Volume 187 — Illinois Appellate Court Reports

<p>Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Pbincipai, and agent, § 23*—when defense as to amount of sales not available in suit for wrongful discharge. In an action by an agent for his wrongful discharge from employment, a defense that plaintiff did not sell a certain amount of defendant’s goods “during the first year” as required by the contract, held not available, where the first year of the contract had not ended and it appeared that such provision of the contract was waived by defendant.</p> <p>2. Pbincipai, and agent, § 13*—when defense of unauthorized sales on credit not sustained by the evidence. In an action by an agent for wrongful discharge, a defense that plaintiff made sales to persons whose credit had not been previously approved by the defendant, held, not supported by competent proof, where the only thing in the record relating to it is an assertion in one of defendant’s letters to plaintiff that sales made to two firms were contrary to instructions and that they had been charged to his account, and there was no affirmative proof of what instructions were given or how they were violated, also held, proof insufficient to support defense of “special offers” and sales without defendant’s sanction.</p> <p>3. Evidence, § 165*—when letters amount to hearsay or self-serving declarations. In an action by an agent against his principal for wrongful discharge from employment, letters from defendant to plaintiff before and after the discharge and letters received by defendant from third persons, purporting to give information of “guaranteed sales,” and other irregularities of plaintiff, held to amount to hearsay or self-serving declarations on the part of defendant and incompetent as against plaintiff, except in so far as plaintiff’s letters could be construed as an admission of their contents.</p> <p>4. Damages, § 61*—measure of damages when agent wrongfully discharged by his principal. "Where an agent was employed for a term of years to introduce new commodities into a new field under a contract whereby he was to receive a commission on goods actually sold, pay his own expenses, employ his own men, and maintain an office at his own expense, the measure of damages for his wrongful discharge may be based on what he might earn during the unexpired term of his contract so as to include future profits, and damages need not be confined to proof of commissions earned before and owing at the time of the commencement of the suit.</p> <p>5. Municipal Court oe Chicago, § 8*—jurisdiction of attachment in aid. The Municipal Court is not without jurisdiction to issue a writ of attachment in aid in a case of the first class or where the damages are unliquidated, there being no such restriction in sections 19 and 28 of the Municipal Court Act, J. & A. Iff 1928, 3340, nor in section 31, ch. 11, R. S., J. & A. 1f 622.</p> <p>6. Evidence, § 58*—when proof of a custom competent. In an action by an agent for wrongful discharge from employment, where the defense was that the agent had without authority made “guaranteed sales,” proof of a custom in defendant’s business of making such sales at the time of entering into the contract of employment, held competent to show that a guaranty was included in the terms, where the contract authorized sales upon the terms granted to the trade.</p> <p>7. Instructions, § 110*—when not objectionable as sanctioning a misjoinder of claims. In an action by an agent for wrongful termination and breach of contract of employment, an instruction given for plaintiff telling the jury that the determination of the question whether there were commissions due for sales actually effected by plaintiff before the termination of the contract, was not affected by the question whether the contract was rightfully or wrongfully terminated, held not amendable to the criticism of sanctioning a misjoinder of claims, as the refusal to pay and commissions was one of the breaches of the contract for which recovery could be had in the suit.</p> <p>8. Appeal and error, § 1241*—when erroneous instruction cannot be complained of. Appellant is in no position to complain of an instruction as improperly submitting a certain question to the jury where instructions given at his request submitted the same question.</p>

<p>1. Municipal Court op Chicago, § 26*—sufficiency of statement of facts. Under section 23 of the Municipal Court Act, J. &. A. IT 3335, a statement of facts must include the facts appearing on the trial, the questions of law involved and the decision of the court upon such questions of law, and when presented to be signed should be certified as, or at least appear to be, correct.</p> <p>2. Municipal Court op Chicago, § 26*—when statement of facts insufficient. A so-called statement of facts not certified to by the trial judge as correct and containing nothing more than a recitation of testimony of several witnesses, held not to constitute such a statement as is required by section 23, par. 6 of the Municipal Court Act, J. &. A. V 3335.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

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

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

<p>1. Mortgages, § 163*—effect on right to foreclose where transfer of securities is ultra vires. Where the legal holder of promissory notes secured by trust deed sells the same to a building and loan association and both are made party complainants to a bill to foreclose the trust deed, held that though the attempted purchase of the securities by the association was ultra vires and void, the legal owner was entitled to a decree of foreclosure under the bill.</p> <p>2. Pleading, § 319*—effect of reckless verification by solicitor. The reckless verification of pleadings by a solicitor should not add anything to their evidentiary value against a party who is shown to have had no knowledge whatever of the averments contained therein.</p> <p>3. Corporations, § 342*—effect where attempted purchase of notes secured by mortgage is ultra vires and void. Where an attempted purchase by a building and loan association of promissory notes secured by a trust deed is ultra vires and void, the title remains in the legal holder the same as though no such transfer had been attempted.</p> <p>| 4. Novation, § 1*—when transaction does not constitute. Where a building and loan association makes an attempted purchase of promissory notes secured by a trust deed which is ultra vires and void, so that title remains in the legal holder, the fact that the mortgagors made payments of interest to the association for several years does not constitute a novation so as to create a new contract between the mortgagors and the association, which would be also ultra vires and void and thereby defeating the right of the legal holder to maintain foreclosure suit.</p> <p>5. Novation, § 1*—essentials. To constitute a novation, there must be a substitution of a new contract for an existing one, and the substitution must be made by contract to which all the parties to the old as well as the new contract must actually consent.</p> <p>¡ 6. Novation, § 1*—essentials. The original agreement of which novation is sought must be absolutely extinguished and a new agreement substituted for it, and the new agreement must be a valid, binding and enforceable contract.</p> <p>. 7. Mortgages, § 443*—when holder of notes need not be made party in individual capacity. Where the legal holder and owner of notes secured by a trust deed files a bill in the capacity of trustee to foreclose, he is entitled to a decree of forclosure as holder and owner of the notes and trust deed, though he was not a party to the bill in his individual capacity.</p> <p>8. Equity, § 145*—when bill may ask for alternative relief though the theories are inconsistent. Under proper circumstances a bill in equity may be so framed as to ask for alternative relief even though the two theories are inconsistent with each other, provided the facts alleged show the complainant to be entitled to the relief sought by which every aspect of the case the court finds is sustained by the proof.</p> <p>9. Mortgages, § 439*—effect of averments in bill os to whose use bill was filed. The fact that a bill filed by the trustee for foreclosure contains a prayer for a decree finding that a co-complainant was equitably entitled to the money when collected, or any other prayer or averment with reference to whose use the bill was filed, is wholly immaterial to the question of the trustee’s right to foreclose.</p> <p>10. Mortgages, § 650*—when mortgagor cannot complain of decree directing trustee to hold proceeds for use of another. On appeal to review a foreclosure decree, a mortgagor cannot complain that the decree is erroneous in directing that the trustee receive and hold the money collected for the use of another party complainant, since such question does not concern the mortgagor.</p> <p>11. Mortgages, § 670*—when master’s fees excessive. Amount allowed as master’s fees in a foreclosure proceeding where there was an original and re-reference to the master, held unwarranted and unreasonable.</p> <p>12. Mortgages, § 632*—when foreclosure decree awarding execution for deficiency erroneous. Language in a foreclosure decree purporting to be a final order for execution against the mortgagor for a deficiency is erroneous, since no such execution can be awarded until a personal deficiency decree has been entered after the foreclosure sale.</p> <p>13. Mortgages, § 427*—limitations. The payment of interest on a promissory note tolls the statute of limitations, and a suit to foreclose a trust deed securing such note may be begun at any time within ten years after the last interest payment is made.</p> <p>14. Limitation of actions, § 83*—when rule that new promise must be made to legal holder of obligation inapplicable. The rule that when a debt is barred by the statute of limitations a new promise in order to revive the obligation must be made to the legal holder of the obligation, or to his agent, is not applicable where the statute has not run against the debt, for the reason that it has been recognized as an existing obligation by the payment of interest.</p>

<p>Abstract of the Decision.</p> <p>1. Payment, § 29*—when finding as to payment of wages sustained by the evidence. In a suit for wages where the defense was that plaintiff had been paid all that was due him for wages earned before a certain date, and defendant introduced in evidence a written receipt and acknowledgment executed by the plaintiff to a company of which the defendant was a partner, purporting to show plaintiff was paid hut plaintiff claimed he did not receive payment, held, that a finding for plaintiff was sustained by the evidence, it appearing that the written acknowledgment and receipt was executed to release plaintiff’s claim against the partnership at the time of its dissolution but not as against the defendant who continued the business.</p> <p>2. Appeal and erp.ok, § 1410*—when findings on questions of fact should not he disturbed. The findings of a jury, or of a trial judge without a jury, should not be set aside by a reviewing court unless they are clearly and manifestly against the weight of the evidence.</p>

<p>Error to the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p> <p>Certiorari dismissed for want of jurisdiction.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 380*—when vendee entitled to loss of profits resulting from nondelivery. In an action by a clothing firm against a manufacturer of clothing to recover damages for failure of defendant to deliver certain goods ordered through defendant’s sales agent, held that the loss of profits which would have accrued from plaintiffs’ resale of the goods ordered was a proper measure of damages, it appearing that defendant accepted the order with knowledge that the goods so ordered had been sold to plaintiffs’ customers and that by reason of defendant’s failure to supply the same plaintiffs were required to purchase goods on the market at a price in excess of the contract price to supply their customers upon the orders taken.</p> <p>2. Sales, § 376*—rule as to when profits constitute measure of damages. Though ordinarily, where a vendor fails to comply with his contract to sell and deliver certain goods at a fixed price, the measure of damages in an action by the vendee is the difference between the contract price and the value of the goods in the market at the time and place of delivery, yet where the vendor knows that the vendee has an existing contract for a resale at an advanced price, and that the purchase is to fulfil such contract, and the vendor agrees to supply the goods to enable the vendee to perform his contract, profits which would accrue to the vendee upon performing the contract of resale may properly be said to have entered into the contemplation of the parties in making the contract, and such profits constitute a proper measure of damages.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p> <p>Certiorari denied by Supreme Court (making opinion final.)</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p> <p>Certiorari denied by Supreme Court (making opinion final.)</p>

