Volume 185 — Illinois Appellate Court Reports

<p>Error to the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final),</p>

<p>1. Bail, § 75*-—what scire facias on forfeited recognizance must aver. A scire facias issued upon a forfeiture of a recognizance stands as a declaration, and it must set forth by its averments all of the material matters necessary to recover a judgment against the sureties.</p> <p>2. Bail, § 75*—when scire facias issued on forfeited recognizance shows jurisdiction to take recognizance. A scire facias issued for sureties on a forfeited recognizance held sufficient on its face to show that the justice of the peace had jurisdiction to take the recognizance, and not demurrable for failure to aver that the recognizance was taken by the justice before the order of commitment was entered.</p> <p>3. Bail, § 35*—when two justices of the peace required to take a recognizance. After an order of commitment has been made by a justice of the peace the law requires that a recognizance must be taken before two justices of the peace.</p>

<p>Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Physicians and surgeons, § 22*—when evidence insufficient to establish malpractice. In an action against h physician and surgeon for so improperly treating plaintiff as to necessitate the removal of her uterus, evidence held insufficient to show that the treatment by defendant was the cause making removal of uterus necessary.</p> <p>2. Damages, § 206*—when giving of instruction alloiving recovery for elements of damages not supported by evidence is error. The giving of an instruction in an action for malpractice directing the jury to assess damages for the amount plaintiff had paid out or become liable for, for physician's fees, hospital bills and medicine, when there is no evidence to support either of such elements of damage, held error.</p> <p>3. Damages, § 189*—sufficiency of proof of services and expenditures as elements of damage. Where services and expenditures are elements of damage they are capable of pecuniary measurement, and the law requires that the amounts of the same shall be specially proved.</p>

<p>Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (malting opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 367*—when liable for failure to provide entrance from, the car platform into the car. In an action for injuries sustained by a passenger alleged to have been caused by being thrown from the rear platform of an interurban car by the swaying and lurching thereof when she was unable to gain entrance to the car because the doors were locked, or so tightly closed that she was unable to open them, and there was no employe of the defendants there to assist her, a verdict for plaintiff held sustained by the evidence.</p> <p>2. Carriers, § 384*—when rule of nonliability for ordinary swaying of car inapplicable. The rule that a railroad company is not liable for injuries resulting from the swaying and lurching of a car, unless the swaying and lurching were unusual, is not applicable where the gravamen of the action is not laid as the swaying and lurching of the car.</p> <p>3. Carriers, § 486*—when instruction allowing recovery for negligently starting car erroneous. In an action fot injuries caused by being thrown from platform of car by the starting thereof when plaintiff was unable to gain entrance to the car from the platform, an instruction allowing plaintiff to recover if the conductor “negligently caused the car to start forward” without the limitation “before she had reasonable opportunity to enter it,” held erroneous; but the giving of same when considered together with other instructions given, held not to have misled the jury.</p>

<p>Insurance, § 485*—when award made by appraisers no bar to action on policy. An award made by appraisers under the provisions of a policy of insurance on an automobile, held no bar to a suit on the policy and not admissible in evidence in such action, where it appeared that the appraiser for the insured refused to consent to the award, that there was no pretense that either of the appraisers who signed the award had any knowledge whatever of the value of the car at the time of its loss or the extent of the loss or damage, and that they made no conscientious effort to ascertain such facts before making the award.</p>

<p>1. Dbainage, § 91*—when evidence sufficient to sustain judgment ordering mandamus to issue against commissioners. On petition for a peremptory writ of mandamus to compel the drainage commissioners to provide a more sufficient outlet for the drainage of petitioner’s land, a judgment ordering the writ to issue held sustained by the evidence, it appearing that the commissioners had dispensed with an open ditch and used a fourteen inch tile, which was of insufficient capacity for the water of the district to pass through and in consequence thereof the water stood on the lands of the petitioner until other lands below him were drained.</p> <p>2. Dbainage, § 90*—duties of commissioners enforceable by mandamus. The duties of drainage commissioners prescribed by sections 17 and 41 of the Farm Drainage Act (Hurd’s R. S. 1911, pp. 905, 911, J. & A. lili 4493, 4518) are mandatory and may be enforced by mandamus.</p> <p>3. Dbainage, § 87*—discretion of commissioners to use open ditches or tile drains. Drainage commissioners have the right in their discretion to use tile for an outlet in place of an open ditch, provided they use tile of sufficient capacity and lay them in such a manner as to accomplish the purpose for which they are used.</p> <p>' 4. Dbainage, § 90*—when petition for mandamus to compel commissioners to provide sufficient outlets no interference with discretionary powers. A petition for a peremptory writ of mandamus to compel drainage commissioners to provide an outlet of ample capacity for the waters of the district does not seek to regulate or control any discretionary powers or duties of the commissioners; the plan or scheme to accomplish the result rests wholly within the discretion of the commissioners, and such discretion will not be interfered with by the courts unless it is manifest that it has been grossly abused.</p> <p>5. Drainage, § 90*—sufficiency of demand on drainage commissioners before filing petition for mandamus. Written demand served by landowner upon drainage commissioners to provide sufficient drainage of his land, held sufficient to entitle him to file a petition for a peremptory writ of mandamus to compel commissioners to provide for an adequate drainage of his land.</p> <p>6. Mandamus, § 117*—when statute of limitations begins to run against right to file petition against drainage commissioners. The statute of limitations does not begin to run as against the right of a landowner to file a petition for a peremptory writ of mandamus to compel the drainage commissioners to construct proper drains until after demand is made.</p> <p>7. New tbial, § 73*—when newly-discovered evidence not grounds 'for. After judgment entered ordering a peremptory writ of mandamus to issue against drainage commissioners to compel them to provide more adequate drains for petitioner’s property, newly-discovered evidence presented by affidavit on motion for new trial to the effect that at one time when the petitioner was testifying that his land was covered with water, the mouth of the tile was covered with water so as to deprive the ditch of any outlet for a time, held insufficient to materially affect the merits of the case.</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 Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.</p>

<p>Appeal from the County Court of Macoupin county; the Hon. Tbuman A. Snell, Judge, presiding.</p>

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

<p>Appeal from the County Court of De Witt county; the Hon. Fred C. Hill, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Executors and administrators, § 496*—when admissions of administrators as to contracts of deceased incompetent. In an action against administrators of the estate of the deceased to recover damages on a contract made by deceased, evidence of conversations by the administrators, or either of them, tending to recognize the validity of the contract or to vary the terms thereof is incompetent.</p> <p>2. Executors and administrators, § 109*—authority to modify terms of contract made by deceased. Administrators of an estate have no power or authority to modify the terms of a contract made by the deceased, and where the estate is liable on a contract made by deceased for failure to deliver corn after a reasonable time they have no power to extend the time for delivery.</p> <p>3. Sales, § 124*—time for delivery where time not specified in contract. .Where no time of delivery is specified on sale of chattels, a reasonable time under all the circumstances will be implied, and what is a reasonable time under all the circumstances in the case is a question of fact for the jury to determine.</p> <p>4. Contracts, § 254*—necessity of consideration for subsequent agreement as to time for performance. After the time for the performance of a contract has passed, any arrangement made between the parties for the performance of the contract at a different time is not binding unless supported by a new consideration.</p>

<p>1. Municipal corporations, § 53*—legislative control of funds raised hy taxation. Since municipal corporations are subject to legislative control and may be changed, modified, enlarged, restrained or abolished by the legislature, the public, county and township funds are under such control.</p> <p>2. Township organization, § 20*—funds which may he apportioned on division of a town. Under Hurd’s R. S. ch. 139, § 32, J. & A. 1f 11264, concerning the apportionment of funds of a town when it is divided, unexpended funds raised by taxation are to be apportioned, though the taxes were levied for a special purpose.</p> <p>3. Township organization, § 20*—when judgment in favor of original town apportionahle upon division of the town. Where a town is divided, the new-town is entitled to an apportionment of a judgment recovered by the original town against a city embraced within the boundaries of the new town for taxes paid to it under a void statute, though part of the judgment was for taxes levied and collected on property within the city under R. S. ch. 121, § 14, J. & A. jf 9641, to build bridges in the original town.</p> <p>4. Township organization, § 20*—when right to apportionment on division of a toton not defeated. In apportioning taxes levied and collected upon a division of a town, the fact that a city embracing the same territory as the new town had been paid its proportionate share of such taxes does not deprive the new town of its right to an apportionment under the statute; the new town and the city are distinct municipalities.</p>

<p>1. Corporations, § 48*—necessity of denial in writing of corporate existence when suit commenced before justice of the peace. In an action by a foreign corporation where the suit was originally begun before a justice of the peace and an appeal was taken to the County Court, the plaintiff is not required to prove its corporate existence where defendant has not complied with section 65, ch. 79, of the act relating to justices and constables, J. & A. jf 6926, by filing a denial in writing of plaintiff’s corporate existence.</p> <p>2. Corporations, § 774*—proof of corporate existence of foreign corporation. A foreign corporation cannot prove its corporate existence by offering in evidence a certificate of its incorporation without offering to prove the foreign statute under which it was created.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 358*—when plea of want of consideration demurrable. In an action on a promissory note, a special plea of want of consideration setting up that the note was given for a release of defendant by plaintiff from a void contract of guaranty, held inartificially drawn and subject to special demurrer.</p> <p>2. Appeal and ebboe, § 1361*—•when refusal to permit filing of additional pleas not error. Refusal of court to permit the filing of additional pleas, held not error, where application to file them was not made until the case was called for trial.</p> <p>3. Appeal and ebboe, § 986*—when denial of motion for continuance not presented for review. The question whether the court erred in overruling a motion for a continuance is not preserved for review, where there is no motion for a continuance or showing thereon in the bill of exceptions.</p>

<p>Abstract of the Decision.</p> <p>1. Customs and usages, § 26*—admissibility of evidence to prove custom. In an action to recover interest on advances made to a seller of grain, testimony of plaintiff that there was a custom between him and his customers in the locality of his elevator by which he advanced money on grain with the understanding that they would pay interest on the advances until the grain was delivered and that he had charged his customers seven per cent, interest, held incompetent.</p> <p>2. Customs and usages, § 11*—when custom, is controlling. A custom to be controlling so far as to affect the rights and liabilities of parties in their dealings with each other must be shown to be certain, continuous and so well known as to induce the belief that the parties contracted with reference to it.</p> <p>3. Customs and usages, § 9*—customs opposed to law. A custom cannot prevail against a well settled rule of law.</p> <p>4. Evidence, § 297*—foundation for introduction of books of account. Sufficient foundation is laid for the introduction of plaintiff’s books in evidence where plaintiff testifies that the books were kept by his agent, since deceased, in the usual course of trade and of his duty and employment by the plaintiff.</p> <p>5. Evidence, § 315*-—evidence incompetent to verify books of account. Testimony of a party that he had compared his books of account with monthly statements' made to him by his agent and found the books to be correct, held not competent evidence to verify the books of account.</p> <p>6. Principal and agent, § 242*—evidence admissible to show extent of agent’s authority. An indemnity bond given by an agent to his principal is not competent evidence to show the extent of the agency, where the bond does not purport to be the agency agreement between the parties.</p> <p>7. Evidence, § 273*—when checks admissible. In an action to recover advancements or loans made by plaintiff’s agent drawing checks in favor of defendant, held, that the checks were admissible in evidence to be considered with other evidence in determining whether defendant was indebted to plaintiff.</p> <p>8. Interest, § 80*—when instruction allowing rate fixed by custom erroneous. In an action to recover interest on advances made to a seller of grain, an instruction permitting plaintiff to recover seven per cent, interest thereon if the jury should believe that there was a custom of plaintiff to charge seven per cent, interest, held erroneous and misleading in view of statute which fixes the rate at five per cent, on loans unless the contract is in writing.</p> <p>9. Payment, § 5*—check as evidence. A check alone is not evidence of an indebtedness of the payee to the drawer of the check but presumptively is evidence of the payment of a debt to the payee, or that money was paid for it at the time.</p>

<p>Appeal from the Circuit Court of Edgar county; the 1-Ion. Morton W. Thompson, Judge, presiding.</p>

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

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

<p>Error to the Municipal Court of Chicago; the Hon. William C. De Wolf, Judge, presiding.</p>

