evidence—when memorandum made in conversation admissible. "Where the plaintiff in making an estimate on a job figures it out on a piece of paper, giving the cost of each item, and at the bottom writes “no shoring,” which he claims had been agreed upon, and the defendant takes the paper and two days afterwards tells plaintiff to do the work, the paper is admissible as part of the conversation as tending to corroborate plaintiff’s version of it.</p> <p>2. Account stated—where statement retained without protest. Where defendant has received a statement of an account and makes payments thereon and retains it over two months without protest or objection, this is a reasonable length of time to warrant his acquiescence in its correctness, and tends to show a stated account.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.</p>

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

<p>1. Evidence—when inventory book copied from memoranda is admissible. Where the original memoranda of an inventory have been destroyed, and plaintiff testifies as to their accuracy, and that they were correctly transcribed in an inventory book, the latter is admissible in evidence.</p> <p>2. Evidence—-hypothetical questions not based on evidence. Where hypothetical questions are based upon the assumption that plaintiff’s theory of the case' is correct, they are admissible although not based on any evidence.</p> <p>3. Evidence—hearsay. In an action for damages from the explosion of a hot water heater, evidence of statements of the janitor since deceased is hearsay and inadmissible.</p> <p>4. Evidence—entire conversation. A question on cross-examination as to whether any one had told witness there had been an explosion will not justify the admission of the entire conversation in rebuttal, though the witness in his reply volunteers the name of the person who told him.</p>

<p>1. Set-out and counter claims—when set-off not allowed. In an action on contract, set-off for damages for the breach thereof will not be allowed defendant when he has himself failed to perform his obligations thereunder.</p> <p>2. Contracts—where not assignable, account may be assigned. The fact that a contract is not assignable does not prevent an account matured under it from being assigned.</p>

<p>1. Brokers—evidence of negotiations admissible. Where a real estate broker has made a prima facie case that he had been employed by defendant to make exchange of property, he may testify as to conversations with other agents, although defendant was not present, in order to show his part in the negotiations leading to such exchange.</p> <p>2. Evidence—harmless error. Where plaintiff has offered a certified copy of a deed in evidence, and it has been erroneously admitted and defendant has testified to or admitted all the material facts disclosed by it, the error is harmless.</p> <p>3. Municipal court—when interrogatory for jury improper. In an action by a broker for commission in the Municipal Court of the City of Chicago, where defendant has filed an affidavit of merits denying that he engaged plaintiff, it is improper under rule 17 to submit to the jury the interrogatory for defendant, “Was the property placed with plaintiff, * * * the exchange to be made on or before June 1, 1910?”</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>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

<p>Fraternal benefit societies—when death met because of violating criminal laws of state or engaging in unlawful undertaking. Where the contract of insurance provides that recovery on the policy is barred if the insured meets his death while in the act of, or as a result of, violating the criminal laws of the state, or in consequence of engaging in an unlawful undertaking, no recovery may be had where the evidence shows that the insured without provocation struck a police officer a violent blow, that he pursued the officer who ran away to avoid him and that the officer fired when the insured was committing assault, or assault and battery, and inflicted the wound which caused death.</p>

<p>1. Mechanic’s lien—apportioning on several- buildings. In an action to enforce mechanics’ liens for materials furnished under one contract in the construction of four buildings on separate lots, where the owner of one of the lots, as mortgagee in a building loan on the other three lots, has made payments on the contract without any directions as to the application of such payments, the lienor may apply payments as he chooses, and where he has applied them on the property owned by the mortgagee, the latter and the contractor, owning the other three lots, are not in position to complain of a decree apportioning the liens on the remaining mortgaged lots.</p> <p>2. Mechanics’ liens—waiver of on one property does not affect other properties in a contract. The waiving of a mechanic’s lien as to one of the houses of properties for which materials have been furnished under contract does not operate as a waiver upon all of them.</p>