<p>1. Master and servant, § 410*—when order does not relieve from assumption of risk or contributory negligence. A general order or direction to an employe to do certain work for which he is employed and with which he is familiar, leaving the method of performance to the employe, is not such an order as will relieve him from the law of assumed risk or of the law of contributory negligence. To have the effect to, relieve him of the law of assumed risk the order must be specific to do a particularly dangerous act outside the line of his employment, or to do a particular work in a particular manner calculated to cause him injury.</p> <p>2. Master and servant, § 191*—duty to warn servant. It is the duty of the master to exercise reasonable care to give his employe due and timely warning of all the dangers and hazards of his employment that are not open and obvious only in such cases as the employe is ignorant of such dangers and hazards.</p> <p>3. Master and servant, § 312*—what hazards assumed. The servant assumes all the ordinary risks or hazards of his employment that are usually incident to it, and the extraordinary hazards of which he has notice, or which in the exercise of his faculties he ought to have noticed.</p> <p>4. Master and servant, § 810*—when instruction on assumption of risTc erroneous. An instruction telling the jury “that while the plaintiff assumed all the ordinary risks or hazards incident to his employment of which he was informed, or by- the exercise of reasonable care he could have informed himself,” held erroneous.</p> <p>5. Master and servant, § 779*—when instruction on question of negligent order not warranted. Where there is no proper count in the declaration based upon a negligent order of the master’s foreman, and no evidence upon which to predicate a finding that a negligent order was given, the giving of an instruction as to the law in ease of a negligent order is error.</p> <p>6. Master and servant, § 862*—when instruction on duty to warn servant erroneous. An instruction stating that it is the duty of the master to exercise reasonable care to give his employe due and timely warning of all dangers and hazards of his employment that are not open and obvious, held erroneous because not qualified by limiting it to all such dangers of which the employee was ignorant.</p> <p>7. Master and servant, § 777*—when instruction stating abstract propositions of law prejudicial. The giving of an instruction which states a mere abstract proposition of law not directly applicable to the case, and undertaking to state in abstract propositions when a verdict should be given against the master for personal injuries, held prejudicial error.</p> <p>8. Master and servant, § 777*—when modification of instruction erroneous and misleading. An instruction “that if you believe from the evidence in this case that the negligence of a fellow-servant of the plaintiff, either alone or combined with the negligence of the plaintiff, was the proximate cause of the injury, * * * you should find the defendant not guilty,” held proper, and the giving of the same with a modification added in these words: “Unless the master was also negligent and that such negligence, if any, combined and co-operated with the negligence of a fellow-servant to bring about the injury and that the plaintiff was in the exercise of ordinary care for his own safety,” held misleading.</p>

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

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 797—when refusal of requested instructions error. In an action against a railroad company for injuries sustained by a switchman alleged to have resulted in obeying an order of a conductor to stop a moving car, requested instructions stating in substance that if the jury find from the evidence that in obeying an order of the conductor, the plaintiff was injured, not by reason of any directions in the order itself but by reason of the manner in which he performed the order, then the jury should find the defendant not guilty, held to state a correct proposition of law, and refusal to give the same held error.</p> <p>2. Master and servant, § 803*—when instruction as to assumption of rish and contributory negligence in obeying an order erroneous. An instruction on the question whether a servant assumed the risk or was guilty of contributory negligence in obeying a specific order of an employe he was bound to obey, which treated the defenses of assumed risk and contributory negligence as having the same meaning, and directed as a test to be applied to each whether the danger was so great that an ordinary prudent person would have obeyed such order or attempted to perform such act, held erroneous for the reason that such test was not applicable on the question of assumed risk, where it was a question for the jury whether the order was to perform an act in the scope of the servant’s employment</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Negligence, § 126*—necessity that due care on part of plaintiff he averred and proved. Before a plaintiff can recover damages for an injury caused by the defendant’s negligence, he must aver and prove that he was himself in the exercise of due care.</p> <p>2. Negligence, § 126*—degree of care required to he alleged and proved in suit hy a minor. In an action brought in behalf of a minor over seven years of age to recover damages for injuries caused by defendant’s negligence, it must be averred and proved that plaintiff was in the exercise of such care as a child of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances.</p> <p>3. Negligence, § 196*—when proximate cause a question of law. The question of proximate cause is a question of fact for a jury where an issue is formed and a trial had, with evidence on that issue, but where the question is presented by a demurrer to the declaration followed by judgment on the pleadings, it becomes a question of law.</p> <p>4. Negligence, § 124*—when declaration not demurrable. In an action by a minor to recover damages for personal injuries alleged to have resulted from a sale to him of a toy firearm forbidden by ordinance, held that the declaration was not demurrable on the ground that the facts alleged did not show that the sale was the proximate cause of the injury.</p> <p>5. Weapons, § 1*—what constitutes toy firearms within meaning of ordinance. A toy air-gun held to be a toy firearm within the meaning of an ordinance forbidding the sale to minors of “any gun, pistol, or other firearm, or any toy gun, toy pistol, or other toy firearm, in which any explosive substance can be used.”</p>

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

<p>Abstract of the Decision.</p> <p>1. Brokers, § 93*—when plaintiff’s evidence sufficient to require submission of questions to jury. In an action to recover commissions for procuring a purchaser for all the capital stock of a corporation of which the defendant was president, evidence introduced by plaintiff held sufficient to go to the jury on the questions whether defendant made false representations as to the property and as to his ability to deliver all the stock, whether plaintiff relying on such representations had obtained a purchaser ready and willing to buy the property upon the stipulated terms and upon the basis that defendant’s representations were approximately true, and whether the defendant was in default on his contract with plaintiff, and the action of court in directing a verdict for defendant held error.</p> <p>2. Evidence, § 338*—lohen parol evidence admissible. Where an agreement in writing is expressed in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms.</p> <p>3. Evidence, § 359*—when parol evidence admissible. Although it is not competent to contradict or enlarge the terms of a written agreement by parol evidence, it is competent to resort to parol evidence in order to ascertain the nature and qualities of the subject to which the instrument refers.</p> <p>4. Evidence, § 185*—when declarations of agent admissible. Relevant declarations of an agent, provided they are within the scope of his authority and in the course of the negotiations to which they refer, hut not otherwise, are admissible in evidence against the principal.</p>

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

<p>1. Insane person, § 31*—liability of sureties on. conservator’s bond for performance of duties in administering ward’s "éstate. Sureties on the bond of a conservator are liable for the faithful performance by the conservator of the new duties imposed upon him by the amendment of 1895 to section 9, chap. 86, R. S., J. & A. V 7293, authorizing a conservator on death of his ward to administer the estate without further letters of administration.</p> <p>2. Insane person, § 28*—effect of statute authorizing conservator to administer ward’s estate. Amendment of 1895 to section 9, chap. 86, R. S., J. & A. If 7293, authorizing a conservator on death of his ward to make final settlement and distribution of the estate without further letters of administration, held not to create a new office but to simply provide for the performance by the conservator of certain new duties.</p> <p>3. Official bonds, § 44*—when sureties not discharged by change of principal’s duty by subsequent laws. A surety on an official bond is not discharged by subsequent laws that change or add to the duties of the office to which the bond relates, so long as the imposed duties are fairly appropriate and germane to the office; and the fact that the subsequent -legislation tends to greatly increase the duties of the office will not change the responsibility of the surety, so long as the new duties are of the same kind as those that pertained to the office at the time of the signing of the bond.</p> <p>4. Official bonds, § 44*—when new duties imposed by statute on conservator are germane to the office. The new duties imposed upon a conservator by the amendment of 1895 to section 9, chap. 86, R. S., J. & A. If 7293, held fairly appropriate and germane to the office of conservator and not to essentially change the nature and character of the office so that sureties on the official bond of the conservator would not be liable for the faithful performance by the conservator of such additional duties.</p>

<p>Abstract of the Decision.</p> <p>1. Executors and administrators, § -326*—when claim, against estate does not belong to sixth class. A claim against an estate for the proceeds of notes secured by trust deeds, where the money had been turned over to the deceased in his lifetime for such investment, held properly allowed as a seventh class claim instead of a sixth class claim for the reason that the facts did not establish an express or technical trust.</p> <p>2. Executors and administrators, § 326*—word “trust” in statute relating to classification of claims construed. The word “trust” in clause 6 of section 70, ch. 3, Hurd’s R. S., J. & A. V 119, relating to the administration of estates, applies only to technical or express trusts and has no application to trusts which the law implies as growing out of contracts.</p> <p>3. Costs, § 67*—when statutory damages for prosecuting appeal for delay not alloioable. Statutory provisions relating to appeals prosecuted for delay will not be enforced where it appears that the appeal was argued in good faith, and the court cannot say that the appeal was prosecuted for delay.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 26*—when statement of facts may he stricken. On writ of error to reverse a judgment of the Municipal Court, the statement of facts may be stricken from the record on motion of the defendant in error, where the record does not show that application for such statement was made within thirty days after the entry of the judgment and it affirmatively appears that the statement was not signed by the judge or placed on file by him until thirty-one days after the judgment was entered.</p> <p>2. Municipal Court of Chicago, § 26*-—computation of time for making application for statement of facts. Where the thirty days allowed by section 23 of the Municipal Court Act, J. & A. j[ 3335, within which to make application for a statement of facts, expires on Lincoln’s birthday, such day must be included in the computation where it does not fall on Sunday.</p> <p>3. Time, § 1*—when Lincoln’s birthday is not to be excluded in computing time. Section 1, ch. 131, Hurd’s R. S., J. & A. j[ 11102, providing that “the time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, then it also shall be excluded,” does not permit Lincoln’s birthday to be excluded as a last day unless it falls on Sunday, since the statute making that day a holiday has reference only to negotiable instruments.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the March term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Sales, § 65*—when sale is not hy sample only. Where a contract for the purchase of peas described the peas as “Fancy Alaska Peas” and also contained the words “like samples submitted,” a holding that the sale was by samples only and that the seller was entitled to recover damages for refusal of the buyer to accept them on proof they were the same as samples, although the peas tendered were not “fancy peas,” held erroneous.</p> <p>2. Sales, § 249*—when goods must he equal to sample and answer description. Where goods are sold both by sample and description they must not only be equal to the sample, but must also be of the kind described.</p>

