Volume 178 — Illinois Appellate Court Reports

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

<p>1. Appeals and errors — when no propositions of law presented on appeal. Where no propositions of law are submitted as provided for by municipal court rule 23, which is Practice Act, §61, no question of law is presented on appeal unless errors assigned as to the admission or exclusion of evidence necessarily involve such a question.</p> <p>2. Sales — when seller justified in treating contract as canceled. The seller may treat the contract as canceled where it provides that the goods should he taken up at least every thirty days, but the buyer refuses to furnish shipping directions after numerous requests, though he informed the seller by letter that he would furnish such directions within thirty days.</p> <p>3. Sales — when seller may treat contract as terminated. The seller may treat the contract as terminated where part of the goods were apparently accepted by the buyer, though he alleges that they did not comply with the contract as to quality, and where he credited the seller with a certain amount on his books after the shipment but did not pay for such shipment or tender the amount credited.</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, 1911.</p>

<p>1. CORONERS — verdict of jury on unsworn statements. Where plaintiff's intestate, while unloading a wagon from the rear, was run into and crushed by an automobile, and died five months later, and an unsworn written statement of the attending physician to the effect that death resulted from enlargement of the heart following external violence is read at the inquest before the coroner’s jury, and the verdict of such jury finding that death resulted from enlargement of the heart following external violence due to such accident is admitted in evidence “for what it is worth,” with permission for defendant to put any additional evidence in as to its value, and the court in charging the jury points out the lack of the sworn statement of such physician at the inquest, the rights of defendant are fully protected in the admission of such verdict.</p> <p>2. Coroners — verdict of jury. The verdict of a coroner’s jury is competent but not conclusive evidence in another proceeding as tending to prove any matter properly before the coroner which appeared at the inquest.</p> <p>3. Evidence — expert. An attending physician may testify what the patient said in describing his bodily condition and suffering and may base his opinion in part on the narrative of the case by the patient, the rule being otherwise as to an expert whose examination was merely for the purpose of testifying.</p> <p>4. Damages — for death dy wrongful act. Where plaintiff’s intestate, twenty-three years old, had been earning fifteen dollars per week and contributing ten dollars to twelve dollars per week for the support of his parents and brothers and sisters, some minors, with whom he was living, a verdict for $4,000 damages is not excessive.</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>1. Mechanics’ liens — extra work. Where a contractor flies a bill to enforce a mechanic’s lien for extra work, and a clause of the contract provides that no extra work or material will be paid for without a written agreement made and approved by the owner, an indorsement allowing for extra work made on the contract by the superintendent and not ratified by the owner is not binding.</p> <p>2. Contbacts — extra work. Where a contractor sues the owner for extra work he has the burden of proving that the work was extra and that it was ordered' by defendant.</p> <p>3. Agenct — authority of superintendent of building. It is not within the scope of authority of a superintendent of a building to make an indorsement on the contract allowing the contractor extra pay for additional work.</p> <p>4. Contracts — consideration for agreement for extra work. Where by the specifications, which are made a part of a building contract, the contractor is obliged to go to the depth required to secure a solid bottom for the foundation if the ground is not solid at the depth shown on the plans, a promise by the superintendent to pay extra therefor is without consideration.</p>

<p>1. Masteb and servant — safe appliances. Where defendant furnishes planks to be used by plaintiff, a painter in its employ, it is not bound to furnish an absolutely safe plank, its duty being fulfilled if it uses reasonable care to furnish a reasonably safe plank.</p> <p>2. Masteb and servant — assumed rish where scaffold is already in position. The fact that plaintiff, a painter employed by defend"-ant, is ordered to work on a scaffold already in position, does not relieve him from the assumption of risk.</p> <p>3. Masteb and servant — simple appliances. A plank and stepladders used by plaintiff in defendant’s employ are simple appliances the danger from the use of which the servant assumes.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate</p> <p>Court at the March term, 1912.</p>

<p>1. Evidence — hearsay. In an action for personal injuries testimony of a gymnasium instructor as to exercises taken hy plaintiff previous to the accident should he stricken where such instructor testifies that she did not teach plaintiff’s section of the class and had never taught her and that she did not know the name of any other person in such section.</p> <p>2. Evidence — statements of bystanders at time of an accident. In an action for personal injuries a statement hy plaintiff that those around her a few minutes after the accident said “you are badly hurt” is no part of the res gestee and its admission is prejudicial error.</p> <p>3. Evidence — cross-examination of physician as to plaintiff’s description of accident to him improper. On cross-examination of a physician called hy defendant to attend plaintiff who was injured when alighting from a street car, it is error to admit testimony to the effect that plaintiff told him that she was injured on a certain car at a certain street and that the car started while she was getting off and she fell forward.</p>

<p>Receivers — substitution of. Under R. S. eh. 110, §123, limiting appeals from interlocutory orders regarding receivers to orders “appointing a receiver or giving other or further powers or property to a receiver already appointed,” the discharge of one receiver and. substitution of another is not subject to review.</p>

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

Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Statement by tlie Court. In this ease a ¡judgment for $2,500 was entered against appellant for damages for personal injuries sustained by appellee while'be was in the employ of appellant.

<p>1. INSURANCE — employer’s liability. Where an employer’s liability policy based on a schedule of the estimated compensation of employes provides that it does not cover loss from liability for injury or death caused by any person unless his compensation is included in the schedule, and also expressly states that the schedule “covers the wages or salaries of all persons to whom compensation . is paid in the business or trade carried on by the assured at the location mentioned and described in the schedule,” it is not ambiguous, and defendants cannot escape liability on the ground that a pay roll report made eight months after the accident shows that the compensation of the superintendent was not included in such report, though his negligence is alleged to have caused the accident.</p> <p>2. Insurance — where premium depends on compensation of all employes. The fact that the compensation paid a certain employe is omitted from the schedule upon which the premium is estimated, and a premium on that compensation is never paid, does not relieve the insurance company from liability though the negligence of such employe cadses the accident, where it appears from the terms of the policy that the insured agrees to pay an additional premium in case the total compensation earned by all employes proves to be more than the amount stated in the schedule.</p> <p>8. Insurance — where defense is waived by defending action on which liability is based. Where defendant casualty company, knowing all the facts regarding the accident to plaintiff’s employe, takes charge of the defense for plaintiff, it waives any defense it may have to an action by- plaintiff on the policy.</p>

<p>1. Disobdeely house — judgments of convictions of patrons admissible. In a prosecution for keeping a disorderly bouse in violation of ft. S. cb. 38, §57, where transcripts of judgments of convictions, prior to defendant’s arrest, of patrons of bis hotel for patronizing a common, ill-governed and disorderly bouse, together with the complaints and records of the Municipal Court, showing papers filed, writs issued and orders entered in each case, are admitted in evidence, upon defendant’s objection to the testimony of the police officer making such arrests as not the best evidence, the admission of such records is proper as tending to show the character of defendant’s hotel and its guests, and even if improper will not reverse when merely cumulative.</p> <p>2. Disorderly house — evidence as to prior events competent. In a prosecution for keeping a disorderly house, evidence as to events occurring in the house while kept by defendant, prior to the time alleged in the information, is competent.</p> <p>3. Disorderly house — evidence of lewd conversations competent. In a prosecution for keeping a disorderly house, evidence of a lewd conversation between a man and two girls in defendant’s barroom, even though the conversation was not in the presence of defendant, is admissible to show the character of the women who made the house a stopping place.</p> <p>4. INSTRUCTIONS — copy of civil rights act. An instruction substantially a copy of the civil rights act, sections 42i and 42j of the Criminal Code, without explanation or qualification, when misleading under the evidence, is properly refused.</p> <p>5. Instructions — calling attention to particular witnesses. An instruction to the effect that greater care should be exercised “in weighing the testimony of informers, detectives and other persons specially employed to hunt up evidence, than that of disinterested witnesses,” because of its obvious assumptions and because it falls within that class of instructions which call attention to particular witnesses, is properly refused.</p>

<p>1. Automobh.es — violation of speed regulations. In a prosecution for violating the Motor Vehicle Act, §10, for driving a motor vehicle upon a public highway at a speed greater than is reasonable or proper, when the police officer malting the arrest testified that he saw the car coming at the rate of about thirty miles an hour and that it ran half a mile in about a minute, and that he did not time the speed by a watch, though the highway was under the control of park commissioners and ran along a lake, there being practically no houses on the other side, a prima facie case that the speed was greater than reasonable and proper in any of the localities mentioned by the statute is made out and unless overcome by competent testimony is sufficient to support the finding of guilty.</p> <p>2. Automobiles — statute does not fix speed limit. The Motor Vehicle Act, in providing what “shall be considered prima facie evidence that the person operating a motor vehicle is running it at a rate of speed greater than is reasonable and proper, having regard to the traffic and the use of the way,” in different localities, does not fix any arbitrary speed limit in any locality, but leaves it to the court or jury to say what is a reasonable and proper rate of speed, having regard to the conditions of traffic and the use made of the highway.</p> <p>3. Automobiles — prima facie case shifts burden of proof. In a prosecution for violating the Motor Vehicle Act, §10, when it is shown that the rate of speed exceeds the rate specified in the statute, a prima facie case of guilt is made out for the prosecution, and the defendant is then called upon to meet and overcome such prima facie case, the burden of proof thus nassing from party to party as the case progresses, while the burden of establishing the guilt of defendant as charged In the information continues upon the prosecution throughout the trial.</p> <p>4. Automobiles — prima facie case. In a prosecution under the Motor Vehicle Act, §10, where a prima facie case under the statute is made out, and defendant offers no evidence to meet it, the prima facie case becomes conclusive and justifies a finding of guilty.</p> <p>5. Automobiles — park highways. Where a court takes judicial notice that a park is within the limits of an incorporated city, and there is no evidence that the park commissioners have passed any regulations concerning speed of motor vehicles on highways within their control, as authorized, the state law governs.</p> <p>6. Evidence — opinion of nonexpert witness. In the absence of better evidence where the opinions of nonexpert witnesses are the only method of bringing before the court or jury the fact to be proved, such opinions are admissible as to matters of fact coming within their observation which cannot be otherwise described, such as the speed of motor vehicles and trains, apparent age, physical appearance, intoxication, excitement, condition of health and the like.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, 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. Adeloe J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.</p>