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

<p>1. Mechanic’s lien—apparatus used to ventilate kitchen. A ventilating apparatus installed under contract with a tenant, consisting of a metallic exhaust fan and connected metal canopy over a kitchen range, with a motor to drive the fan and a metallic pipe connection from the fan to a tile flue, though attached to the building, is a trade fixture and not the proper subject of a mechanic’s lien against the building.</p> <p>2. Mechanic’s lien—fixtures must be so installed as to become part of real estate. In order that fixtures, apparatus or machinery may be the subject of a mechanic’s lien against the building, it must appear that they are so installed as to become a part of the real estate.</p> <p>3. Mechanic’s lien—intention with which fixtures are installed. The intention with which a ventilating apparatus is installed becomes important in determining whether it is a trade fixture or an improvement to the building and the subject of a mechanic’s lien.</p> <p>4. Agency—authority of renting agent to order improvements. The improvement of a building is not within the scope of authority of one who acts as agent of the building for the renting and collection of rents.</p>

<p>1. Divorce—alteration of alimony. R. S. c. 40, § 18, which authorizes the court to change the allowance of alimony when the circumstances of the parties have changed since the former order, does not authorize the court to modify or change the allowance of alimony upon the same state of facts which existed at the time the decree was rendered.</p> <p>2. Divorce—where gross sum is awarded as alimony. Where a decree awards a sum in gross for, or in lieu of, alimony, such a decree is regarded as final and the gross sum, when paid, operates as a discharge and satisfaction of all claim for future support of the wife, but where alimony takes the form of a weekly, monthly or yearly allowance, the power is expressly reserved by statute for the court to modify it according to the varying circumstances and needs of the parties.</p> <p>3. Divorce—power of court to modify alimony decree entered by consent. Where a divorce is granted and “by consent of both parties” it is ordered that “in lieu of alimony” the husband shall convey to the wife certain property, pay certain debts and pay a fixed allowance for the wife each month, it being shown later that circumstances have changed, the court has power to modify the original decree notwithstanding the fact that it was entered by consent.</p> <p>4. Divorce—when error for court to modify a decree so that it provides for payment of a gross sum. WUiere a husband is unable to meet the obligations of a decree of alimony requiring him to pay a certain sum each month, it is error for the court to modify the decree so that it provides for the payment of a fixed sum in settlement of all claim for the future support and maintenance of the wife, where the wife does not consent and it does not appear that such an amount is a fair equivalent.</p>

<p>1. Elevators—instructions. Where a boy five years of age in the charge of his mother fell down an elevator shaft when he attempted to leave an elevator, it is error to instruct the jury that the mere fact that he, or the one having him in charge, was mistaken as to the floor when attempting to get off the elevator, will not defeat recovery.</p> <p>2. Death—excessive damages. A verdict for $10,000 for the death of a boy five years of age is not in itself so excessive as to warrant reversal if fixed under proper instructions, where the parents of the deceased are in humble circumstances and the boy would naturally have been put to work as soon as he could earn anything.</p> <p>3. Damages—pecuniary aid by child. It is a matter of common observation that children of parents in humble circumstances usually give their parents more pecuniary aid than children of those in better circumstances.</p> <p>4. Death—when remarles of counsel and instructions prejudicial. In an action for the death of plaintiffs intestate, a boy five years of age, who fell down an elevator shaft in a store, remarks of counsel that nO' minimum recovery is fixed but that the court would instruct the jury that a maximum of $10,000 is fixed, referring to the cold, heartless manner of defendant’s counsel, to the “bargain counter tactics” of the defense, and to the loss of the parents which all the wealth of the state could not compensate, are prejudicial where followed immediately by instructions charging that in determining the amount of damages the jury should use their own judgment under the evidence and instructions, and that $10,000 is fixed as a maximum but no minimum is fixed.</p> <p>5. Appeals and errors—when “substantial justice" rule not applied. On appeal counsel is not entitled to the application of the rule that alleged errors should not reverse since “substantial justice” appears to have been done, where his own improper remarks in argument caused the substantial justice of the case to be clouded.</p>

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

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.

