Volume 181 — Illinois Appellate Court Reports

<p>1. Insurance—policy as dollateral security. Where husband and wife execute a note payable to complainant, and the husband with the consent of his wife, the beneficiary, pledges a policy of insurance on his life as collateral security and after the death of the husband complainant files a bill against the insurance company and the wife to have a decree entered that the note be paid from the proceeds of the policy, the wife cannot raise the question that the money furnished by complainant for which the note was given did not belong to him.</p> <p>2. Insurance—where beneficiary consents to pledge. Where husband and wife execute a note and the husband pledges a policy of insurance as security with the consent of his wife, the beneficiary, the holder of the policy is entitled to collect the insurance to the extent of his interest and it is not necessary that the assignment be in writing.</p>

<p>Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>Contracts—where verdict is not against weight of evidence. Evidence in an action the contract price of installing a heating plant and for extra work and materials, held to sustain a judgment for the contract price.</p>

<p>Appeal from the Circuit Court of Piatt county; the Hon. William G-. Cochean, Judge, presiding.</p>

<p>1. Parks—power to discharge engineer. An engineer appointed by a park board for a year cannot recover his salary to the end of the term on his prior discharge, where the statute under which the board is organized provides that an engineer shall hold his office during the pleasure of the board.</p> <p>2. Evidence—when ordinance is admissible. Where plaintiff, who was appointed chief engineer by a park board at a salary of $1,800 a year and paid monthly $150, is discharged before the end of a year and sues for his salary for the remaining months, an ordinance providing that employes may be suspended at the pleasure of the board and shall be paid only the unearned wage for the remainder of the current month is erroneously excluded.</p> <p>3. Evidence—records of meeting of parle board. Where plaintiff, an engineer .for defendant park district, is discharged by the park board and sues for his salary for the remainder of a year, the records of the meeting showing the attempted discharge, offered in evidence by defendant, are improperly excluded, plaintiff not being entitled to raise the objection that the call for the meeting was not signed by two members and did not contain notice that the discharge of plaintiff would be acted upon at the meeting.</p> <p>4. Appeals and errors—where judgment is entered by court of review. Where plaintiff, an engineer for defendant park district, is discharged by the park board and obtains a judgment for $450, his salary for the remainder of the year, the cause having been tried without a jury, and it appearing from the evidence that plaintiff is only entitled to $150, his salary for one month, the judgment of the lower court will be reversed and a judgment entered for $150 by the appellate court.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. Akbert Akers, Judge, presiding.</p>

<p>Error to the Circuit Court of Logan county; the Hon. Thomas M, Harris, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Administration of estates—judgment against executor after will is set aside and executor removed. Where a claim was allowed in the probate court against the executor of an estate, as executor, and an appeal was perfected to the circuit court which rendered a judgment against the executor, such judgment is only voidable though the will was set aside, the executor removed, and an administrator appointed before it was rendered.</p> <p>2. Administration of estates—citation. Where no effort has been made to set aside a voidable judgment entered by the circuit court for a claim against an executor, as executor, when the will had been, set aside, such executor removed, and an administrator appointed; it is not error for the circuit court to enter an order requiring the administrator to pay the claim on a citation filed by the claimant.</p>

<p>1. Mortgages—decree of foreclosure pro confesso. Where the defendants in foreclosure proceedings were duly served and were defaulted and it was ordered that the cause be taken as confessed against them and the cause referred to a master to take the proof and compute the amount, the sufficiency of the evidence to sustain the decree cannot be questioned on appeal.</p> <p>2. Mortgages—personal judgment for deficit. Where the bill for foreclosure, which is supported by the evidence, is sufficient to warrant the decree of foreclosure and sale, it is the court’s duty, when a deficit, is shown, to render personal judgments against defendants who assumed and agreed to pay the mortgage debt.</p>

<p>Error to the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. B. E. Kimbrough, Judge, presiding.</p>

<p>1. Railroads—crossing accidents. Plaintiff’s intestate was killed when a wagon on which he was riding was struck by defendant’s electric car. The wagon loaded with iron was stopped just before reaching the tracks at the place of the accident, which was not a public crossing, so that the iron could be readjusted. Plaintiff’s intestate stood on the load to hold it in place and was looking down at it when the driver started across the tracks. He knew the place to bo dangerous and had warned his men to be careful. The iron on the wagon was making a loud noise and he knew he could not well get off the right of way if a ear came, since the gate on the opposite side of the track was closed. Held, that intestate was not shown to have exercised due care.</p> <p>2. Negligence—burden of proof. In an action for wrongful death of one killed when a wagon on which he was riding was struck by an electric car of defendant, it must be alleged and proved that deceased was, at the time of the accident, in the exercise of due care.</p>

<p>1. Indictment—signature of foreman of grand jury. An indictment is sufficient though the foreman of the grand jury in affixing his signature used the initials of his Christian name.</p> <p>2. Criminal law—saving questions for review. In a prosecution for selling intoxicating liquor in a certain town which is anti-saloon territory, where certificates purporting to be of the town clerk of the town in question are introduced concerning the result of the vote on the anti-saloon question, a general objection to such certificates is not sufficient to raise the question in the appellate court as to whether there is proof that such clerk was elected or had authority to act as clerk.</p> <p>3. Dramshops—anti-saloon territory. The act of May 16, 1907, section 7, as to anti-saloon territory, does not require a certified copy of the record of the election to be made by the clerk in order to be competent evidence that the territory is anti-saloon territory but provides that the record may be competent evidence or that the certificate of the clerk showing that a majority of the voters voted "yes” shall be prima facie evidence that the political subdivision to which the vote was applicable has become anti-saloon territory.</p> <p>4. Dramshops—when no variance. There is no variance between an indictment charging that sales of intoxicating liquor were made in the town of Emmet, and the proof, though certain witnesses refer to the place where the sales were made as Emmet township.</p>

<p>1. Appeals and errors—when former decision res adjudicata. Where on a second appeal the same questions are sought to be raised as were passed on in a former appeal, the former decision is res adjudicata.</p> <p>2. Appeals and errors—res adjudicata. Where a case is reversed and remanded for new trial, the principle announced by the appellate tribunal in the opinion must control on a retrial and on an appeal from a judgment rendered on retrial, if the case presented on the second trial is the same.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Infants—judgment. A judgment against a minor who is not represented by his legal guardian or by a guardian ad litem is merely voidable and is subject to review in one of the ways provided by statute.</p> <p>2. Infants—effect of failure to appoint guardian ad litem. It is the duty of the trial court to see that a minor defendant is properly represented, but the omission to appoint a guardian ad litem will not deprive the court of jurisdiction of the person of the minor or of the subject matter of the action.</p> <p>3. Infants—minor not represented by legal guardian or guardian ad litem. A minor against whom judicial proceedings are taken should be represented by his legal guardian or a guardian ad litem appointed by the court, and proceedings had therein without such representation are irregular and furnish legal cause for reversal of the judgment or ground for motion in the trial court to vacate a judgment rendered if taken advantage of in apt time.</p> <p>4. Infants—setting aside judgment. Where it is sought by petition to set aside a judgment, which was affirmed on appeal, on the ground that defendant therein was a minor whose legal guardian was not served and did not plead, and that no guardian ad litem was appointed, the appellate court cannot determine the, question as to minority at the time of the trial in ■ the original proceeding when the record in such proceeding is not before it, and in such ease the presumption obtains that the court’s action in that proceeding was correct.</p> <p>5. Practice—what petition or motion submitted in place of writ of error eoram nobis and governed by same rule. A petition in the circuit court to set aside a judgment of such court, which was affirmed on appeal, on the ground the defendant in the former action was a minor and that petitioner as legal guardian was not served and did not appear and plead and that no guardian ad litem was appointed, is submitted in the place of the writ of error coram nobis by Illinois practice and is governed by the same rule.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. B. E. Kimbrough, Judge, presiding.</p>

<p>1. Forcible detainer—settlement. Where plaintiff leases certain premises to defendant with a provision that defendant may, at the expiration of the lease, remove a building which he constructed under a former lease, and after the expiration of the lease plaintiff obtains a judgment in forcible detainer before a justice of the peace from which defendant appeals to the circuit court and pending the appeal removes the building and notifies plaintiff that he may take possession, the taking of possession by -plaintiff was not a settlement and discharge of plaintiff’s cause of action.</p> <p>2. Forcible detainer—where possession is given up pending litigation. Where the possession of property is delivered to the plaintiff in an action of forcible detainer, after the institution of the suit,' in the absence of proof of settlement, the plaintiff may still prosecute the action to judgment.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Appeal from the Circuit Court of De Witt county; the Hon. William G-. Cochran, Judge, presiding.</p>