<p>Abstract of the Decision.</p> <p>1. Attorney and client, g 150*—right of attorney to enforce lien for attorney’s fees. Where an attorney contracted with his client to prosecute a claim for personal injuries against a company and gave the company notice of his contract and the client thereafter settled with the company, held that the attorney could require the company to account to him in an action at law for the amount of his lien for attorney’s fees as provided by the contract.</p> <p>2. Attorney and client, § 114*—contract construed as to amount of compensation. A written agreement between an attorney and his client whereby the client agreed that the attorney should be entitled to fifty per cent, on the gross amount realized on his client’s claim for personal injuries if settled with his approval in writing, otherwise a reasonable sum of money for his services,” and at all events not to be less than said per cent.,” construed to entitle the attorney to not less than fifty per cent, of the amount realized where the client dismissed him and herself settled the claim.</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 36*—when real estate broker not entitled to commissions from purchaser. In an action by a real estate broker against a purchaser for services and commissions in procuring a third person to sell real estate to defendant, held that a finding for. plaintiff was not sustained by the evidence, it appearing that the plaintiff procured from the owner an offer to sell for ten thousand dollars and he was authorized by defendant to offer nine thousand dollars and thereafter a sale was consummated for nine thousand five hundred dollars in a transaction with another broker in which plaintiff took no part.</p> <p>2. Brokers, § 36*—when broker's commission earned. A broker’s commission is earned only when he procures a buyer, if he represents the seller, or a seller, if he represents the buyer, who will comply with the terms and conditions of sale fixed by the principal.</p> <p>3. Brokers § 996*—when recovery cannot be sustained as on a quantum meruit. In an action by a real estate agent against a purchaser to recover for his services and commissions in procuring an owner to sell real estate, where the evidence showed the plaintiff was not entitled to a commission, held that a judgment in favor of plaintiff could not be sustained as a recovery on a quantum meruit for his services, where the only evidence for plaintiff as to- the value of his services was what he usually charged in negotiating such a sale, and such evidence was inadmissible for the reason that he did not negotiate the transaction and there was no testimony in the record as to the reasonable value of plaintiff’s services.</p>

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

<p>Appeal from the Circuit Court of Cook County; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1912.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 139*—when evidence insufficient to sustain amount of recovery. In an action against an express company to recover the value of a lost box of jewelry, which contained a set of coral jewelry, held that a verdict and judgment for plaintiff for two thousand five hundred dollars could not be upheld for the reason that there was not sufficient evidence of the value of the jewelry to warrant the verdict.</p> <p>2. Carriers, § 138*—admissibility of evidence. In an action against an express company to recover the value of a lost shipment of jewelry, held that plaintiff’s father in writing a letter to the company describing the articles and their value acted as agent of the plaintiff and that the letter was relevant as an admission on the question of the value of property and also competent to impeach his testimony that the jewelry was of a greater value.</p> <p>3. Witnesses, § 340*—evidence competent for impeachment. Direct contradiction is not necessary to make matter competent for impeachment; inconsistency is sufficient.</p> <p>4. Appeal and error, § 1514*—when remarles of counsel prejudicial. In an action against an express company, conduct of plaintiff’s counsel in speaking “of the war that is waged by express companies of this country and in our State of Illinois against the 'individual,” held prejudicial.</p> <p>5. Cabbiebs, § 182*—when copy of classification of rates filed with Interstate Commerce Commission admissible. In an action against an express company to recover the value of a lost shipment of jewelry where the defense relied on a condition in the receipt limiting the value of the shipment to fifty dollars unless a greater value is stated therein, held that the court erred in refusing to admit in evidence a copy of the classification and tables of graduated charges applying on all business carried by the lines of the company where it was certified by the secretary of the Interstate Commerce Commission.</p> <p>6. Cabbiebs, § 33a*—when schedule of rates presumed in force. A schedule of rates of an express company approved by the secretary of the Interstate Commerce Commission several months before the date of a shipment is presumed to have been in force on the date of such shipment.</p> <p>7 Cabbiebs, § 33a*—admissibility of schedule of rates without basing booh. A schedule of the rates of an express company approved by the secretary of the Interstate Commerce Commission, though not sufficient proof of the differentiated rates without the “basing book,” is competent nevertheless as a part of the proof.</p>

<p>1. Cabbiebs, § 139*—when recovery for damages to fruit warranted by the evidence. In an action against a railroad company to recover damages to a shipment of peaches alleged to have been damaged by delay resulting from a deviation from the routing as provided in the receipt, or bill of lading, held a verdict and judgment for plaintiff was warranted by the evidence.</p> <p>2. Cabbiebs, § 160*-—when conditions in receipt or bill of lading cannot be availed of. Where the routing in a shipper’s receipt is deviated from by the fault of an initial carrier, it cannot take advantage of a condition, exemption or stipulation in the receipt or bill of lading concerning the time for giving notice of a claim for damages or the valuation of the property in case of loss, but becomes liable as though carrier, under the common- law for any damage caused by delay or otherwise to the goods while en route; and the rule applies though the plaintiff in a suit against it introduces the bill of lading or contract in evidence and makes it a part of his case.</p> <p>3. Contbaots, § 329*—ivhen proof of contract does not waive penalty for breach. To prove a deviation from a contract or a breach thereof, the person alleging it must show what the contract was, and he does not thereby waive the penalty which the defaulting party has brought on himself by the breach.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the March term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Fraud, § 14*—when false representations actionable. An action cannot he maintained for damages resulting from false representations unless the plaintiff has relied and acted thereon to his injury.</p> <p>2. Exchange of property, § 8*—when directing verdict in suit for false representations proper. In an action to recover damages for false representations alleged to have been made by the defendant to plaintiff in an exchange of real estate between them, held that a direction of a verdict to find defendant not guilty was proper for two reasons, first, because there was no evidence that the person making the representations had authority to make them; and, second, because it did not appear that plaintiff relied on such representations.</p> <p>3. Treae, § 192*—rule as to direction of verdict. Although a ease should not be taken from the jury where there is any evidence from which reasonable inferences favorable to the plaintiff may be drawn, such inferences must be reasonable and not mere speculations produced-by fervid appeals to the emotions or imagination.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the March term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 656*-when want of proof of immaterial averments in bill to foreclose not reversible error. Allegations in a hill to foreclose a trust deed that complainant had no other security than the lien of the trust deed in question and that it had not commenced any suit at law for the recovery of the money due it, held immaterial as hearing on complainant’s right to a decree, and failure of complainant to make proof of same, held entirely harmless, if error.</p> <p>2. Mortgages, § 371*-right to concurrent remedies to enforce payment of debt. The law gives to a person having the right to file a bill to foreclose a trust deed the right to sue at law concurrently with the pendency of the suit to foreclose, with the limitation that there should he but one satisfaction.</p> <p>3. Mortgages, § 650*-matters which person liable on notes cannot complain of on appeal. On appeal from a decree awarding a foreclosure of a trust deed, the party liable as principal on the notes cannot complain that there was a failure of proof that the mortgagor was the owner of the lands conveyed by the trust deed, and that he was denied the right to prove that a portion of the lands was held adversely by a third party under a deed.</p> <p>4. Mortgages, § 456*-right to litigate validity of independent adverse claims to property. The validity of an independent ’ claim of a party who holds a portion of the premises adversely under a deed cannot he properly tried in a foreclosure suit, in which the only proper parties are the mortgagor, mortgagee and those who might have acquired rights under them subject to the mortgage.</p> <p>5. Mortgages, § 605*-effect of failure to litigate the validity of independent adverse claims in foreclosure proceedings. The fact that the validity of an independent adverse claimant to the property is not litigated and settled in a foreclosure suit would not he cause to require the foreclosure sale to he vacated and the money refunded. The rule of caveat emptor applies to foreclosure sales, and defects in title are not grounds for rescinding the sale or for reimbursing the purchaser at the sale.</p> <p>6. Mortgages, § 650*-who not entitled to complain of decree providing for sale of only part of the property. The person liable as principal on notes secured by a trust deed executed by other parties cannot complain of a foreclosure decree providing “that part of the lands under the lien should he sold, and that if they failed to bring enough to satisfy the amount found due that the master should make a report of deficiency,” for the reason that there may he a greater deficiency decree than if all the mortgaged lands were sold.</p> <p>7. Equity, § 281*—matters put in issue hy replication to answer. A general replication does not put at issue all the averments of the answer irrespective of their materiality or responsiveness to the hill, so that defendant is free to prove everything alleged in their answers.</p> <p>8. Equity, § 438*—right to introduce additional evidence on hearing of exceptions to master’s report. It is not error for the chancellor to refuse to permit a party to introduce further evidence upon a hearing of exceptions to a master’s report.</p> <p>9. Equity, § 418*—power of master to rule on competency of evidence. A master upon a reference to take and report proofs with conclusions of law and fact has power to pass upon the competency of the evidence presented where such authority is given hy a rule of court.</p> <p>10. Equity, § 396*-—amount of master’s fees. The concluding portion of section 20 of the Fees and Salaries Act, J. & A. f 5621, relating to the fees of masters in Cook County, is not governed hy the preceding portion of that section limiting the fees to ten dollars.</p> <p>11. Appeal and ebbob, § 499*—when correctnesss of amount of master’s fees cannot he questioned. Where the statement of the amount of the master’s fees was attached to the master’s report filed in the Circuit Court, the correctness of the amount of the fees cannot be questioned on appeal, where it was not challenged in the court below, and there is no assignment as error with reference thereto.</p>