<p>1. Municipal Court op Chicago, § 29*—when judgment may be sustained as a judgment in tort. A judgment of the Municipal Court may he sustained as a judgment in tort, if the evidence warrants such a judgment, although the statement of claim is in the form of an action on contract.</p> <p>2. Fraud, § 18*—when party not liable for damages resulting from giving false information as to time boat sailed. A company engaged in selling railroad tickets and furnishing information to travelers, held not liable for damages resulting to tourist from false information as to the time a boat sailed from a certain port, where the company by its agent did not make the false assertion of its own knowledge and did not recklessly make a representation as to the time the boat would sail, not knowing or caring whether it was true or false and regardless of the injury which might ensue.</p> <p>3. Fraud, § 91*—proof of false representations. In an action on the case for deceit for false representations, it is necessary to prove not only that the representation was false, but that the party -making it knew that it was false.</p> <p>4. Fraud, § 18*—rule as to false representations. The rules that when a party falsely asserts a material fact to be true of his own knowledge and thereby induces another to act on the fact represented to his prejudice, or when one makes a representation not knowing whether it is true or false or caring what the fact may be, makes it recklessly, paying no heed to the injury which may result, commits a fraud which will sustain an action for-deceit, are not exceptions to but applications of the principle that the false representation must have been knowingly made with intent to deceive to sustain an action for deceit.</p>

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

<p>1. Trover and conversion, § 39*—when recovery for misapplication of money deposited with agents for payment of tames not sustained by the evidence. An owner of real property deposited money with real estate agents for the payment of taxes on the property. The agents failed to apply the money to such purpose and the property was sold for taxes and the purchaser acquired a tax deed. Afterwards the owner paid a certain sum for a release of the tax deed and sued the real estate agents to recover the amount so paid as damages for converting the money deposited to their own use. Held that a judgment in favor of plaintiff for the sum paid for a release of the tax deed could not be sustained, there being no sufficient evidence of any damage save that of the amount deposited and interest.</p> <p>2. Trover and conversion, § 47*—measure of damages when agents misapply money deposited with them for payment of tames. Where an owner of real property deposits money with agents to pay taxes on the property and the agents appropriate it to their own use and in consequence thereof the property is sold for taxes and the purchaser acquires a tax deed, for the release of which the owner pays a certain sum, the measure of damages might be the reasonable value of the land if plaintiff proves that the tax deed conveyed a paramount title, hut in the absence of such proof the measure of damages would he the amount paid for the release of the tax deed if such amount was proved to be the reasonable and fair value of the interest acquired.</p> <p>3. Payment, § 34*—conclusiveness of receipt. It is competent to explain a receipt as conditional or to prove a subsequent agreement concerning the use of the money.</p>

<p>Abstract of the Decision.</p> <p>1. Collision, § 11*—when verdict for defendant sustained by the evidence. In an action against a Towing Company to recover damages to a protection pier alleged to have been caused by a vessel striking against the pier while being towed by tugs of defendant, a verdict in favor of defendant on conflicting evidence held sustained by the evidence.</p> <p>2. Municipal Court of Chicago, § 28*—when objection to oral instruction not preserved. Where a judge of the Municipal Court charges the jury orally and after the charge was given asked whether either counsel desired to have the jury further instructed and no response was made by counsel for either party nor any objection or exception of any kind taken to the instructions in the Municipal Court, a party cannot complain of the whole or any part of the charge in the Appellate Court.</p> <p>3. Instructions, § 162*—when words in instructions not misleading. In an action against a Towing Company for damage to a pier alleged to have been caused by a vessel which was being towed by defendant’s tugs, an oral charge was given to the jury that: “In the event that the proof shows that the accident occurred through the negligence alone of the defendant, then you will consider in your verdict the amount of the damages which have been proven * * * and should return your verdict in accordance with the truth.” Held that the use of the word "alone” and the word “truth” were not misleading.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kick-ham: Scanlan, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Brokers, § 3*—license. There is no statute requiring a real estate broker to have a license.</p> <p>2. Appeal and error, § 1038*—judicial notice ordinances. The Appellate Court cannot take judicial notice of ordinances.</p>

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

<p>Abstract of the Decision.</p> <p>Breach of marriage promise, § 20*—when evidence sufficient to show promise to marry. A judgment in favor of plaintiff in a suit for breach of promise, held sustained by the evidence, it appearing that defendant’s denial of making the promise went only to the precise words used in addressing plaintiff, that the occasion of the interview was to enter into a contract of marriage, and that when plaintiff informed defendant she was willing his conduct and statements would reasonably lead plaintiff to believe that he was also willing.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 140*—instructions singling out facts. In an action for personal injuries sustained as the result of a collision between a street car and a wagon which plaintiff was driving, an instruction which singles out the fact that certain passengers on the car saw the wagon in time to avert a collision, and that it was the duty of the motorman at that time to see what the passengers saw, is erroneous.</p> <p>2. Negligence, § 216*—instructions invading province of jury. An instruction telling the jury what the particular act of defendant’s servant must be to be within the exercise of ordinary care is erroneous as invading the province of the jury.</p> <p>3. Street railroads, § 142*—instructions invading province of jury. An instruction in an action for personal injuries due to a collision between a street car and a wagon driven by plaintiff, that if the wagon was crossing the track when the car was at a certain street intersection it was the duty of the motorman, at that time, to attempt to control or check the progress of the car, and if he did not do so, at that time, his failure in that respect constituted negligence, is erroneous as invading the province of the jury.</p> <p>4. Negligence, § 216*—instructions singling out facts. An instruction which singles out particular facts and tells the jury that, singly, such facts do not constitute anj' defense, is erroneous, when in law they, together with other facts and circumstances, constitute proper matter to be considered, by the jury in determining whether or not all the facts and circumstances made out a defense.</p> <p>5. Street railroads, § 142*—instruction on facts constituting negligence. Where there was a conflict in the evidence as to the distance of a street car from a wagon at the time the driver of the latter attempted to cross the track, an instruction that: “It is negligence for a motorman in charge of a street car to run said car at such a rate of speed that he cannot stop said car within the distance at which he could, by the exercise of ordinary care on his part, see an obstruction ahead of him on the track,” is erroneous.</p> <p>6. Street railroads, § 62*—mutual obligations as to use of streets. The driver of a wagon and the employes of a street rail-' way company operating a street car, using the street in common, are bound only to exercise ordinary care to avoid injuring each other.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).'</p>

<p>Appeal from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>Error to the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanran, Judge, presiding.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 230*—duty of owner of apartment building to Tceep railing of stairway in repair. The owner of an apartment building is bound to keep the railing of a rear stairway in such repair as to permit a person lawfully using the stairway to lean against it for the purpose of protecting him from falling.</p> <p>2. Landlord and tenant, § 259*—when question of contributory negligence is for jury. Whether a tenant in an apartment building is guilty of contributory negligence in leaning against the railing of a rear stairway to the building is a question for the jury.</p> <p>3. Landlord and tenant, § 260*—when instruction not misleading as assuming facts. In an action by a tenant against the owner of an apartment building for personal injuries caused by a defective railing to a rear stairway, an instruction not directing a verdict given for plaintiff held not misleading under the facts shown by the evidence, though it assumed, as a fact, that the owner retained control of the stairway.</p> <p>4. Appeal and error, § 1595*—rule as to sufficiency of declaration after verdict. After verdict, the rule is that if a declaration contains terms sufficiently general to include by fair and reasonable intendment, any matter necessary to be proved and without proof of which the jury could not have given the verdict, the want of an express averment of such matter is cured by verdict.</p> <p>5. Appeal and error, § 1611*—when declaration sufficient after verdict. Id an actioD by a tenant íd aD apartment building for iDjuries resultiDg from a defective railing to a rear stairway, the dedaratioD held sufficient after verdict thoagh it did Dot specifically allege that the defendaDt retaiaed coDtrol of the stairway, nor so allege that the plaintiff exercised due care at the time of the injury, or that defendant’s negligence was the proximate cause of the injury, the declaration alleging that the stairway was used by all the tenants of the building and containing other averments from which it could be reasonably inferred that plaintiff exercised due care at the time of the injury and that defendant’s negligence was the proximate cause of the injury.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 248*—effect of clerical error transposing names of parties in judgment order. Where an order of court shows that the defendants’ motion to vacate a judgment was stricken out on “defendants’ ” motion and that “plaintiff” excepted, held that the order may be corrected by the trial court where there was an erroneous transposition of the names of the parties resulting from a clerical error, and held that even though no correction was made by the trial court the Appellate Court would give the order the meaning evidently intended if the error was clearly apparent from an examination of the whole record.</p> <p>2. Appeal and error, § 824*—when rule that exception must he shoivn hy hill of exceptions inapplicahle. The rule that an exception cannot be shown merely by a recital in an order, without a bill of exceptions, has no application where the bill of exceptions expressly states that an order was entered in which the exception was noted.</p> <p>3. Appeal and error, § 805*—effect when hill of exceptions does not recite it contains all the evidence. The fact that a bill of exceptions does not recite that “this was all the evidence heard or offered” on a motion to vacate a judgment does not raise a presumption that other evidence or affidavits may have been presented which would render unnecessary any reading or consideration of affidavits in support of the motion.</p> <p>4. Appeal and error, § 785*—hill of exceptions construed. Where a bill of exceptions states that the court declined to read or hear read the affidavits filed in support of defendants’ motion to vacate a judgment, or to hear any arguments on such motion, but does not state that the court refused to consider such affidavits upon the ground that the matters contained therein were incompetent, etc., no other conclusion can be drawn from the statement but that the court declined to hear any affidavits no matter what facts were set up therein.</p> <p>5. Continuance, § 64*—jurisdiction as affected hy order of continuance to next term. Where a court enters an order continuing a motion to vacate a judgment to the next term of court, it thereby retains jurisdiction to act upon that motion or any similar motion at any time during the succeeding term, and the validity and effect of the order of continuance do not depend upon the form in which the motion to vacate was presented.</p> <p>6. Judgment, § 133*—jurisdiction of court to entertain motion to vacate at next term. Where a motion to vacate a default judgment is filed by the defendants on the last day of the term and the court on defendants’ motion without notice to plaintiff enters an order for a continuance to the next term, and the court at such term struck defendants’ motion from the files because defendants did not file affidavits at the time the motion was filed as required by the rules of court, held that even if it be conceded that the court properly struck the motion from the files, the court retained jurisdiction of the cause by the entry of the order of continuance and had power during such succeeding term to entertain another motion filed in accordance with the rules of court, and that defendants had a right to hearing on their second motion where the affidavits showed upon their face a meritorious defense, and that refusal of court “to read or hear read” the affidavits was error.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 568*—burden of proving relationship under special pleas. In an action for personal injuries alleged to have been caused by the negligent operation and management of coal cars in a coal yard owned and controlled by defendant, under a special plea denying ownership of the yard and plaintiff’s employment by defendant, the burden is on plaintiff to establish such facts.</p> <p>2. Master and servant, § 681*-—sufficiency of evidence of ownership and operation. In an action for personal injuries plaintiff claimed that while in the employ of defendant in a coal yard owned and controlled by him he was injured through the negligence of the latter in the management of coal cars therein. Defendant in special pleas denied ownership of the yard and plaintiff’s employment by him. Beyond testimony that he was employed in defendant’s coal yard, plaintiff introduced no evidence on the subject, while defendant’s uncontradicted evidence showed that signs above the yard, pay rolls, and receipts for wages bore the name of another, defendant’s name appearing merely as agent. It was held that plaintiff failed to meet the burden imposed upon him by the special pleas and a verdict in his favor was against the manifest weight of evidence.</p> <p>3. Appeal and error, § 1013*—necessity that record show exception to refusal of peremptory instruction. Where the record fails to show an exception to the refusal of a peremptory instruction to find for defendant the latter cannot contend, on appeal, that the instruction should have been given on the theory that there was no evidence tending to sustain allegations of the declaration as to issues raised by special pleas.</p> <p>4. New trial, § 51*—questions presented on motion for. Upon motion for new trial the question is not whether there was a total lack of evidence tending to prove the issues, but whether the verdict was contrary to the evidence upon those issues.</p> <p>5. New trial, § 52*—verdicts against weight of evidence. Where the verdict is clearly and manifestly contrary to the weight of the evidence it is error to deny a motion for a new trial.</p> <p>6. Removal oe causes, § 11*—time for filing petition. Where the summons in an action was served twenty-eight days before the first day of the term at which it was returnable and the declaration was filed nearly a year before such return day, a petition to remove the cause to the federal court filed on the seventeenth day of the term is not in apt time under the act of Congress requiring the petition to be filed in the State court “at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff,” since, although the statutes providing for a continuance where the summons is not served and the declaration filed ten days before the first day of the term do not expressly provide that the defendant must appear and plead on the return day of the summons where the summons is so served and the declaration so filed, such is their clear intent and meaning.</p>