<p>1. Automobiles—when corporation owning not liable for tort of officer. Where the president of a corporation engaged in sell- • ing automobiles was driving one of its cars to his home after business hours and ran into a truck, injuring plaintiff, and it is not shown that he was at the time engaged in the business of the corporation or that the act done was in any way within the scope of his employment, the corporation is not liable.</p> <p>2. Master and servant—tort of servant. To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course- of the servant’s employment.</p>

<p>1. Injunctions—motion to dissolve preliminary. A motion to dissolve a preliminary injunction based on a want of equity apparent on the face of the hill has the same effect as a demurrer to the hill, and the facts well pleaded are to he taken as true.</p> <p>2. Appeals and ebbobs—appealable orders. An order dissolving a preliminary injunction is interlocutory and not appealable. 1</p> <p>3. Injunctions—when bill may be dismissed on sustaining motion to dissolve temporary injunction. Where the only relief sought is an injunction, the court on sustaining the motion to dissolve the temporary injunction may properly dismiss the bill, but where other relief is sought which may he granted upon final hearing, the hill should be retained.</p> <p>4. Equity—bill should not be dismissed when amendable. Bill should not be dismissed on the ground of want of equity on its face unless it is manifest that no amendment can help it.</p> <p>5. Equity—when error to dismiss creditor's bill. Where complainant, a judgment creditor of defendant, filed a creditor’s bill seeking a discovery of defendant’s assets, and a temporary injunction is granted, it is error when the injunction is dismissed on motion of defendant to also dismiss the bill.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, 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 E. Cavebly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>Mechanic’s lien—proof of delivery of material. In a suit by a subcontractor to enforce a mechanic’s lien, held, that complainant did not show an alleged delivery of material within sixty days prior to the time notice of lien was served, by a preponderance of the evidence, as required by the Mechanic’s Lien Act, § 7.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.

<p>1. Contracts—provisions in a building contract. Where plaintiff contracted with defendant to erect a building on or before a certain time, the material to be furnished by defendant at stated intervals, a provision making an exception where an extension is granted by defendant in writing, “because of failure on part of owner to complete necessary foundations in time” or “because of failure on part of the Company to deliver the fitted steel work as before stated,” and another provision that defendant should not be liable for damages or additional compensation in case it suspended operations, but would grant plaintiff additional time, are construed to be for the avoidance of a penalty, and do not prevent plaintiff from recovering on a quantum meruit for the value of his services where defendant caused unreasonable delay in the delivery of material.</p> <p>2. Evidence—where account book made from “time slips” is admissible. In an action for services rendered on a building, it is proper to admit an account book made by plaintiff’s bookkeeper from “time slips” and various other memoranda turned in to him in the regular course of business.</p> <p>3. Interest—where error to allow. In an action for value of services rendered on a building, it is error to allow interest where the amount due plaintiff depends largely upon the construction of the terms of the contract and upon questions of fact about which there might reasonably be a difference of opinion.</p> <p>4. Appeals and errors—where interest improperly allowed is reversible error. Where interest is improperly allowed and the amount included in the verdict cannot be ascertained to be corrected by remittitur, there is reversible error.</p> <p>5. Instructions — quantum meruit where there is supplemental agreement. Where plaintiff, ignoring the contract, brings an action in quantum meruit to recover for value of services in erecting a building, and there is evidence of a supplemental agreement for defendant to pay plaintiff a certain additional amount per ton for sorting material in the yard instead of at the building site, as provided by the contract, it is reversible error to instruct the jury that if there has been a breach of the contract, plaintiff may recover a fair and reasonable compensation for any additional labor made necessary thereby.</p> <p>6. Contkacts—when action in quantum, meruit does not abrogate all terms of the oontraet. Where plaintiff, ignoring a building contract, sues in quantum meruit for value of services rendered, and there is evidence that the parties met when the work was nearing completion and, agreed that the terms of the contract providing defendant should have free use of plaintiff’s plant in the completion of the work should control, it is error to admit testimony as to rental value and to refuse defendant’s instruction that plaintiff could not recover for use of plant during such time.</p>