<p>Municipal corporations, § 857*—when exhibiting picture not a violation of ordinance. Exhibiting in show windows a copy of a painting named “September Morn,” held not to constitute a violation of an ordinance forbidding the exhibition of any “indecent or lewd” picture.</p>

<p>Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Appeal and ebbob, § 528*—when presentation of propositions of law unnecessary to preserve questions for review. It is not necessary to present propositions of law in a case tried by the court without a jury, to preserve questions for review in the Appellate Court.</p> <p>2. Bills and notes, § 295*—when “credit certificate” not primarily payable in money. A written instrument denominated a “credit certificate” certifying a certain sum to be due and stating that the certificate would be accepted in payment of school fees of any eligible student who had not been previously enrolled in the institution of the maker, held not an obligation for payment of money until an eligible student has been presented for tuition and refused by the maker of the instrument.</p> <p>3. Pbincipal and agent, § 137*—when evidence insufficient to show authority of employe of corporation to sign money obligation. Evidence held insufficient to show that a musical director of a corporation had implied authority to sign an obligation payable in money, where it appeared that he was not an officer of the corporation, that he signed the instrument without the knowledge of any of its officers and that all contracts involving money obligations were signed by the treasurer of the corporation.</p>

<p>Abstract of the Decision.</p> <p>1. Depositions, 3*—when official capacity of person talcing immaterial. Where a commission is directed to a person named to take deposition, such person derives his authority from the appointment, which carries with it all the powers necessary to execute the commission, including the power to administer oaths to witnesses, and his official capacity is immaterial.</p> <p>2. Depositions, § 18*—when stipulation does not require the affixing of certificate of magistracy. Where depositions are taken under a stipulation that they could be taken before a certain person, or before any other person qualified by the law of Illinois, held that a further agreement in the stipulation that the depositions may be read free from objections “except the certificate of magistracy” means that the certificate of magistracy should be affixed only if the deposition be. taken before any other person qualified by the laws of Illinois than the particular person named.</p> <p>3. Depositions, § 40*—when objection to -form comes too late. Where depositions are taken on January 3rd and filed in court January 20th and remain on file until May 8th, the time of the trial, held that an objection to the form of the depositions came too late after the jury had been sworn to try the issues.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Assumpsit, action op, § 89*—when finding that money was loaned not sustained by the evidence. In an action for money loaned where the defense was that the plaintiff agreed that the money should apply on a contract for the purchase of defendant’s interest in certain lands, held that a finding that the money was loaned was not sustained by the evidence.</p> <p>2. Contracts, § 329*—when covenants in executory sealed contract may he waived hy parol. Covenants contained in an executory sealed contract may be waived by parol by the party for whose benefit they were inserted, provided no new element or terms are added; and the party to a contract so waiving one of its terms or covenants will be estopped to insist that such covenant was not performed by the other.</p> <p>3. Vendor and purchaser, § 106*—when provision in contract is waived. Where assignees of a contract to purchase land enter into a contract with another to assign to him the entire interest of the original purchaser, to confirm by deed such assignment from all the parties in interest, including the shareholders of a certain company, and also to obtain the consent of the original vendor to the transfer, held that there was a substantial performance of the contract on the part of such assignees though they did not procure the consent of the original vendor to the assignment, where the other party waived the procurement of such consent and agreed to obtain it hiinself.</p> <p>4. Vendor.and purchaser, § 100*—when purchaser entitled to rescission of contract. To justify a purchaser in rescinding a land contract and recovering the money paid, the vendor must have failed in a substantial manner to observe his part of the contract, and the object of the contract must have been defeated or rendered unattainable by the vendor’s misconduct or default.</p>

<p>Error to the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p> <p>Certiorari allowed by Supreme Court.</p>

<p>1. Forcible entry and detainer, § 116*—when recovery on one appeal tond no tar to suit on another. Where in a forcible entry and detainer suit a bond was given by defendant on appeal from a justice’s court and another on appeal from the Circuit Court, held that an action to recover on the second bond was not barred by a recovery on the first one, where the action on the first bond did not seek to recover damages for the use and occupation of the premises after the date of the appeal to the Circuit Court.</p> <p>2. Action, § 55*—what does not constitute splitting of cause of action. Suits on different bonds which are separate contractual obligations and cumulative securities, held not to constitute splitting of a cause of action.</p>

<p>1. Easements, § 47*—when extrinsic evidence inadmissible to determine character of use. Where a deed expressly grants the use of a strip of land as a common right of way, without any words of limitation or restriction in the deed as to the character of its use, resort can not be had to extrinsic evidence to determine the character of its use, where the language is unambiguous.</p> <p>2. Easements, § 49*—when grant of right of way includes vehicle passage. A deed granting the use of a strip of land between lots for a common right of way, held to grant the right to vehicle passage where the strip is sufficiently wide for the passage of ordinary vehicles and there are no words of limitation or restriction in the deed as to the character of its use.</p> <p>3. Easements, § 53*—right of co-owner to pave right of way. Where a deed grants, for the common use of the parties, a strip of land between lots sufficiently wide for vehicle passage, either party may at his own expense pave the same, if in so doing there is no unreasonable interference with such co-owner’s equal rights.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 63*&emdash;when evidence insufficient to show "broker liable for premiums. In an action by an insurance company against á broker to recover premiums on policies delivered to it, where plaintiff claimed that defendant agreed to pay premiums thereon, held that the evidence was insufficient to establish such agreement or to show that defendant collected the premiums.</p> <p>2. Insurance, § 63*&emdash;when broker not liable for premiums. A broker who procures insurance for another is not liable for the premium unless he collects it.</p> <p>3. Municipal Court op Chicago, § 26*—sufficiency of statement of facts. A statement of facts giving in narrative form what purports to be the testimony of the witnesses, held not such a statement as is contemplated by the statute.</p> <p>4. Trial, § 295*—when filing of propositions of law may he refused. Refusal of propositions of law submitted by plaintiff after the finding and judgment were entered, held not error.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Fbatjd, § 26*—when evidence insufficient to prove false assertion concerning income of a business. In an action by an attorney to recover money paid under a partnership agreement to his co-partner for a half interest in his business, on the ground that defendant made misrepresentations as to the income of the business, held that a verdict for plaintiff could not be sustained, where the evidence of plaintiff tended to show that the receipts of the firm after plaintiff became a partner were less than the amount represented but there was no evidence to show what the receipts were before he became a partner.</p> <p>2. Fraud, § 113*—proof by circumstantial evidence. Fraud may be proved by circumstantial evidence as well as direct evidence; but there must be shown by a preponderance of the evidence inculpatory facts from which a legitimate inference of fraudulent intent may be drawn.</p> <p>3. Fraud, § 26*—when misrepresentations concerning a business not actionable. Misrepresentations as to value, probable future business or earnings are not actionable.</p>

<p>1. Master and servant, § 584*—doctrine of res ipsa loquitur. Doctrine of res ipsa loquitur is not applicable to master and servant cases.</p> <p>2. Master and servant, § 763*—when direction of verdict for defendant not improper. In an action for personal injuries resulting from an explosion of a chill into which plaintiff as an employe of defendant was pouring molten metal, held that the direction of a verdict for defendant at the close of all the evidence was not error, where it appeared from the evidence that the explosion might have resulted from one or several causes other than a defect in the chill, and a recovery for plaintiff could only be possible by the inadmissible process of basing one presumption on another.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the March term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and erbob, § 523*—when division of oral instructions for purpose of criticism improper. Treating each paragraph of an oral charge as a distinct and separate instruction for the purpose of criticism and objection is unwarranted where the instructions are given as a continuous and connected charge to the jury.</p> <p>2. Guaranty, § 37*—when sentence in instruction not misleading. A sentence in an instruction stating that “the burden of proof is on the defendant, to show by a preponderance of the evidence that he is not liable,” held not misleading when read in connection with other sentences showing that the meaning intended to be conveyed was that the burden of proof was upon defendant to show by a preponderance of the evidence that he was discharged from liability upon his guaranty in the manner charged in his affidavit of merits.</p> <p>3. Instructions, § 85*—when use of words “burden of proof’ not improper. A sentence in an instruction stating that “the burden of proof is on the defendant, to show by a preponderance of the evidence that he was not liable,” held not to use the words “burden of proof” in an improper sense.</p> <p>4. Municipal Court oe Chicago, § 28*—when error of court in putting question to witness not saved for review. Error of a judge of the Municipal Court in putting a question to a witness is not saved for review where the abstract does not show that any objection was made to the question at the time, nor show that any motion was made to strike out the answer.</p> <p>5. Municipal Court oe Chicago, § 28*—saving questions for review. While formal exceptions are unnecessary in trials in the Municipal Court, yet it must appear that a ruling was “made against the objection of the party complaining thereof,” before the ruling can be assailed on review.</p> <p>6. Appeal and error, § 1474*—when error in admission of opinions harmless. Error in permitting witnesses to state their opinion as to certain facts, held harmless where such facts were fully shown by other evidence.</p>

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

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

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

<p>Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Pabtnebship, § 252*—when retiring member chargeable as a partner. In an action against two defendants jointly to recover commissions on the sale of real estate, evidence, held, sufficient to charge one of the defendants as a partner though the partnership was by agreement dissolved and notice of such dissolution' published before the transactions with plaintiff, it appearing that the business was continued by the remaining partner in the firm name and that a contract with plaintiff was signed hy both defendants.</p> <p>2. Brokers, § 71*—when defense that plaintiff is not entitled to commissions not available. In an action for commissions on the sale of real estate which plaintiff claimed defendants agreed to apply on the purchase price of lots which plaintiff agreed to purchase, and which defendant’s refused to transfer to plaintiff after a tender of the balance of the purchase price, held that a defense that plaintiff was not entitled to commissions for the reason that he was the purchaser himself could not be urged where the refusal of the tender was not based on that ground.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Bankruptcy, § 74*—when defense of discharge waived. Where a maker of notes secured by a trust deed obtained a discharge in bankruptcy -without the holder of the notes having, notice of the bankruptcy proceedings, held that a deficiency decree entered against him in a suit to foreclose the trust deed was valid and properly allowed against his estate, it appearing that he was duly served with summons in the foreclosure suit but did not appear and plead his discharge and no appeal was taken from the deficiency decree.</p> <p>2. Bankruptcy, § 74*—when defense of discharge must he made to deficiency decree in foreclosure suit. Where a maker of notes secured by a trust deed subsequently obtains a discharge in bankruptcy, a deficiency decree may be entered against him in a suit to foreclose the trust where he fails to plead his discharge as a defense in the first instance, and it is n.ot necessary to give him notice and an opportunity to plead such defense after the foreclosure sale and before the deficiency decree is entered, where the bill prayed for a deficiency decree in case the proceeds of the sale were insufficient.</p>