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

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

<p>Abstract of the Decision.</p> <p>Indemnity, §. 25*—amount recoverable. In an action by the purshaser of realty against the vendor to recover for the amount expended in redeeming from a sale of the premises on foreclosure of a mechanic’s lien, the vendor having given an agreement to indemnify, defendant contended that attorney’s fees paid by plaintiff in redeeming and the fee for filing the certificate of redemption were improperly included in the judgment because no written notice had been given to him of the filing of the mechanic’s lien suit. Held, the finding of the trial court that such notice had been given was not manifestly against the weight of evidence.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Citarles A. McDonald, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Automobiles and gabages, § 2*—what not contributory negligence on part of pedestrian. Plaintiff while crossing a street in a northwesterly direction towards an alley observed an automobile approaching from the west. On reaching the east curb he noticed that the automobile was about to turn into the alley and instead of continuing his course in a northwesterly direction across the alley stepped to a point on the sidewalk near a fence on the property line about two and a half feet east of the alley curb, where he was struck by the machine and crushed against a post of the fence. Held, the fact that plaintiff could have avoided injury by stepping in another direction or by having continued in his original course did not render him guilty of contributory negligence.</p> <p>2. Negligence, § 75*—when acts in emergencies not contributory negligence. One confronted by sudden danger from a rapidly moving automobile is not guilty of contributory negligence because, in an effort to get out of the way, he acts contrary to what was expected of him by the driver.</p> <p>3. Appeal and error, § 1702*—when special interrogatories conclusive. A special interrogatory as to whether the plaintiff’s contributory negligence contributed to the injury, answered in the negative, is conclusive on the question where not questioned in the written motion for a new trial, nor attacked in the assignment of errors.</p> <p>4. Automobiles and garages, § 2*—what constitutes negligence. The driver of an automobile traveling at the rate of ten or twelve miles per hour is guilty of negligence in turning into an alley, across the sidewalk, without having his machine in control, so as to avoid striking persons passing along the street or crossing the alley.</p> <p>5. Automobiles and garages, § 3*—authority of son of owner. The owner of an automobile cannot question the authority of his son to turn the management of the machine over to his younger brother, in whose charge it was at the time injury was inflicted upon a pedestrian, where the general issue was interposed, since the general issue admitted the ownership of the automobile and that the operator in charge of it was his servant.</p> <p>6. Trial, § 276*—when special interrogatories properly refused. Interrogatories submitting merely evidentiary or probative facts, and not ultimate facts or facts from which the ultimate facts would necessarily result, are properly refused.</p> <p>7. Damages, § 129*—when verdict not excessive. As the result of being crushed against a fence post by an automobile plaintiff’s right humerus was broken and his back injured. At the time of the trial the fracture had healed, but his arm was not as strong as it was before the injury, and he was unable to do thé work he was accustomed to doing. Beld a verdict for one thousand two hundred and fifty dollars was not excessive.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 839*—filing bill of exceptions nunc pro tunc. Where the hill of exceptions was presented to and signed by the trial judge in time but was not filed until several months after, an order that the bill be filed nunc pro tunc as of the day of signing, for which no basis appears in the record, is void.</p> <p>2. Appeal and ebbob, § 952*—when bill of exceptions may be stricken from record. Where the bill of exceptions was presented to and signed by the trial judge in time but through the negligence of the attorney was not filed until several months later, when the time for filing had expired, same will be stricken from the record, although ordered filed nunc pro tunc as of the date of signing, no basis for the order appearing in the record.</p> <p>3. Appeal and ebbob, § 956*—effect of striking bill of exceptions from record. None of the assignments of error can be considered where based exclusively upon the bill of exceptions and stenographic report which was ordered stricken from the record.</p>

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

<p>Abstract of the Decision.</p> <p>1. Carriers, § 476*—jerks on alighting sufficiency of evidence. Testimony of plaintiff that as he was preparing to alight from defendant’s car it stopped suddenly throwing him against the end of the car, and as he raised his foot to get on the step “it shot right ahead again” and he was thrown to the ground, supported by the testimony of another witness, held sufficient to sustain a verdict in Ms favor, though disputed by testimony of the conductor and motorman of the car and another passenger.</p> <p>2. Instructions, § 88*—preponderance of evidence. An instruction that: “The preponderance of evidence in a case is not necessarily alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of evidence is, the jury should also take' into consideration, so far as shown by the evidence, the opportunities of the several witnesses for seeing or knowing, the things about which they testify, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements, in view of all the evidence, facts and circumstances proved on the trial; and from all these circumstances, and a full consideration of all the evidence, determine upon which side is the greater iveight or preponderance of the evidence,” if erroneous is not prejudicial.</p> <p>3. Aepeai. and error, § 1563*—when refusal of instruction to disregard declaration harmless. Refusal of an instruction-that plaintiff could not recover under the original declaration is not prejudicial, where there was evidence to support an additional count of the declaration.</p> <p>4. Damages, § 124*—when verdict not excessive. A- verdict for six thousand dollars in favor of a man seventy years of age, whose earnings prior to the accident were about one hundred dollars per month, is not excessive for injuries consisting of a fracture of the neck of the left femur, making the shaft of that leg. about three-quarters of an inch higher than it should be and incapacitating him from work for a period of nearly three years.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 176*—methods of work. In an action for personal injuries to an employe it was shown that a wagon-load of steel plates, forty feet long, eight inches wide and a quarter of an inch thick, was brought to a railroad station to be loaded on a gondola car; that the entire load was lifted on the car at one time by means of a derrick; that it then became necessary to remove the angle irons on which the load rested while on the wagon from underneath the plates on the car, plaintiff claiming that the usual method was by lifting the plates by means of the derrick, and that while placing a chain around the plates for that purpose the foreman took it away from him, fastened it to the angle irons and immediately signalled the derrick man to hoist, and before plaintiff could get to a place of safety he was crushed against the side of the car by the angle irons. Defendant contended that the method adopted was the usual method for removing the angle irons in such cases. Held, that a verdict for plaintiff was not manifestly against the weight of evidence.</p> <p>2. Master and servant, § 242*—toorlcing foreman as fellow-servant. Where the method of doing the work adopted by the foreman is unsafe, resulting in injury to an employe, the fact that the foreman participated in the work did not difest him of the character of foreman or vice principal and render him a fellow-servant.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Insurance, § 906*—when evidence insufficient to prove assessment invalid. In an action to recover upon a membership certificate where a defense is interposed that the membership was forfeited for failure to pay assessments levied to pay death claims, a contention of plaintiff that the assessments were invalid because unnecessary for the reason that the company had a surplus fund of $300,-000 in excess of pending claim, held not established by the evidence, it appearing that the company was authorized by the law under which it was organized and its constitution and by-laws to provide a death fund and a contingent fund, and there being no evidence to contradict defendant’s evidence that there was no money in the death fund at the time the assessments were levied.</p> <p>2. Insurance, § 853*—when company not estopped from interposing defense. An insurance company does not waive nor is it estopped from interposing a defense other than a forfeiture for nonpayment of assessment, because it based its refusal to pay solely upon that ground with full information as to other facts constituting a forfeiture, where it does not appear that the plaintiff was misled or influenced to her injury by failure to assign other reasons.</p> <p>3. Stipulations, § 22*—when plaintiff estoppéd to dény stipulation as to pleadings. Plaintiff, on appeal, cannot urge that a defense was not specially pleaded where the record shows that during the trial he did not object to a statement made by the court: “Let the record show that it is agreed by counsel for both parties that there may be introduced in evidence in this case any evidence in support of any plea which might properly be pleaded to the declaration.”</p> <p>4. Trial, § 191*—when direction of verdict for defendant proper. Where evidence of an affirmative defense is offered, it is proper to direct a verdict for defendant even though all the averments of the declaration are proved, if the evidence of the affirmative defense is not contradicted or explained.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Charms A. Williams, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Damases, § 88*—rule in determining whether provision is for liquidated damages or a penalty. Whether a provision in a contract shall be construed as a provision for liquidated damages or a penalty, the primary and most essential principle of construction is to ascertain the meaning and intent of the parties by reference to the contract itself, the subject-matter thereof and the circumstances under which it was made, the fact that the parties used the words “liquidated damages” in their agreement does not always determine the question.</p> <p>2. Damases, § 88*—when stipulation for damages in contract with City is for liquidated damages. Where a contract is made with a municipality for the construction of a public improvement, and the parties stipulate that a failure to complete the contract within the time fixed will work an injury to the municipality, that the damages to the municipality or the inhabitants thereof for such failure cannot be calculated with any degree of certainty, and that for such failure the municipality may deduct and retain from the contract price, as liquidated damages, a not unconscionable sum for each day the contract remains incompleted beyond the day fixed, held that the stipulation is for liquidated damages.</p> <p>3. Municipal corporations, § 412*—when finding that Oity contributed to delay in performance of worh sustained by the evidence. In an action against a City for a sum retained by it as liquidated damages for delay in the performance of work done under a contract between the plaintiff and the City for an improvement, a finding by the trial court that the City contributed to the delay in the completion of the work to such an extent as not to warrant any deduction by the City from the contract price, held not against the weight of the evidence.</p> <p>4. Municipal corporations, § 412*—admissibility of evidence. In an action against a City to recover a sum which the City retained as liquidated damages for delay in the performance of work under a contract for an improvement between the plaintiff and the City, evidence that the municipality or its inhabitants thereof as a matter of fact suffered little or no damage because the contract was not actually completed within the time fixed is not properly admissible.</p>

<p>1. Abatement and revival, § 2*—when action for personal injuries survives. Prior to the Act of 1872, R S. ch. 3, § 123, J. & A. If 172, an action for damages for personal injuries abated with the death of the injured party in all cases where death was not caused by the injury, but since the passage of that act, if the injured party dies from a cause other than the injury, the action for the injury to his person survives to his personal representative.</p> <p>2. Action, § 37*—when amendment of declaration sets up different cause of action. Where a person commenced a suit to recover for personal injuries and died pending the hearing and after his death was suggested and his administrator substituted as a party plaintiff the administrator was permitted to amend the declaration, and it appeared from the amended declaration that plaintiff’s intestate died as a result of his injuries and that recovery was sought for the benefit of his widow and next of kin, held that the declaration as amended set up a new and different cause of action from that disclosed in the original declaration, and that it was properly stricken from the files.</p> <p>3. Pleading, § 258*—when must relate to time action is commenced. It is a fundamental principle that all pleadings in a suit must primarily relate to the time when the action was commenced and must be based on facts and causes of action as they existed then.</p>

<p>Abstract of the Decision.</p> <p>1. Assignments, § 36*-—when evidence sufficient to sustain finding of jury. In an action by an assignee of an account to recover the amount due thereon from the defendant to the assignor, a finding by a jury that there was no understanding between the defendant and the assignor that certain notes given by the assignor to the defendant were to be paid or canceled by the sale of certain merchandise by the assignor to the defendant, held sustained by the evidence.</p> <p>2. New trial, § 67*—when newly discovered evidence ground for. To authorize a new trial on the ground of newly discovered evidence it must appear that the evidence has been discovered since the trial and that the party has not been guilty of negligence in not discovering and producing it on the former trial. A new trial will not be granted where such evidence is merely cumulative and not conclusive in its character.</p>