<p>1. Mandamus—when lies in famor of insured to compel company to restore him to membership. Mandamus will lie in favor of the insured against the insurance company to compel the company to accept money tendered in payment of premiums and to restore him to membership where he was a . member of such company and has complied with all its rules, by-laws and regulations.</p> <p>2. Insurance—provision granting period of grace for payment of premiums subject to interest charge construed. Where a condition attached to an insurance policy provides that “A grace of 30 days subject to an interest charge at the rate of 5% per annum shall be granted for the payment of every premium after the first year,” it must be understood as meaning that thereunder the insured may be chargeable with such interest on the deferred payment during the time intervening between the time payment was due and its payment.</p> <p>3. Insurance—when company cannot expel insured because interest charged not tendered. An insurance company has no immediate ground to expel a member and cancel his policy where the member tenders the premiums within the time specified in a provision that 30 days’ grace subject to an interest charge shall be granted for the payment of premiums, though such member does not tender the interest, which is not charged to him, since if the company has an interest charge against him it cannot discharge or expel him until the interest is charged against him and he has been given an opportunity to pay it after notice.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.</p>

<p>1. Gaming—intention necessary to character of transaction. In an action for money alleged to have been loaned defendant, in determining whether the money was for gambling transactions on the market, as pleaded by defendant, it is necessary to determine whether there was an actual intention on the part of plaintiff and defendant to deliver, make payment for, and receive the commodities purchased and sold.</p> <p>2. Gaming—evidence. In an action for money alleged to have been ■ loaned defendant, where defendant pleads that no money was loaned but that the claim is for the loss on gambling deals made with plaintiffs, where the evidence shows that defendant gave orders for the purchase and sale of grain to plaintiffs who communicated them to another firm which executed them on the Board of Trade, that plaintiffs never made any attempt to deliver or any demand for payment of the market value of the various commodities, that defendant had no facilities for handling the commodities and that all of the transactions were settled upon the difference in market values, there is sufficient evidence to show they were gambling transactions for which plaintiffs cannot recover.</p> <p>3. Gaming—not a defense where gram is delivered. "Where defendant pleads that the money was for gambling transactions on the market, plaintiff is entitled to recover for grain which was actually delivered to defendant.</p>

<p>1. Insurance—proof of loss. A condition in a fire policy requiring proof of loss within 60 days of the date of the fire and relieving the company from liability in case of failure to comply with such requirement, is valid.</p> <p>2. Insurance—proof of loss. A condition of a fire insurance policy requiring proof of loss within 60 days of the fire is not complied with where proofs are furnished 61 days thereafter and the company is thereby relieved from liability.</p>

<p>Appeal from the Circuit Court of Clark county; the Hon. E. R. E. Kimbrough, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. E. E. Kimbrough, Judge, presiding.</p>

<p>1. Insurance—other insurance. Where a policy of insurance issued to a mortgagor provides that if any other insurance is obtained on the property without the consent of insurer the policy shall be void, it is not avoided by the fact that the mortgagee has a policy issued without the knowledge of mortgagor and afterwards promises the mortgagor that he will have it cancelled.</p> <p>2. Insurance—mortgagee and owner may both insure. The mortgagee and owner of property each have a separate and distinct insurable interest in the property and either may obtain insurance upon such interest and it does not thereby amount to double insurance.</p> <p>3. Insurance—where insurance by mortgagee is without the consent of the owner. In an action on an insurance policy, the fact that a mortgagee has the property insured by another company without the knowledge of plaintiff the owner does not limit defendant’s liability to a proportionate share of the loss.</p> <p>4. Insurance—where judgments are a lien on the property. In an action on an insurance policy, the fact that judgments were obtained which became a lien on the property does not change the title to the property or prevent plaintiff from recovering the insurance.</p> <p>5. Evidence—assessed value of property. In an action to recover insurance defendant is not permitted to show assessed value of plaintiff’s property as shown by assessment returned to the county treasurer.</p>

<p>Appeal from the Circuit Court from Vermilion county; the Hon. William B. Scholfield, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.</p>

<p>1. Carriers—what constitutes delivery of trunk. Where plaintiff upon arrival at defendant’s depot gives the check f-or her trunk to the station agent who promises to secure a drayman to deliver it, the giving of the check to the agent does not constitute a delivery of the trunk to plaintiff.</p> <p>2. Carriers—when carrier owes duties of a warehouseman. Where plaintiff pays a charge in addition to her railroad fare for the transportation of her trunk, and on arrival at her destination gives the cheek to the station agent who promises to have the drayman deliver the trunk, and the trunk is placed in the waiting room and during the night its contents are stolen, defendant owes plaintiff the duty of a warehouseman, and not having exercised due care is liable for the loss.</p>

<p>1. Fraternal benefit societies—rights of beneficiary. While a beneficiary named in an insurance policy issued by a fraternal society has no vested interest prior to the death of the insured, his rights attach immediately upon the death of the insured.</p> <p>2. Fraternal benefit societies—where policy provides beneficiary may be changed. Where an insurance contract provides for the time and method in which a beneficiary may be changed, this becomes part of the contract, and unless in accordance with the terms of the contract the attempted change will not become effective.</p> <p>3. Fraternal benefit societies—where interpleader is filed to determine who are beneficiaries. Where a certificate of insurance in a fraternal society is sent in by the insured to have a change made in the beneficiaries and the change is not made before the death of insured, the society having filed a bill of interpleader requiring the claimants to assert their rights to the fund, it is held that the rules and by-laws incorporated in the certificate control and the beneficiaries under the old certificate are entitled to the fund.</p> <p>4. Equity—when equity will enforce a contract. Equity may enforce a contract or agreement where nothing remains to be done but carrying into effect an agreement already made and executed, and decree that to be done which ought to have been done.</p> <p>5. Equity—when equity does not enforce a contract. It is not the province of a court of equity to decree that to be done which ought to have been done where the claim to a right to have it done is by contract and where in order to complete the contract certain conditions must be complied with before the contract can be executed.</p>

<p>1. Appeals and errors—res adjudieata. Questions determined by a former appeal in a cause become res judicata upon a subsequent appeal.</p>

<p>1. Appeals and errors—waiver. Defendant by pleading to the declaration after his demurrer thereto is overruled .waives his objection.</p> <p>2. Pleading—when special pleas are had. Special pleas in an action for slander which attempt to answer the entire declaration but fail to answer allegations in the amended declaration are bad.</p> <p>3. Pleading—when plea of justification in action for slander demurrable. A special plea of justification in an action for slander which justifies as to the uttering of the words contained in the counts of the declaration to which it applies but denies the meaning, innuendos and inducements attributed to the words, is not demurrable.</p> <p>4. Slander.—when error to exclude evidence of truth of language used. Where good pleas of justification are filed in an action for slander, it is error to exclude evidence tending to prove the truth of the language used.</p> <p>5. Slander—what evidence of truth of words admissible. In an action for slander brought by plaintiff, a clergyman, against defendant who stated that he saw plaintiff in a beer garden, under a plea of justification it is error to exclude evidence that a circus exhibited at a park known as a German beer garden, and that beer was sold there when plaintiff does not deny that he attended the circus on the day in question.</p> <p>6. Slander—what evidence is as to res gestae. In an action for slander evidence that at the time of the uttering of the words defendant also used other words than those attributed to him is admissible as part of the res gestae when offered to show the meaning to be attributed to the alleged words and to show that the innuendos and meaning attributed to those words was not so understood by the persons who heard them.</p> <p>7. Slander—pleading. In slander, a special plea justifying as to a part of the words alleged to have been spoken and uttered, but denying the uttering and speaking of the other words alleged is not demurrable.</p> <p>8. Slander—limitations. An amendment to the declaration in slander does not state a new cause of action when it simply adds other and different words to those alleged in the original declaration to have been spoken and uttered, but alleges no damage as to the speaking of additional words charged, the entire damage alleged to have been caused being based wholly upon the words contained in the original declaration.</p>