<p>1. Statute of frauds-—agreement depending on a contingency which may happen toithin one year. Where defendant agrees to reimburse plaintiff for any loss incurred from signing a bond as security for the proper performance by defendant’s son of the duties and obligations assumed in the purchase of a board of trade membership, it being possible that liability on the bond may accrue within one, year, the agreement is not within the statute of frauds.</p> <p>2. Statute of frauds-—when consideration is sufficient to make promise an original undertaking. Any act which is a benefit to one party or a disadvantage to the other constitutes sufficient consideration to support an original contract.</p> <p>3. Dismissal—as to one of joint defendants. Under Practice Act § 29, a suit in assumpsit may be dismissed as to one of joint defendants.</p> <p>4. Evidence—where bond and written contract are admissible to explain oral contract. In an action on- an oral contract, where defendant agreed to reimburse plaintiff for any loss incurred from signing a bond as security for the performance by defendant’s son of a written contract, the bond and contract are properly admitted in evidence as tending to explain the entire transaction and to show conditions under which plaintiff might be compelled to pay.</p>

<p>1. Foboible entey and detainee—only recognized lessees need he made defendants. In an action in forcible detainer, the true issue is as to whether defendants were the lessees, and evidence concerning the interest of a third party in the business on the leased premises is relevant only as plaintiffs knowledge of such interest is shown, together with conduct of plaintiff evidencing recognition of such party as tenant.</p> <p>2. Foboible entey and detainee—finding—against weight of evidence'. In action in forcible detainer, a finding for defendants on the ground that a third party was the actual lessee held manifestly against the weight of the evidence.</p>

<p>1. Municipal court—affidavit of merits. In an action for attorneys’ fees expended, where the affidavit of merits states that services of such attorney are not worth to exceed a certain amount, and presents other facts to show no liability, a Judgment entered on the affidavit for such amount is error.</p> <p>2. Appeals and errors—final ■ order or judgment. Under the Municipal Court Act, when no final order as to the merits of a case, or final judgment, has been entered, there is no point for review by this court.</p>

Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Faelin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Certiorari denied by Supreme Court (making opinion final).

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

<p>Action in case for personal injuries. Appeal from? the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>1. Municipal cobpobations—license fees on elevated railway cars. The ordinance passed by the City Council of Chicago on Oct. 1, 1894, authorizing the Chicago and Oak Park Elevated Railroad Company to construct an elevated road from Market street to Wabash avenue and requiring payment of a license fee of fifty dollars for each car “in regular use in lieu of all other licenses as regards the line hereby authorized,” is not a blanket measure and by its terms negatives any intention to repeal any part of the ordinances passed Nov. 24, 1890, and May 15, 1893, authorizing the construction of elevated roads on various streets and providing for the payment of an annual license fee of fifty dollars on “each car used by said company in transporting passengers for hire.”</p> <p>2. Municipal cobpobations—construction of ordinances. Where an ordinance grants a right, “subject to the provisions hereinafter contained,” the provisions following such grant are to be construed as being applicable alone to the specific grant made, unless amplified by express language or necessary intendment.</p> <p>3. Obdinances—construction of. Where two enactments are seemingly repugnant, they should, if possible, be so construed that the latter may not operate as a repeal of the former by implication .</p> <p>4. Statutes—ordinances. The repeal of a statute or ordinance by implication is not favored in law, and the earlier enactment continues in force unless clearly inconsistent with and repugnant to a later enactment, or unless in the later enactment some express notice is taken of the former, plainly indicating an intention to repeal it.</p> <p>5. Municipal corporations—when not estopped from collecting license fees. Where an elevated railway company has for several years paid license fees under one ordinance, which have been accepted and receipted for by city officials, the failure or neglect, wilful or otherwise, of such officials to demand and collect from the company license fees as due and payable under the provisions of other existing ordinances, does not estop the city from recovery when not barred by a plea of the statute of limitations.</p>