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

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 471*—lohen liable on contract of employment made with a company whose business is taken over. Where a company enters into a written contract to employ a person and later the company organizes as a corporation and takes over its former business and both the employe and the corporation thereafter treat the contract of employment as with the corporation, held that the corporation is liable on the contract.</p> <p>2. Master and servant, § 23*—when notice to cancel contract of employment may be given. Where the provisions of a contract of employment are that the agreement is to remain in force for one year and after such time to become self-perpetuating from year to year, unless three months prior to the expiration of any year due notice is given by either party to cancel it at the end of the current year, the employer is required to give notice three months prior to the end of the first year to cancel the contract before that date.</p> <p>3. Master and servant, § 37*—when letter does not constitute notice to cancel contract of employment. Under a contract of employment requiring three months’ notice to cancel the same, a letter written by the employer to the employe stating that “the best way to relieve us of an embarrassing situation would he for you to immediately set about looking for another business connection and resign,” etc., held not to constitute a discharge nor a notice of the desire of the employer to cancel the contract.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Building and construction contracts, § 85*—when vending suit in equity for mechanic’s lien no defense. In an action to recover a sum claimed to be due for labor and materials furnished under a building contract, defendant cannot urge as a defense that the previous filing of a bill' in equity, by the plaintiff for a mechanic’s lien for the amount claimed constitutes an election of remedies.</p> <p>2. Abatement and revival, § 34*—when vending of suit in equity cannot be yleaded in abatement. A former suit pending in equity cannot he pleaded in abatement of a subsequent action of law. If the defendant in an action of law is entitled to any advantage from the pendency of a bill in equity, it is only by injunction from the equity court to stay the proceedings at law.</p> <p>3. Election oe ¡remedies, § 3*—when court of equity may compel election. If after a bill in equity has been filed, so that the jurisdiction of the court has attached and the case is not one where a party may proceed, as in the case of a mortgage, in equity and at law at the same time, the court of equity will compel the party to make an election in which court he will proceed and the proceedings in the other court will be stayed.</p> <p>4. Appeal and error, § 1705*—when objection not urged as ground for new trial is waived. On appeal from a judgment awarding a building contractor a recovery for labor and materials furnished under a building contract, an objection that the contractor had not obtained a city license is waived where such objection was not urged as a ground in defendant’s motion for a new trial.</p> <p>5. Building and construction contracts, § 105*—when modification of requested instruction not error. In an action to recover for work and materials performed under a building contract, trial court’s modification of instructions asked by defendant by inserting the words “substantially” and “reasonable,” held not error.</p>

<p>1. Appeal and error, g 775*—when bill of exceptions becomes part of the record. A hill of exceptions becomes a part of the record by being signed and sealed by the trial judge.</p> <p>2. Appeal and error, g 903*—when original bill of exceptions is incorporated in the transcript of record. The original bill of exceptions held properly incorporated in the transcript of the record by a stipulation of the parties, though the word “record” in the stipulation was used for and in the place of the words “transcript of the record.”</p> <p>3. Instructions, § 89*—when instruction on question of preponderance of evidence omitting number of witnesses reversible error. An instruction given for plaintiff advising the jury that the preponderance of the evidence does not consist alone in the greater number of witnesses testifying and then enumerating certain matters to be considered by the jury, omitting the number of witnesses testifying for and against,aTield reversible error.</p>

<p>1. Master and servant, § 125*—ditty as to safe appliances. The master is bound to use reasonable and ordinary care and diligence in providing reasonably safe and sufficient means and appliances for the use of his servants.</p> <p>2. Master and servant, § 161*—duty of master to inspect. The master’s duty to use reasonable care in providing safe appliances for the servant’s use is a continuing one, requiring him to use the same care to see that the appliances are kept in good condition while in use, and to that end to exercise reasonable care in supervision and inspection.</p> <p>3. Master and servant, § 166*—when master hound to Tcnow of defects in appliances. The master cannot avoid responsibility by merely showing that he did not know of a defect in the appliances furnished, since it was his duty to know if it could be discovered by reasonable care and diligence.</p> <p>4. Master and servant, § 211*—when master liable for negligence of coemploye. The master is liable for the negligence of a servant to whom he delegated the duty of furnishing or inspecting appliances and instrumentalities through which he carries on his business.</p> <p>5. Master and servant, § 211*—what constitutes delegation to fellow-employe of duty to supervise. Where in the performance of certain work on the outer wall of a high building defendant’s employes were required to use a swinging seat or scaffold suspended by a rope from the roof, a coworker of plaintiff, who discovered a rope in the attic of the building, and in response to a question to defendant’s “inside foreman” or superintendent, was told to use it if it was all right, was held to have been delegated with the duty of furnishing and supervising the safety of the rope.</p> <p>6. Master and servant, § 447*—when servant entitled to rely on care of master. The servant may assume that the master has discharged his duty to exercise reasonable care to furnish him with reasonably safe appliances, and has no duty of inspection to discover latent defects and dangers in such appliances which render his employment more than ordinarily hazardous.</p> <p>7. Master and servant, § 341*—when servant does not assume risk of defective appliances. The servant is charged with notice of such defects in appliances as the exercise of ordinary care would make manifest to him, but he does not assume the risk of defects of which he has no knowledge and which he cannot discover by the exercise of ordinary care, and of which the master has, or ought to have, knowledge—so held where an employe was injured by the breaking of a defective rope.</p> <p>8. Master and servant, § 572*—what inferences deducible from breaking of rope. Where a servant working on the outer wall of a high building on a swinging seat or scaffold, suspended by rope from the roof, was injured by the breaking of the rope, it was held that the jury might infer that the rope was not strong enough to withstand the strain put upon it from the fact that it broke.</p> <p>9. Master and servant, § 161*—when inference that defect was discoverable by inspection justified. Where an employe of defendant working on a swinging seat or scaffold suspended by a rope was injured by the breaking of the rope, it was held that the jury might infer that the weakness of the rope was manifested by its “fuzzy” condition, and that such condition might have been discovered .by a proper inspection before the rope was used.</p> <p>10. Master and servant, § 161*—what facts constitute notice of necessity for inspection. In an action by a servant to recover for injuries sustained on the breaking of a rope suspending a swinging seat or scaffold on which he was at work, it was held that the fact that the rope in question was found in an attic near a bottle of acid with a paper stopper was notice to defendant of the necessity for a careful inspection of the rope, especially since its rules provided that: "Acid must not be put in the same package with ropes in going to and from buildings and extreme care is urged to keep them from coming in contact.”</p> <p>11. Master and servant, § 826*—findings implied from general verdict. In an action by a servant for injuries sustained on the breaking of a rope suspending a scaffold on which he was employed, it was held that a verdict for plaintiff implied a finding that by such an inspection as defendant, in the exercise of reasonable care, should have made of the rope, under the circumstances disclosed by the evidence, it was provable that the defect in the rope would have been discovered; that the failure to make such inspection was negligence, and that such negligence was the proximate cause of plaintiff’s injury; and such finding was held to have been sustained by the evidence.</p> <p>12. Damages, § 124*—when verdict not excessive. A verdict for $13,200 in favor of an employe was held not to be excessive for injuries, due to the breaking of a rope suspending the scaffold on which he was at work, precipitating him a distance of seventy-five or eighty feet to the ground below, resulting in a comminuted fracture of the right leg at the knee, a fracture of the right wrist, cuts on the head and face, injuries to his back and one ankle, requiring the performance of three operations, and preventing him from working more than two days in fifteen months enabling him to work only two days in fifteen months.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard and Hon. Duane J. Carnes, Judges, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Injunction, § 162*—when issuance of temporary injunction without notice improper. On a bill by a wife to restrain her husband from collecting rent on certain realty, or collecting notes given to secure the payment of certain realty owned by complainant and defendant as cotenants, there being no allegation that defendant was insolvent nor any prayer for partition, and no allegations tending to show that defendant could have done anything which would have put complainant in a worse position if notice of the application for a temporary injunction had been given him, it was held error to grant a temporary injunction without notice.</p> <p>2. Injunction, § 180*-—when Mil multifarious. A bill by a wife seeking to restrain her husband from collecting rents on property held in common or collecting notes given to secure the purchase price of certain realty, and from using vituperative or threatening language or attempting violence to or towards complainant, is multifarious.</p>

<p>1. Judgment, § 657*—when direction of verdict in action on foreign judgment not error. In an action of debt on an Iowa judgment, a direction of a verdict for plaintiff held not error under the state of the pleadings.</p> <p>2. Appeal and erbok, § 1456*—when striking of pleas cannot he complained of. Striking of certain pleas of the defendant cannot be complained of where they would have availed defendant of nothing, there being nothing showing leave to file them and the action of the court being within its discretion, and it also appearing that all that could be claimed as material in such pleas was before the court in pleas that were allowed to he filed and to stand and which were successfully demurred to.</p> <p>3. Appeal and error, § 1361*—when refusal of leave to file plea not an abuse of discretion. Refusal of leave to file “a plea of payment and discharge” on the eve of the trial, almost five years after the suit was begun, and after defendant on six different dates, authorizedly and unauthorizedly filed pleas, held not an abuse of trial court’s discretion.</p> <p>4. Appeal and error, § 994*—when refusal of leave to file additional plea not presented for review. Refusal of leave to file an “additional plea” cannot be considered where such plea is not preserved or described in the record.</p> <p>5. Pleading, § 98*—when plea of nil debet demurrable. Demurrer to a plea of nil debet to a declaration in debt on a foreign judgment held properly sustained.</p> <p>6. Set-off and recoupment, § 2*—when plea of set-off is available. To make a plea of set-off available, the damages to be set off must be liquidated or they must spring from the same transaction that the action is brought on.</p> <p>7. Set-off and recoupment, § 10*—when claim for damages cannot to be set off in action on a judgment. In an action on a foreign judgment, pleas of set-off claiming damages for the conversion by plaintiff of certain collateral notes placed in plaintiff’s hands at the time defendant executed and delivered to plaintiff certain notes which were made the basis of the foreign judgment, held demurrable for the reason that the claim was for unliquidated damages and did not spring from the same transaction.</p> <p>8. Set-off and recoupment, § 10*—right to set off unliquidated damages against a judgment. Section 33 of the Practice Act, J. & A. j[ 8570, which provides that “demands upon simple contracts may be set off against demands upon sealed instruments, judgments and decrees,” has never been construed to change the rule that unliquidated damages may not be set off against a judgment.</p> <p>9. Set-off and recoupment, § 10*—when allegations of plea do not show damages liquidated. Allegations of a plea of. set-off that certain notes left with plaintiff by defendant as collateral were of a certain amount and represented “honest money due” to the defendant from the maker, and that the maker had sufficient means when they became due so that he could have been compelled by plaintiff to pay the notes, and that the maker afterwards became bankrupt and fled, held not sufficient to make certain and liquidated defendant’s claim for damages for -failure of plaintiff to collect from maker, the claim being necessarily unliquidated and dependent on the judgment of a jury upon the trial.</p>

<p>Abstract of the Decision.</p> <p>1. Garnishment, § 118*—when objection for defects in affidavit cannot be urged on review. Objections to an affidavit for garnishment that the jurat shows an omission of the concluding figure of the date and also an omission to give the official designation of the officer before whom the affidavit was sworn, that a wrong initial is used in the name of the bailiff who returned the execution, and that there is discrepancy of seventy-five cents in stating the amount of the debt, cannot be urged where ail the parties at one stage or another of the subsequent proceedings were before the court and no objection was made in the court below that the affidavit was insufficient or not properly sworn to.</p> <p>2. Garnishment, § 72*—when appearance by garnishee waives irregularities in process. Appearance by garnishee to a scire facias on a conditional judgment waives any preceding irregularities in the process by which he was brought before the court.</p> <p>3. Garnishment, § 116*—when invalidity of service of process and irregularities in conditional judgment do not render final judgment erroneous. Invalidity of service on garnishee on which a conditional judgment against him is found, and irregularities in the recitals of the conditional judgment, cannot be urged as a ground that the final judgment against him is erroneous, where he appeared and made answer to the scire facias after proper service of a summons upon him to show cause why a final judgment should be entered against him.</p> <p>4. Garnishment, § 118*—effect of failure to file Mil of exceptions. When no bill of exceptions is filed it cannot be urged that a final judgment against the garnishee is unwarranted because there is in the record no recital of evidence or finding of the judgment against the nominal plaintiff in favor of the beneficial plaintiff. In the absence of anything answering to a bill of exceptions it cannot be presumed that no evidence of such judgment as recited in the scire facias was given before the court.</p> <p>5. Garnishment, § 32*—when injunction against payment of funds to judgment debtor no defense to garnishee. In a suit in garnishment to recover money deposited with the garnishee by the judgment debtor, the fact that Circuit Court had issued an injunction against the payment by the garnishee to the judgment debtor in favor of his wife in divorce proceedings, held no defense to the garnishee against the rights of the judgment creditor.</p> <p>6. Municipal Court oe Chicago, § 34*—necessity of interrogatories in garnishment. In a fourth class case in garnishment in the Municipal Court the cause proceeds as it might before a justice of the peace without the filing of interrogatories.</p>