<p>1. Guardian and ward—guardian as officer of the court. A guardian by the appointment of a court holds his office in the nature of, and as an officer of the court appointing him.</p> <p>2. Guardian and ward—right to require final accounting. Where a county court having jurisdiction appoints defendant guardian, the appointment of plaintiff as guardian by the court of another county does not transfer the right to require the filing of a final account by defendant from the court which appointed him, and no other court of concurrent jurisdiction can take jurisdiction over the estate that came to his hands as guardian, in the absence of supervising or appellate jurisdiction, unless in pursuance of some statute.</p> <p>3. Guardian and ward—where two courts attempt to assume jurisdiction. Where a person is appointed guardian by two different county courts, the one which by the domicile of the minor has exclusive jurisdiction in the first instance will retain it and such guardian will be subject to it, exclusively, until lawfully discharged therefrom.</p> <p>4. Guardian and ward—where new guardian is appointed. Where a new guardian is appointed, having been nominated by the ward who has arrived at the age of 14 years, he should apply to the court which appointed the old guardian for an order to require him to settle his account, and that court having jurisdiction over the person of the old guardian has full power to compel the settlement and delivery of the estate to the new guardian.</p> <p>o. Jurisdiction—when concurrent. In cases of concurrent jurisdiction the court that first obtains jurisdiction will have precedence.</p> <p>6. Guardian and ward—citation requiring guardian to make final account. Where a guardian has been appointed in one county and the ward moves into another county, the county court of the second! county after appointing a new guardian has no right to issue a citation requiring the old guardian to make a final account since this power is vested only with the court that originally obtained jurisdiction.</p> <p>7. Jurisdiction—to appoint guardian. Where a ward moves into another county, the probate court there, owing to the equitable nature of the proceeding, has power to appoint a new guardian for the convenience of the ward.</p>

<p>1. Administration of estates—administrator as trustee of funds. An administrator holds the title to the property of an estate in the right of the heirs, and occupies a fiduciary relation to the heirs of the estate.</p> <p>2. Contracts—where there is a fiduciary relation. Transactions between a party and one bearing a fiduciary relation to him are prima facie voidable, and the burden of proof, the fiduciary relation being established, is upon the one receiving the benefit to show an absence of undue influence.</p> <p>3. Beiea.se—by cestui que trust. A release by a cestui que trust is not binding unless he is first made fully acquainted with his rights and the nature and full extent of the liability of the trustee.</p> <p>4. Release—when obtained by fraud. Any concealment, misrepresentation or other fraudulent conduct on the part of the trustee will vitiate a release obtained from the cestui gue trust, and the burden of proof is on the trustee to vindicate the transaction.</p> <p>5. Fraud—where evidence is sufficient to sustain allegations of. In a bill to set aside a release on the ground that it was obtained by fraud, where defendant, administratrix of the estate of her deceased illegitimate son, settled an a'ction to recover damages for his death and with her attorney induced complainant, an illegitimate .daughter, to sign a release representing it to be a will; there is sufficient evidence to sustain the allegations of fraud.</p> <p>6. Death—who entitled to damages. In a suit at law by an administrator on behalf of collateral relatives to recover damages for death, there can be no recovery unléss it is proved that the collateral relatives received pecuniary assistance.</p> <p>7. Descent—where sister of illegitimate birth is entitled to half the estate of her brother. Under R. S. e. 39, § 2, where an administratrix of the estate of her deceased illegitimate son, who left no descendant recovers damages for his death, complainant, an illegitimate daughter, who is the only surviving descendant of the mother of deceased, is entitled to -one-half of the money after probate costs are paid, and it is not necessary to prove that she received pecuniary assistance or was dependent on the deceased.</p> <p>8. Equity—jurisdiction to settle estates. Where a court of equity has acquired jurisdiction for the purpose of setting aside a release obtained by an administratrix from an heir by fraud, it may in the interest of justice and to avoid a multiplicity of suits, assume full jurisdiction of the estate and retain jurisdiction until complete justice is done between the parties in respect to the subject-matter of the litigation.</p> <p>9. Equity—when prayer for general relief is sufficient to sustain decree. On a bill to set aside a release obtained by an administratrix from an heir by fraud, a prayer for general relief is sufficient to sustain, a decree ordering that half the money remaining after payment of costs be paid to complainant.</p> <p>10. Administration of estates—when administratrix is not entitled to commissions. On a bill to set aside a release on the ground that i; was obtained by fraud, where defendant, administratrix of her deceased illegitimate son, settled an a'ction to recover damages for his death and with her attorney induced complainant, an illegitimate daughter, to sign a release obtained by an administratrix from an heir by fraud and to defendant having had the use of the money is not entitled to commissions.</p> <p>11. Administration of estates—when administrator is not entitled to compensation. An administrator who has been guilty of wilful default or misconduct in the administration of the estate may be refused compensation,</p> <p>12. Injunctions—where decree is erroneous. On a 'bill to set aside a release, giving her a cheek and representing the release to be a will, restrain defendants from conveying certain real estate or paying out money a portion of the decree which continues the injunction “until the further order of the court" is erroneous.</p>

<p>1. Witnesses—when stockholder of claimant company incompetent. A stockholder in a company which is seeking to establish a claim against the estate of a deceased stockholder of a bankrupt corporation is an incompetent witness in support of the claim though he holds but one share and was not a stockholder at the time of the transaction concerning which his testimony is offered.</p> <p>2. Corporations—stockholder of claimant company may properly he permitted to identify hooks. Where a company files a claim against the estate of a deceased stockholder of a bankrupt corporation, it is proper to permit a witness who was a bookkeeper of such company and is a stockholder to identify its books.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Error to the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Welus, Judge, presiding.</p>

<p>1. Evidence—as to market value. In an action for damages from failure to deliver cotton seed meal sold, evidence as to the market value of the meal at the time defendant should have performed the contract is admissible.</p> <p>2. Damages—sales. In an action for damages from failure to deliver cotton seed meal, a verdict for the difference between the contract price and the market price a reasonable time after plaintiff demanded performance, is sustained.</p> <p>3. Evidence—under section 33 of the Municipal Court Act. In an action to recover damages for defendant’s failure to deliver cotton seed meal sold to plaintiff, the sales agent of defendant at Chicago, having charge of several employees and assistant sales agents, is a “ superintendent or managing agent’’ within section 33 of the Municipal Court Act.</p> <p>4. Municipal court—pleading. . In an action of the fourth class in the Municipal Court, written pleadings are not essential and the action is what the proof makes it.</p>

<p>1. Assignments—defenses subsisting against assignor. Where a Mississippi corporation ships lumber to defendant at St. Louis, and assigns the accounts to plaintiff, defendant is entitled to any set-offs, discounts and defenses subsisting against the corporation at the time defendant received notice of the assignment.</p> <p>2. Evidence—as to custom of inspecting lumber. In an action on accounts, for lumber sold to defendant, which are assigned-to plaintiff, in determining whether defendant is entitled to a credit for lumber which it claimed was of inferior grade, it is error to exclude evidence as to the custom of inspecting the lumber and allowing credits.</p> <p>3. Customs—assignee of chose in action. Where plaintiff sues on a chose in action assigned to him, his rights are affected by trade customs to the same extent as were the rights of assignor.</p> <p>4. Customs—when contracts are presumed to be made in reference to. Contracts made in the ordinary course of business without particular stipulations, express or implied, are presumed to be made in reference to any existing usage or custom, relating to such trade, and persons dealing therein will be held as intending that the business shall be conducted according to such general usage and custom.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Thomas E. Scully, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Feed C. Hill, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.</p>

<p>1. Replevin—evidence of breach of bond. In an action on a replevin bond, the evidence is sufficient prima facie to warrant a finding that there was a breach of the condition to prosecute the replevin action with effect, where the affidavit and writ in the replevin action, the appearance of defendant therein, the writ of retorno habendo with its endorsements showing that the property replevied was returned, and a docket entry of the replevin judgment are introduced, even though the docket entry does not amount td a judgment.</p> <p>2. Replevin—liability on bond. Where a plaintiff in replevin fails to prosecute his action with effect, the obligors on the replevin bond are liable for at least nominal damages, costs and reasonable attorney’s fees though the property is returned.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.</p>

<p>Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago, the Hon. Feed L. Fake, Jr., Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hoist. Joseph Z. Uhlir, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