<p>Abstract of tlie Decision.</p> <p>1. Railroads, § 733*—when recovery for injuries resulting from, obstruction at street crossing sustained by the evidence. In an action against a railroad company for personal injuries received by plaintiff at a street crossing alleged to have been caused by the negligence of defendant in obstructing the crossing with a certain bucket which plaintiff, while in the act of crossing, ran into and fell so that his foot was run over by a passing train, held that a verdict for plaintiff was sustained by the evidence, it appearing that the trial court approved the verdict by overruling a motion for a new trial and that there was a weakness in defendant’s proof in that it supports two inconsistent theories as to the way in which the accident happened.</p> <p>2. Railroads, § 769*—when instruction not erroneous as assuming facts. The giving of an instruction for plaintiff which simply informed the jury that the plaintiff charges in his declaration that the railroad company operated its trains across a certain public street, held not error for the reason that the jury would infer from the language of the instruction that the court assumed that the crossing was a public crossing.</p> <p>3. Instructions, §" 90*—when instruction on right of jury to disregard testimony of a witness erroneous. A requested instruction stating that “the jury have no right to disregard the testimony of a witness where such testimony is not contradicted, and such witness has not been impeached,” held bad for the reason that the testimony referred to is not confined to material matters and for the reason that the testimony might be plainly false and impossible of direct contradiction or impeachment.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Mortgages, § 432*-when statute of limitations tolled by payment of interest by heirs of mortgagor. Where lands were mortgaged hy an ancestor and after his death interest was paid on the mortgage debt by Ms heirs, in a suit to foreclose the mortgage, where the owner of the note seeks only a decree in rem, the heirs or their grantees are precluded from asserting as a defense that the payment of interest did not toll the statute of limitations as to the interest of the heirs in the land.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

<p>1. Insurance, 1 67*—liability of agent for breach of contract to procure insurance. If an agent neglects to procure insurance or does not follow instructions when obligated to do so, or if the policy obtained is void or materially defective through the agent’s fault, or if the principal suffers damage by reason of any mistake or act of omission or commission of the agent which constitutes a breach of duty to his principal, he is liable to his principal for any loss he may have sustained thereby.</p> <p>2. Insurance, § 67*—when agent liable for misfeasance in procuring insurance. Where a person voluntarily, without consideration and without expectation of remuneration or reward, agrees to procure insurance, and actually takes steps in the matter, he is responsible for misfeasance, and if he proceeds to effect a policy and is so negligent and unskilled that no benefit is derived therefrom, he is liable although he was not bound to undertake the performance.</p> <p>3. Insurance, § 67*—what constitutes no defense in suit against agent for failure to procure insurance. Want of authority of foreign insurance company to transact business in this State constitutes no defense in a suit against an insurance broker for damages resulting from failure to procure fire insurance in such company, where the evidence shows that plaintiff had no knowledge that such company had no such authority.</p> <p>4. Pleading, § 431*—when averment in declaration need not be proved. In an action against an insurance broker for failure to procure insurance where the declaration averred generally that defendant received a reward for procuring insurance, held that proof of such averment was not essential to recovery because it was not specifically denied by defendant in his affidavit of merits and also because the averment was not relevant and might be treated as surplusage.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>1. Landloed and tenant, § 226*—duty of owner of tenement building to maintain building in safe condition. A landlord who rents different parts of his building to various tenants, reserving the elevators, halls, stairways and other approaches, or other parts of the building for the common use of his tenants, is under an implied duty to use reasonable care to keep them in reasonably safe condition, and is liable for injuries to persons lawfully in the building, resulting from failure to perform that duty. .</p> <p>2. Landloed and tenant, § 230*-—when liability of landlord for defective porch landing question for jury. In an action against the owner of a tenement building for the death of a child of a tenant resulting from a rotten board on a porch landing giving away so that the child fell to the ground below, held that the evidence tended to show defendant was liable and that the court erred in refusing to allow the case to be submitted to the jury.</p> <p>3. Negligence, § 96*—when contributory negligence not chargeable to a child. A child of three and one-half years old is not chargeable with contributory negligence.</p>

<p>Abstract of the Decision.</p> <p>1. Account, § 12*—when settlement of account Bars relief on Mil for accounting. An account stated and paid is a bar to any relief whatever on a bill for a general accounting in which no particular errors are assigned in the account stated.</p> <p>2. Account stated, § IS*—sufficiency of MU to impeach. While an account stated and settled may be impeached for fraud or mistake in a court of equity, it can only be done upon a bill distinctly and clearly setting forth the specific errors with distinct averments as to the time when the fraud, mistake, concealment or misrepresentation that caused such omissions was discovered and what the discovery is, so that the court may clearly see whether by the exercise of ordináry diligence the discovery might not have been earlier made.</p> <p>3. Appeal and error, § 245*—when denial of leave to file amended Mil not reviewaMe. Action of court in denying complainant leave to file an amended bill after all the evidence was heard by the court, held not reviewable where the record does not show any motion or any attempt whatever to amend the bill outside of the certificate of evidence signed' by the judge.</p> <p>4. Appeal and error, § 1467*—when permitting incompetent testimony not reversible error. Error in permitting an incompetent witness to testify against an administratrix, held, not reversible error where other undisputed testimony supports the decree and the testimony of the witness was merely cumulative.</p>

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

<p>Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

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

<p>Abstract of the Decision.</p> <p>1. Injunction, § 183*—when amended hill must he verified. To warrant a temporary injunction without notice on an amended bill, the averments of the amended bill must be verified.</p> <p>2. Injunction, § 189*—sufficiency of hill to enjoin transfer of property. A bill to enjoin a person who had transferred a trust deed and notes from transferring or incumbering certain real estate and personal property owned by him and for an accounting held not to aver sufficient facts to warrant an injunction without notice or with notice, where there is no showing that defendant is insolvent, or that a decree for any amount found by an accounting to be due complainant could not be enforced if the property was sold, or that the money derived from the sale of the trust deed and notes were invested in the property which the defendant was to be restrained from selling, or that complainant’s rights would be in anyway prejudiced by the sale of the property.</p>

<p>Abstract of the Decision.</p> <p>Malicious pbosecution, § 75*—when evidence sufficient to show probable cause. In an action for malicious prosecution, where the facts showed plaintiff had been arrested on a complaint filed by defendant charging him with removing mortgaged property without the consent of the mortgagee in violation of section 7, ch. 95, R. S., J. & A 1f 7582, and had been discharged, held that a judgment for plaintiff could not be sustained for the reason that the evidence showed that defendant had probable cause for instituting the prosecution.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 10*—when judgment by default for want of sufficient affidavit of defense improper. In an action on a contract express or implied for the payment of money where the plaintiff flies with the declaration an affidavit of claim and the defendant filed an affidavit of defense with a plea of the general issue, the plaintiff is not entitled to a judgment as by default for want of a sufficient affidavit of defense without first striking the plea from the files.</p> <p>2. Civil service, § 30*—when appointee not entitled to salary during suspension. In an action by a civil service appointee against a county for salary claimed to be due during a period of suspension on charges made against her to the Civil Service Commission where such charges had been dismissed and she was reinstated to her position, held that an affidavit of defense setting up that plaintiff did not render or offer to render any service to the county during such period was a valid defense to the action.</p> <p>3. Civil service, § 31*—right of civil service appointee to compensation. Positions under the Civil Service Act for counties are not mere employments but are in the nature of offices, and the right of compensation grows out of the rendition of services and not out of any contractual relations.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Negligence, § 185*—when evidence adduced on cross-examination does not bar recovery on count in declaration. In an action by a employe of a company against another company for personal injuries received by plaintiff, where it was averred in a count in the declaration that employes of defendant without any warning to plaintiff negligently placed a board over an elevator shaft in which plaintiff was working so as to cause bricks to fall on plaintiff, held that the fact that an employe of defendant called as a witness for plaintiff testified that he looked down the hatch before placing the board and saw no one therein and that he placed the board down lightly, was not conclusive against the right of plaintiff to recover under such count, it appearing that plaintiff was obliged to call such employe as his witness to establish the fact that the act complained of was the act of the defendant and that the testimony complained of was given on cross-examination over plaintiff’s objection.</p> <p>2. Negligence, § 47*-—proximate cause. Negligence in placing a board across the top of an elevator shaft which caused brick to become dislodged and fall down the shaft upon plaintiff, held to warrant the jury in finding that the act was the proximate cause of the jury.</p> <p>3. Customs and usages, § 26*—admissibility. Where a servant of an elevator company while working in an elevator shaft was injured by the negligence of servants of another company working on the same building in placing a board across the top of an elevator shaft in which the servant of the former company was working so as to cause brick to fall on him, held in an action against the latter company for the injury that testimony of plaintiff’s fellow-servants to show that there was a general custom for men engaged in the erection or repairing of a building to give notice to men working in elevator shafts before starting to work over their heads was admissible.</p> <p>4. Appeal and errob, § 1561*—when refusal of requested instruction harmless. Refusal of appellant’s requested instruction covered by other instructions given for appellant held not prejudicial.</p>