<p>1. Vendor and purchaser, § 336*—burden of proof in action for earnest money. In an action to recover earnest money paid on a contract for the purchase of real estate where the facts show that the vendor had put it out of his power to perform the contract by selling the property to another party, the burden is upon the vendor to prove a forfeiture under the terms of the contract.</p> <p>2. Vendor and purchaser, § 124*—what not a sufficient compliance mth contract as to abstract of title. Where a contract for the purchase of real estate required the vendor to furnish (1) a certificate of title issued by the registrar; or (2) a complete merchantable abstract of title or merchantable copy of such abstract of title brought down to date; or (3) a merchantable title guaranty policy, held that a letter of the Chicago Title & Trust Company was not a sufficient compliance.</p> <p>3. New trial, § 66*—wliat not ground for. Where a person who had entered into a contract to purchase real estate recovers a judgment against the vendor for the earnest money paid, the fact that such person had the contract recorded cannot be made the ground of a motion for a new trial where the vendor had at least constructive notice thereof at the time of the trial.</p> <p>4. Vendor and purchaser, § 329*—right of purchaser to recover earnest money. In an action to recover earnest money paid on a contract for the purchase of real estate, the fact that the purchaser had the contract recorded, held no defense. ■</p>

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

<p>1. Landlord and tenant, § 464*—place of payment and demand of rent. Where a lease provides that the rent shall be paid at the office of the lessee Company, held that the office hearing the name of another company having the same officers as the lessee Company was the office of the lessee mentioned in the lease at which the lessors could demand the rent, it appearing that the lease was signed at such office and that previous payments of the rent had been made therefrom in the name of the lessee Company.</p> <p>2. Landlord and tenant, § 79*—when notice of intention to declare a forfeiture for nonpayment of rent unnecessary. Under a provision in a lease that failure of lessee to keep the condition and covenants shall constitute a forfeiture of all rights under the lease and that a further occupancy thereunder shall be a forcible detainer of the premises by the lessee, no notice by the lessor of his intention to declare a forfeiture is necessary where the lessee neglected to keep a covenant to pay rent.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbob, § 990*—when error in ruling on motion for bond for costs not reviewable. Error in the action of the trial court on a motion to require plaintiff to file a bond for costs cannot be reviewed where no such motion appears in the record, nor the action of the court thereon.</p> <p>2. Appeal and ebbob, § 983*—when error in refusing to dismiss not reviewable. Error in refusing to dismiss a cause for failure to prove that plaintiff was a corporation is not reviewable where no motion therefor appears in the record.</p> <p>3. Appeal and ebbob, § 956*—what not reviewable on striking of statement of facts. Where the statement of facts was stricken from the record, the denial of a motion to dismiss for want of proof that plaintiff was a corporation cannot he reviewed, since it would be impossible to conclude that the court ruled, incorrectly.</p>

<p>Error to the Superior Court of .Cook County; the Hon. Clarence N. Goodwin, Judge, presiding.</p>

<p>Error to the Superior Court of Cook County; the Hon. Albert C. Barnes, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>Vagrancy, § 1*—when evidence insufficient to sustain conviction. Under the Vagrancy Act (Criminal- Code, ch. 38, sec. 270, J. & A. If 3962) an essential ingredient of the offense is that the person charged shall have “no lawful means of support” and shall be “habitually found prowling around any steamboat landing, railroad depot * * * store, shop or crowded thoroughfare, car or omnibus,” etc., hence where three police officers testified that defendant was a thief, but as to whether he had any lawful means of support they had no knowledge, there being no evidence that he was habitually found prowling about any of the places named, and defendant’s evidence showed' that he lived with his wife, children and mother, had been employed as a railroad laborer for several months preceding his arrest, had worked until noon on the day of his arrest and was arrested while sitting, in a cigar store about four o’clock in the afternoon, the evidence was held insufficient to sustain a conviction.</p>

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

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

<p>Error to the Criminal Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 26*—sufficiency of statement of facts. Certification of statement of facts held to substantially comply with clause 6 of section 23 of the Municipal Court Act, J. & A. 1Í3335, where the judge before whom the case was tried “certifies the foregoing to be a true and correct statement of the facts appearing upon the hearing in said cause, and the questions of law presented to the court during said hearing upon said facts,” it not appearing that any propositions of law were submitted by either party.</p> <p>2. Garnishment, § 100*—necessity of proof of judgment and an execution. Proof of the judgment and the issue and return of an execution is a condition precedent to garnishment proceedings, and in the absence of such proof a judgment in garnishment cannot be sustained.</p> <p>3. Garnishment, § 100*—proof of judgment. In garnishment, the judgment debtor cannot waive proof of the judgment upon which the proceedings are based, for any one except himself.</p> <p>4. Garnishment, § 35*—unearned salary. Section 5 of the Garnishment Act, J. & A. K 5940 does not authorize garnishment process against unearned .salary, and cannot be construed to reach the salary to be earned after answer made.</p> <p>5. Garnishment, § 35*—wages' earned after service of writ. Under section 14 of the Garnishment Act as amended in 1901, J. & A. U 5949, the employer is not required to answer for wages earned by a "wage earner" after the service of the writ.</p> <p>6. Garnishment, § 100*—when evidence as to earnings of employe after answer filed incompetent. In garnishment, evidence as to the earnings of the judgment debtor as an employe of the garnishee after answer filed is incompetent.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.</p>

<p>1. Master and servant; § 826*—when inconsistent findings construed as finding contributory negligence. In an action by a switchman for personal injuries a special finding deducting the sum of $5,000 from the total amount of damages, stating that it was “the proportion or just share thereof attributable to the negligence of plaintiff,” is necessarily a finding of contributory negligence, although the jury specifically found otherwise in another special finding, hence the verdict cannot stand on a common-law count.</p> <p>2. Commerce, § 4*—when relation of accident to interstate commerce must be shown. Where in an action under the Federal Employers’ Liability Act the effect which the accident had or tended to have upon interstate commerce is left wholly to conjecture, a verdict for plaintiff will not be permitted to stand.</p> <p>3. Commerce, § 4*—when employe not engaged in interstate commerce. The mere fact that a switching crew, of which plaintiff was a member, was engaged during the greater portion of the time in moving empty coaches engaged in interstate commerce does not bring the case within the Federal Employers’ Liability Act, where at the time of the injury plaintiff was engaged in moving to a coach yard, cars employed in intrastate commerce, and the accident, which occurred at a terminal station, in no way interfered with trains engaged in interstate commerce, entering or leaving the station.</p> <p>4. Commerce, § 3*—what is test under Federal Employers' Liability Act. In an action under the Federal Employers’ Liability Act the test of liability is not whether the carrier is one that engages in interstate commerce, but whether the act in which it was engaged at the time of injury to its employe constitutes or affects interstate commerce.</p> <p>5. Commerce, § 4*—when interstate commerce not involved in action under Federal Employers’ Liability Act. Where in an action by a switchman under the Federal Employers’ Liability Act it was shown that at the time of the injury plaintiff was engaged in moving from a railway terminal, at which interstate trains arrived and departed, certain empty cars used only in intrastate commerce, that the movement was on tracks in which there were no trains at the time engaged in interstate commerce, and that neither the movement nor the accident occasioned thereby tended in any way to impede or interfere with the movement of any train engaged in interstate commerce, it was held that the case was not within the act.</p> <p>6. Commerce, § 4*—when interstate commerce not affected by injury to employe. Where at the time of his injury, a switchman was employed in the movement of empty cars engaged only in intrastate commerce, the fact that under the usual schedule in the yards he would, if he had not been injured, have been engaged in the movement of trains engaged in interstate commerce about a half hour later, raises no presumption of itself, that his injury affected or had a tendency to affect interstate commerce.</p> <p>7. Appeal and error, § 1250*—when requesting special findings not a waiver of refusal of instruction.—Where in an action under the Federal Employers’ Liability Act defendants request that the court instruct the jury that it was not engaged in interstate commerce at the time of plaintiff’s injury was denied, error in denying same is not waived by the submission of special interrogatories thereon at defendants’ request.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon Judson P. Going, Judge, presiding.</p>

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

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

<p>Abstract of the Decision.</p> <p>Corporations, § 296*—when evidence insufficient to prove agreement for treasurer's salary. In an action against a corporation to recover a salary as treasurer alleged to be due pursuant to an agreement recorded in the minutes of defendant’s board of directors, a judgment for defendant was sustained, it appearing, that no such salary was provided by the corporation’s by-laws, nor by any resolution passed by the board of directors, that the minutes of the board did not disclose any provision for a salary and that no contract of any kind for such salary was proved by plaintiff.</p>

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

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

<p>Municipal Court op Chicago, § 19*—when court without jurisdiction to vacate judgment. Where on August 15th a motion was made in the Municipal Court to vacate a judgment by confession entered on August 7th and overruled, and October 17th following a motion to vacate the overruling order was made and granted and defendant thereupon moved the vacation of the judgment of August 7th, which motion, after a number of continuances, was overruled on November 16th, it was held that the last order was proper, since the motion not having been made within thirty days as provided in the Municipal Court Act, sec. 21, J. & A. j[ 3333, and no petition setting forth the grounds for such vacation having been filed, as provided in said section, the court lacked jurisdiction to enter an order of vacation.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.</p>

<p>1. Principal and agent, § 180*—when evidence shows liability of undisclosed principal. In an action to recover for automobile repairs, evidence held sufficient to show that the person ordering the work done was the agent of an undisclosed principal who was the real party for whom the work was done.</p> <p>2. Principal and agent, § 182*—liability of agent and undisclosed principal. Where an agent without disclosing his principal enters into a contract, he and also his principal are personally liable thereon, but there is no joint liability on the agent and the principal.</p> <p>3. Principal and agent, § 182*—when joint judgment against agent and undisclosed principal erroneous. In an action against an agent and his undisclosed principal for automobile repairs furnished to the agent, the defendants both denying joint liability, held that on failure of proof of joint liability a joint judgment against the defendants could not be sustained.</p> <p>4. Principal and agent, § 218*—necessity of election to proceed against agent or undisclosed principal. Where an agent makes a contract without disclosing his principal, if the principal is discovered the person with whom the contract was made must elect whether he will proceed against the agent or the principal.</p>

<p>Abstract of the Decision.</p> <p>1. Building and construction contracts, § 98*—admissibility of evidence. In an action against a contractor to recover damages for breach of a building contract which was in writing and apparently full and complete, the specifications as to the work being made a part of the contract, letters written by defendant to plaintiff weeks before the contract was entered into relating to entirely different plans, and plaintiff’s testimony as to conversations had with defendant prior to the making of the contract concerning the contemplated work, held improperly admitted in evidence.</p> <p>2. Evidence, § 319*—what not admissible to vary terms of written contract. Upon the signing of a contract all previous negotiations and conversations are merged into it, and they are inadmissible to alter or contradict it.</p> <p>3. Evidence, § 361*—when parol evidence admissible to construe words in building contract. Where a building contract provides that a certain sum shall be paid “when the building is plastered,” expert evidence offered to prove what condition the plastering must be in to fulfill the contract according to the recognized custom in the building trade, held erroneously excluded.</p> <p>4. Contracts, § 393*—when instruction as to performance of contract erroneous. In an action for breach of a building contract, part of an instruction given for plaintiff stated that if the jury “further believe from the evidence that the plaintiff has complied with her part of the contract, in so far as she could, then your verdict should be for the plaintiff.” Held that the instruction was erroneous in so far as it limited the duty of plaintiff to perform her part of the contract “in so far as she could.”</p> <p>5. Contracts, § 295*—excuse for nonperformance. One party to a contract cannot enforce it against the other unless he performs it on his part, and it is immaterial whether his failure to perform is due to wilfulness or misfortune.</p>

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

<p>Abstract of the Decision.</p> <p>1. Cabbiebs, § 381*—when carrier not liable for death of passenger due to collision with vehicle. Where the driver ot a venicle in backing his horses off the sidewalk caused the rear end of the wagon to collide with a street car causing injury to a passenger standing on the front step, which resulted in his death, and the evidence showed that the motorman did not have time to, prevent the collision by checking the car after the wagon began to back, it was held that a verdict against the street railway company could not be sustained.</p> <p>2. Roads and bridges, § 232*—when owner of vehicle liable for injury to passenger on street car. Where a driver in the employ of one of defendants, in backing his horses off the sidewalk caused the rear end of his vehicle to collide with a street car causing injuries to a passenger standing on the front steps, which resulted in his death, it was held that the evidence was sufficient to sustain a verdict against such defendant.</p> <p>3. Appeal and error, § 1736*—when decision on prior appeal not conclusive. The fact that a judgment against two defendants was reversed and remanded on a prior appeal is not conclusive as to the sufficiency of the evidence against one of the defendants on a subsequent appeal where additional evidence was introduced on the second trial.</p> <p>4. Appeal and erbob, § 1793*—when joint judgment must be reversed as to all defendants. Where in an action for wrongful death against two defendants the evidence is insufficient to sustain a judgment against one, the judgment being joint must be reversed as to both, although the evidence sustained the judgment against the other defendant.</p> <p>5. Appeal and error, § 1802*—when judgment to be remanded, on reversal. Where in an action for wrongful death against two defendants the evidence was insufficient to sustain liability on the part of one, the right of the Appellate Court to reverse with a finding of facts as to one appellant and to reverse and remand as to the other, on a joint judgment against both, being doubtful the cause will be remanded as to both.</p>