<p>Appeals and errors—where instructions must be objected to. Instructions which were not objected to before the jury retired, as required by Rule 8 of the Municipal Court, cannot be reviewed.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.</p>

<p>* Appeal from the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.</p>

<p>Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding.</p>

<p>1. Appeals and errors—where certificate does not recite that transcript contains all the evidence. Where the certificate to a bill of exceptions is signed by another judge in the absence of the trial judge and does not recite that the transcript contains all the evidence adduced at the hearing, the question whether the verdict is against the manifest weight of the evidence is not before the court of review.</p> <p>2. Evidence—when not part of res gestos. Where plaintiff while standing on the foot board of a crowded street car was struck by rods on defendant’s wagon, the testimony of a witness as to what she heard the driver of the wagon say to the motorman is no part of the res gestee.</p> <p>3. Appeals and errors—where liability of defendants is several. In a personal injury action where the liability of defendants is several and the evidence against the defendant found guilty is sufficient to sustain the judgment, errors in rulings of the court as between the defendants, with which errors plaintiff has nothing to do, are not grounds for reversal. •</p> <p>4. Roads and bridges—duty of one driving a vehicle along a public street. Where plaintiff while standing on the foot board of a street car is struck by rods on defendant’s wagon, an instruction that it is not the duty of a driver of a vehicle moving along a public street to look out behind, that on the contrary the duty of such a driver is to look ahead so as to avoid collision with other vehicles or persons, is properly refused.</p> <p>5. Roads and bridges—duty of driver of wagon to look behind. Where a driver, knowing a street car is behind him, causes the wagon to leave the tracks to let the street car pass it is his duty to look hack to see that bars extending beyond the wagon are clear of the track as he changes the course of the wagon.</p>

<p>1. Evidence—to show note is payable on a contingency. Where after entry of judgment on a note against defendant on a narr. and cognovit, defendant ip permitted to plead, it is error to admit evidence that the note was given for the purpose of securing plaintiff, who signed certain notes as surety for defendant, and that in case defendant paid the notes, the note is question was to be void and returned to defendant.</p> <p>2. Evidence—to vary terms of a note. Parol evidence must not go to the extent of varying the terms of a note absolute on its face, showing that though on its face, it was given for one purpose, yet in truth and fact, it was given for a different purpose.</p> <p>3. Evidence—where note is payable on a contingency. The maker of a note cannot show as against the .payee an oral contemporaneous agreement which makes the note payable on a contingency.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.</p>

<p>1. Banks—relation with depositor. The relation between a bank and its depositor is one of debtor and creditor and as a general rule a bank may deduct from the depositor's account a debt due from him.</p> <p>2. Beceivers—when not entitled to bank deposit. Where in an action between partners it is decreed that defendant pay complainant $1,500 and in case of default that a receiver should take possession of the partnership assets including its bank deposits, a bank which has appropriated a deposit in payment of a note which it held against defendant will not be required on petition to pay the receiver the amount thereof.</p> <p>3. Beceivers—eolleetion of assets. Where a receiver files a petition for an order requiring a bank, not a party to the receivership proceeding, to turn over a deposit alleged to belong to defendant, the petition not containing any averment of jurisdiction of the court over respondent should be dismissed.</p> <p>4. Beceivers—where bank is not a party to the proceedings. "Where a decree is entered in receivership proceedings that the receiver take possession of defendant’s bank deposits, the receiver is obliged to resort to a separate action to determine his right to a deposit where the bank, which was not a party to the receivership proceedings, claims the right to appropriate the deposit in payment of a note.</p> <p>5. Evidence—judicial notice. Where a receiver, files a petition for an order requiring a bank, not a party to the receivership proceeding, to turn over a deposit alleged to belong to defendant, the court cannot take judicial notice of the records in the receivership proceeding since respondent is a stranger to it.</p> <p>6. Evidence—where recital in decree does not prove appointment of receiver. "Where a receiver files a petition for an order requiring a bank, not a party to the receivership proceeding, to turn over a deposit alleged to belong to defendant, a recital in the decree referring to petitioner as receiver of the partnership property is not legal proof of his appointment.</p>

<p>Carriers—evidence of negligence. A verdict for plaintiff in an action for injuries received while attempting to board a street car is against the weight of the evidence, where plaintiff and a policeman, who is a personal friend, testify that the car stopped to permit them to get on and started while plaintiff was attempting to do so, but their testimony is contradictory, incongruous and improbable and the conductor, motorman and two passengers testify that plaintiff attempted to board the car while it was in motion and the testimony of the passengers, who are unimpeached, is intelligent, consistent and natural.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.</p>

<p>1. Negligence—amusement paries. Evidence in an action against en amusement park company for injuries received by a spectator at ft public exhibition held sufficient to charge defendant company with a duty toward the public and plaintiff with reference to the management nf the exhibition in question.</p> <p>2. Negligence—when amusement park company cannot escape liability for injury at an exhibition on its grounds. Where a spectator at ft public exhibition, for which an admission is charged, on the grounds of an amusement park company, is injured by the discharge of a firearm by a participant in a sham battle in the exhibition, the company cannot escape liability though the exhibition is given by a concessioner and no financial interest therein by the company is shown, since the duty to use reasonable care to see that all the exhibitions on its grounds are reasonably safe remains with the company especially when the exhibition is a sham battle.</p>

<p>1. Practice Act—section 55 as amended construed. Section 55 of the Practice Act as amended, relating to cases in which the affidavit of defense is to only a portion of plaintiff’s demand, is a highly remedial statute intended to do away with the common-law rule which permitted only one judgment to be entered in an action and to allow a judgment to be entered for what is admitted to be due and allow the cause to proceed in the regular way to trial and judgment as to the disputed, part of the demand.</p> <p>2. Practice Act—when section 55 as amended applies. In an action for a breach of the condition of a bond providing for the return of certain property on certain conditions, where the only question is as to the value of the property and defendant in his affidavit states that its value .does not exceed a certain amount, section 55 of the Practice Act as amended, relating to cases in which the affidavit of defense is to only a portion of plaintiff's demand, is applicable and authorizes the court to enter judgment for the amount admitted to be due, to order the case to proceed as to the disputed amount and to enter judgment therefor.</p>

<p>Error to tie Superior Court of Cook county; the Hon. Jesse Holdout, Judge, presiding.</p>

<p>1. Municipal court—default. Where an affidavit of merits which does not state a legal defense is stricken from the files and defendant does not ask leave to file an amended affidavit, under Rule 17 of the Municipal Court, the court may enter judgment as in case of default.</p> <p>2. Evidence—presumption as to validity of note. In an action on a note, the execution of which is not denied, a presumption exists that it was regularly issued for a valuable consideration, and that the payee is a bona fide holder and entitled to recover the full amount thereof.</p> <p>3. Pleading—failure of consideration. In an action on a note, to constitute a good plea of failure of consideration under the statute, the pleader must set out what the consideration was and specify wherein it has failed.</p> <p>4. Pleading—want of consideration. In an action on a note, a plea of want of consideration is sufficient if it avers in the language of the statute, ór any equivalent language, that the defendant made the note without any good or valuable consideration therefor.</p> <p>5. Negotiable instruments—where affidavit of merits does not set up a good defense. In an action on a note, an affidavit of merits which sets up that defendant was loaning a text-book company $300.00 a week to pay running expenses of the business, including salaries, that plaintiff was one of the employes, that at the time of the execution of the note the defendant did not have $300.00 in cash to loan the text-book company, but loaned $200.00 in cash and gave the note sued on for $100'.00 payable to plaintiff, but which contains no allegation that the text-hook company did not owe plaintiff $100.00 for salary, does not show failure of consideration and is properly stricken from the files.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.</p>