<p>1. INSTRUCTIONS — when error not cured. Error in giving instructions which are peremptory and direct a verdict, but do not embrace all the elements necessary to recovery, is not cured by the giving of other instructions.</p> <p>2. Master and servant — when instructions directing verdict erroneous. Where the assumption of risli relied on by defendant is not negatived in each count of the declaration, it is reversible error to give instructions which direct a verdict and refer to the declaration in its entirety, hut do not mention the defense of assumption of risk.</p>

<p>1. Criminal law — vagabonds. A finding that defendant is an idle person living without lawful means of support and is known to be a pickpocket, contrary to Hurd’s St. 1911, ch. 38, §270, is supported by the evidence where three police officers testify that defendant is frequently in the company of pickpockets and is known to be a pickpocket, and two of them testify that they have known him for five years but have never known him to be employed, and defendant does not introduce evidence tending to show that he has any lawful means of support.</p> <p>2. Criminal law — burden of proof. In a prosecution under Hurd’s St. 1911, ch. 38, §270, on the ground that defendant is an idle person living without lawful means of support and is known to be a pickpocket, it is incumbent on defendant to show, if he can, that he has lawful means of support where the People introduce evidence that he is known to be a pickpocket and that officers who have known him for five years have never known him to be employed.</p>

<p>1. Infoematxost — waiver of defects. Where an information is not signed by the informer, and the accompanying affidavit is signed, if its sufficiency is not challenged by a motion to quash, the formal defect is waived.</p> <p>2. Criminal law — sentence to house of correction. Independent of agreement between the County of Cook and the City of Chicago, a sentence to the house of correction of the city is authorized by statute.</p> <p>3. Criminal law — judgment order — errors. Where an information charges an offense substantially in the language of the statute, and the defendant is found guilty in manner and form as charged, mere grammatical and clerical errors in the judgment order will not invalidate it.</p>

<p>1. INJUNCTION — positive verification of material facts necessary. To warrant the issuing of a temporary injunction upon the allegations of a bill of complaint, the verification of its material parts must he positive and not merely upon information and belief.</p> <p>2. Injunction — verification of material facts sufficient. A hill of complaint which is sworn to he true except as to allegations made upon information and belief, in which the material allegations are positively made, is sufficiently verified for the issuance of an injunction.</p>

<p>1. Pkostitution — Teasing premises for. A conviction for “knowingly permitting” leased premises to be used and occupied for the practice of prostitution will be sustained where the testimony is clear that the place was openly and flagrantly so used, so as to compel the conclusion that defendant had knowledge thereof.</p> <p>2. Criminal law — information in language of statute sufficient. An information in the language of the statute for permitting leased premises to be used for prostitution is sufficient.</p> <p>3. CeimiNAl law — sentence to worJc out fine. A sentence ordering defendant to work out a fine of $100 at the rate of $1.50 a day is proper.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. John McNutt, 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. Look-wood Hokoke, Judge, presiding. Heard in the Branch Appellate</p> <p>Court, at the October term, 1911.</p>

<p>1. Civil service — mandamus. On a petition for mandamus to replace petitioner as superintendent of sewers of a city, alleging that its civil service commission on a hearing of charges against him had found them sustained by the evidence, the justice or injustice of such finding is not subject to review, nor errors in its decisions of fact or rulings of law, and the only question is whether the commission had jurisdiction and whether it followed the form of proceedings legally applicable in such cases.</p> <p>2. Civil service — action of board final. The action of a civil service commission of a city, based on the finding of the board after a trial held in the manner pointed out by statute, and upon evidence taken tending to show the guilt of the person charged, is final and not reviewable by the courts.</p> <p>3. Pleading — conclusions not admitted on demurrer. Allegations containing merely the conclusions of a petitioner are not admitted by a demurrer and should be construed most strongly against the petitioner.</p>

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

<p>Contempt — where contempt is direct. Where one induces a witness who is in the hallway adjoining the court room waiting to he called to testify, to go to a saloon and stay away from the courthouse, he is guilty of a direct contempt committed in tne presence of the court.</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, 1912.</p>

<p>1. Landlord and tenant — duty to heep elevator in repair. In the absence of a covenant by the lessee of part of a building to keep a passenger elevator in good condition and repair, the duty to repair rests on the lessor.</p> <p>2. Covenants — construction. Where the lessee of part of a building covenants to keep the passenger elevator “in good condition and repair,” the covenant amounts to a covenant to keep the elevator in a reasonably safe condition.</p> <p>3. Landlord and tenant — liability of lessee on covenant to repair elevator. A lessee who covenants to keep the elevator in good condition and repair is liable to his employe for injuries caused by the elevator being out of repair.</p> <p>4. Landlord and tenant — liability of owner though lessee covenanted to repair. The owner of a building is liable to an employe of a lessee of part of the building for injuries caused by the elevator being out of repair, though such lessee covenanted to keep the elevator in good condition and repair.</p> <p>5. LaNDloed and tenant — liability of tenant on covenant to repair. Where the lessee of part of a building covenants to keep the elevator in good condition and repair, and his employe who is injured because such elevator is not in good condition recovers from the owner for such injuries, the owner has a right of action against the lessee for the damages recovered by such employe.</p> <p>6. Landlord and tenant — duty of landlord to heep elevator in repair. Though the lessee .of part of a building covenants to keep the elevator in good condition and repair, the owner’s legal duty to keep such elevator in a reasonably safe condition is not abrogated as to other tenants and other parties rightfully using it.</p> <p>7. Landlord and tenant — liability of tenant on covenant to repair elevator. The liability of a lessee of part of a building on his covenant to keep the elevator in good condition and repair is primary and the right of the owner to recover against such lessee for damages recovered against him by an employe of the lessee injured because of the lack of repair of the elevator is not affected by the doctrine that neither contribution nor indemnity will be given one of several tort feasors against others, since the owner and lessee are not equally liable.</p> <p>8. Landlord and tenant — amount landlord may recover on covenant of tenant to repair. Where a lessee covenants to keep the elevator in repair and to pay all reasonable expenses incurred by the owner in enforcing the covenants, and his employe recovers a judgment against the owner for injuries caused by defects in the elevator, and the owner compromises with the employe by paying part of the judgment, such owner can recover from the lessee only the amount paid by compromise and the fees and costs expended in defense of the action.</p> <p>9. Practice — when party cannot object to ruling in his favor. Plaintiff cannot complain that judgment was entered without a remittitur for a sum less than the verdict returned on direction of the court, where the ruling was in his favor and was urged on the court by him.</p> <p>10. Covenants — to repair construed. Where a lessee of part of a building covenants to keep the elevator in good condition and repair, the lease does not by implication or otherwise indemnify against damages except those arising specifically by reason of failure to keep such elevator in good condition and repair.</p> <p>11. Interest — when damages not liquidated. Where a lessee covenanted to keep the elevator in good condition and repair and one injured by defects therein recovered a judgment against the owner, though such owner may recover against the lessee for the amount paid under the judgment, yet under the covenant the owner is not entitled to interest against the lessee on the amount paid, since the damages were not liquidated nor so certain and definite that interest might he allowed thereon.</p> <p>12. Pbactice — what is part of elevator, question for jury. Where a lessee of part of a building covenants to keep the elevator in good condition and repair, it is a question of fact for the jury whether the water meter used to measure the water used by such elevator is a part of it within the covenant, where the use of such meter is retained by the owner for the benefit of other tenants.</p> <p>13. Practice — power of court to enter judgment where verdict is directed. Judgment may be entered for a sum other than that awarded in the verdict without the formality of a remittitur, where the verdict was directed.</p>

<p>1. Assignments — set-off and counterclaims. Under Practice Act, § 18, providing for tbe allowance of set-offs against tbe assignor of a claim before notice is given of tbe assignment, tbe debtor cannot set off any demand wbicb be may bave against tbe assignor wbicb was not due at tbe time of sucb notice of assignment.</p> <p>2. Contracts — liquidated damages. Where a contract for tbe construction of a pumping station is canceled by a city before tbe time limit expires, no liquidated damages for failure to finish tbe work within sucb time limit become due.</p> <p>3. Contracts — receipts cannot change liability. No words in a receipt by a city of a notice of assignment of a claim against it can change tbe law or limit its liability under tbe law, unless assented to by tbe assignee.</p>

<p>1. Divobce- — desertion. Where a wife, within two years after leaving her husband, makes bona fide offers to return to him and live with him as his wife and he refuses her, he cannot afterwards maintain an action for divorce on the charge of wilful desertion, unless some other legal ground appears that will excuse him for refusing to live with her.</p> <p>2. Divobce — desertion. Where a wife, within two years after leaving her husband, makes an offer in good faith to return, the desertion terminates, and if she is barred the legal attitude of the parties may be reversed, constituting the husband offended against from that time forth the offender.</p> <p>3. Divobce — desertion. Finding of desertion for two years held ■ manifestly against the weight of the evidence.</p>