<p>1. Landlord and tenant, § 250*—who liable for injuries to third persons. As a general rule the occupant and not the owner is responsible for injuries to third persons occasioned by failure to keep the premises in repair.</p> <p>2. Landlord and tenant, § 250*—when landlord liable for injuries to third persons. Where the owner has covenanted to repair, or where the dangerous or defective condition of the premises causing injury to a third person existed at the time of the leasing, the landlord is liable.</p> <p>3. Landlord and tenant, § 251*-^—when tenant from month to month liable for injuries to third person. Where a pedestrian was injured by the breaking of an iron door in the sidewalk, permitted to become out of repair with the knowledge and during tenancy of the occupant of the abutting premises, the latter is not exempted from liability because holding only as a tenant from month to month, nor because of a promise of the owner to repair, there having been no covenant to repair.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John J. Stn> livan, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>Assumpsit, action of, § 71*—when recovery for partial performance of worlc not sustained by the evidence. In an action to recover for work and material furnished in constructing a machine for defendant, at his request, without any agreement as to the price or terms of payment, it appeared that defendant paid plaintiff a certain sum on account and later upon plaintiff’s application for a further payment the defendant refused to make the same, except on condition that plaintiff would complete and deliver the machine by a certain date at a total cost of not exceeding a certain amount, which terms the plaintiff refused to accept and he abandoned the work, held that the conditions imposed were impossible of performance, and that plaintiff was justified in abandoning the work and was entitled to recover upon a quantum meruit for the reasonable value of the material furnished and of the services performed, but that a judgment in favor of plaintiff could not be sustained for the reason that there was no evidence offered by plaintiff tending to show that the charge made by plaintiff for his labor and services was the reasonable and customary charge.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 50*—lohen evidence insufficient to show discharge of employe. In an action for breach of contract of employment by discharge without cause before the expiration of the term of employment, where plaintiff’s testimony that she was discharged was contradicted by defendant who testified that she had merely criticised her work, telling her that she would have to do better if she expected to continue her work, the latter testimony being corroborated by two witnesses, it was held that a verdict for plaintiff was against the clear preponderance of evidence.</p> <p>2. Master and servant, § 50*—when preponderance of evidence shows justifiable discharge. In an action for breach of contract of employment by discharge without cause within the term of employment, where defendant’s testimony as to the unsatisfactory character of plaintiff’s work was not contradicted, it was held that a clear preponderance of the evidence tended to show that the discharge was not wrongful.</p> <p>3. Master and servant, § 47*—who has burden of proving that discharge of servant was justified. The burden of showing good and sufficient grounds for discharge rests upon the employer invoking such a defense, when the servant has proved the contract, its performance up to the time of his discharge and his readiness to perform at the time of the discharge.</p> <p>4. Master and servant, § 48*—when prior contract of employment admissible in action for wrongful discharge. In an action for breach of contract of employment by wrongful discharge, a prior contract of employment between plaintiff and another is admissible where there is evidence that the terms of the present employment were to he determined by such contract.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, Presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Insurance, § 746*—when hy-laws of mutual insurance, company part of the contract. Where by the express terms of the certificate or policy of insurance the contract of insurance consists of the certificate, the application for membership, and the by-laws of the association, the hy-laws are a binding part of the contract, unless they are contrary to the laws of the State or of the nation, or inconsistent with the terms of the certificate.</p> <p>2. Insurance, § 746*—when by-law restricting liability enforceable as part of contract. A by-law of a mutual accident insurance company that there shall be no liability on the contract if death does not result in ninety days after the accident, held not unreasonable or inconsistent with the terms of the policy, and not in contravention of any law of this State.</p> <p>3. Insurance, § 710*—when statute requiring policy to state agreement inapplicable. Section 209, ch. 73, Hurd’s R. S. 1909, J. & A. 1f 6528, providing that policies insuring against loss of life resulting from accident shall state on their face the agreement with the insured, has no application to accident insurance on the assessment plan.</p> <p>4. Insurance, If 746*—when contingencies upon which insurance is to be paid need not be stated in the policy. Section 244, ch. 73, Hurd’s R. S. 1911, J. & A. If 6563, relating to life or accident insurance companies on the assessment plan, does not require that all the contingencies upon which insurance is to be paid should be stated in the policy or that the by-laws should not provide for certain other contingencies, upon the happening of which no part of the sum should be paid; it simply requires the corporation to specify the amount of its liability, and the time the same shall be due, in case the contract is not avoided by fraud or breach of its conditions.</p>

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

<p>Abstract of the Decision.</p> <p>1. Seáis, § 6*—defenses in action on sealed instrument. In the absence of a statutory provision permitting such defenses, want of consideration and total failure of consideration or other such defenses, cannot be shown in an action at law for tne purpose of barring a suit on a sealed instrument. The Negotiable Instrument „Act only makes such defenses applicable to negotiable instruments.</p> <p>2. Fraud, § 38*—when sealed contract cannot he abrogated for fraud in action at law. A contract under seal for the purchase of real estate cannot be rescindes or abrogated in an action at law for false and fraudulent representations by the vendor as to the quantity or quality of the property. Only fraud in the execution of a sealed instrument such as has induced the execution thereof of a character not intended to be executed may be pleaded and proved for the purpose of abrogating it and entirely defeating an action thereon without first resorting to a court of equity to have it declared void.</p> <p>3. Set-off and recoupment, § 18*—when recoupment permitted in action on contract under seal. In an action to recover a balance of purchase money due under a sealed contract for the sale of real estate, a defense in the nature of a counterclaim for damages resulting from false and fraudulent representations by the vendor as to the condition of the property is simply in mitigation of damages and not for the purpose of impairing the legal effect of the instrument sued on, and is permissible to entitle defendant to recover by way of recoupment.</p> <p>4. Set-off and recoupment, § 17*—when claims may he recouped. A claim originating in contract may by recoupment, in order to prevent circuity of action, be set up against one founded In tort, if the counterclaim arises out of the same subject-matter and is susceptible of adjustment in one action. So, also, may claims in contract or in tort be set up by recoupment against one founded in contract if the counterclaim arises out of the contract sued on, although the counterclaims are for unliquidated damages.</p> <p>5. Set-off and recoupment, § 4*—set-off and recoupment distinguished. Set-off may be allowed for liquidated damages arising ex contractu even to the extent of permitting a judgment for the defendant for the excess of his claim over that of the plaintiff. In recoupment the claim is merely allowed hy way of lessening the plaintiff’s damages, which may go to the extent of extinguishing plaintiff’s damages, but no judgment for any excess of the counterclaim over that of plaintiff’s claim can be given for the defendant.</p> <p>6. Vendor and purchaser, § 317*—when direction of verdict for plaintiff in action for purchase money is error. In an action to recover a balance due on a contract for the sale of real estate where defendant filed a counterclaim for damages resulting from false and fraudulent representations made by the plaintiff as to the condition of the property, action of court in excluding all of defendant’s evidence and directing a verdict for plaintiff held error, it appearing that defendant’s evidence tended to prove every element of fraud and deceit and that he was entitled to have a jury pass upon the merits of his defense.</p> <p>7. Vendor and purchaser, § 348*—measure of damages for false representations hy vendor. For fraud and deceit in inducing a person to purchase real estate upon representations that there was a certain number of fruit trees thereon, the measure of damages is the difference between the value of the land as conveyed to him and the same land with the number of fruit trees thereon as represented.</p>

<p>Abstract of the Decision.</p> <p>1. Architects and engineers, § 3*—when evidence sufficient to sustain claim for commissions. In an action by an architect for commissions, the evidence was held to sustain his claim that a contract was procured through an estimate and bid made by him, and that under an agreement with defendant he was entitled to commissions thereon.</p> <p>2. Appeal and ebbob# § 1410*—when judgment not reversed as against evidence. A judgment will not be reversed as unsupported by evidence unless clearly and' manifestly against the weight of the evidence.</p>

<p>Abstract of the Decision. .</p> <p>1. Automobiles and garages, § 2*—when owner of machine operated rapidly on wrong side of street liable for injuries to pedestrian. In an action for personal injuries by an infant, the evidence though disputed, tended to show that plaintiff, a boy between ten and eleven years old, while crossing a public street near its intersection with another street, with a roller skate on one foot, was struck and injured by an automobile truck running on the wrong side of the street at high speed. Held defendant’s negligence was for the jury.</p> <p>2. Roads and bridges, §. 228*—when pedestrian may expect compliance with law of the road. One crossing a public street may reasonably expect that danger from vehicles will arise only from persons driving in conformity with the law of the road.</p> <p>3. Instructions, § 7*—necessity for accuracy where evidence is conflicting. Where the evidence is conflicting as to the seriousness of the injury, instructions on damages must be accurate.</p> <p>4. Damages, § 25*—injury to personal appearances. In an action for personal injuries, injury to personal appearance is not a proper element of damages.</p> <p>5. Automobiles and garages, § 3*—when evidente of speed not incompetent because of vagueness. In an action for personal injuries inflicted by an automobile, testimony that the automobile “ran fast,” “ran very fast,” “ran mighty fast” is not wholly incompetent because of its vagueness, particularly where ^appellant’s evidence was to the effect that the automobile was “running slow.”</p>

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

<p>Abstract of the Decision.</p> <p>1. Carriers, § 148*—when computation as basis for damages for loss of grain in various shipments inadmissible. In an action against a railroad company for the loss of grain in transit on various shipments made by the plaintiff during a period of eight years, proof of the value of the grain lost by permitting a witness for plaintiff to testify as to a computation made by multiplying the total loss in each of the shipments by the average of the prices obtained for the grain which was delivered upon, the several dates when it was delivered, held inadmissible, and allowing such proof held reversible error, it appearing that the jury made the computation a basis for its verdict.</p> <p>2. Carriers, § 137*—proof of damages resulting from breach of contracts contained in various bills of lading. Where an action against a carrier is to recover damages for breach of contracts contained in various bills of lading, plaintiff is required to prove a breach of each contract and damages resulting therefrom and the question that each of the bills of lading constitute a separate and independent contract depends, to some extent at least,, upon the circumstances under which such bills of lading were issued.</p> <p>3. Municipal Court op Chicago, § 13*—when proof is limited to claim made by plaintiff’s statement. In the Municipal Court, where formal pleadings are not required, the name given to the action by the plaintiff is not necessarily decisive of the right to recover, but he is limited in his evidence to the claim he has made. He cannot make one claim in his statement and recover upon proof of another, without amendment.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and bbrob, § 849*—when exhibits sufficiently identified to become part of record. The fact that exhibits introduced in evidence at the trial appear after instead of above the judge’s signature to the stenographic report does not prevent them from being part of the record where so identified in the report as to show conclusively that they were the exhibits referred to therein.</p> <p>2. Appeal and ebbob, § 482*—when propositions of law unnecessary. Propositions of law are unnecessary where the only questions presented for review relate to pure questions of fact or to rulings of the court during the trial which were otherwise preserved.</p> <p>3. Appeal and ebbob, § 594*—when motion for new trial or in arrest unnecessary. Where the trial is by the court without a jury, no motion for new trial or in arrest of judgment is necessary.</p> <p>4. Appeal and ebbob, § 551*—when exception unnecessary. Under the amendment of 1911, Practice Act, sec. 81, J. & A. jf 8618, no formal exception is necessary to be shown where a stenographic report of the trial instead of a bill of exceptions is certified, filed and used as the record of the court of review.</p> <p>5. Municipal Coubt of Chicago, § 26*—when seal unnecessary to stenographic report. The signature of a Municipal judge to the stenographic report need not be under seal.</p> <p>6. Municipal Coubt of Chicago, § 26*—when certificate to stenographic report sufficient. Certificate to a stenographic report that it is a “correct stenographic report of proceedings in said cause” is not open to objection.</p> <p>7. Appeal and ebbob, § 1105*—when failure to give notice of filing of prcecipe not ground for dismissal. Failure to give the five days’ notice of filing prcecipe for record provided for in Practice Act, see. 81, J. & A. V 8618, is not ground for the dismissal of the appeal.</p> <p>8. Vendor and pubchaseb, § 332*—when tender of reconveyance at trial insufficient. Where the vendor of an automobile accepted a deed to certain realty in part payment of the purchase price, on condition that certain defects in title be removed within a specified time, or in lieu thereof á stipulated sum of money, in an action to recover such sum a tender of a reconveyance at the trial will not suffice, and the plaintiff’s remedy is confined to the recovery of damages for breach of contract to deliver a merchantable title.</p> <p>9. Vendor and purchaser, § 344*—measure of damages for defective title. The measure of damages for breach of contract to deliver a merchantable title is the difference between the actual value of the title delivered and its agreed value.</p>