<p>•1. Landlord and tenant—evidence of intention of parties to lease. In an action for rent claimed to be due under a written lease, which provides that if the license to conduct a saloon business in said premises, at any time during the said term, is not issued or if issued shall be revoked, the lessee shall have the right to terminate the lease on thirty days’ notice, evidence to show the intention of the parties in the use of the particular words employed in the lease is admissible.</p> <p>2. Landlord and tenant—construction of leases. The same rules of law are applicable to the construction of leases that are applicable to the construction of other contracts, and where the language of a lease is the subject of construction, the object to be attained is to ascertain, if it can be done, the intention of the parties to the instrument and give effect to that intention.</p> <p>3. Landlord and tenant—where language in lease is plain. Where the language in a lease is plain and unambiguous, proof aliunde cannot be heard to contradict or vary its meaning or make it inconsistent with the language used in the instrument.</p> <p>4. Landlord and tenant—what may he considered in construction of lease. In construing a lease, preliminary negotiations between the parties may be considered for the purpose of determining the meaning and intention.</p> <p>5. Landlord and tenant—where tenant is not entitled to terminate lease. In an action for rent claimed to be due under a written lease which provides, that if the license to conduct a saloon business in said premises at any time during the term is not issued, or if issued shall be revoked, the lessee shall have the right to terminate the lease on thirty days’ notice, defendant having made no application to renew the license on its expiration, is not entitled to terminate the lease.</p>

<p>1. Damages—liquidated damages. That parties fix a sum to be paid in ease of a breach of the contract and call it “liquidated damages,” is not conclusive, but is one of the circumstances tending to prove actual intent of the parties.</p> <p>2. Damages—when stipulation for liquidated damages sustained. In an action for balance alleged to be due on a contract for furnishing gate valves for use by a city, where the contract recites that time is one of the “essential conditions of this contract,” that a failure to deliver the valves within the time fixed “will work an injury to the city,” and that the damages thus arising “cannot be calculated with any degree of certainty” a provision for a deduction of $10.00 liquidated damages for every day of delay in delivery after the fixed time, is sustained.</p> <p>3. Damages—provision for liquidated dmnages. Where from the nature of an agreement it is clear that any attempt to ascertain the actual damage would be difficult if not vain, the courts will incline to give the relief the parties have agreed on; but if the contract is such that the strict construction of the phraseology would work absurdity or oppression, the use of the term “liquidated damages” will not prevent the courts from inquiring into the actual injury sustained, and doing justice between the parties.</p> <p>4. Municipal corporations—powers of city council. In' the discharge of their duties, the city council must act within the bounds prescribed by their charter, and if they exceed the powers conferred by the charter such acts are nugatory.</p> <p>5. Municipal corporations—power of city council to discharge debt. The city council has no power to sell, or in any manner dispose of, the property of the corporation without consideration and no right to discharge without payment a debt which may be held against parties who are solvent and responsible, where no controversy exists in regard to the validity and binding effect of the indebtedness.</p> <p>6. Contracts—effect of order extending time to complete contract. Where plaintiff enters into a contract with defendant city to supply several hundred gate valves by a specified time, and after the time has passed the city council enters an order extending the time of performance, such an order does not amount to a waiver of the right to liquidated damages provided by the contract.</p>

<p>Appeal from the County Court of Cook county; the Hon. W. P. Slater, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding.</p>

<p>Error to the Superior Court of Cook county; the Hon, Theodobe Brentano, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Arthur W. Deselm, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.</p>

<p>1. Municipal court—bill of exceptions. Where judgment is entered on June 10 in the Municipal Court, and within thirty days a motion for new trial is entered and set for hearing which is disposed of August 9, a motion to strike from the record the bill of exceptions filed within thirty days from that date is properly denied.</p> <p>2. Mechanics’ liens—evidence to show that defendant owned property. In a mechanic's lien action, where the evidence does not show that defendant is owner of the property in question or has any contract with the principal contractor, a judgment against defendant will be reversed.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hugh B. Stewart, Judge, presiding.</p>

<p>1. Principal and agent—evidence of authority. In an action for money advanced to defendant’s agent at defendant’s request where plaintiff bank discounted drafts drawn by the agent on defendant, evidence as to the course of dealing between defendant, the agent, and the bank is admissible to show the relation of the parties and the capacity in which the agent acted.</p> <p>3. Principal and agent—where evidence shows authority of agent. In an action for money advanced to defendant’s agent, where the evidence shows that the agent buying fruit in Michigan drew drafts on defendant in Chicago who telegraphed to plaintiff that he would pay all drafts attached to invoices for fruit shipments, there is sufficient proof that the agent had authority to draw the drafts.</p> <p>3. Negotiable instruments—where principal agrees to accept draft before it is drawn. Where defendant agrees to accept drafts to be drawn by his agent who is buying fruit, he becomes liable for the amount paid on the drafts as fully as if he had previously accepted them on their face.</p>

<p>1. Physicians and surgeons—form of verdict in action for practicing medicine without a license. Where the issue under the pleadings is whether defendant, accused of practicing medicine without a license, is guilty of a second offense arid if not found guilty no fine could be imposed thereunder for a first offense, it is proper to give the jury only a form for a verdict of guilty of a second offense in case they find defendant guilty.</p> <p>2. Physicians and surgeons—practicing medicine without a license. A statement of claim is sufficient on which to base a claim for second conviction for practicing medicine without a license, where it states that the claim is for $200.00 for a penalty as provided for a subsequent offense of a violation of a certain act described,, that it is the contention of plaintiff that defendant has practiced medicine as defined in section 7 of said act without a license as provided for in sections 2 and 3 of the act, that the offense was committed in Chicago on or about a certain date, and that defendant has been previously convicted of the offense.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Arthur W. Deselm, Judge, presiding.</p>

<p>1. Carriers—where trunk of one in. charge of car of poultry is stolen. Where plaintiff, who is engaged by a shipper to accompany a car load of poultry, places a trunk in the car and the lock on the ear is broken in the middle of the night and the contents of the trunk stolen, plaintiff being carried under a contract whereby he assumes all risk of accident or damage to his property, cannot recover the value of the articles taken.</p> <p>2. Carriers—where goods are not delivered to carrier. No liability arises on the part of the carrier in respect to baggage where there is no delivery to the carrier.</p> <p>3. Carriers—property in possession of carrier. Carriers do not undertake to carry and safely deliver travelers’ effects which are not delivered into their custody.</p>

<p>Appeals and errors—insurance. The decision in the case is controlled by that in Equitable Trust Co. v. Harger, 177 111. App. 106.</p> <p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clabence N. Goodwin, Judge, presiding.</p>

<p>Landlord and tenant—liability for rent. In an action to recover rent under a written lease which provides that the lessee shall be exempt from liability for rent if at any time during the term a saloon license cannot be obtained for the. premises, it is proper to direct a verdict for plaintiff where the evidence does not support the defense that a license could not be obtained.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John D. Tubnbaugh, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John E>. Turn* baugh, Judge, presiding.</p>

<p>Sales—evidence of warranty. Held, that the evidence justified a finding that defendant agreed to return-to plaintiff money paid for an automobile if it was not satisfactory, that its acceptance was conditional, that the car was not as represented, and that there was a breach of implied warranty.</p>

<p>Carriers—where evidence does not sustain verdict. Where it is alleged that defendant was negligent in directing plaintiff to enter a moving train, the weight of the evidence being manifestly against plaintiff’s claim that the conductor opened the gate and invited him to board the train, the judgment for plaintiff is reversed.</p>

<p>1. Limitation of actions—where wrong corporation is made defendant. Where there are two corporations of similar names and one of them is named defendant and one of its officers served with summons, the suit is not commenced against the other so far as the statute of limitations is concerned until issuance of the new summons which is necessary to bring the new party into court and it is immaterial that plaintiff intended to sue the second party in tlie first instance.</p> <p>2. Limitation of actions—concealment of identity. Concealment of identity of a party liable is not a ground recognized by the statute of limitations for the postponement of its running.</p> <p>3. Limitation of actions—as to tolling the statute. Mere silence or concealment by defendant without affirmative misrepresentation does not toll the statute of limitations.</p> <p>4. Pleading—where party is sued under wrong name. Where the real party in interest and the one intended to be sued is actually served with process, though under a wrong name, he must take advantage of the misnomer by plea in abatement and if he does not he will be concluded by the judgment or decree rendered the same as if he were described by his true name.</p> <p>5. Limitation of actions—where party is sued under wrong name. Service of summons upon the proper party defendant though under the wrong name is sufficient to toll the statute of limitations.</p> <p>6. Parties—power of amendment. The power of amendment does not extend to the length of substituting another defendant in lieu of the defendant answering and before the court, since such other defendant can be brought in only by summons and the suit is not begun as to him until summons for him is issued.</p> <p>7. Limitation of actions—directing verdict. Where plaintiff receives personal injuries while in the employ of defendant, a New York corporation, and sues an Illinois corporation by the same name which pleads that it was not in possession or control of the premises, property, machinery, appliances, or persons as alleged in the declaration; and afterwards, plaintiff amends his action by changing the title of defendant and has summons served on defendant after the statute of limitations has run, it is error to deny defendant's motion to direct a verdict. '</p>