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

<p>1. Mechanics’ liens—formality in pleading. An owner, by-filing a petition for a general settlement under Mechanic’s Lien Act, §30, admits that the parties named as defendants have existing liens, and a defendant does not waive his right to a lien .by failing to assert it in his answer and by alleging merely such facts as tend to establish the amount due him from the principal contractor.</p> <p>2. Mechanics’ LiENS-^owreer cannot complain of finding as to amount due defendant from principal contractor. Where an owner files a petition for a general settlement under Mechanic’s Lien Act, §30, he is only directly concerned as to the amount found due from him to the principal contractor, and cannot complain of a finding as to amount due defendant from principal contractor.</p> <p>3. Mechanics’ liens—where motion to dismiss petition is properly denied. In an action for a general settlement under Mechanic’s Lien Act, §30, a motion made, after the time has elapsed within which defendant may assert his lien in another proceeding, to dismiss the petition on the ground that the answer of defendant when filed contained a prayer that he be dismissed with his reasonable cost, is properly denied.</p> <p>4. Mechanics’ liens—where extra work is performed by original contractor. In an action by the owner for a general settlement under Mechanic’s Lien Act, §30, where the petition prays for an accounting, an item of extra work is properly considered in determining the amount due the original contractor from the owner.</p> <p>5. Mechanics’ liens—time from which interest should be paid on amount due from owner to original contractor. In an action for a general settlement under the Mechanic’s Lien Act, a decree requiring the owner to pay interest on the amount found due from him to the original contractor from a date prior to the time the decree finds the contract was made, is erroneous.</p>

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

<p>1. Administration of estates—laches. A petition by an administrator to sell land to pay debts will be barred by laches unless filed within seven years .after the death of the debtor or grant of letters, unless such administrator satisfactorily explains the delay.</p> <p>2. Administration of estates'—widow’s award. A petition to sell land to pay the widow’s award is properly dismissed where the land was devised to the widow for life with remainder in fee to her daughter, who was appointed executrix, and the evidence shows that the widow collected rents and paid taxes with the intention of accepting the provisions of the will until more than seven years after the testator’s death, and does not support a charge that the executrix and an attorney fraudulently represented that the award would be collected to induce the widow to allow the seven years to run.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richakd S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.

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

<p>1. Insurance—limitation clause in policy. Where an insurance policy provides that suit shall not be commenced after the lapse of á certain period of time, and the insurance company before the expiration of such time refuses to allow the claim on the ground that it is not liable in any event on the merits, the defense under the stipulation not being then available, such stipulation is not thereby waived as against a suit brought after the expiration of the time limitation.</p> <p>2. Insurance—limitation clause in policy. Where an insurance policy provides that suit shall not be brought before the expiration of a certain period, and the insurance company during such period places its refusal to settle a claim on other grounds than such stipulation, under which there is no present liability, its right afterwards to interpose such stipulation as a defense is waived.</p> <p>3. Insurance—limitation clause. While limitation clauses in insurance policies are not favored by courts, and slight circumstances will often be held ■ sufficient to constitute a waiver of such stipulations, the mere listening by an agent of the insurance company to a proposition for settlement, and promising to advise the insured of the company’s decision, is not a waiver of a provision that suit must be brought within a specified time.</p> <p>4. Insurance—limitation clause. Where an insurance policy provides that suit must be brought within a certain time, if the company misleads the policy holder into believing that it means to settle, or by fraudulent holding out of reasonable hopes of adjustment induces the insured to refrain from bringing suit until too late, the company is estopped from pleading the limitation.</p> <p>5. Contracts—condition precedent. A party to a contract, having a right to insist upon a condition precedent to the payment of money or other performance on his part, will waive the condition precedent by a total denial of liability or by placing his refusal to perform on other grounds.</p> <p>6. Insurance—cancellation. The Supreme Court of Illinois is unalterably committed to the rule that before an insurance policy can be cancelled upon notice, unless otherwise expressly provided by its terms, it is incumbent on the company to pay or tender to the policy holder the unearned premium.</p> <p>7. Insurance—cancellation. Where an insurance policy provides that if it is cancelled by the company “the company shall retain a pro rata premium for the time the policy has been in force,” the return to the policy holder of the unearned premium is necessary, in order to cancel the policy.</p> <p>8. Contracts—construction. Where a contract is framed by one party, in stipulations made for its own benefit the construction most favorable to the other party should be adopted.</p> <p>9. Pleading—inconsistent defenses permissible.. A defendant may avail himself of as many defenses as the facts warrant even if such defenses are inconsistent, and neither waives the others.</p>