<p>1. EvidbNce — where possession is prima facie evidence of ownership. In replevin by an administrator against the daughter and son-in-law of deceased to recover possession of a note and trust deed in security thereof, in the absence of other evidence the proof of possession and claim of ownership make a prima facie case showing right of possession against the administrator.</p> <p>2. Evidence — presumptions. When possession and ownership are shown to exist, they are presumed to- continue, but are not presumed to have existed back of the time they were proved to have existed.</p> <p>3. Wills — note to broker not in conformity with Statute of Wills. An instrument signed by deceased directing a broker to transfer certain securities to his daughter and in case of his death to pay her the principal is not in conformity with the statute relating to wills and of no effect to pass title.</p> <p>4. Gluts — delivery. In order to establish a gift inter vivos it must be shown that there was a delivery of the property in the lifetime of the deceased with intent to vest title in the donee.</p> <p>5. Evidence — presumption of ownership. A prima facie case of ownership may be rebutted by the circumstances attending the possession.</p>

<p>1. Indictments and infoemations — variance. Where an Information charging defendant with unlawfully abandoning his wife describes the wife by her middle name, there is no variance, though the full name is proved.</p> <p>2. Indictments and informations — description of parties. The party against whom an offense is committed may be described in an indictment by his initials, by his middle name or first name, or by a nickname, and if the proof establishes with certainty that the name alleged is the one by which he is usually known, there is no variance.</p> <p>3. Criminal law — jury waiver. Where a written waiver of jury trial has the venue and number of the case correct, it is not a reversible error that in the title “City of Chicago” is used instead of the “The People,” where the mistake is a clerical error of defendant’s counsel.</p> <p>4. Criminal law — waiver of jury. In a prosecution for a misdemeanor that may he prosecuted otherwise than by indictment and for which the punishment cannot extend to imprisonment in the penitentiary, the defendant may waive the right to trial by jury.</p> <p>5. Criminal law — minor; may waive jury. In a prosecution upon an information charging defendant with unlawfully abandoning his wife, the defendant, though a minor, may waive his right to trial by jury.</p> <p>6. Husbakd and wife — abandonment. Tlie fact tliat a wife was a prostitute before marriage is no defense to a prosecution of lier husband for abandonment.</p> <p>7. Husband and wife — abandonment. A fine of five hundred dollars and costs is not excessive on a prosecution for wife abandonment.</p>

<p>1. Corporation's — action on covenant for benefit of, must be brought by corporation. Where defendant bas sold his stock in a corporation to other stockholders and covenanted not to engage in the business of furnishing ice for water coolers in a certain district whe're the corporation is operating such business, the corporation alone has a substantial beneficial interest in the enforcement of the covenant, and it alone has the right to prosecute an action to enjoin its violation.</p> <p>2. Contracts — for benefit of third, party — action by. Where a person for a valuable consideration makes a promise to another for the benefit of a third person, such third person may maintain an action on such promise, even where there is no consideration moving from him.</p> <p>3. Covenants — not to interfere with “known business” — meaning of. Where a party covenants that he will not enter in the ice business in the cooler trade so as to interfere in any manner with the “known business” of a company, the then “known business” means the occupation of supplying ice for water coolers and is not limited to the customers of the company.</p> <p>4. Parties — to contract after functions terminated — mot necessary to suit. Where the functions of a party to a contract have wholly terminated and he has no rights to be affected, he is not a necessary party to a suit on the contract.</p> <p>5. Contracts — coercion. The fact that a person is led to accept $250 less than his original offer to sell an interest in his business for $3,500 does not tend to establish coercion.</p> <p>6. Pasties — interest. On a bill to enforce an agreement not to engage in competing business, incidental to a sale of corporate stock, a trustee who acted as intermediary or bis personal representative is not a necessary party complainant when bis duties have been completely executed.</p>

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

<p>1. Evidence — opinions based on subjective symptoms. Where a physician who has treated the plaintiff professionally testifies that during an examination made for the purpose of testifying plaintiff “suffered great pain,” and that “from a lack of sensitiveness over the lower part of the back,” he found some injury to the spine, such answers do not necessarily imply that they were based on subjective symptoms, or were conclusions from statements or voluntary actions of plaintiff, but if cross-examination discloses the fact that such opinions or statements were based upon subjective symptoms, they should upon motion be excluded, notwithstanding the fact that the witness had previously treated the plaintiff professionally.</p> <p>2. Evidence — stating reasons for opinions. Where an objection to a medical expert witness stating his reasons for his opinions is improperly sustained, but he is subsequently permitted to state such reasons at length and in detail, there is no substantial error.</p> <p>3. Damages — refusal to submit to physical examination. Where plaintiff in an action for personal injuries states in cross-examination that she is willing to submit to a medical examination if her attorney tells her to do so, and her attorney refuses to answer a question whether he will permit such examination, and both the court and the counsel construe such attitudes as a refusal, and defendant’s counsel comment at length on such refusal in argument to the jury, the only benefit which defendant could have derived from an express refusal before the jury is more than had by such argument of its counsel before the jury.</p> <p>4. Evidence — suppression of. Where plaintiff in an action for personal injuries testifies that prior to her injury she was boarding several men, naming them, and the court sustains an objection to the question, “Do you know where any of them are now?” when it does not appear that any of them boarded with her after her injury or that they had any opportunity to observe her condition, the ruling is not prejudicial.</p> <p>5. Pkactice — improper argument. Where counsel for defendant in his argument before the jury characterized plaintiff’s case as a “frame-up” and a “fake,” he is not in position to complain of severe comments by plaintiff’s counsel reflecting on defendant’s good faith and witnesses, where the court has sustained objections interposed to such comments.</p> <p>6. Damages — excessive. In an action for personal injuries caused by a collision of street ears, where the question of the character and extent of plaintiffs injuries is dependant wholly upon the credibility of the several witnesses, held, this court is not prepared to say that the evidence does not justify a verdict for $8,000 damages. Baume, J., dissenting.</p>

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

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

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

<p>Appeal from the County Court of Cook county; the Hon. Lotos M. Reckhow, 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. Robert W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.</p>

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

<p>1. Municipal Court — judicial notice of rules. The Appellate Court takes judicial notice of the rules of the Municipal Court of Chicago.</p> <p>2. Municipal Court — objections to oral instructions. Under Municipal Court Rule 8, specific objections to oral instructions are to be made immediately upon the conclusion of the charge and before the jury retires, in order to raise questions as to their correctness in the Appellate Court.</p> <p>3. Appeals and errors — filing document certified by cleric. It is not competent for either party, on an appeal, to make part of the record reviewed by that appeal an additional document, certified to by the clerk of the court in which the original judgment was rendered.</p> <p>4. Practice — argument of counsel outside of the evidence. In argument before the jury, counsel should not undertake to argue points outside those introduced in evidence, nor assert what he would believe or disbelieve outside of the evidence, nor unjustly-berate or asperse an adversary witness.</p> <p>5. Carriers — contracts. A question concerning the character of the contract of carriage of plaintiff while riding on defendant’s street car, held disposed of by the opinion in Chudnovski v. Eckels, 232 Ill. 312.</p> <p>6. Damages — excessive. Where plaintiff’s claim of having suffered a Pott’s fracture is clearly against the evidence, a verdict for $2,500 damages is excessive and remittitur of $1,000 will be required.</p>

<p>Yeedict — what informality harmless. Where a case is dismissed as to one of two Joint plaintiffs, an objection tbat a verdict for plaintiff is defective which, refers to “plaintiffs damages” is hypercritical, since the omission of the apostrophe is merely an informality and is harmless, especially where defendant did not suggest that the jury be instructed as to the dismissal.</p>

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

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

<p>1. Brokers — questions for jury. Where plaintiffs had been employed by defendant to secure a purchaser for a leasehold and procured a prospective purchaser, to whom the sale was finally made, the questions whether their employment had then ceased or whether their services were the procuring cause of effecting the sale, and whether they were acting in good faith, were all for the jury, and verdict for plaintiffs will not be disturbed.</p> <p>2. Appeals and ebrors — objections as to parties. Where a co-partnership brings suit and one member is not joined as a party, it is too late to raise tbe point of sucb nonjoinder in tbe Appellate Court, and where tbe assignment of error has been made on tbe point, it is not before tbe court.</p> <p>3. Appeals and eebobs — general assignment of error. A general assignment of error that tbe court erred in denying defendant’s motion to find for tbe defendant is not sufficient.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard jn the Branch Appellate Court at the October term, 1911.</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, 1911.</p>

<p>1. Carbiebs — duty to provide safe exit. A carrier is bound to use the highest degree of care and skill reasonably practicable in providing passengers with a safe means of exit from the station.</p> <p>?„ Carriers — unusual accident. Where plaintiff in a personal injury action, after leaving defendant’s train, stumbles on a bolt while passing through the exit turnstile, it is immaterial in determining defendant’s liability that thousands of people had passed through without stumbling.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, 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. Far-I.IN Q. Ball, Judge, presiding. Heard in the Branch Appellate</p> <p>Court at the October term, 1911.</p>