<p>1. Master and servant, § 98a*—who entitled to compensation under Workmen’s Compensation Act. Under section 4 of the Workmen’s Compensation Act of 1912, J. & A. If 5452, where the employe leaves a dependent mother and nondependent brother and sisters, the compensation is to be awarded to the mother alone, and such brothers and sisters are not entitled to participate with the mother in the compensation allowed.</p> <p>2. Master and servant, § 98a*—beneficiaries under Workmen’s Compensation Act. Paragraph “E” of Section 4 of the Workmen’s Compensation Act of 1912, J. & A. If 5452, simply prescribes the method of determining the respective shares of the dependent heirs in the trust fund in hands of the administrator, and the word “beneficiaries” contained therein must be construed to mean dependent heirs.</p> <p>3. Master and servant, § 98a*—when obligation of employer to pay compensation for death of employe ceases. When an employe dies as a result of his injuries leaving only a dependent mother, the obligation of the employer to make payments of compensation awarded to her ceases upon her death, and the right to further payments does not survive her death and inure to the benefit of her estate.</p> <p>4. Master and servant, § 98a*—when award of compensation in lump sum cannot be sustained. An order of court awarding payment of the entire compensation allowed for the death of an employe in a lump sum will be reversed, where the trial court in passing on the petition adopted an erroneous theory of the law and the Appellate Court is unable to say that such error did not work a prejudice to the defendant, it appearing that the only beneficiary was a woman fifty-eight years of age and in ill health, who might not live the period of time the defendant was obligated to make the payments in instalments and that the court did not give proper effect to such facts.</p> <p>5. Master and servant, § 98a*—propositions of law relating to Workmen’s Compensation. Propositions of law relating to who are beneficiaries entitled to compensations allowed for the death of an employe and relating to the right to have compensation paid in a lump sum, under the provisions of the Workmen’s Compensation Act of 1912, held improperly refused.</p>

<p>Abstract ©f the Decision.</p> <p>1. _ Cabbiers, § 476*—when evidence shows a prima facie case that person riding on transfer is a passenger. In an action for personal injuries sustained by plaintiff when alighting from a street car, evidence held sufficient to make a prima facie case for plaintiff that she was a passenger at the time of the accident, where plaintiff testified she paid her fare on one of defendant’s cars and received a transfer for another car, that when she boarded the latter car the conductor on such car accepted it without question and permitted her to take a seat and to ride as a passenger to her destination, and that when she reached her destination the car was stopped by the conductor on a signal given by her, to enable her ■ to alight.</p> <p>2. Cabbiebs, § 306*—when evidence insufficient to show person was riding as a trespasser on an illegal transfer. In an action for personal injuries sustained by plaintiff when alighting from a street car, evidence held insufficient to show that plaintiff was a trespasser on the car for the reason that she was riding on a transfer which "was claimed to have been invalid.</p> <p>3. Evidence, § 410*-—when physician may give opinion as permanency of physical condition of plaintiff. In an action for personal injuries, a physician or surgeon may state his opinion whether the present physical conditions of plaintiff are apt to be permanent and, if any improvement seems probable, what are the chances for a complete recovery.</p> <p>4. Appeal and ebbok, § 450*—when party cannot complain of refusal to strike out answer of witness. Where a physician in answer to a question testified as to the permanency of plaintiff’s physical condition and later in answer to a similar question gave a similar answer which defendant moved the court to have stricken out, held that the defendant could not complain of the court’s refusal to strike out such latter answer where no objection was made to the original question and no motion was made to strike out the answer thereto.</p> <p>5. Damages, § 110*-—when amount allowed for personal injuries not excessive. A verdict for four thousand dollars for personal injuries received by a passenger alighting from a street car held not excessive under the evidence on the question of damages.</p>

<p>Appeal from the County Court of Cook county; the Hon. John E. Owens Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Error to the County Court of Cook county; the Hon. William F. Slater, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>1. Tbade-marks and trade names, § 24*—when evidence insufficient to show unfair competition 6y use of name of “Blue Booh." On hill to enjoin defendant from using the name “Blue Book” as the title to a publication which defendant was advertising to put on the market, on the ground that a book published by the complainant by the titles “Chicago Blue Book” or “The Blue Book” had become known as publication of complainant’s for a number of years and that to permit defendant to publish his book under such title would induce the public to believe that it is complainant’s publication, held that the case was an “unfair competition” case and not a “trade-mark” case, and that the evidence was insufficient to show that the "Chicago Blue Book” or “The Blue Book” had been so exclusively identified with complainant’s publication as to indicate complainant’s publication alone, or that defendant was guilty of attempting to pass off his publication as that of the complainant.</p> <p>2. Contempt, § 70*—when order imposing fine for benefit of complainant erroneous. Upon a finding that defendant was guilty of contempt for violation of an injunction, an order imposing a fine upon the defendant for the benefit of complainant held erroneous.</p>

<p>Appeal from the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1913.</p> <p>Certiorari allowed by Supreme Court.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Appeal and eebob, § 1682*—when error in ruling on demurrer waived. A defendant by pleading to and answering a bill after his demurrer thereto has been overruled waives the right to question the ruling on the demurrer.</p> <p>2. Cancellation oe insteuments, § 29*—sufficiency of Mil. In an action by a vendor for the cancellation of a contract for the sale of land on the ground that the actual contract was that the land should be deeded subject to a certain right of way and that the purported contract did not contain such provision, and that it was not delivered with the intent on the part of either party to be the contractual relation between them, held that a demurrer thereto that the complainant under either his special or general prayer for relief had no remedy against the defendant which a court of equity would enforce was properly overruled.</p> <p>3. Fbauds, statute oe, § 82*—persons entitled to avail of. A party cannot be permitted to use the statute of frauds and perjuries to harvest the fruit of his fraud.</p> <p>4. Vendor and pubchaseb, § 94*—grounds for cancellation. Because facts do not furnish grounds for a reformation of a land contract, it does not follow that such facts may not furnish grounds for relief by way of cancellation.</p> <p>5. Vendor and pubchaseb, § 94*—grounds for rescission of contract. A vendor may be entitled to a rescission of a contract under facts that naturally call for a reformation, if the purchaser refuses to abide by the true original agreement.</p> <p>6. "Vendob and purchaser, § 94*—grounds of relief when delivery of contract procured by fraud. Where parties entered into a land contract and the instrument omitted a part of the actual agreement that the lands were to be conveyed subject to a certain right of way, and when the instrument was delivered to the purchaser the vendor called his attention to the omission but the purchaser said, “I understand that, but it will be all right,” that he had to catch a train and could not wait to write another contract, held that the vendor might be entitled to relief from the terms of the written contract on the ground that there was no delivery of the contract, or on the ground that there was fraud in procuring its delivery.</p> <p>7. Contracts, § 57*—what essential to constitute a delivery. It is necessary that an instrument should be understood by the parties to be complete and ready for delivery, in order to have a mere placing it in the hands of the grantee construed into a delivery.</p> <p>8. Evidence, § 344*—when parol evidence admissible to show nondelivery of instrument. While a written contract cannot be changed by evidence of a prior or contemporaneous parol agreement, whether such contract was delivered must usually be determined from a consideration of such evidence.</p> <p>9. Contracts, § 58*—when procurement of delivery will be presumed fraudulent. Where a person induces the delivery of a contract to him by promising that an omission of a provision therein would not be taken advantage of, and he thereafter seeks to enforce the terms of the written contract, a presumption of fraudulent intent at the time of the delivery of the instrument may be indulged in a suit to rescind the contract.</p> <p>10. Cancellation op instruments, § 25*—jurisdiction of court of equity. A court of equity has jurisdiction to cancel a contract on the ground of fraud even in cases where the law affords relief, and this especially where the court properly took jurisdiction on a bill to reform a contract and there was a full hearing and no controversy as to the facts which would justify relief of cancellation.</p> <p>11. Vendor and purchaser, § 101*—condition precedent to rescission of land contract. A vendor seeking the cancellation of a land contract, not within the statute of frauds, must offer to return to the purchaser the amount received by him as an advance payment on the contract.</p>

<p>1. Negligence, § 24*—duty of owner of premises to invitees. Where one is upon the premises of another by the invitation, express or implied, of the owner, such owner owes the visitor a duty to exercise ordinary care to keep the premises in reasonably safe condition, but this rule is not applicable to a visitor on the premises by implied invitation unless he is there for a purpose connected with the business in which the owner is engaged or which he permits to be carried on at that place.</p> <p>2. Negligence, § 24*—duty of owner of premises to licensees. The owner owes no duty to one who is upon his premises as a mere licensee, and such mere licensee, if injured while upon the premises, cannot recover damages from the owner without proof that the owner knowingly and wilfully injured him.</p> <p>3. Negligence, § 204*—when direction of verdict improper. Where a teacher and a number of students obtained permission to call and visit a distillery and upon calling at the office of the distillery were placed in charge of a guide, and while the party was" standing on a platform inspecting the plant the platform gave way and a member of the party was injured, held in an action against the distillery company for the injuries alleging that the party was upon the platform at the express invitation of a guide, that plaintiff’s evidence was sufficient to require a submission to the jury of the questions whether the action and conduct of the guide was binding on the defendant and whether it made the party express invitees, and whether the plaintiff exercised due care, and that the court erred in directing a verdict for defendant.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Homestead, § 114*—title of purchaser at execution sale. A purchaser at an execution sale' of homestead property worth less than one thousand dollars, without the homestead being set off as provided by law, acquires no title or right, legal or equitable, in or to the property.</p> <p>2. Statutes, § 270*—when pleading of statute sufficiént. A bill to set aside as a cloud on title an execution sale and a certificate of sale issued pursuant thereto, on the ground that the sale was of homestead property of a value less than one thousand dollars, need not plead the homestead exemption statute other than by apt words to show that the aid of the statute is invoked.</p> <p>3. Quieting title, § 90*—when' insufficiency of Mil cannot "be complained, of on review. On appeal from a decree setting aside as a cloud on title an execution sale of a homestead estate and a certificate of sale issued pursuant thereto, on the ground that the value of the homestead interest was less than one thousand dollars, defendant cannot complain that the complainants’ bill did not aver that the value of the homestead interest was less than such amount, where the allegation on the bill as to value was by inference only, but defendant understood it, and both parties introduced evidence on that issue and the defendant did not raise the objection in the trial court.</p> <p>4. Quieting title, § 87*—when decree as to cost proper. In an action to set aside as a cloud on title an execution sale and a certificate of sale executed to the purchaser at such sale a decree granting relief and ordering the purchaser and the judgment creditor to pay the costs, held not erroneous as requiring the purchaser to pay cost, where he purchased at such sale with record notice of complainants’ title to the premises.</p> <p>5. Quieting title, § 81*—sufficiency of decree. A decree setting aside as a cloud on title an execution sale and a certificate of sale issued to defendant as a purchaser at such sale held not erroneous, for the reason that it declared the judgment void as against the judgment debtors who were not made parties to the suit, where the decree finds the judgment and proceedings under it void and of no effect “as against complainants,” and the order further states that they be set aside as a cloud upon the title of complain ants.</p> <p>6. Appeal and ebror, § 1696*—when objection to master’s conclusions waived. An objection that the master had no authority to report his conclusions for the reason that the reference only required him to report the evidence, held waived where the appellant appeared before the master and the court with objections and exceptions to the report without raising such question.</p> <p>7. Appeal and ebror, § 1432*-—when want of authority of master to report conclusions harmless. An objection that the master was not authorized by the reference to report his conclusions is immaterial where the decree was based on the findings of the court from the evidence reported by the master.</p>