<p>1. Contempt—summary proceedings. It is essential to a summary proceeding for direct contempt that the court act upon matters of fact of which it has judicial cognizance.</p> <p>2. Contempt—false swearing in the presence of the court. If false swearing in the presence of the court constitutes direct contempt, judicial knowledge of its falsity is indispensable to the right of the court to exercise authority to commit therefor.</p>

<p>1. Appeals and errors—saving questions. An objection that the master's report is not signed is waived when not raised in lower court.</p> <p>2. Partition—solicitor’s fees. Where complainant under an agreement between the parties giving him entire manágment and control of the premises, makes a contract to sell the same and defendant refuses to join and does not set up a substantial defense, a decree for partition allowing complainant solicitor's fees will be sustained.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tdthill, Judge, presiding.</p>

<p>1. Sales—when breach of condition m contract is waived. In an action for stipulated damages on failure of defendant to carry out a contract for the purchase of engines, defendant waives a breach of the provision that plaintiffs would not sell to any other catalogue house by making no objection when plaintiff shows them the catalogue of another house in which the engines are listed.</p> <p>2. Damages—when excessive. In an action for stipulated damages on failure of defendant to carry out a contract for the purchase of engines the judgment being in excess of the amount claimed by plaintiffs in correspondence wdth defendants, will be reduced by remittitur.</p>

<p>1. Master and servant—assumed rish. Where plaintiff, an employe of defendant, while unloading iron poles takes the position in which he is injured in obedience to the order of defendant he does not assume the risk.</p> <p>2. Practice—under See. 40 of the Municipal Court Act. Under Sec. 40 of the Municipal Court Act, plaintiff is not required to state the facts constituting his cause of action, but only the nature of his demand.</p> <p>3. Appeals and errors—variance. The question of variance is not considered when raised for the first time in the court of review.</p> <p>4. Municipal Court—when statement of claim sufficient. In an action of the fourth class in the Municipal Court where plaintiff, an employe of defendant, was injured while unloading iron poles, statement of claim held sufficient.</p>

<p>1. Appeals and errors-—hill of exceptions. Motion to strike a supplemental bill of exceptions where it is not signed by the trial court and not filed within the time required by the Municipal Court Act is properly allowed.</p> <p>2. Appeals and errors—supplemental record. A supplemental record containing orders not appearing in the original record is properly sustained on motion to strike.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.</p>

<p>Appeals and errors—when verdict is not against weight of evidence. In an action to recover commissions for procuring a purchaser for defendant ’s real estate, verdict for plaintiff sustained as not against the weight of the evidence.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.</p>

<p>1. Appeals and errors—where plaeita is defective. A plaeita which does not show a properly constituted court is cured by an additional plaeita showing the appointment of the trial judge.</p> <p>2. Appeals and eeeoes—where judgment order contains surplus words. A judgment order is sustained where after rejecting improper words as surplusage a judgment is left in proper form.</p> <p>3. Municipal court—stenographer. The statute does not require ' stenographer at trials in the municipal court.</p> <p>4. Constitutional law—Municipal Court Act. The Municipal Court Act is constitutional.</p>

<p>1. Assignments—wages earned in the future. A power of attorney to make an assignment of wages given by an employe, to plaintiff, cannot authorize plaintiff to make an assignment which will be valid against defendant a subsequent employer with whom the employe had no contract at the time the power of attorney was executed.</p> <p>2. Assignments-—when invalid. An assignment of wages to be earned in the future from employers with whom the assignor has no contract of employment at the time of making the assignment is invalid.</p>

<p>1. Gaming—recovery of money lost. In an action to recover for money lost in gambling transactions, plaintiff has the burden of proving such transactions by a clear preponderance of the evidence.</p> <p>2. Gaming—intention of parties dealing on board of trade. In order to recover money lost in transactions in grain on the board of trade through defendants as brokers, it must appear that neither party intended the grain to be delivered or intended actual purchases and sales to be made, but that both had the intention of settling on differences in price only.</p> <p>3. Gaming—when evidence insufficient to show gambling transaction. Where plaintiff orders defendant, a broker, to buy and sell grain for him on the board of trade, there being no evidence that plaintiff or defendant had any intention of gambling and it appearing that defendant made actual purchases and sales in good faith, plaintiff cannot recover money deposited with defendant which is required to cover a loss.</p>

<p>1. Contracts—guaranty. Where defendant who is acting as broker for both parties in the sale of a flat building enters into a written agreement with plaintiff to the effect that if she will purchase the building and let defendant have the renting he will guarantee to rent the apartments to responsible tenants at a certain rental per month, the instrument is not a guaranty but a valid promise on the part of defendant for the breach of which he is liable.</p> <p>2. Brokers—liability on agreement to leaser Where defendant who acts as broker in the sale of a flat building to plaintiff agrees to act. as her agent in renting, to rent the apartments at a certain rate per month to responsible tenants, to guarantee the rent, and to pay the rent for apartments which are vacant, he is liable for the failure of tenants to pay rent, though the lease was made by plaintiff’s grantor before the deed was delivered to plaintiff.</p> <p>3. Brokers—not entitled to withhold excess rent. Where defendant acting as broker for plaintiff agrees to rent her apartments at a certain rental or more per month he is not entitled to withhold the amount collected in excess of the amount specified.</p>

<p>Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.</p>

<p>1. Corporations—foreign corporation. Under the Act of May 18, 1905, the bringing of suit is not within the prohibition of “the exercise of corporate powers.”</p> <p>2. Corporation—single act not an exercise of corporate power. The doing of single act of business in this state by a foreign corporation is not a violation of the statute.</p> <p>.3. Corporations—defense to action by foreign corporation. In an action by a foreign corporation where defendant pleads that plaintiff is exercising jporporate powers in violation of the statute, the acts relied on must have been prior to the beginning of the suit.</p> <p>4. Corporations—right of foreign corporation to sue. In determining whether a foreign corporation is entitled to sue the statute should be construed liberally.</p> <p>5. Corporations—when foreign corporation has not exercised corporate functions in this state. Where a New York corporation, the business of which is 1 ‘ publishing trade papers, managing trade shows and general advertising” rents an office in Chicago which is used as headquarters for a solicitor and stenographer who send out advertising literature and correspondence, there is not an “exercise of corporate powers” in violation of the statute and the corporation may maintain suit on a note given in payment for advertising furnished plaintiff at a show in New York. .</p>

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.</p>

<p>1. Appeals and eerors—grounds for reversal. To justify a reversal of a judgment for a plaintiff in an action of negligence, for refusing to grant a peremptory instruction, or, in the alternative for refusing to grant a motion for a new trial, the court must hold that there was no evidence that the proximate cause of the accident was the negligence of the defendant, or that the weight of the evidence was clearly against the existence of the negligence or against its being the proximate cause of the accident. .</p> <p>2. Master and servant—effect of failure to view part of defective appliance. Where a boiler temporarily supported by a wooden horse falls on a person working on the permanent support, and the jury with one half of the horse before them and the testimony of a carpentry expert, have sufficient data to find that a defect in the horse was apparent or discoverable, they may make such an inference even though they did not have the other half of the horse before them.</p> <p>3. Master and servant—evidence of strength of support from length of time it supports toiler. Where a defective wooden horse supported a boiler which fell, that one end of the boiler had rested on the horse for two weeks without splitting it does not prove that the horse was sufficient.</p> <p>4. Master and servant—when proximate cause is for the jury. Where a boiler supported by a defective wooden horse fell and defendant claimed that the proximate cause was not the defective horse but a change of the incidence of the weight of the boiler by a change of position of blocks and the horse without defendant’s authority, even if there is evidence that there was a change in the weight upon the horse that turned it into a dangerous support, the question of proximate cause is for the jury and verdict for plaintiff will not be disturbed, where there also is evidence that it was defendant’s duty to place the boiler in position and leave it correct in level and feasible to work under, that this duty was recognized by both parties, and that the change in the incidence of weight was made with the knowledge and assent of an authorized representative of defendant.</p>