<p>1. Instructions—as to proposition of law not involved in case. Under Practice Act, §72, providing that the court in charging the jury shall only instruct as to the law in the case, where counsel improperly argues before the jury a proposition of law which is not involved in the case, it is error to instruct the jury on such proposition, and the correct practice is for opposing counsel to ask an instruction that the proposition is not involved in the case and should be entirely disregarded.</p> <p>2. Appeals and errors—conflicting evidence. Where the evidence is sharply conflicting, courts rarely feel warranted in holding a verdict manifestly wrong.</p> <p>3. Attorney and client—action for fees. Verdict in action for attorney’s fees held not manifestly contrary to the weight of evidence.</p> <p>4. Attorney and client—fees. Where defendant fails to product evidence as to reasonable and proper charges for services such as rendered by plaintiff, he cannot complain that the jury followed plaintiff’s evidence.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the June term, 1910.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Osoab E. Heabd, Judge, presiding. Heard in this court at the October term, 1910.

<p>1. Architects—citation of hoard of examiners. The citation, served on a licensed architect ordering him to appear before the State Board of Examiners of Architects to defend against a showing that he was guilty of dishonest practices may he considered as containing the charges and specifications against him.</p> <p>2. Architects—dishonest practices. An alleged dishonest act by an architect in placing his official seal on plans for a building merely to enable the contractor or owner to obtain a permit for the erection of the building does not constitute “dishonest practices” within the statute giving the State Board of Examiners of Architects power to revoke licenses for such practices, since it was not intended that a license might be revoked for a single dishonest act.</p> <p>3. Architects—when alleged act not dishonest. The alleged act of an architect in placing his official seal on plans for a building merely to enable the contractor or owner to obtain a permit to erect the building is not a “dishonest practice” within the meaning of the statute authorizing the- revocation of licenses of architects by the State Board of Examiners of Architects for such practices, where there is no allegation of an intent to defraud, or that such architect was not familiar with the plans, or that they were not made under his supervision.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Geobge W. Patton, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>1. Carriers—stopping car where dangerous to alight. In an action for injuries sustained by plaintiff in falling while alighting at nighttime from a car which had been stopped on a temporary track, before the exit step was opposite to a platform used during repairs, where the step was twenty-eight inches above the pavement, the jury might properly find the failure to move the car so as to place the exit alongside such platform before permitting passengers to alight constituted negligence, and that plaintiff was not guilty of contributory negligence.</p> <p>2. Evidence—location of car after accident. Where no testimony has been given or is promised that a car had not been moved after an accident and before a witness saw it, a question of such witness, where the car was when he saw it, is properly refused.</p> <p>3. Instructions—referring to entire declaration when some counts not proved. Where there is no evidence to support certain counts in the declaration, the giving of an instruction stating, “as alleged in the declaration,” is not error, as the defendant may ask for a charge defining the issues under the counts.</p> <p>4. Instructions—erroneous hut not misleading. Error in instructing a jury, when they are not believed to have been misled thereby, is not reversible.</p> <p>5. Carriers—instructions. Instructions given to the jury on the facts in this case, as to duties and liabilities of street railroad companies held proper.</p> <p>6. Damages—not excessive. $3,000 damages to a woman who sustained a broken leg, was confined to her bed for two months, wore a plaster cast for two months more, and has not entirely recover d, will not be set aside as excessive.</p>