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

<p>1. PRocESS-^cwiawee — where partnership name is used without individual names. Where plaintiffs are described in the statement of claim by their full names, doing business as a certain named partnership, and in the summons by the partnership name only, there is not a material variance.</p> <p>2. Peocess — when variance ground for reversal. The fact that plaintiff’s Christian name in the summons is wrong, when it is once rightly alleged in any of the pleadings, does not authorize the reversal of a judgment by default.</p> <p>3. Default — where defendant is properly defaulted. Where plaintiffs are described in the statement of claim by their individual names, doing business under a certain partnership name, and in the summons only the partnership name is used, and after a motion to quash the summons is denied defendant refuses to appear instanter as ordered, it is not error to enter judgment by default.</p>

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

<p>1. Costs — bond by nonresident. In an action by a nonresident, where defendant first calls attention to plaintiff’s failure to file a bond for costs after plaintiff has concluded his opening statement, refusal to dismiss or continue the action if plaintiff agrees to file such bond prior to the close of the case, is not error.</p> <p>2. Municipal court — amendment of affidavit of claim. Under the Municipal Court Act, §§ 46, 22, it is not error to allow the original affidavit of claim to be stricken and an amended affidavit filed instanter after plaintiff has made his opening statement, where the amended statement is substantially the same as the original except as to the amount sworn to be due.</p> <p>3. Municipal court — stipulation of facts. Motion to strike a stipulation of facts which was entered into before the statement of claim was amended is properly denied where the amended statement is in substance the same as the original except as to the amount claimed.</p> <p>4. Municipal court — sufficiency of amended statement of claim. An objection to the sufficiency of an amended statement of claim is not well founded where, except as to the amount claimed, it is substantially the same as the original statement to which defendant filed an affidavit of merits, and where it sufficiently advises defendant as to the case he is called upon to defend.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Penalties — nature of action for. A suit, tliougli civil in form, brought to recover penalties for offenses against the laws of the state, is a criminal case within the meaning of the Constitution.</p> <p>2. Criminal law — calling defendant. In a suit to recover penalties, a request that defendant he sworn disturbs his free choice and is calculated to harm him.</p> <p>3. Municipal court act — cross-examination of defendant in suit for •penalties. The Municipal Court Act, § 33, providing for calling defendant for cross-examination, is not applicable in suit to recover penalties for offenses against the laws of the state.</p> <p>4. Wills — failure to file. Where the probating of a second will is set aside by decree of court, failure to file the first will until such time does not impose liability under R. S. ch. 148, § 12.</p>

<p>1. Costs — settlement with third, party. Where complainant in a bill makes an adjustment with a third person not a party, he is liable for costs on dismissal on his own motion.</p> <p>2. Costs — when defendant liable. Where defendant by his own act renders prosecution of bill needless, he is liable for costs on dismissal by complainant.</p>

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

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

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. F«nr, Judge, presiding. Heard in this court at the October term, 1912.</p>

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

<p>1. Brokers — sales through. Where a broker not intrusted with possession of goods contracts in his own name to sell the same to a vendee to whom he is indebted to apply on his indebtedness, the vendee having no knowledge that such broker is not the real owner, and the owner delivers and hills the goods to the vendee, recovery may he had hy the owner from the vendee.</p> <p>2. Assumpsit — retaining goods. If a person receiving goods keeps them and deals with them as his, he is liable on an implied promise to pay their value.</p> <p>3. Brokers — distinction between brokers and factors. The test whether an agent is a broker or a factor is in his having possession of the goods in the transaction.</p> <p>4. Brokers — possession. A broker has not possession of goods bought or sold for his principal.</p> <p>5. Brokers — must .yse name of principal. A broker must buy and sell in name of his principal.</p> <p>6. Factors — may buy and sell in own name. A factor may buy and sell in his own name.</p>

<p>1. Sales — furnishing cars. Where a contract of sale “f. o. b.” cars is silent as to whether the buyer or seller is to furnish cars, the jury in a case of conflicting evidence is to determine the construction placed on the contract by parties.</p> <p>2. Contracts — lex loci. The law of a state where a contract is made is controlling.</p> <p>3. Contracts — law of other state. Where the law of another state is not offered in evidence, it cannot be applied.</p>

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

William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1911.- Statement by the Court. Plaintiff Saunders leased to defendant Fox by written lease for one year from May 1, 1910, at a rental of $70 per month, the house 510 Arlington Place, Chicago.

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

<p>1. CoNtempt — in applying to 'become surety on bail bond. A finding of tlie court that defendant is guilty of contempt in making an application to become surety on a bail bond is not sustained where there is no evidence that a misstatement in the application was made for the purpose of deceiving the judge or inducing him to accept defendant as surety.</p> <p>2. Contempt — where misstatement is made to another judge. Where the court sends one applying to be accepted as surety on a bail bond to another judge who approves the bond, a misstatement made to this judge is not a contempt of court in the court where the bond is required.</p> <p>3. Contempt — answer cannot be traversed. In a prosecution on behalf of the People for contempt, the answer of respondent cannot be traversed and must be taken as true.</p> <p>4. Contempt — where answer is inconsistent. Where an answer in contempt proceedings states facts that are inconsistent with respondent’s avowed purpose and intention as stated in his answer, the court is at liberty to draw its own inferences from the facts stated.</p>

<p>Error to the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1910.</p>

<p>1. Street railroads — duty to laborer on track. A declaration which in substance states that plaintiff was employed in a gang cleaning sewers through manholes which were located in a narrow space between street railway tracts, and was injured by two cars approaching in opposite directions, which were not stopped although signaled to, and that plaintiff’s unsafe condition was known to defendant’s servants, is sufficient to point out a duty and charge a negligent breach constituting a cause of action.</p> <p>2. Torts — liability. Liability only follows a negligent or reckless act when the party guilty of the act owes to the party injured some duty which is violated by the commission of the negligent or reckless act.</p> <p>3. Negligence — elements of cause of action. In an action on the case the constituent elements of proof required by plaintiff are: (1) That plaintiff was exercising due care for his own safety at and just prior to accident; (2) that defendant was guilty of negligence in the manner charged; (3) that such negligence was the proximate cause of injuries.</p> <p>4. Negligence — exercise of clue care to be alleged. It is necessary for plaintiff, in order to show a complete cause of action, to aver that he was at the time in the exercise of due care for his own safety.</p> <p>5. Negligence — pleading exercise of due care. The phrase “while the plaintiff was exercising ordinary care and caution for his own safety,” in a declaration by one injured by street cars while he was working between tracks, held under the circumstances alleged to refer to time of approach of cars as well as of the actual passing.</p> <p>6. Pleading — declaration. The purpose of a declaration is to state the cause of complaint clearly so that defendant will know what he has to meet.</p> <p>7. Pleading — allegation of duty. The description of a situation may show a duty without the direct allegation of such duty.</p> <p>8. Pleading — declaration must allege facts. The mere use of an adverb describing an act, such as “negligently,” will not of itself make that act actionable.</p> <p>9. Pleading — defects cured by verdict. Allegations that might not have been regarded specific enough on demurrer may become so after verdict on motion in arrest of judgment.</p> <p>10. Pleading — arrest of judgment. To justify denial of motion in arrest of judgment, it is only necessary that one count should state a cause of action.</p> <p>11. Instructions — preponderance of evidence. An instruction that the “plaintiff is not bound to prove his case beyond a reasonable doubt, but is merely bound to prove it by a preponderance of the evidence,” is less open to objection than instructions concerning the amount of preponderance required.</p> <p>12. Instructions — assuming negligence. Instructing the jury that if they believe from the evidence that plaintiff “was injured as a direct result and in consequence of defendant’s negligence, as charged,” etc., then they should find defendant guilty, does not assume that the facts charged constituted negligence as 'matter of law.</p> <p>13. Negligence — contributory. There is no specific rule concerning contributory negligence, its existence depends on the particular facts.</p> <p>14. Practice — leading questions. The objection to leading questions largely rests in the discretion of the trial court where not abused.</p> <p>15. Street railroads — contributory negligence. Where plaintiff, a laborer employed as a member of a sewer cleaning gang, was caught between street cars while between the tracks and injured, it is proper, as bearing on his contributory negligence, to show what orders had been given him by his foreman.</p> <p>16. Street railroads — contributory negligence. Contributory negligence of a laborer working between street railroad tracks as a member of a sewer cleaning gang held a question for the jury in an action for an injury sustained by being caught between passing cars.</p>

<p>Error to the Municipal Court of Chicago; the Hon. J. H. HuME, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Sales — misrepresentation. Testimony which leaves a suspicion that defendant was not over scrupulous in “puffing” the value of the good-will in the sale of a store is not sufficient evidence to avoid the contract for misrepresentation.</p> <p>2. Sales — rescission T)y mutual consent. Where defendant because of plaintiff’s dissatisfaction retakes possession of a store which he had sold to plaintiff the day before, there is a rescission by mutual consent and defendant will be required to return the money received as part payment.</p>

<p>1. Pleading — reference to usee as “plaintiff.” Where an action is brought by one person for the use of another, it is immaterial that the statement of claim refers to the beneficial usee as “plaintiff.”</p> <p>2. VendoR and tondee — earnest money. Where a contract for the sale of land provides that the earnest money shall be held by defendant, agent of the vendor, for the mutual benefit of the parties, and in case the purchaser fails to complete the contract shall be forfeited as liquidated damages, defendant does not become liable to plaintiff, the purchaser, in paying the money to the vendor after the plaintiff has refused to complete the contract.</p> <p>3. Vendor and vendee — when continuation of abstract is waived. In an action to recover earnest money paid on a contract for the purchase of land, plaintiff cannot excuse his failure to complete the contract by showing the abstract was not continued to date, where it is proved that the continuation was waived.</p> <p>4. Appeals and errors — disposition of cause. Where an improper judgment is rendered in a cause tried below without a jury, the appellate court will, in disposing of it, render such judgment as should have been rendered.</p>