<p>1. Appeals and errors—grounds for reversal. Failure of the appellee to file a brief or argument in the Appellate Court is not a ground for reversal.</p> <p>2. Fraternal insurance—waiver of forfeiture. Reception and retention of membership dues and recognition of membership by a fraternal benefit society, with knowledge on the part of its general officers that the member is or has been engaged in a prohibited occupation subsequent to admission to membership, will, in the absence of any formal and official action taken to effect his suspension or expulsion, waive a forfeiture of benefits; notwithstanding the existence of a by-law providing that receipt and retention of dues should in no case constitute a waiver.</p> <p>3. Fraternal insurance—prohibited occupation. If a mutual benefit society has with knowledge of the facts, in its course of conduct or by acts or declarations, misled the insured in regard to his right to engage in a prohibited occupation, or created a belief on his part that the strictest compliance with the letter of the contract as to engaging therein would not be exacted, and the insured in consequence fails to comply with that portion of the contract, the society will be held to have waived the requirement and to be estopped from holding the condition as a cause of forfeiture.</p> <p>4. Fraternal insurance—By-law involving forfeiture of contract rights should be unambiguous. Where a by-law of a fraternal benefit society involving the forfeiture of contract rights that have been paid for is sought to be drastically enforced in the teeth of an apparent reliance of the assured up to the time of his death upon the supposed continuance of those rights, the by-laws should be clear and unambiguous and the record should show it.</p> <p>5. Fraternal insurance—by-law held ambiguous. A by-law, the earliest part of which provides for suspension and forfeiture without notice, while the latter part directs that no benefits shall be paid to the beneficiary on account of the death of the member while in any of certain employments enumerated, as the direct or indirect result of engaging therein, is ambiguous upon the question of whether a forfeiture is effected where the assured dies after quitting such prohibited employment.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Max Eberhart, Judge, presiding.</p>

<p>1. Negotiable instruments—form. An instrument dated and signed by husband and wife which declares: “We owe our son Jonathan G. Ade the sum of $116.36, which sum he may either draw in small amounts from our business, or after the death of the father demand it from the mother, Bertha Ade, or from the administrator of the estate, if there should be any. However, the interest at six per cent, on the same shall be paid out yearly, ’ ’ will be construed as a promissory note due at death of the father and the statute of limitations does not begin to run until then.</p> <p>2. Interest—limitations. When a note provides that interest shall be paid annually, the annual instalments of interest not paid before the debt becomes due are regarded as an incident of the debt, recoverable with it, and not barred by statute of limitations until the debt is barred and it is only when detachable coupons evidence the interest that the interest is barred before the principal.</p> <p>3. Limitations—tills and notes. Limitations begin to run on a demand promissory note from its date.</p> <p>4. Interest—compound. When interest is payable annually before note becomes due but not paid before suit on note, such interest cannot lawfully be compounded in judgment.</p>

<p>1. Appeals and errors—when judgment is contrary to evidence. In an action by a trustee in bankruptcy to recover damages for defendant’s failure to deliver coal to the bankrupt according to contract, a judgment for defendant is reversed, there being evidence that after defendant’s attempt to cancel the contract, the parties met and agreed to carry it out.</p> <p>2. Contracts—construction. A contract for the delivery of nine cars of coal a week is construed to mean an average of nine ears.</p> <p>3. Contracts—where strict performance is waived. Where strict performance of certain provisions of a contract has been waived for a portion of the time and performance according to a reasonable and liberal construction of the terms has been accepted by the parties, reasonable notice thereafter of an intention to return to the exact terms must be given before a forfeiture or rescission can be declared by either party.</p> <p>4. Contracts—forfeiture for delay in payments. Where there have been delayed payments on a contract and such payments have been accepted for a considerable portion of the time, reasonable notice of an intention to require prompt payments must be given before a forfeiture or rescission can be declared.</p> <p>5. Damages—for failure to deliver coal. In an action to recover damage for failure to deliver coal, where plaintiff did not insist on delivery when due and it is not shown that there was any damage through failure to deliver at such time, defendant cannot be compelled to pay damages for failure to deliver at a later time when prices are higher.</p> <p>6. Instructions—where strike is not proximate cause of failure to perform contract. In an action to recover damages for failure to deliver coal according to contract, the contract containing a provision making it subject to strikes, it is proper to instruct the .jury that a strike in mining another kind of coal which raises the price of the coal contracted for should not be considered as a proximate cause of failure to perform.</p> <p>7. Practice—where defendant is estopped to change his defense. In an action to recover damages for failure to deliver coal, where defendant places its refusal to deliver on the ground that the contract was rescinded it is estopped “to amend its hold” by insisting on other defenses.</p>

<p>1. Insurance—construction of contracts. Insurance contracts must be strictly construed against the insurance company.</p> <p>2. Limitations—where bond places limit on time to sue. Where a bond given for the performance of a contract to erect a building contains a provision that any action thereon “must be instituted within six months after the completion of the work” such provision is binding.</p> <p>3. Bonds—when limitation clause applies to whole hond. Where a bond given for the performance of a contract to erect a building contains a provision that any action thereon ‘‘must be instituted within six months after the completion of the work” such limitation applies to the whole bond.</p> <p>4. Bonds—under section 35 of Practice Act. Under section 35 of the Practice Act an action on a bond containing a limitation clause should be brought before the limitation expires though the damages may not be fully accrued and determinable.</p> <p>5. Limitations—where evidence does not show waiver of right to set up defense. In an action on a bond containing a limitation clause evidence held insufficient to show that defendant held out hopes of settlement or induced plaintiff to delay the suit until the limitation expired.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas J. Windes, Judge, presiding.</p>

<p>1. Creditor’s suit—when rights in mere ohoses in action are subject to. A mere contingent right in real property, chattels or choses in action, depending upon an -uncertain condition precedent, is not subject to a creditor’s bill; but a vested right or estate that is salable may be subjected to the creditor’s debts when assigned in fraud of creditors, although it be a right in a mere chose in action depending upon a .condition subsequent that may end or forfeit the right.</p> <p>2. Creditor’s suit—interest of insurance agent in renewal commissions is a debt of company to him. The interest of an insurance agent in an uncollected renewal premium, which the insurance company has undertaken to pay him on collection, is a debt of the company to him, and not merely a debt due the company.</p> <p>3. Creditor’s suit—creditor’s bill will lie to reach renewal commissions fraudulently conveyed. A creditor’s bill will lie to reach renewal commissions, payable by an insurance company to its agent as premiums whereon they are based are collected by the company, where the agent conveys the same in fraud of his creditors.</p> <p>4. Creditor’s suit—evidence held sufficient to show fraud and absence of consideration. On a suit to set aside a sale and assignments of renewal commissions by an insurance agent to his wife and for the appointment of a receiver, evidence held to warrant conclusion of court that the sale was not for a valid consideration and was made with intent to defeat the complainant in his attempt to collect his judgment.</p> <p>5. Fraudulent conveyances—gifts of money by husband to wife. A gift made by a man to his wife before a cause of action accrues against him, if made for the purpose of defeating subsequent creditors, will be considered fraudulent as to such creditors.</p> <p>6. Supplementary proceedings—not bar to creditor’s suit. Supplementary proceedings by citation, pending in municipal court, will not abate or bar a creditor’s suit to set aside a conveyance by the judgment debtor to a third person on the ground of fraud.</p>

<p>1. Receivers—expenses of receivership. The mere fact that the property in the hands of a receiver is insufficient to meet the expenses of the receivership, does not render the complainant, at whose instance the receiver was appointed, liable for such expenses.</p> <p>2. Receivers—where party securing appointment is liable to creditors of receiver. Where .it clearly appears that the intent of a party in securing the appointment of a receiver was fraudulent and for his personal ends and not with a view to pay the debts of the concern and conserve the interests of all concerned, including creditors, that such party has directed and controlled the receiver in the continuance of the business and has received a salary from the receiver as his clerk without direction of court, and that the court and creditors of the receiver have been kept in ignorance of the condition of the company’s business by failure to file an inventory, such party will be required to make good any losses resulting to the creditors of the receiver.</p> <p>3. Receivers—liability for fees of receiver and his solicitor. Where a receiver is shown to have been appointed and continued through the fraud or illegal conduct of the parties asking for such receiver, such parties will be held liable for the fees of the receiver and his solicitor.</p>