<p>1. Sep abate maintenance—temporary alimony. An order to pay temporary alimony must be based on a showing that the husband’s financial ability and circumstances are such that he can pay the amount ordered.</p> <p>2. Sep abate maintenance—temporary alimony. Where a bill for separate maintenance alleges that defendant is possessed of property worth $100,000, with an annual income of at least $10,000, and states no evidentiary facts to support the conclusion, and the affidavits of defendant state that he has no property, that there are numerous judgments against him and that he has no income except what he earns as a real estate agent, which does not exceed $40 per month, there is not a sufficient showing to support an order that defendant pay $50 per month temporary alimony.</p>

Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Edwakd M. Mangan, Judge, presiding. Heard in this court at the October term, 1910.

<p>Garnishment—admission of indebtedness. Though a subcontractor cannot recover a per cent, of the price retained by the original contractor when attachment writs are served on such contractor by persons who furnished materials to said subcontractor, because of an agreement whereby a per cent, was to be retained if claims against the subcontractor existed, yet if the contractor, after service of the writs, without liens being established, pays an amount larger than the per cent, retained to others for labor and materials furnished to the subcontractor before the service- of the writs, such payment is an admission of indebtedness by the contractor when the writs were served, and judgment against the contractor for the per cent, retained is proper.</p>

<p>1. Mechanics’ lien—time for filing petition. A subcontractor cannot contend that the date on which final payment was due him was that on which an order was given to the contractor to resume work or the contract would he canceled, and not the date on which -the materials were furnished or thirty days thereafter, where there is no proof that the payment to such subcontractor was dependent on the completion of the contract, but it seems from the evidence that he furnished materials to the contractor for several contracts, that the accounts were not kept separate and that payment was due when the materials were furnished or thirty days thereafter.</p> <p>2. Sales—when payment due. Prima facie the payment for goods sold and delivered to a contractor on orders to send them to a certain place becomes due on delivery.</p>

<p>1. Brokers—commissions on sale■ of stock. In an action for commission on the sale of stock of a corporation, where the company has voluntarily accepted from the purchaser of such stock a. note as part payment and afterwards renewed the note and sold the second note for less than its face value without consulting the agent, even though commission was not payable until such stock should be paid for, the company is not in position to treat the returns from the note as anything less than its face value, as far as its obligation to the agent is concerned.</p> <p>2. Brokers—commissions on treasury stock sold for less than par. Where a corporation has accepted less than par on a sale of its treasury stock, and a continued liability may therefore exist on the part of the -purchaser for the unpaid balance, an agreement to pay a commission for the sale on such terms is not therefore against public policy, void and unenforceable, as neither the subscription nor the stock is void, and the qdestion is primarily one between the purchaser and the creditors of the corporation and at most between the company and its creditors and stockholders.</p> <p>3. Corporations—employment of hroTcer. A contract by an agent of a corporation employing a broker for the sale of stock may be properly found by the jury to have been ratified when the corporation issued its vouchers in payment for a portion of the broker’s services, and letters are written by the corporation by its president and by its attorney admitting the employment but contesting the time for payment.</p>

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

Action in case for death by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the October term, 1910. Affirmed.

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

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McStjrely, Judge, presiding. Heard in this court at the October term, 1910.

<p>1. Appeals and errors—res judicata. The decision of the Appellate Court on a former appeal is binding on that court and on the trial court.</p> <p>2. Damages—when verdict not inconsistent with evidence. In an action for alleged fraud and deceit in connection with the conveyance of property by plaintiff in consideration for notes, it cannot be said that a general verdict for $8,000 damages and special findings that the property in question was worth $7,500 at the time of conveyance and was worth $400 or $500 about a year later are wrong and not reconcilable with the evidence, where photographs and other evidence support the original valuation, and though the difference of $7,000 in value is unusual, yet the finding is not inconsistent with the evidence as to litigation concerning the property and circumstances attendant thereon, and if the additional damages of $1,000 allowed by the general verdict are not recoverable, the error is cured by remittitur of $1,500.</p> <p>3. Res judicata—instructions. Instructions concerning a matter decided by a former appeal are properly refused, and the question thus presented is not open for review by the appellate court.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Geobge W. Patton, Judge, presiding. Heard in this court at the October term, 1910.