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

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

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

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

<p>1. Master and servant^ — patent defects. Plaintiff’s intestate, a boy 15 years old, bad been in defendant’s employ a year and a balf, during which time he had used a defective stairway over fifty times a day. The only eyewitness to the accident testified that deceased had not reached the stairs when he fell, but slipped on the level floor. Held, that even if the fall was due to a defect in the stairway deceased must have known of such condition, and there can be no recovery.</p> <p>2. Master and servant — defects known to servant. However gross the fault of the master in subjecting the servant to the risk of injury from defective buildings, premises and appliances, yet where the servant knows the defects and dangers and still knowingly and without protest consents to incur the risk to which he is exposed, he is deemed to assume such risk and to waive any claim for damages in case of injury.</p> <p>3. Master and servant — knowledge of defects. A servant, in a suit against his master for injuries caused hy an unsafe place of work or defective appliances, must establish the existence of the defect, that the master had notice thereof, or in the exercise of ordinary care would have had knowledge of it, and that the servant did not know of the defect and had not equal means of knowing with the master.</p>

<p>1. Trover Aisro conversion — nonacceptance of goods. Plaintiff contracted to sell a car of red oak to a commission firm, which turned the car over to defendant. The latter, as well as the commission firm, refused acceptance because the timber was not up to grade. Plaintiff then offered to take the property hack and defendant refused to surrender it on the alleged ground that he had applied the timber on a claim against the commission firm. Held, there was no acceptance or passing of title.</p> <p>2. Trover — nonaooeptance of goods. Where property is delivered under a contract to a party who takes the attitude that he will not accept it because not up to grade, title does not pass and trover lies for its conversion.</p>

<p>1. Licenses — mason contractor. The question whether plaintiff had a license to do business as a mason contractor is a collateral one in an action on a contract for mason wort, and the issuance of such license will he presumed unless the contrary fact is specially relied on as a defense and proved in the trial court.</p> <p>2. Building and construction contbacts — fire wall. Where work is done in the construction of a building in accordance with the plans upon winch the license to build was issued, the contractor has no part in a violation of a city ordinance relating to fire walls.</p> <p>3. Building AND constRuction contracts — mason work. Finding of a jury that a contract for mason work had been completed according to specifications, affirmed.</p>

<p>1. Account stated — directing verdict on. Where plaintiff's proof tends to show that statements of account were rendered to defendant, no objection was made thereto, and that defendant promised to pay, and defendant offers no testimony in opposition, the court may direct a verdict upon an account stated.</p> <p>2. Practice — prima facie case not overcome. "Where the plaintiff makes out a prima facie case and no testimony is introduced by defendant, the court is justified in directing a verdict for plaintiff.</p> <p>3. Constitutional law — due process. Where defendant files an affidavit of merits which is not stricken from the files, but offers no testimony after plaintiff has made out a prima facie case, a directed verdict for plaintiff is not a violation of defendant’s constitutional right to “due process of law.”</p>

<p>1. Sales — portion not up to grade. Where defendant in an order for timber warned plaintiff to ship only stock coming up to grade, and where, under a previous contract, allowance had been made for stock not up to grade, plaintiff may require defendant to accept so much of a carload as is up to grade if plaintiff has unloaded the car and separated the good from the bad and tendered the former to defendant.</p> <p>2. Sales — portion not up to grade. Where defendant offered to accept such portion of a ear load of timber as was up to grade ordered if plaintiff would unload the stock and separate the good from the bad, and plaintiff refused the offer and ordered the ear back for sale in open market, no acceptance by defendant is shown.</p> <p>3. Sales — no recovery for goods not accepted. Where a portion of a car load of timber was not up to the grade ordered, and plaintiff, on the buyer’s refusal to unload the car, took the same back, he will not be allowed to recover for such portion as was up to grade where he claims the full contract price.</p>

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

<p>1. CosmtACTS — when one does not become a party by signing. Where a husband signs a contract as agent for his wife and also alone, he cannot he held liable either severally or jointly when his name is not mentioned in the body of the contract and he does not agree to do anything or pay any amount.</p> <p>2. Appeals and errors — when ñidgment not sustained by the record is affirmed. Where plaintiff sues out a writ of error on a judgment in his favor, and alleges as error that it should have been for a larger amount, it will be affirmed though not sustained by the record where defendants do not complain and file no cross-errors.</p>

<p>1. Witnesses — competency of wife. The testimony of defendant’s wife as to a conversation held previous to her marriage, in which plaintiff claims defendant agreed to pay her hoard, is not incompetent under R. S. ch. 51, § 55.</p> <p>2. Appeals and eeeoks — harmless error. Where the testimony of a witness that she “did not hear” defendant make a promise is erroneously excluded, and there is conflicting testimony as to her having been present during the conversation, the error in rejecting such testimony is not ground for reversal, the judgment for plaintiff not being against the manifest weight of the evidence.</p>

<p>1. Municipal court — stenographic report. The municipal court has no power, even by agreement or stipulation of parties, to enlarge the time for filing the stenographic report on an application made more than thirty days after the rendition of judgment.</p> <p>2. Practice — recovery against one joint defendant. Where a statement of claim recites “for services rendered” to defendants “and each of them at their request,” and that “said defendants and each of them promised” to pay plaintiff a certain amount, recovery may he had against one defendant individually.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

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

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

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

<p>1. Set-off — evidence as to an action on note. In an action on a note, defendant’s claim of set-off for commissions on the sale of goods is not proved where defendant, after knowledge of the sale in question, adjusted matters of indebtedness with plaintiff, one of which was covered by the note sued on, and at no time claimed commissions.</p> <p>2. Damages — evidence not competent. Evidence of what charge an unlicensed concern made for storing the class of property in question without a showing that the charge was reasonable, usual or customary, and evidence of what was paid as rent of the premises occupied by such property after notice to remove, is not sufficient to establish damages for failure to remove property from premises.</p> <p>3. Damages — measure of. Where plaintiff improperly fails to remove goods from defendant’s premises, the measure of damages is what it costs to store the goods.</p> <p>4. Pbactice — propositions of law tendered to court. On a trial without a jury a proposition of law is properly refused where there is no evidence on which to base it.</p> <p>5. Practice — form of proposition of law tendered to court. The form alone of propositions of law submitted to the court without a jury justifies their rejection where they asli that a proposition of law be found on condition that certain facts are found.</p>

<p>1. Damages' — when evidence sustains finding of, for unauthorised use of property. Plaintiff delivered to defendant certain ivory balls with option-to buy or return them. Later defendant notified plaintiff to take them back but continued to use them on another floor of the building contrary to agreement. Held, that while the damages were not susceptible of accurate, proof the court’s findings would not be disturbed, there being sufficient evidence to support them.</p> <p>2. Actions and defenses — when bringing and dismissal of as-sumpsit not bar to replevin. The fact that plaintiff previously brought and dismissed an assumpsit action for the value of property belonging to him does not bar him from bringing a replevin action therefor where defendant was not thereby led to change his position or pursue a different course.</p>

<p>Error to the Municipal Court of Chicago; the Hon. G-eobge J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.</p>

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

<p>1. Tbial — dismissal as to one joint defendant. Tlie rule that in a joint action ex contractu a dismissal as to one defendant effects a discontinuance of the entire action does not apply where the party against whom dismissal was had was not a party to the contract.</p> <p>2. Set-off — where claim is unliquidated. In an action for an amount due for services rendered in making plans and specifications for a building, a claim for damages on the ground that plaintiff verbally directed the contractor to change the location of the building is not proper matter of set-off, being for unliquidated damages not growing out of the subject-matter of the contract.</p>

<p>1. FORMER adjudication — judgment as bar to second suit. There is a distinction between the effect of a judgment as a bar or estop-pel to a second suit for the same cause of action and its effect as an estoppel where the same question is again brought in issue in another suit between the same parties upon a 'different cause of action.</p> <p>2. Former adjudication — where causes are not the same. Where plaintiff sues in one case for breach of contract for his discharge and in another to recover the salary due'under the terms of the contract, the causes of action are not the same.</p> <p>3. Former adjudication — where parties are the same. Where some controlling fact or question has been adjudicated in a former suit and is again at issue between the same parties, its adjudication in the first is conclusive in the latter, irrespective of whether the cause of action is the same in both suits.</p> <p>4. Estopped by verdict — where facts to be proved are not the same. Where plaintiff sues in one case for breach of contract for his discharge and fails to prove that he was discharged, this does not prove in another action for salary due under the contract that he quit voluntarily, and there is no estoppel by verdict.</p> <p>5. Judgment — when causes of action are not merged. In an action on a contract of employment, a recovery for instalments due does not bar another suit for instalments that subsequently fall due.</p> <p>6. Judgment — when canses 0† action are merged. Where plaintiff sues for damages for breach of contract for wrongful discharge and recovers, the judgment is a bar to all future actions upon such contract of employment; but not when he does not recover.</p>

<p>Appeals and errors — where affidavit of defense is not filed in time. Where the record does not contain defendant’s affidavit of defense tendered after the time in which to file it had gone by, this court without knowing its contents cannot say that this trial court abused its discretion.</p>