<p>1. Equity, § 559*—right to file bill of review. Leave must be obtained of the court before filing a bill of review on the ground of newly-discovered evidence.</p> <p>2. Equity, § 573*—application for leave to file hill of review. On application for leave to file .a bill of review, a copy of the bill proposed to be filed should be presented with the petition.</p> <p>3. Equity, § 569*—when hill of review not permitted. A bill of review to review a decree based on an accounting between the parties should not be permitted on the ground of newly-discovered evidence, on a showing that such evidence would change the result of the accounting in a sum less than would be the probable costs of prosecuting the new suit.</p> <p>4. Equity, § 570*—when showing for leave to file hill of review on ground of newly-discovered evidence insufficient. On application for leave to file a bill of review on the ground of newly-discovered evidence, the petition and accompanying affidavits held not in themselves to show newly-discovered evidence of sufficient importance to entitle the petitioner to the right to file such bill.</p> <p>5. Equity, § 570*—sufficiency of newly-discovered evidence as grounds for hill of review. A letter found in the State Auditor’s office which is not a paper required to be filed in such office cannot be availed of as newly-discovered evidence as grounds for leave to file a bill of review, where the author of the letter is dead and it amounted to nothing more than would the letter of a deceased person.</p> <p>6. Equity, § 577*—what evidence must he preserved to review or denying leave to file hill of review. On writ of error to reverse an order refusing leave to file a bill of review on the ground of newly-discovered evidence, it.is the duty of the plaintiff in error to bring before the court of review the record of the former case, fully showing what was brought to the trial court’s attention that would properly govern it in deciding the question, since if only a part of the evidence on which the court acted is before the court of review it must assume that the omitted part justified the decision of the trial court.</p>

<p>Appeal from the County Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>1. Injunction, § 190*—sufficiency of bill to restrain electric power company from bringing electric current into city. A bill to enjoin an electric light and power company from bringing electric current into the city from an outside source, held to allege with sufficient certainty that the company was about to do the act, where it alleged that the company had begun to construct power lines through the city and was proposing to conduct electric current from a plant outside the city.</p> <p>2. - Eeectbicity, § 2*—right of power company under its franchise to change its current system. Under an ordinance granting an electric light and power company the right to install either “the three wire direct or the alternating system,” the company after having elected to use the three wire direct current system is not entitled to change to the other system where a part of the citizens of the city have expended large sums of money to connect with that system, which would be lost if such change were made.</p>

<p>1. Executors and ádministe atoes, § 559*—jurisdiction to allow administrator compensation. The matter of an administrator’s compensation for his services is peculiarly within the province of the Prohate Court.</p> <p>2. Costs, § 52*—power of court to pass on amount of' attorneys’ fees. A court may, to some extent, exercise an independent judgment in passing on questions as to the amount of attorneys’ fees to he allowed in any given case.</p> <p>3. Executors and ádministe atoes, § 561*—amount of commissions allowable to administrator. An allowance to an administrator of $1,500 for his commissions, held to be sufficient where the personal estate amounted to $100,000, consisting principally of bonds, some tangible chattel property of small value, some rent due from real estate leases, some bank stock and some promissory notes.</p> <p>4. Executors and administrators, § 526*—what considered in aMowing administrator attorneys’ fees. Though an administrator is entitled to be reimbursed for reasonable attorneys’ fees paid for necessary services, the fact that he employed counsel to render the service that should have been performed by himself and the fact that the estate pays for his bond should be taken into account in fixing his compensation.</p> <p>5. Executors and administrators, § 526*—amount allowable to administrator for fees of couns*7 A” allowance of $2,500 to an administrator to reimburse him !,/•■ . of counsel employed, held sufficient where there was nothing It in the settlement of a personal estate amounting to abo .000.</p>

<p>1. Damages, § 60*—ialien evidence sufficiently certain to sustain recovery for breach of contract not to engage in business. In assumpsit for breach of a contract not to engage in a business in a certain locality within a specified time, evidence introduced by plaintiff showing that he had incurred a loss in the amount of sales and profits, that defendant had solicited trade in the neighborhood and that he was so doing business there, and that on a certain date a large percentage of defendant’s former customers who had been trading with plaintiff entered defendant’s store, held not to be of so indefinite and uncertain a character as not to sustain a verdict for substantial damages.</p> <p>2. Contracts, § 376*—when acts of breach down to time of trial admissible. In assumpsit to recover for a breach of a contract not to enter into a certain business in a specified community for a certain time, acts of the defendant in breach of the contract down to the date of the trial may be shown.</p> <p>3. Assignments, § 1*—when contract not personal. A contract to refrain from entering into competition is not personal but inures to the benefit of one to whom it is assigned.</p> <p>'4. New trial, § 67*—when juror's statement after the trial incompetent. An affidavit setting out a conversation after the trial with a juror tending to show that the jury method of reasoning in arriving at their verdict was improper, field, incompetent to support a motion for a new trial.</p> <p>5. New trial, § 67*—when newly-discovered evidence not ground for. Upon a recovery for breach of a contract, affidavits that plaintiff had made declarations that he was not damaged, and that witnesses had been discovered by whom they could be proved, held not to warrant the granting of a new trial.</p> <p>6. Damages, g 200*-—when instruction as to damages for breach of contract not to engage in business proper. In assumpsit for breach of a contract not to engage in a certain business in a specified locality for a stated time, an instruction telling the jury that they might fix the amount of damages from all the testimony and facts and circumstances appearing in the evidence, at such sum as would compensate the plaintiffs for all the damages or loss actually suffered by them, if any, by reason of the defendant again engaging in the business, either directly or indirectly, etc., held to state the law.</p> <p>7. Appeal and error, § 1031*—when excessiveness of verdict will not be reviewed. The question whether a verdict is excessive will not be considered on review where the case is not presented and argued on that theory.</p>

<p>Appeal from the Circuit Court of Stark county; the Hon. John ' M. Nibhaus, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>1. Equity, § 493*—necessity of cross-bill for relief between co-defendants. Equities arising between codefendants can only be adjusted on cross-bill filed by the party seeking such aid of the court.</p> <p>2. Wills, § 486*—right to adjustment of equities between defendants on bill to enforce payment of legacies. On bill to enforce the payment of legacies which were made a charge upon real estate, a defendant who had purchased a one-half interest in the real estate from his codefendant without taking into account the charge upon the property cannot complain of a decree in favor of complainants on the ground that the court did not provide some effectual means of collecting the legacies from his codefendant and exonerate his interest in the land, where he did not file a cross-bill to have the equities between himself and his codefendant adjusted.</p>

<p>1. Municipal cobpobations, § 79*—when ordinance required to be filed for public inspection. An ordinance authorizing the issuance of bonds for a municipal electric lighting plant and a system of street lighting, held to he an ordinance authorizing the making of a contract so as to fall within the provisions of art. 13, § 33, of the Act relating to cities, villages and towns, J. & A. If 1592, requiring such, an ordinance he filed for public inspection previous to its final passage or adoption.</p> <p>2. Elections, § 89*—when suggestive form of ballot renders election void. Where a ballot, submitting to the voters the question, whether city bonds should be issued for a municipal electric lighting plant and a street lighting system, used the following words to indicate the question submitted: “If you favor Municipal Ownership, vote yes. If you oppose Municipal Ownership, vote no. By making a cross in one square below, thus: (x),” held that words used were suggestive, that they might influence the voter in making his choice, and that the ballot used was such a noncompliance with the statute as to render the election void.</p> <p>3. Elections, § 2*—compliance with election law. A failure to comply with the provisions of the election law in a matter of substance in conducting an election renders the election void.</p> <p>4. Injunction, § 162*—right to temporary injunction without notice. The granting of a temporary injunction without notice cannot be defeated because of the fact that complainant might have filed his bill earlier and thus had time to give notice of his application.</p> <p>5. Injunction, § 385*—questions not r'eviewahle on appeal from interlocutory order. On appeal from an interlocutory order granting an injunction, the case stands as though the defendant had demurred to the bill, and the defendant cannot raise the question that the injunction was issued without notice or that the bond was approved by the clerk instead of by the court.</p> <p>6. Injunction, § 13*—right of taxpayer to maintain hill. A taxpayer may maintain a bill to enjoin the letting of an illegal contract, or the extension of an illegal tax, irrespective of the question whether he could also successfully defend against the collection of the tax levied on his property.</p> <p>7. Injunction, § 99*—when letting of contract hy city may be enjoined. The fact that a contract to be let by a city as a part of the execution of the provisions of an illegal ordinance could have been made by it in the absence of an -ordinance, is no defense to a suit to enjoin the city from letting it, where it appears the contract was intended as a part performance of the plan of the ordinance and was not considered by the city as an independent contract.</p> <p>8. Injunction, § 99*—right to enjoin city from letting contracts pursuant to ordinance adopted hy void election. A taxpayer is entitled to maintain a bill to enjoin a city from letting a contract pursuant to an ordinance adopted by an illegal election though the void election complained of was'not contested in an action at law.</p>