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

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1910.

Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1910.

<p>1. Brokers—when not entitled to commission. In an action by a broker for commission, where he procured a purchaser and represented that such purchaser would give in exchange certain property subject to a certain incumbrance, and a contract is accordingly executed for such exchange, when the principal later cancels the contract on the ground that the incumbrance is greater than that represented, or as stated in the contract, the plaintiff is not entitled to recover commission.</p> <p>2. Brokers—commission earned when purchaser accepts. Where a broker is engaged to procure a purchaser for defendant’s premises, and defendant enters into a mutual contract with a purchaser so procured, the broker’s commission is earned as a general rule; but where the commission is agreed upon on the theory that the deal shall go through and it does not, through no fault of the principal, or where the deal is not consummated because of fraud or misrepresentations on material facts of the broker to his principal, the latter does not become liable because of his acceptance of the purchaser.</p>

Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McStjeely, Judge, presiding. Heard in this court at the October term, 1910.

<p>1. Trusts—insurance policy. Voluntary statements by a party insured in a policy to a stranger after its issuance do not create or declare a trust in respect to its proceeds and are not binding on the beneficiary, who has a vested right to the fund, unless power to divest her of that right is specially reserved by the assured by some provision of the policy.</p> <p>2. Trusts—must he created before or contemporaneous with execution of instrument. Declaration of a grantor to create a trust must be prior to or contemporaneous with the vesting of rights under the instrument under which the trust is claimed.</p>

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

<p>Landlord and tenant—when no rental contract made. No rental contract exists where, from conversations contemporaneous with the making of a written proposition by defendant and the fact that a lease was subsequently submitted, it is clear that the parties contemplated that a formal agreement should be drawn up and signed as a condition precedent to the completion of a contract, and, though plaintiff’s agent stated that defendant’s proposition was accepted, a lease was submitted to defendant which he did not accept, containing additional and different terms from those in his written proposition.</p>

<p>1. Assumpsit—common counts. In an action of assumpsit on the common counts, where plaintiff returned a pianola to defendants with the understanding that he should receive credit for $250 on the purchase price of a piano which he was to get some time in the future, it is error to direct a verdict for plaintiff, since there ' could he no recovery on the common counts.</p> <p>2. Assumpsit—agreement not for payment of money. IndeMtar tus assumpsit does not lie where the agreement is not for the payment of money, nor on an executory contract, nor for the nondelivery of goods.</p>

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

<p>1. Fraternal benefit societies—member not in good standing. Where a prima facie case has been made out on a certificate issued by a fraternal beneficiary society which was thereafter merged with another, by proving the certificate, the contract between the two organizations and the death of the member before suit brought, etc., the fact that the deceased was not a member in good standing of the original society at the time of transfer, if not pleaded as a defense and shown to be a fact by defendant, does not bar recovery.</p> <p>2. Fraternal benefit societies—amount payable. Where a certificate issued by a fraternal beneficiary society provides that on "the death of the member assured a sum not exceeding $1,000 will be paid to the beneficiary, it is incumbent on the society to show that the mortuary proceeds of one assessment at the time of death of such member would not have yielded the full amount.</p> <p>3. Fraternal benefit societies—merger of societies. Where an insurance society takes over the assets of another, the former will he held to have assumed the obligations of the latter.</p> <p>4. Appeals and ebkobs—harmless error. Where plaintiff introduces a letter in evidence over defendant’s objection, and after its being admitted and read by the jury is permitted to withdraw it, defendant is in no position to complain of the withdrawal.</p> <p>5. Pleading—plea of general issue covering matter specially pleaded. Where a defense set forth in a special plea can be shown under a plea of the general issue, demurrer is properly sustained.</p>