<p>Appeals and ekbobs — when ease in municipal court is not properly preserved for review. The proceedings at the trial of a case in the municipal court are not properly preserved for review when at the end of what purports to he a transcript of the evidence are merely the words “which was all of the evidence offered or adduced on the above trial,” followed hy the written name of the trial judge.</p>

<p>1. Evidence — burden of proof when issue is whether agreement is express or implied. In an action for labor and material furnished, where plaintiff proves facts from which an implied agreement arises, it devolves upon defendant to prove his claim of an express agreement.</p> <p>2. Evidence — sufficient to raise implied agreement. In an action for labor and material furnished, evidence that plaintiff did the work as requested under no express agreement as to price is sufficient to raise an implied agreement to pay what it was reasonably worth.</p> <p>3. Municipal court — propositions of law. Rule 23 of the Municipal court as amended includes section 61 and certain other sections of the Practice Act, which make it possible to submit written propositions to be held as law in all civil proceedings in the municipal court except quasi criminal.</p>

<p>1. Damages — When not excessive. Where tlie representatives oí defendant, a furniture concern, selling goods on the instalment plan, unlawfully enter and search plaintiff’s home, a judgment for $1,000 is sustained.</p> <p>2. Agency — when principal liable for wilful acts of agent. A principal is liable for the wanton and wilful acts of its agents in the line of their employment and in the course thereof, while pursuing the business of the defendant.</p> <p>3. Damages — when punitive, may be recovered. Where the employes of defendant commit a trespass in entering plaintiff’s house and assaulting her, it is proper to instruct the jury that they may give punitive or exemplary damages.</p>

<p>1. Pleading — where defendant waives right to insist upon sufficiency of affidavit. Where defendant obtains leave to file an amended affidavit after a former affidavit has been stricken from the files, he waives the right to insist upon the sufficiency of the first affidavit.</p> <p>2. Negotiable instruments — defenses. An affidavit of merits to an action on promissory notes in effect that the notes were for the accommodation of the payee and without consideration, were given with the understanding that defendants were not to be called upon to pay them, and were negotiated without the consent of defendants, and that defendants expect to prove plaintiff was aware of the circumstances under which they were obtained, does not show a defense and is properly stricken from the files.</p> <p>3. Jury — assessment of damages. Where a party demands a jury under the Municipal Court Act, he is entitled to have the issues made up in the' case tried by a jury,, but unless a special demand is made at the time does not have the right to have a jury assess the damages on default.</p> <p>4. Damages — when court may assess. Where defendant demands a jury at the time he enters his appearance, but does not demand a jury for the assessment of damages upon default, it is not error for the court to assess the damages.</p> <p>Babnes, J., dissenting.</p>

<p>1. Negligence — question of fact for the jury. Where plaintiff, a motorman, is injured, by collision with a train in attempting to run his car across the railroad tracks, the question of contributory negligence on the part of plaintiff is a question of fact for the jury to be determined from the evidence.</p> <p>2. Railkoads — motorman has right to assume railroad, will obey the law. A motorman in attempting to run a street car across railroad tracks has a right to assume that the railroad will obey the city ordinances as to the speed of its trains over the crossing and will give proper warning of their approach.</p>

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

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

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

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

<p>1. Master and servant — instructions. In an action t>y a milliner for alleged breach of the contract of employment, where defendant alleges that the employment was conditioned on the character of the work, failure on request to instruct that incompetency, if shown, is a defense, is error where there is evidence upon which to base the instruction.</p> <p>2. Instructions — evidence. Instructions not based on the evidence are erroneous.</p> <p>3. Contracts — provision that worh must he satisfactory. If a milliner is employed for so long a time as her work is satisfactory she may he discharged at any time her services are not satisfactory to her employer.</p> <p>4. Damages — duty to lessen, on illegal discharge from, employment. If a milliner employed for a specified time at certain wages is illegally discharged on refusal to go to another store at the same wages before the expiration of such time, it is her duty to lessen the damages by accepting similar employment at the best wages she can obtain for the time of the discharge, and she is not warranted in refusing to go to such store after discharge and in accepting employment at another place at less wages unless she shows that work in such store would damage her reputation as a milliner.</p> <p>5. Instructions — when jury must he accurately instructed. Where the sole witness for a plaintiff is contradicted by two witnesses, the jury must be accurately instructed as to the law.</p>

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

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

<p>1. Landlord and tenant — when verdict for tenant in action for rent not supported. In an action for rent, a verdict for defendant is not supported by tbe evidence -where plaintiff makes a prima Sacie case entitling him to judgment for at least two months’ rent, the evidence under the defense that the premises were used as a house of ill fame with plaintiff’s knowledge and consent does not show a use not wholly consistent with the proper use of such premises as a hotel, for which the lease expressly provided, and there is no proof tending to show knowledge by the landlord of improper use or of circumstances tending to show such use.</p> <p>2. Landlord and tenant — evidence of improper use of premises 6y tenant to avoid payment of rent. A tenant should not be allowed to avoid payment of rent on the ground that the premises were used by him for some unlawful purpose unless the evidence as to such use at least shows a state of facts inconsistent with the lawful use thereof.</p>

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

<p>1. Saxes — when goods not shipped within reasonable time. Plaintiff ordered certain tanks September 9th, to be shipped in two weeks. Prom the correspondence it appeared that the order was for fifty tanks and was so understood by defendant, who pretended to misunderstand to produce delay. On request plaintiff sent a deposit, which was received September 24th. On September 30th, when defendant had tanks which he should have shipped immediately under the contract, he, without mentioning the receipt of deposit, requested full payment, which was sent. Defendant, on October 8th, wrote that the deposit was just received and that tanks intended for plaintiff were shipped elsewhere on account of the delay in sending the deposit. On November 5th, plaintiff telegraphed defendant cancelling the order and demanding that the remittance be refunded. Defendant falsely claimed that he received the telegram after the goods were shipped. Held, that! conceding that plaintiff waived performance within two weeks, defendant failed to perform within a reasonable time without any reasonable excuse.</p> <p>2. Saxes — performance of contract. Though the buyer waives performance of the contract within the time specified in his acceptance of the offer, the seller is required to perform within a reasonable time after notice.</p> <p>3. Saxes — delivery of goods to carrier. Delivery of goods to a «carrier does not constitute delivery to the consignee where delivery is not made within a reasonable time after the order is given and the order is canceled before such delivery.</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, 1913.</p>

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

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

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

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

<p>1. Guardian and ward — personal judgment against guardian. In an action against defendant as guardian of the estate of a minor, his daughter, for medical services rendered to the daughter, a personal judgment against defendant is not erroneous.</p> <p>2. Judgments — when judgment order is erroneous. Where a personal judgment is rendered against defendant, a guardian, an order that it “he paid in due course of administration” is erroneous.</p> <p>3. Appeais and ereobs — when error does not necessitate new trial. Where no error intervened up to and including the' overruling of defendant’s motion for new trial, and an erroneous direction is included in the judgment order, the judgment is reversed and remanded with directions to enter judgment in the usual form, each party to pay his own costs in the court of review.</p>

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

<p>1. Courts — jurisdictional questions. Tlie appellate court lias no power to consider constitutional questions.</p> <p>2. Pleading — declaration or statement of claim. Wliere plaintiff’s statement of claim filed in the municipal court contains all the necessary elements of a common-law declaration, it is immaterial whether it he called a declaration or a statement of claim, and a motion to dismiss for want of a declaration is properly denied.</p> <p>3. Pleading — requisites of declaration. The general requisites or qualities of a declaration are, first, that it correspond with the process; second, that it contain a statement of all the facts necessary in point of law to sustain the action, and no more; and third, that these circumstances he set forth with certainty and truth.</p> <p>4. Insurance — when motion to strilce statement of claim is properly denied. In an action on an insurance policy, a motion to strike the statement of claim from the files on the ground that plaintiff relies on a waiver of an admitted right of forfeiture and sets up no facts showing a waiver, is properly denied where it is alleged that several months after the overdue premium had been paid, “while the policy was in full force and effect,” the assignor of defendant took the policy as collateral security on a loan and later assigned it to defendant who accepted, reinsured and guaranteed it.</p> <p>5. IwsxniANOE — effect of reinsurance. Where one insurance company assigns a policy to another, the reinsurance contract operates only between the insurer and reinsurer and creates no privity of t ontract between the reinsurer and the person insured unless there is a provision in the contract whereby the reinsuring company assumes and agrees to perform the contracts of the insuring company.</p> <p>6. Insurance — statement of claim on reinsurance contract. In an action on an insurance policy, where it is alleged in the statement of claim that by the terms of the reinsurance contract defendant agreed to reinsure the policies, assume all liabilities and pay all losses, and the premiums were thereafter paid to defendant, a motion to strike the statement of claim on the ground that it does not show consideration for the reinsurance contract is properly denied.</p> <p>7. Contracts — for benefit of third person. The party for whose benefit a simple contract is made may maintain an action on it though the consideration does not move from him.</p> <p>8. Pleading — formal defect waived by subsequent pleading. In an action on an insurance policy against the reinsuring company, the failure to allege consideration between the insuring and rein-suring company on the reinsuring contract is a formal defect which, though objected to by demurrer or motion, is waived by subsequently pleading to the declaration and going to trial upon the merits.</p> <p>9. Evidence — printed circulars bearing facsimile signatures. In an action on an insurance policy against the reinsuring company, printed circulars bearing facsimile signatures of defendant’s officers, referring to the fact that policies of the original insurer had been transferred to defendant, are admissible.</p> <p>10. Evidence — official reports of insurance company. In an action on an insurance policy, official reports of defendant’s officers required by law are admissible.</p> <p>11. Appeals and errors — admission of incompetent evidence on trial by the court. On a trial by the court without a jury, the admission of incompetent evidence is not ground for reversal if there is enough competent evidence in the record to sustain the findings, since it is presumed on appeal that the court considered the competent evidence only.</p> <p>12. Special findings — when not ■ error to refuse. .Under R. S. eh. 110, § 61, It is not error to refuse to consider special findings of fact submitted after the case is taken under advisement.</p> <p>13. Insubance — forfeiture for nonpayment of note given for premium. In the absence of any stipulation with reference to forfeiture for nonpayment of a note given for premium, the premium is regarded as paid by the note, and default in payment of the note does not forfeit the insurance.</p> <p>14. Insurance — when loan is made on policy after premium is due. Where an insurance company loans money on a policy after the notes given for premium are due, there is a recognition that the policy is still in force.</p> <p>15. Insurance — when policy is not forfeited hy nonpayment of notes. Where an insurance company, after receiving a note in payment of a premium writes, “this note will give you an extension of time in which to pay in cash the semi-annual premium due on your policy,” this letter does not have the effect of making the policy void in the event the note is not paid at maturity, when by a subsequent course of dealing the company recognizes the policy as still in force.</p> <p>16. Appeals and errors — appeal for delay. Statutory damages are not assessed against appellant on the ground that an appeal is prosecuted for delay where there is room for reasonable differ-erence of opinion as to the questions of law involved, and nothing in the record to warrant a conclusion that the appeal was prosecuted in bad faith and solely for delay.</p>