<p>Error from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>1. Street railroads—care that driver should use. A person struck by a street car while driving a wagon across the track cannot recover unless he was at and just before the time of the injury in the exercise of such care for his own safety as an ordinarily prudent person would have exercised under the same circumstances.</p> <p>2. Street railroads—contributory negligence in driving across track. Where a person is struck by a street car while driving across the track, if the car was at such distance that an ordinarily prudent person knowing the usual speed at which cars were there operated would have undertaken to drive across the street in front of it, at the speed the car was going, he is not guilty of contributory negligence.</p> <p>3. Street railroads—negligence of motorman need not be anticipated. A person driving across a street car track is not chargeable with contributory negligence merely because he fails to anticipate the negligent, wilful or unlawful acts of a motorman.</p> <p>4. Street railroads—evidence of negligent rate of speed. A person driving across a street car track at a “fair” walk was struck by a street car. The conductor and driver could both see each other, and evidence was given concerning the relative distances apart, the speed of the car, when the brakes were applied, and the distance the car went after striking the wagon. Held, the street car was run at an unusual rate of speed not to be anticipated, and that plaintiff was using due care.</p> <p>9. Damages—when, $4,000 for injury to hip hone is not excessive. $4,000 damages for a person struck by a street car is not excessive, where he was considerably bruised all over, suffered an injury to the upper end of the femur that left it in an abnormal condition causing lameness to the time of the trial, suffered much pain in the hip, arm and heart, and became permanently lame.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.</p>

<p>1. Appeals and errors—conflicting evidence. The court on appeal or writ of error will not disturb finding of trial court on conflicting evidence, unless manifestly against weight of evidence.</p> <p>2. Appeals and errors—statute of frauds. Question whether an oral promise to pay for work and materials after the same were furnished is void under the statute of frauds as being a promise to pay the debt of another, must be raised in trial court and cannot be raised for first time by writ of error or appeal.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.</p>

<p>1. Appeals and errors—right to appeal from interlocutory injunction. Where a creditor’s bill is filed against defendant, a judgment debtor, and an interlocutory injunction is granted restraining certain parties, joined as defendants, from paying over to anyone money due the principal defendant, the principal defendant may appeal from the order.</p> <p>2. Appeals and errors—section 133 of Practice Act. The right to appeal under section 123 of the Practice Act is not limited to any particular party.</p> <p>3. Appeals and errors—under section 91 of Practice Act. Under section 91 of the Practice Act all parties to the suit whose interests have been prejudicially affected by final judgment, order or decree have the right to appeal.</p> <p>4. Appeals and Errors—constitutionality of statutes. The question whether See. 123, Ch. 110, B. S. is constitutional cannot be determined by Appellate Court.</p> <p>5. Creditor’s suit—when lies. By statute and by common law a creditor’s bill will lie when a judgment has been obtained, an execution duly issued and returned nulla bona.</p> <p>6. Creditor’s suit—jurisdiction. A judgment in order to be the basis of a creditor’s bill must be one in the same jurisdiction as the court in which the creditor’s bill is filed.</p> <p>7. Creditor’s suit—in circuit court on judgment obtained in municipal court. A creditor’s bill may be filed in the circuit court on a judgment obtained in the municipal court.</p> <p>8. Creditor’s suit—adequate remedy at law. A creditor’s bill cannot be maintained where there is an adequate remedy at law.</p> <p>9. Creditor’s suit—presumption raised by return of execution. The return of an execution unsatisfied is sufficient to raise the presumption that all legal means for collection have been exhausted.</p> <p>10. Creditor’s suit—when execution need, not be issued to sheriff. Where a creditors’s bill is filed in the circuit court on a judgment of the municipal court and the bailiff of the municipal court has returned the execution unsatisfied, there being nothing to show that the debtor has property in Cook county outside of Chicago, the issuance of an execution to the sheriff of Cook county and return by him nulla bona is not necessary.</p>

<p>1. Sales—fraud. In an action brought in municipal court against an automobile company by a purchaser of an automobile to recover back money paid and damages for breach of contract, held, that testimony of purchaser tending to establish fraud on part of company in inducing purchaser to sign contract should not be admitted when no reference to Buch fraud was contained in the statement of claim and that the evidence admitted was insufficient to establish such fraud.</p> <p>2. Sales—warranty. Where there is an express provision in a written contract of sale that no representations, warranties or conditions other than those appearing therein are binding on either party thereto, oral testimony tending to show warranty is inadmissible.</p> <p>3. Evidence—parol. When an instrument is partly a receipt and partly a contract, the^part constituting the contract cannot be contradicted or varied by parol evidence.</p>

<p>Appeal from the County Court of Cook county; the Hon. William L. Pond, Judge, presiding.</p>

<p>1. Negligence—issues, proof and variance. Under a declaration alleging that defendant so negligently used and operated an ammonia tank and appurtenances that it exploded and the ammonia therein set fire to a building to plaintiff’s damage, evidence that the fire was caused by ammonia gas in solution with gas formed by mineral lubricating oils used in connection with such appurtenances is admissible.</p> <p>2. Evidence—conditions after accident. Where an issue is raised as to the condition of a valve on a discharge pipe at the time of an explosion, in the absence of proof that there had been no change in the condition of the valve from the time it was discovered after the explosion until it was seen by a witness, his testimony with respect to its condition is incompetent.</p> <p>3. Evidence—prior condition of apparatus. Upon an issue as to whether a discharge-pipe valve was closed at the time of a fire, it is not permissible for an engineer to detail the particulars of a circumstance which occurred some time prior to the fire, relative to his efforts to ascertain whether the valve was open or closed.</p> <p>4. Negligence—instructions on burden of proof. An instruction that if the jury find that the damage to plaintiff was caused by the explosion of an apparatus and that such apparatus was in charge of and under the control of the defendant or his servants, then the law presumes that defendant was negligent in the operation or control thereof unless defendant shows by a preponderance of evidence that such explosion and damage did not occur through its negligence or the negligence of its servants,.is erroneous.</p> <p>5. Negligence—presumption created by doctrine of res ipsa loquitur. The presumption created by the doctrine of res ipsa loquitur merely serves to make a prima facie case for the plaintiff and make it incumbent on the defendant to produce evidence sufficient to meet such prima facie case, and to overcome the presumption upon which it is predicated.</p> <p>6. Trial—production of explosive in court and offer to submit it to tests. In an action for damages caused by a fire resulting from the explosion of an ammonia tank, where there was no claim that the fire was occasioned by ammonia in liquid form, production of liquid ammonia in court and an offer by counsel to subject it to certain tests is improper and harmful.</p> <p>7. Appeals and errors—admission of testimony of witness at former trial. A party who fails to insist upon his objection to the admission in evidence of testimony of a witness given at a former trial, where the witness testifies at a subsequent trial, is in no position to complain on appeal.</p> <p>8. Appeals and errors—improprieties m examination of witnesses. Where counsel for both parties indulge in like improper methods in examining witnesses a court of review will not seriously consider the complaints of the defeated party regarding the use of such methods.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windbs, Judge, presiding.</p>

<p>Appeals and errors—when decree on a hill of review is interlocutory. A decree on a bill of review setting aside a former decree for the purpose of reviewing the same upon a rehearing is interlocutory and is not the subject of appeal.</p>

<p>Error to the Superior Court of Cook county; the Hon. Parlin Q. Ball, Judge, presiding.</p>

<p>1. Pandering—when information charges. An information charging the offense of pandering in the language of the statute is sufficient.</p> <p>2. Pandering—when information insufficient. An information charging pandering which fails to designate the female person procured by defendant as an inmate for a house of prostitution is insufficient.</p> <p>3. Criminal law—name “Minnie” imports female. In an information for pandering the name “Minnie” imports a person of female sex.</p> <p>4'. Pandering—conviction sustained. A conviction upon a general finding for pandering is sustained where two of the three offenses defined in the statute are sufficiently charged though the third offense is insufficiently charged.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.</p>

<p>1. Appeals and errors—contradiction of record. The record imports verity and may not be contradicted or impeached except by other portions thereof.</p> <p>2. Jury—execution of waiver of jury trial. Where the name “John Litcher “appeared in an information and a judgment of conviction and the name G. Liehard was signed to a waiver of a trial by jury, it appearing from the record that the written waiver therein contained was in fact signed by plaintiff in error, it is as effectual to waive his trial by jury as though he had signed it by his proper name.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gem-mill, Judge, presiding.</p>