<p>Abstract of the Decision.</p> <p>Bastabds, § 22*—sufficiency of evidence. In a bastardy proceeding, a finding that the defendant was the father of a bastard child held sustained by the evidence.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Tiieobobe Beentano, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 36*—when broker not entitled to compensation until deal consummated. Where under the contract with a broker the latter’s compensation is expressly made dependent upon the actual consummation of a trade, the fulfillment of the condition is a prerequisite to his right to recover compensation.</p> <p>2. Abstbacts of title, § 3*—when abstract insufficient without certificate from abstract company. Where under a contract for the exchange of land one of the vendors was to furnish a “proper” abstract within a certain time, and the abstract furnished was rejected because showing title in a person other than the vendor, and on being returned contained an inserted page showing a conveyance by the record owner to a person bearing a name similar to vendor’s, there being no certificate from the abstract company furnishing the abstract showing by whom such page had been inserted, such an abstract is not a “proper” abstract within the contract.</p>

<p>Abstract of the Decision.</p> <p>1. Automobiles and garages, § 1*—evidence constituting a prima face case of excessive speed. On information charging the driver of an automobile with violating the speed statute, testimony of a witness for the State that the defendant was driving on a boulevard in a residence district at a certain place at twenty-nine miles per hour and at another place at thirty-five miles, and that the automobile was a touring car and not an ambulance, held to make a prima facie case of a violation of the statute, and that it devolved upon defendant to overcome it by competent evidence.</p> <p>2. Automobiles and garages, § 1*—when evidence sufficient to sustain conviction for excessive speed. On information charging defendant with driving a motor vehicle in excess of fifteen miles per hour in violation of section 10 of the Motor Vehicle Law, J. & A. 1f 10010, held that the question whether the defendant violated the statute was for the jury, and that a finding of guilty was sustained by the evidence, it appearing from the testimony of witnesses on behalf of the People that the defendant was driving at a rate of from twenty-nine to thirty-five miles per hour on a boulevard in the residence portion of the city and defendant’s evidence showing that he was driving in excess of fifteen miles per hour but that his speed was slackened at street intersections and that his automobile was in good condition so that the machine could be stopped at any time within from fifteen to twenty feet.</p> <p>3. Municipal Court of Chicago, § 17*—oral instructions. Under section 37 of the Municipal Court Act, J. & A. If 3349, the court may within its discretion instruct the jury orally.</p> <p>4. Municipal Court of Chicago, § 28*—necessity of exception to specific portion of oral instruction. Objection that certain portions of an oral charge to the jury cannot be considered where the bill of exceptions does not show an exception to any specific portion thereof.</p> <p>5. Municipal Court of Chicago, § 17*—when court may refuse to give written instructions. The Municipal Court may refuse to give to the jury written requested instructions where it has determined to charge the jury orally.</p>

<p>Jury, § 32*—when error to deny leave to withdraw fury waiver. Where defendant waived a trial by jury before his arraignment and plea, it was error for the court to deny his application for leave to withdraw his jury waiver, which application was also made before arraignment and plea.</p>

<p>1. Commerce, § 3*—what to he proved in action under Federal Employers’ Liability Act. In an action under the Federal Employers’ Liability Act for the wrongful death of an employe, it is necessary for plaintiff to show that deceased was killed while defendant was engaged in interstate commerce and while deceased was employed in such commerce.</p> <p>2. Commerce, § 4*—what sufficient to show prima facie that decedent was engaged in interstate commerce. In an action for the wrongful death of a switchman caused by a fall from a train upon its being suddenly stopped, the evidence was held sufficient prima facie to bring the case within the Federal Employers’ Liability Act.</p> <p>3. Commerce, § 4*—how fact that employe was engaged in interstate commerce may he proved. In an action under the Federal Employers’ Liability Act for the wrongful death of an employe, the fact that decedent was at the time of the accident engaged in interstate commerce may be established by direct or circumstantial evidence, and defendant cannot attack the weakness of plaintiff’s evidence by contending that records in its possession which plaintiff did not introduce in evidence would have shown the destination of the cars in the train inflicting the injury.</p> <p>4. Evidence, § 40*—when failure to introduce evidence creates presumption against party. In an action under the Federal Employers’ Liability Act, the failure of defendant to introduce records in its possession which would have shown whether the train on which decedent was employed at the time of the accident, or any of the cars therein, was then engaged in interstate commerce creates a presumption against it.</p> <p>5. Master and servant, § 177*—when evidence sufficient to show negligence of engineer to stopping train suddenly. In an action under the Federal Employers’ Liability Act for the wrongful death of a switchman, the evidence was held sufficient to sustain plaintiff’s contention that the accident was caused by the negligence of the engineer in stopping the train with great force and violence thereby throwing decedent to the ground.</p> <p>6. Master and servant, § 349*—when negligence of fellow-servant not an assumed risk. In an action under the Federal Employers’ Liability Act for the wrongful death of a switchman caused by the negligence of the engineer in suddenly stopping the train with great force and violence, the doctrine of assumed risk is inapplicable.</p> <p>7. Master and servant, § 206*—when fellow-servant doctrine inapplicable. In an action under the Federal Employers’ Liability Act, the fellow-servant doctrine is inapplicable.</p> <p>8. Master and servant, § 801*—when instruction in language of statute not erroneous. In an action under the Federal Employers’ Liability Act, an instruction in the language of the section of the act upon which recovery was sought is not erroneous as permitting recovery on proof of negligence other than that charged, particularly where other instructions confined the jury to the negligence charged.</p> <p>9. Master and servant, § 801*—when instruction in language of statute need not include entire act. In an action under the Federal Employers’ Liability Act for the wrongful death of a switchman, an instruction in the language of the section of the act upon which a recovery was sought is not erroneous because another section of the act upon which no reliance was placed was not included therein.</p> <p>10. Master and servant, § 98*—effect of Federal Employers’ Liability Act. The Federal Employers’ Liability Act supersedes all State laws on the subject.</p> <p>11. Death, § 51*—when statutory restrictions on amount of recovery inapplicable. Since the provisions of the Federal Employers’ Liability Act limiting the right of recovery in actions for wrongful death to the pecuniary damages actually sustained by the next of kin of decedent place no arbitrary limit upon the amount recoverable, recovery may be had for the full pecuniary damages actually sustained by the next of kin independently of restrictions imposed by State laws on the amount of the recovery in such cases.</p> <p>12. Death, § 67*—when verdict not excessive. In an action under the Federal Employers’ Liability Act for the wrongful death of a switchman thirty-seven years of age at the time of his death, a verdict for $15,000 was held not to be excessive.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon Samuel C. Stough, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

<p>1. Covenant, action of, § 8*—propriety of pleas of nil debet and non damnificatus. In an action of covenant for breach of a contract under seal, pleas of nil dobet and non damnificatus held not adapted to the nature and form of the action nor conformable to a count in the declaration.</p> <p>2. Covenant, action of, § 1*—when action lies. Action of covenant will lie only on a contract in writing under seal.</p> <p>3. Covenant, action of, § 1*—when not proper form of action for breach of contract under seal. Action of covenant is not the proper form of action for breach of a contract under seal, if upon any ground it can be held that the agreement was modified by previous parol agreement on a point essential to the defendant’s liability.</p> <p>4. Pleading, § 115*—when plea not an admission of cause of action. A plea which sets up matter not well pleaded and is no answer to the declaration cannot be considered an admission of the cause of action stated in the declaration.</p> <p>5. Contracts, § 360*-—when issue cannot be talcen on a plea of performance. Plea of performance in an action on a contract under seal amounts to a plea of general performance when the declaration contains an assignment of a particular breach. Issue cannot be taken on a general plea of performance in such a case.</p> <p>6. Contracts, § 8*—when void for uncertainty. An agreement so vague and indefinite that it is not possible to collect from it the full intention of the parties is void.</p> <p>7. Contracts, § 8*—when contract for building uncertain. A written contract under seal whereby one party agreed to lease a building which the other party agreed to have erected upon plans to be drawn by third parties, held uncertain as to the kind of building the parties agreed should be built and that the party agreeing to lease could not recover for breach thereof, the writing making no reference to specifications and the sketch of the building and floor plan made before the execution of contract containing no sections or detailed drawings.</p> <p>8. Evidence, § 319*—presumption as to contract in writing. Where parties have put their engagements in writing, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing, and oral testimony of previous or contemporary conversations or declarations is rejected.</p>

<p>1. MumciPAi. Court of Chicago, § 13*—effect of filing amended statement of claim. The filing of an amended statement of claim, as distinguished from the amendment of a previously filed statement, is in effect a substitute for statements previously filed, and is regarded as the only statement of claim in the case.</p> <p>2. Limitation of actions, § 56*—when matters set up in amended statement of claim subject to bar. Matters set up in an amended statement of claim filed in an action in the Municipal Court are subject to the bar of limitations, since the effect of the filing of such a statement is to supersede previously filed statements.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 322*—what constitutes a breach of contract to furnish seaworthy boats in transportation of garbage. In an action on a contract for the transportation of garbage under which plaintiff agreed to furnish seaworthy boats, an affidavit of defense alleging that the boats furnished by plaintiff were not seaworthy and as a result one of them sank carrying with it garbage boxes owned by defendant City and obstructing the harbor, putting defendant to the expense of raising it, is sufficient to show a breach of contract by plaintiff.</p> <p>2. Set-off and recoupment, § 18*—when damages for "breach of contract may be recouped. In an action against a City on a contract for the transportation of garbage under which plaintiff agreed to furnish seaworthy boats, defendant may recoup damages caused by the sinking of one of the boats, owing to its being unseaworthy, carrying down with it garbage boxes owned by defendant, obstructing navigation and putting defendant to the expense of raising it.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard g. Ttjthill, Judge, presiding.</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>Abstract of the Decision.</p> <p>1. Judgment, § 87*—when entry of separate judgment after opening judgment 6y confession erroneous. Where a judgment by confession was, on motion, opened and defendant ordered to plead to the declaration, the judgment to stand as security, and a trial resulted in a verdict for plaintiff, the judgment should direct that the previous judgment continue in full force and effect, and the entry of a separate and independent judgment is erroneous.</p> <p>2. Appeal and error, § 1803*—when cause remanded for correction of judgment. Where a judgment by confession was opened and ordered to stand as security, and a trial resulted in a verdict for plaintiff on which a separate and independent judgment was entered, the entering of such judgment while the previous judgment was still of record constitutes ground for the remand of the cause to the court below for correction, but not for a new trial.</p> <p>3. Appeal and error, § 207*—when cause not reversed for giving of peremptory instruction orally. A cause will not be reversed for the giving of a peremptory instruction orally where the objection that the instruction was not in writing was not included in the grounds for a written motion for a new trial, nor in the assignment of errors.</p> <p>4. Appeal and error, § 1526*—when oral peremptory instruction harmless. The giving of a peremptory instruction orally is not ground for reversal where under the evidence no other verdict could properly have been returned.</p> <p>5. Brokers, § 71*—when failure to procure license not a defense to action on note for commissions. The fact that plaintiff, a broker, was not licensed, as required by the Chicago ordinances, is not a defense to an action on a note given for commissions in negotiating an exchange where the employment was in Wisconsin, the note given there and defendant’s property situated in that State, though the property for which it was exchanged was situated in Chicago and the conveyances in exchange made in that city.</p> <p>6. Bbokebs, § 84*—what evidence inadmissible in action for com- $ missions. In an action on a note given to a broker for commissions in negotiating an exchange of property, evidence of the rentals of the property acquired by defendant on the exchange is immaterial.</p>

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

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

<p>1. Mines and minerals, § 163*—when testimony of demand for props from driver inadmissible. In an action against a mining company for injuries sustained by a miner through the alleged negligence of the mine manager in failing to provide props, permitting plaintiff to testify that he made a demand for props of the driver of coal cars, without establishing a custom of permitting demands for props to be made upon drivers, held error.</p> <p>2. Instructions, § 89*—when instructions ignoring number of witnesses in determining preponderance of the evidence misleading. The giving of instructions on the preponderance of the evidence stating that by a preponderance of the evidence is not necessarily meant the greater number of witnesses and telling the jury what they may consider in determining such preponderance but omitting the number of the witnesses as an element to be considered, held reversible error in a case in which the number of the witnesses was an important factor.</p>