<p>1. CONTRACTS — when instructions misleading. In action for the selling price of conveyors, an instruction that if, after the contract was signed, plaintiff and defendant agreed that certain changes should he made in the construction, and that new blueprints were to be prepared showing such changes and to be approved by defendant, and if defendant refused to approve' the blueprints showing such changes the issues should be found for the defendant, is erroneous where the evidence shows that the changes were all agreed upon at the time the contract was signed and marked upon the blueprint attached to the contract.</p> <p>2. Contracts- — when instruction is prejudicial. In an action for the selling price of conveyors, an instruction to the effect that if defendant notified plaintiff before the conveyors were completed( that it would not accept them, plaintiff is not entitled to recover the purchase price and verdict should be for the defendant, is erroneous where the only evidence of such notice is a letter containing these words, “We are not yet prepared to install such machinery and would advise you not to do anything for the present in this matter.”</p> <p>3. Contracts — effect of notice from one party that he does not intend to perform. One party to a contract cannot create a breach merely by giving notice that he does not intend to be bound.</p> <p>4. Contracts — notice of an intended breach. A mere noticei of an intended breach of a contract is not of itself a breach, though it may become so if accepted and acted upon as such by the other party, yet if not so accepted and acted upon the notice remains only a matter of intention and may be withdrawn at any time before performance is in fact due.</p> <p>5. Contracts — election on notice of intended breach. Whiere plaintiff has contracted to make and install conveyors for defendant within sixty days, and defendant sends notice that he does not intend to be bound, plaintiff may elect to consider it as a breach of the contract or treat it as inoperative and proceed with the work of construction in order to be able to perform within the stipulated time.</p> <p>6. Pleading — recovery for breach of contract. Where defendant gives notice of an intended breach of a contract of sale and refuses to complete the contract, plaintiff cannot recover the purchase price upon an indebitatus count, but must recover upon counts alleging damages for a breach of the contract in refusing to accept the goods when tendered.</p>

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

<p>1. Chanceby — when hill is in nature of hill of interpleader. A bill is in the nature of a bill of interpleader where it alleges that complainant made a contract with an owner of real estate for the sale thereof, whereby complainant was to retain the price obtained above a certain amount if a specified number of lots were sold, that he made a contract with a salesman based thereon, providing for certain commissions, that such owner has brought an action for the amount retained on the ground that the specified number of sales were not made, and that the salesman has begun an action for commissions on the ground that the sales were made, and complainant prays that both actions be restrained and the rights of the parties determined and offers to pay what appears to be due, if any.</p> <p>2. Actions ANn uffeNses — when remedy at law inadequate. Where complainant by contract with an owner of realty was to receive a portion of the proceeds of the sale thereof if a specified im:,'bev of lots weie sold, and employed a salesman who was to receive certain commissions if the required sales were made, such complainant has no adequate remedy at law when it appears from his bill, praying that actions by the salesman and by the owner be enjoined and the rights of the parties determined, that he would have no defense to the action by the salesman for commissions, yet if he should fail to establish in the action by the owner that he is entitled to the proceeds retained, the salesman would have received a large sum to which he is not equitably entitled, and that a judgment in the action by the salesman would not protect him against a judgment in favor of the owner.</p> <p>3. Chancery — when defendant cannot complain if action is enjoined till rights of parties under contract determined. Where la salesman makes a contract with a real estate dealer providing for certain commissions if a specified number of lots are sold, which, to his knowledge, is based on a contract between the dealer and the owner providing that certain proceeds of the sales may be retained if the required number are made, such salesman cannot complain if his action for commissions is enjoined until the amount of gross profits can be determined.</p>

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

<p>1. Damages — breach of guaranty on automoVile. In an action for breach of a guaranty contained in the contract of sale of an automobile to supply any part shown to be defective when returned to defendant, where plaintiff returned the entire car claiming it “failed utterly to fulfill the purpose for which it was sold,” and seeks to recover on the theory that the guaranty was breached when he returned the car to defendant who failed to make it run properly, an instruction that the measure of damages was the difference between the actual value of the car at the time of said breach and what the value of the car would have been if the car had been made to run properly, plus the expenses incurred by plaintiff on account of defendant’s failure to replace any defective parts, is erroneous, since it broadens a particular and limited guaranty into a general warranty of the fitness of the ear.</p> <p>2. Damages — breach of guaranty to replace defective parts of automobile. The proper measure of damages for breach of guaranty to supply without charge any part of an automobile that is shown to be defective, is the cost of supplying such defective parts plus the loss or damage shown to he the natural and proximate result of the breach.</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 October term, 1910.</p>

<p>1. Masters in chancery — stipulation of solicitors as to fees. Under the statute relating to the fees of masters, the fees for examining the issues and reporting conclusions are wholly within the court’s discretion and the maximum fee for taking testimony is fixed, and the solicitors in a case have no power to hind the court hy stipulating as to the amount of such fees.</p> <p>2. Masters in chancery — effect of words in finding concerning a stipulation of solicitors as to fees. Where the solicitors in a case stipulate that the master’s fees shall he three hundred dollars and the master finds the just fee for examining the issues and reporting his conclusions thereon to be three hundred dollars “pursuant to the stipulation,” such words do not control the court hut merely serve the purpose of an estoppel of record upon the solicitors.</p> <p>3. Appeals and errors — finding of chancellor. On appeal from an order as to the costs of a hearing before a master it must he assumed that there was sufficient evidence before the chancellor to justify his finding as to the intent of a stipulation as to such costs, where there is nothing before the court indicating the agreement except the language of the stipulation.</p> <p>Fitch, J., dissenting.</p>

<p>1. Pleading — when variance between declaration and proof is ground for motion to strike evidence. Where plaintiff sues to recover for services rendered in the settlement of conflicting claims concerning a certain street, and the declaration consists of the common counts and a count alleging that the services were reasonably worth $1,000, and another count alleging that defendant is indebted to plaintiff in the sum of $1,000 for services performed, there being no count to support an action for the breach of an express contract, and no evidence to support a recovery on a quantum meruit, a motion to strike out the evidence on the ground that there was a variance between the declaration and the proof is improperly denied.</p> <p>2. Instbuctions — where instruction eliminates consideration of number of witnesses. An instruction enumerating the elements the jury should consider in determining the preponderance of the evidence, and omitting any reference to the number of witnesses where the number is important, is erroneous.</p>

<p>1. Assault — when peremptory instruction proper. In an action for an assault alleged to have been committed upon plaintiff by agents of defendant furniture company, a peremptory instruction to find tbe defendant not guilty is proper where tbe fact of agency is not proved.</p> <p>2. AgeNcy — proof. Tbe fact that one assumes to act as an agent, without tbe knowledge or subsequent ratification of tbe principal, is not sufficient to prove tbe agency.</p> <p>3. CokpobatioNs — when liable for assault. In order that a corporation may be liable for an assault, it must appear that tbe person committing tbe assault was acting under tbe authority of tbe corporation.</p>

<p>1. Limitations — when additional count does not state new cause of action. In an action for personal injuries from defective condition of a street, where the original count alleged negligence in construction and maintenance, an additional count alleging the same negligence as to maintenance, omitting the allegation concerning construction, does not state a new cause of action, since the facts alleged would have been competent under the original count.</p> <p>2. Cities and villages — Knowledge of defect in street. In a personal injury action evidence that-a hole in a street has existed for some time and that wagons were frequently caught in it is sufficient to charge the city with knowledge of the same.</p> <p>3. Cities and villages — when •plan of construction adopted 6y city is no defense. In an action against a city for personal injuries, where it is alleged the street was negligently maintained in a defective and unsafe condition,, it is no defense that the plan of construction adopted by the city in its quasi judicial discretion is not so manifestly dangerous that the court can say as a matter of law that its adoption was negligence.</p> <p>4. Damages — when verdict for personal injuries not excessive. In an action against a city for personal injuries from a defective street, where both bones of plaintiff’s leg were broken, resulting in a shortening of the leg and stiffening of the ankle, a verdict for $7,500 is sustained.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1913.</p>