<p>1. Appeal and ebbob, § 1272*—when exceptions to master's report presumed filed. Where the record is not certified to be complete, the Appellate Court may assume that exceptions to the master’s report were filed though the record does not contain the same, where the final order recites that the case was heard upon exceptions filed to the report and that they were all overruled.</p> <p>2. Witnesses, § 232*—when may testify to conversation on cross-examination. If a part of a conversation has been given in direct testimony, the remainder, so far as it is relevant, may be called out by cross-examination.</p> <p>3. Gifts, § 22*—when evidence insufficient to show procurement 5y undue influence and fraud. A bill filed by an administrator of an intestate to compel an heir to turn over the proceeds of a certificate of deposit, and to turn over various other notes and certificates of deposits, on the ground that defendant had exercised fraudulent practices over the intestate while she was in feeble mind to procure the same as a gift, held not supported by the evidence.</p> <p>4. Gifts, § 15*—when not defeated by noncompliance with conditions. Where a certificate of deposit was delivered to a donee with the request not to -cash the same at the bank for a certain time so that the donor might he entitled to the interest, held that the fact that the donee cashed it before such time did not defeat the gift, where the donor was paid the interest and it appeared that she had full knowledge thereof and did not question the gift up to the time of her death.</p> <p>5. Gifts, § 29*—evidence of gift of certificate of deposit. A donee’s possession of a certificate of deposit and his claim of ownership is proof tending to show that it had been duly delivered to him and that he owned it, and this is true though it was not indorsed.</p> <p>6. Appeal and ebbob, § 1506*—when party cannot complain of failure of master to certify questions refused answer by witness. Where on a reference to a master a witness refused on cross-examination to answer certain questions and the cross-examining party demanded that they be certified to the court for action, and the master sustained objections to the questions but stated that if it was persisted in he would so certify the questions, held that failure of the master to certify the questions could not be complained of on appeal, where there was no further request to certify, and no application to the court for a rule on the master, to certify, and the subject was not referred to in the objections to the master’s report.</p> <p>7. Judgment, § 535*—when judgment on citation issued under administration act res adjudicata. A judgment of the County Court in favor of the defendant upon a citation issued under the administration act to recover assets, followed by the dismissal of the administrator’s appeal therefrom to the Circut Court, held to be a final adjudication in favor of defendant and to bar a subsequent suit in equity by the administrator to recover the same subject-matter.</p>

<p>Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Elections, § 134*—when holding of election for aldermen in one polling place does not invalidate election. The fact that an election for three aldermen in a city having only three wards was held at a polling place in one ward, which was a short distance from the boundaries of the other wards, held not to render the election void under section 4, art. IV, of the Cities and Villages Act, J. & A. f 1323, requiring aldermen to be elected in each ward, where there was a full and fair election, and all the elections had been held at such place for twenty years.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 176*—when recovery for injuries for failure to supply props not warranted hy evidence. A verdict allowing a miner to recover for personal injuries alleged to have resulted from failure of defendant to supply props cannot he sustained where there is no evidence in the record of any demand on the mine manager therefor, or of any rule or custom that the props might he ordered of any other person.</p> <p>2. Mines and minerals, § . 90*—from whom demand for props must he made. Under paragraph 6, § 20, oh. 93, R. S., J. & A. f 7494, which provides that the mine manager shall furnish props when demanded, the demand must be made on the mine manager himself, and. a demand made upon a driver or other agent or servant of the company is not sufficient, unless there is an express rule or recognized custom in the mine to make a demand on such other persons.</p> <p>3. Mines and minebaxs, § 191*—when instruction as to demand for props erroneous. In an action by a miner for injuries sustained by the fall of a roof of a mine in which be was working, where the declaration charged the defendant with wilful failure to provide plaintiff with props when demanded, an instruction given for plaintiff requiring defendant to supply props when demanded, with no explanation that the statute requires that the demand should have been made on a certain person, held erroneous.</p> <p>4. Mines and minebaxs, § 194*—when refusal of requested in* struction reversible error. In an action by a miner to recover for injuries alleged to have resulted from the wilful failure of defendant to furnish props, refusal of a requested instruction to find defendant not guilty if the injury to plaintiff was caused by his own want of care and not by reason of any violation of law, held reversible error, there being evidence that immediately after the accident a number of props were found in the room where plaintiff was working, and it was not clear but that he might have avoided the accident by using such props.</p>

<p>Abstract of the Decision.</p> <p>1. Husband and wife, § 264*—when evidence insufficient to sustain decree of separate maintenance. Evidence held insufficient to sustain a decree for separate maintenance on the ground that the husband sustained improper relations with another woman, where the only evidence relating to such relation was a letter which the wife found purporting to be written to the husband, and it appeared that the finding of the letter was not the cause of her leaving her husband and the contents of the letter were not sufficient to show such relations.</p> <p>2. Divorce § 48*—evidence sufficient to establish desertion. Evidence held sufficient to entitle a husband to divorce on the ground of desertion, where the wife sold the home and all the furniture and ceased to live with him and her only excuse for so doing was that he had improper relations with another woman, which relations were not established by the evidence.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1914.</p> <p>Certiorari allowed by Supreme Court.</p>

<p>1. Railroads, § 785*—when evidence warrants finding of negligence in backing train over crossing. In an action by a driver of an automobile for injuries sustained in a collision with defendant’s railway cars at a street crossing, evidence held sufficient to warrant a finding that defendant was guilty of negligence in the manner in which the train was operated, where the facts showed that a cut of freight cars were being backed over the crossing and that a brakeman on the first car was unable to signal the engineer to stop on account of a “crook” in the train.</p> <p>2. Railroads, § 759*—when contributory negligence of driver of automobile in approaching crossing question of fact. In an action by a driver of an automobile for injuries received in a collision with railway cars at a street crossing, held that the question whether the plaintiff exercised the necessary degree of care while approaching and going upon the crossing was a question of fact for the jury.</p> <p>3. Railroads, § 709*—when evidence of character of injuries of persons accompanying plaintiff admissible. In an action against a railroad company for injuries received by the driver of an automobile in a collision with defendant’s cars at a public crossing, testimony of other occupants of the automobile as to the character of the injuries sustained by them, held admissible to show the amount of force exercised at the time of the accident and the conditions surrounding the accident.</p> <p>4. Appeal and error, § 1245*—when defendant cannot complain of admission of evidence. Where in an action by an automobile driver for injuries received in a collision with railroad cars at a public crossing, the court admitted the testimony of other occupants of the automobile as to the character of their injuries, held that the defendant Railway Company could not complain of the admission of such evidence where it had previously asked questions bearing on the matter in the cross-examination of plaintiff’s witnesses.</p> <p>5. Evidence, § 277*—when photoghaphs of scene of accident admissible. In an action against a railroad company to recover for injuries received by plaintiff in a collision between an automobile and a cut of freight cars at a public crossing, refusal to admit in evidence a photograph 'of the scene of the accident, taken from a place where defendant claims the plaintiff had a view of the crossing, and offered for the purpose of aiding the jury to decide whether a car on the track would appear to be standing still or moving, held error.</p> <p>6. Infants, § 52*—when instruction may allow recovery for loss of time and earnings during minority. In a suit by a minor for personal injuries, an instruction given at the request of plaintiff held not erroneous, for the reason that it might be understood to allow plaintiff to recover for loss of Ms time and Ms earnings during his minority, where the declaration was framed to recover for such loss and the suit was in the name of his father as next friend.</p> <p>7. Damages, § 209*—when instruction as to amount of recovery erroneous. An instruction telling the jury to assess the plaintiff’s damages “in such sum as you may think him justly entitled to under the evidence in this case, taking into consideration the character of his injury as the same is shown by the evidence,” held erroneous for the reason it left the jury unguided by any legal rule of damages.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1914.</p>

<p>Abstract of the Decision.</p> <p>I. Bail, § 47*—effect of mistake of date in bail bond. Where a bail bond was given on October 15, 1912 requiring the appearance of the accused at the next term of court to be held on June 6, 1912 instead of 1913 held that the mistake in the date of the next term of court would not render the bond a nullity, that the parties signing the bond were bound to know at their peril the first day of the next term of court, and that the insertion may be regarded as surplusage.</p> <p>2. Municipal coepobations, § 9*—jurisdiction of police magistrates. Under the constitution and laws of this State a police magistrate is given the same jurisdiction as a justice of the peace.</p> <p>3. Bail, § 29*—jurisdiction of police magistrate to take bail bond. Police magistrate has jurisdiction upon preliminary examination of accused on charge of rape to take a bail bond.</p> <p>4. Cbiminal law, § 44*—jurisdiction of police magistrate. A police magistrate has jurisdiction to hold a preliminary examination on a charge of rape.</p>

<p>I. Vendor and purchaser, § 317*—when verdict disallowing recovery of purchase money sustained hy the evidence. WTiere, in an action for a balance of the purchase price claimed to be due for land sold by plaintiff to defendant and a certain sum alleged to be due for some hay, the defense was that defendant had paid the full amount of the purchase price agreed on for the land and that plaintiff had agreed to board with defendant for the value of the hay, but had quit boarding without cause, held that a verdict for defendant was sustained by a preponderance of the evidence.</p> <p>2. Appeal and errob, § 1535*—when erroneous instruction as to ■preponderance of evidence harmless. Where an instruction was given, advising the jury that if plaintiff did not in the first instance prove his case by a preponderance of the evidence, they should find for the defendant, held that though the instruction was erroneous as depriving plaintiff of the benefit of his rebuttal evidence, and of any evidence offered by defendant which tended to establish plaintiff’s case, yet the giving of the same did not harm plaintiff where no such evidence was offered.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1914.</p>