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

<p>Appeal from the County Court of Coolr county; the Hon. W. F. Slates, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>Assumpsit, action op, § 65*—when company liable for work and materials furnished on its request. In an action against a company to recover for labor and materials furnished in repairing a heating plant in a building occupied by it, at the request of the defendant through its president, held that the evidence was sufficient to show that the defendant was liable, and a judgment in favor of defendant was reversed.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 82*—when written declarations of agent of employer inadmissible. In an action to recover wages where the defense was that plaintiff had been discharged for cause, a letter signed by an agent of defendant stating that plaintiff’s services were satisfactory and that he was considered honest, industrious and reliable, held improperly admitted in evidence as an admission of defendant, where there was no affirmative evidence establishing the agency of the person writing it other than the declaration of the agent.</p> <p>2. Evidence, § 177*—declarations of agent. Declaration of an.'' agent to be admissible against his principal must be of his own ^ knowledge and not a mere expression of opinion.</p>

<p>Abstract of the Decision.</p> <p>1. Physicians and surgeons, § 24*—when entitled to recover for services rendered on request. In an action by a physician against a company to recover for medical services rendered at the request •if officers of the company in treating an employe, held that the cornpany was liable on ah implied contract to pay for such services.</p> <p>2. Physicians and surgeons, § 24*—admissibility of evidence. In an action by a physician against a company for medical services rendered at the request of officers of the company in treating an employe of the company, admission in evidence of a conversation, which was not communicated to the plaintiff, between an officer of the company and such employe, in which the officer of the corporation stated he would take care of the bill, held improper but not reversible error.</p> <p>3. Instructions, § 90*—when party not entitled to an instruction to disregard improper testimony. Where a party fails to make proper objections to improper testimony he has no right to have such testimony excluded from the consideration of the jury.</p> <p>4. Appeal and error, § 1560*—when refusal of requested instruction not error. In an action to recover for medical services, refusal of defendant’s requested instruction to the effect that the jury must disregard testimony as to the value of the services not based upon charges customarily and ordinarily made by other surgeons in the vicinity, held not error for two reasons First, that the court gave an instruction at the request of the defendant disregarding évidence not based on customary charges; and second, that the evidence was improperly admitted without specific objection.</p> <p>5. Appeal and error, § 508*—when objection to evidence admitted not preserved by general objection. On appeal from a judgment for medical services, an objection that testimony admitted on behalf of plaintiff as to the value of plaintiff’s services should have been directed to what was the customary and ordinary fee charged by physicians at the place for services of like character, cannot he considered where the objection to the questions asked was general and did not specify the particular ground.</p>

<p>1. Dismissal, nonsuit and discontinuance, § 2*—who entitled to dismiss party defendant. After the joinder of issue the plaintiff alone has power to dismiss a party defendant out of the case.</p> <p>2. Carriers, § 30*—when initial carrier cannot complain of joint action under Garmaelc amendment. Where, in an action against both the initial and connecting carriers for damage to goods in transit, a dismissal was entered as to the latter, the former cannot complain of a judgment against it on the ground that under the Carmack amendment to the Interstate Commerce Act the action lies against the initial carrier alone, and that plaintiff, having elected to pursue both carriers jointly, was bound to establish joint liability, since on the dismissal of the connecting carrier the action stood as though based on a claim of single liability.</p> <p>3. Carriers, § 30*—effect of Oarmack amendment. Since the Carmack amendment, a carrier undertaking the carriage of an interstate shipment cannot limit its liability to its own line but is liable for loss or damage occurring anywhere en route.</p> <p>4. Carriers, § 30*—when initial carrier cannot complain of dismissal of connecting carrier in action under Oarmack amendment. Where, in an action against both the initial and connecting carriers for damages to goods in transit, a dismissal was entered against the latter, the former cannot complain of a judgment against it on the ground that plaintiff had elected to pursue both defendants jointly and hence it could not be held liable under the Carmack amendment, where it made no claim of surprise, but instead took issue on allegations warranting proof of liability under that amendment and introduced no evidence in defense.</p> <p>5. Carriers, § 30*—effect of Oarmack amendment on burden of proof. In an action under the Carmack amendment for damage to an interstate shipment, principles governing the burden of proving on what line the damage occurred are inapplicable.</p> <p>6. Carriers, § 137*—what creates presumption of injury during transit. Where the consignee of goods refused to accept the same from the connecting carrier on finding them damaged in part, because of the refusal of the carrier to deliver until a receipt reciting the property was received in good order was signed by the consignee, in an action against the initial carrier under the Carmack amendment the latter cannot complain that the act of the connecting carrier constituted a conversion for which it was not liable, since proof that the goods were in a damaged condition on arrival was sufficient to justify the presumption that they were damaged en route.</p>

<p>Abstract of the Decision.</p> <p>Municipal Court of Chicago, § 13*—when affidavit of merits in suit on note improperly stricken. In an action on a promissory note given for $250, defendant. filed an affidavit of merits stating that plaintiff and defendant jointly guarantied the payment of a certain note for $400, with the understanding that plaintiff was to get a third party to join in the guaranty; that the plaintiff forged the name of the third party to the guaranty, and after-wards paid the note; that the defendant, ignorant of the forgery and supposing he had the right of contribution from the third guarantor, by way of adjustment of his liability to plaintiff for paying said note, guarantied the payment of another note given to the plaintiff by the same maker for the same amount; that the defendant paid plaintiff $150 and claimed to owe him only $50 more on the transaction, making in all one-half of the original sum paid by the plaintiff on their joint guaranty. Held, that the court erred in striking the affidavit from the files, that enough appears in the affidavit to justify the conclusion that the note was given for a balance due on the note to plaintiff for $400 after defendant paid $150, and that there appeared to be no liability from the defendant to plaintiff except for what the latter could require by way of contribution for satisfying their joint guaranty.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Libel and slander, § 100*—when count in declaration demurrage. In an action for libel, a count in the declaration alleging that the libel accused plaintiff of asking payment of a bribe as a building inspector, held demurrable for the reason that it contained no inducement or colloquium, and lacked the averments that there was an office in the city of building inspector; that the plaintiff was such inspector and had such duties to perform; that the building was in the city and that a permit was necessary; and that the city had provided by ordinance rules relating to the erection or alteration of buildings, and there was no averment that any fee was required for a permit.</p> <p>2. Libel and slander, § 96*—necessity of inducement. Where a count is totally lacking in the inducement, the requirement of an inducement cannot be supplied in those portions of the count called the innuendos.</p> <p>3. Limitation oe actions, § 67*—when amended count in declaration does not set up new cause of action. An amended count in an action for libel does not set up a new cause of action where the cause of action stated in both the original and amended counts refers to the publication of the same alleged libelous matter.</p>

<p>Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Municipal Court op Chicago, § 29*—when striking affidavit of merits and claim for set-off from files is error. In an action to recover pay for publishing advertisements, defendant filed an affidavit of merits alleging that the defendant in pursuance of a written contract with plaintiff purchased a contract for advertising space in another publication subsequently absorbed by plaintiff and alleging that it was the duty of plaintiff to publish advertisements for defendant and apply the charges on the contract for space purchased by defendant. Defendant also filed a claim of set-off for breach of contract. Held that the court erred in striking the affidavit of merits and the claim of set-off from the files.</p> <p>2. Set-oee and recoupment, § 10*—when claim for set-off not for unliquidated damages. A claim of set-off for breach of contract to publish advertisement held not for unliquidated damages, where there was no conflict as to the value of the space used or as to how much in dollars and cents the space used represents, and the amount still due under the contract being a mere matter of subtraction.</p> <p>3. Appeai and ebror, § 969*—when written instrument not presented for review. A writing which was not introduced in evidence and nowhere preserved in the record is not presented for review.</p>

<p>Abstract of the Decision.</p> <p>1. Automobiles and garages, § 4*—when automobile firm liable on unsigned contract for sale and exchange of machines. A person desirous of trading his automobile for another negotiated with an automobile firm and a written proposal was submitted to him in which he was to be allowed a certain amount for his machine. Such party on inspection of the papers made some changes and interlineations as to matters of minor consequence and the proposal was signed by him and by a salesman in the trade name of the firm with the understanding that because of the changes and interlineations the papers should be rewritten and returned to the purchaser for signature. The corrected copy was never delivered and the members of the firm refused to comply with the agreement claiming they were not hound by the signature of the salesman. Held that the members of the firm were hound by the proposal though they had not affixed their signature thereto, it appearing that they affrmatively expressed their assent thereto and had acted thereon in negotiating with a customer for the sale of the contemplated purchaser’s machine.</p> <p>2. Contracts, § 53*—when party not signing is bound. A contract signed by only one of the parties is mutual and binding on both, if the other party, upon its delivery to him, assents to its terms and holds and acts upon it as a valid agreement. *</p>

<p>1. Municipal Court of Chicago, § 13*—when affidavit of merits may be stricken. In an action for damages for breach of a written contract for the sale and purchase of bonds, defendant’s affidavit of merits stating that the delivery of the instrument was conditional and that there was a certain additional contractual- relation held properly stricken from the files on the ground that such matters could not be established by parol evidence.</p> <p>2. Evidence, § 336*—when parol evidence as to delivery of written instrument admissible. While parol evidence is competent for the purpose of showing whether or not a written instrument was legally delivered, such evidence is incompetent for the purpose of showing that a written instrument legally delivered was not to become operative until the performance of some condition.</p> <p>3. Evidence, § 333*—when parol evidence as to considération of written agreement admissible. Where the question involved relates solely to the amount or character of the consideration recited in the written instrument, parol evidence is competent to show the true consideration, but an acknowledgment of the payment of a stated consideration cannot be contradicted by parol evidence for the purpose of invalidating the instrument.</p> <p>4. Evidence, § 319*—when parol evidence inadmissible to prove an additional contractual relation. Where a written agreement involves the mutual promises of the parties thereto and the performance by them of certain contractual acts, proof of an oral agreement for another and additional contractual relation would be to vary the contractual terms of the written instrument by parol evidence.</p>

<p>Error to the Superior Court of Cook county; the Hon. William H. McSttrely, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final.)</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 191*—when duty of master to warn servant. In an action for wrongful death of a servant resulting from ordering the servant to climb an electric light pole for the purpose of spiking a brace to the same, held that the master was chargeable with knowledge of the defective and dangerous condition of the cut-out box and that it was incumbent upon it to warn the deceased of such defect and danger, it appearing that deceased was merely a common laborer unfamiliar with the special hazards incident to the place he was directed to work.</p> <p>2. Master and servant, § 126*—duty to furnish safe place to work. In an action for wrongful death of a servant, held the fact that the work was performed on the premises of another did not relieve the master of the obligation to inspect nor of his duty to furnish a safe place to work.</p> <p>3. Master and servant, § 777*—when refusal of requested instruction proper. In an action for wrongful death of a servant, an instruction requested by defendant held properly refused, for the reason that it wholly ignored the duty of the defendant to warn deceased?' of the dangers incident to the place he was directed to work, and also for the reason that it singled out a particular fact in the case and directed the jury as a matter of law that such fact did not warrant a recovery.</p> <p>4. Negligence, § 49*—proximate cause. The rule that to constitute proximate cause it must appear that the injury complained of was the natural and probable result of the negligence charged does not necessarily mean that the person guilty of a negligent act or omission might have foreseen the precise form of the injury</p> <p>5. Death, § 67*—when verdict for $8,000 not excessive. A verdict for $8,000 held not excessive for wrongful death of a person thirty years old, leaving a widow and child surviving, it appearing that he was a healthly and industrious worker of good habits and was earning $1.80 to $2.00 a day and had previously earned $18 a week doing plumbing work.</p> <p>6. Appeal and ebrob, § 1256*—when appellant cannot urge errors in instruction requested by coparty. In an action against two defendants where plaintiff properly recovered a judgment against one, errors in instructions given at the request of the other defendant in a contest to shift liability, held not chargeable to the plaintiff.</p> <p>7. Appeal and error, § 1214*—effect of errors in rulings between coparties. Ordinarily, where a plaintiff properly recovers a judgment against one of two defendants, he is not concerned in the question whether or not the court erred in its rulings between the two defendants.</p>