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

<p>1. Fraud — when representations not relied on. A lease will not be canceled on the ground that complainant was induced to lease premises to be used as a tannery by false representations of the lessor that the necessary permit from the department of health had been secured, where it appears that at complainant’s request the parties interviewed an official of the department of health to ascertain whether the business might be conducted and that the lease was not executed until complainant was assured by such official that the work might safely he done there.</p> <p>2. Landlord and tenant — presumption that lease contains terms of contract. A lease in writing entered into after certain oral and written agreements were made relating to the subject-matter thereof is presumed to embody all the terms of the contract between the parties.</p> <p>3. Fraud — effect of promise to do something in future. Where cancellation of a lease is sought on the ground that defendant falsely represented that a permit to operate a tannery was obtained, even if evidence that defendant orally agreed to cancel the lease if permission was later denied is competent, it cannot aid complainant, since fraud cannot be predicated on a promise to do something in the future.</p>

<p>1. Master and servant — duty to inspect rests on master. It is the duty of the master to use ordinary care to provide servants with reasonably safe appliances and to inspect such appliances from time to time, depending upon their character and the manner in which they are used.</p> <p>2. Master and servant — inspection. The question whether a master has performed his duty with regard to inspection of a machine or appliance is to he determined by considering whether the test used will give indications as to actual conditions.</p> <p>3. Master and servant — questions for jury. Where plaintiff is injured by the falling of a motor which he is helping lift from a shelf, there being evidence that defendant’s engineer felt the eye-bolt in the top of the motor with his hand to see if it was firm before inserting a gas pipe by which to lift it, the question is properly submitted to the jury as to whether the master performed its duty of inspection.</p> <p>4. New trial — where affidavit discloses want of diligence. A motion for new trial on the ground of newly-discovered evidence is properly denied where the affidavit in support of such motion discloses a want of diligence in procuring and producing it.</p>

<p>1. Steeet Railroads — instruction as to contributory negligence. In an action for wrongful death of plaintiff’s intestate caused from being struck by defendant’s street car, an instruction as to what constitutes ordinary care, which is abstract in form and does not inform the jury that the duty of the deceased to exercise reasonable care for his own safety was not limited to the instant when he was injured but existed as well while he approached and attempted to cross the tracks, is properly refused.</p> <p>2. Street railroads — instruction as to duty of care proportionate with danger. In an action for the wrongful death of plaintiff’s intestate caused from being struck by a south-bound street ear while attempting to cross behind one north-bound, it is proper to instruct the jury that it was the duty of deceased to exercise care for his own safety proportionate to the danger and with reference to the situation and position which he was about to take.</p> <p>3. Evidence — when not substantial error to strike out proper testimony. In a personal injury action, where the testimony of a witness that he could have heard the hell on a street car if it had been rung is improperly stricken out, it is not a substantial error, the jury being as well qualified as the witness to determine whether or not he would have heard it.</p>

<p>•1. Appeals and ebbobs — when finding of trial court without jury conclusive. Where the trial court without a jury holds special findings of fact submitted by defendant, such findings upon the facts in issue and so submitted must be regarded as conclusive on appeal by defendant, when no cross-errors are assigned on the rulings thereon.</p> <p>2. Negotiable instbuments — guaranty. Where one indorses a note as guarantor before its delivery, the consideration of the note is presumed to be the consideration for the guaranty.</p> <p>3. Evidence — presumption that one in possession is owner. It must be presumed that a person in possession of a store and stock of goods on the day that notes given by him in payment therefor were dated was then the owner thereof, in the absence of evidence tending to show that such possession was acquired conditionally.</p> <p>4. Negotiable instbuments — when indorser not liable as guarantor. A person is not liable upon notes as guarantor where it appears that such person signed at the payee’s request several days after delivery thereof, that the maker never requested him to indorse the notes, that he never agreed with the maker to do so, that the payee did not request him to sign before or at the time the consideration was delivered, that he did not then agree to do so and that no consideration was given or promised, for the indorsement.</p>

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

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

<p>1. CONTRACTS — when third person to he benefited may maintain action. Where a debtor delivers to defendant certain property to be sold and proceeds distributed among the creditors, and one of the obligations, a note guarantied by plaintiff is not paid, plaintiff having paid it may maintain an action against defendant.</p> <p>2. Statute of frauds — contract for benefit of third persons. Where defendant receives a debtor’s property and agrees to distribute the proceeds among his creditors, there is an original undertaking and the statute of frauds does not apply.</p> <p>3. Evidence — cross-examination. On cross-examination an objection to a question concerning a matter not material to the issues and not testified to on direct examination is properly sustained.</p>

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

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

<p>1. AdmikistratioN of estates — de son tort. One who acts as administratrix without authority is liable to the duly authorized representatives of the estate for money she recovered in the name of the estate, regardless of whether she still has the funds or not.</p> <p>2. Administration of estates — action Toy administrator. Where plaintiff acting as administratrix without authority is fraudulently induced by defendant, her attorney, to part with money belonging to the estate, she may sue in her individual capacity for the wrong done her.</p> <p>3. Election of remedies — when suit in assumpsit does not bar suit in tort. Where plaintiff is fraudulently induced by defendant, her attorney, to part with money which does not belong to her, the fact that she has instituted a suit in assumpsit and voluntarily dismissed it does not estop her from suing in tort.</p> <p>4. Fraud — when notes need not he returned. It is not necessary that plaintiff return notes received from defendant before suing in tort for fraud, the notes being introduced in evidence at the trial.</p> <p>5. Attorney and client — attorney has burden of showing fairness. Where the relation of attorney and client is shown to exist, and the question of the tona ficLes of a transaction between the parties is involved, it is' upon the attorney to show the fairness and honesty of. the transaction.</p> <p>6. Attorney and client — when client has right of action against attorney. Where an attorney fails to deal fairly and honestly with his client, and fails to give truly all the information he has in relation to the transaction, and the client sustains a loss, he may maintain an action for damages to the amount of the loss sustained.</p> <p>7. Attorney and client — where attorney fraudulently attains money from client. Where defendant, an attorney, by withholding advice and information, and making misrepresentations, obtains money from plaintiff, his client, a judgment in tort for the money so obtained, with interest, is sustained.</p> <p>8. Instructions — when not on questions to te determined ty the jury. It is not error to refuse instructions which do not deal with questions to be determined by the jury.</p>

<p>1. Mechanics’ liens — when owner may rely on statement of contractor. Where an owner has no notice from the subcontractor of bis claim, and no notice that a sworn statement made to bim by the contractor is false, be may rely on such statement.</p> <p>2. Mechanics’ LiENs-^Aere statement made by contractor to owner is false. Where an owner relying upon a sworn statement of the amount due a subcontractor, without notice from the subcontractor and in good faith, fails to retain a sufficient sum to meet the subcontractor’s claim as a result of the statements being false, the subcontractor and not the owner should bear the loss.</p> <p>3. Mechanics’ liens — delivery of contractor's statement to owner. Where statements of a contractor are delivered to the architect who is shown to be agent of the owner, there is a delivery to the owner.</p>

<p>Error to tbe Municipal Court of Chicago; tbe Hon. Robert H. Scott, Judge, presiding. Heard in this court at tbe March term, 1911.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Johh E>. Tubnbatjgh, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>1. Guauanty — consideration. Where defendant’s wife sells a flat building and defendant, acting for her, simultaneously executes a lease for a flat therein in his own name, guaranties the payment of rent and assigns the lease to the purchaser, the rent guaranty is supported by sufficient consideration though the guaranty is not required by the contract of sale and the only consideration given is the contract price of the premises, which is given to the wife. ,</p> <p>2. Actions and defenses — when defense that guaranty was signed Si/ mistake not considered. In an action on a guaranty for rent, tlie defense tliat tlie guaranty was signed by mistake cannot be considered.</p>

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

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

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

Charles M. Walker, Judge, presiding. Heard in this court at tbe March term, 1911. Statement by tlie Court. The defendant society issued to William Bandlion October 5, 1880, a benefit certificate for $3,000, in which, “Mary Eve Bandlion (wife),” was named as beneficiary. William Bandlion died May 14, 1906. Mary Eve Bandlion submitted proofs. of death and the defendant society paid the amount of the benefit certificate to her July 5, 1906.

<p>1. DbamshopS' — proximate cause. Where action is brought for injury to means of support because of habitual intoxication, an instruction is calculated to confuse the jury and should not be given, which states that the meaning of the term “proximate cause” as used in the instructions is the “cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury complained of and without which that result would not have occurred.”</p> <p>2. Deamshops — instructions as'to injury to means of support. In an action for injury, to means of support because of habitual intoxication, it is error to instruct that the selling of intoxicating liquors is recognized by law as a legitimate business, that the fact that plaintiffs are minors and defendants are dramshop keepers should make no difference, and that sympathy for and prejudice against any of the parties should not control the verdict.</p> <p>3. Dbamshops — instructions as to services and, earnings of minor children contributing to support of family. In an action by minors for injury to tbeir means of support because of tbe habitual intoxication of tbeir father, it is error to instruct that tbe father is entitled to tbe earnings and services of bis minor children, that any services performed by them in the interest of tbe family or earnings required are a means of support furnished by him, and if any of such children while living under the father’s roof contributed to the support of the family by services or earnings, such earnings and services must be considered as coming directly from the father.</p>

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