Volume 189 — Illinois Appellate Court Reports

<p>Abstract of the Decision.</p> <p>1. Libel and slander, § 38*—when imputation of unchastity actionable per se. The words: “We know very well you are getting your money from men. We do not consider you any more than a woman of the streets,” held to charge the plaintiff with being a common prostitute and to be actionable per se.</p> <p>2. Libel and slander, §. 96*—pleading and proof when words actionable per se. Where slanderous words were actionable per se there was no necessity for inducement, colloquium, innuendo or proof of the meaning that was intended to be conveyed or what was understood by the hearers.</p> <p>3. Libel and slander, § 49*—when defense of privilege not available. The defense of privilege is not available where the speaking of the slanderous words was actuated by express malice.</p> <p>4. Libel and slander, § 21*—when malice inferred. Where the words charged are actionable per se and were not spoken under circumstances rendering the speaking privileged, malice is inferred upon proof that the words were spoken and that they were false.</p> <p>5. Libel and slander, § 161*—questions of law. Whether a slanderous communication was made on an occasion which was privileged is a question of law.</p> <p>6. Appeal and error, § 1241*—when appellant cannot complain of inconsistent instructions. Appellant cannot complain that instructions given were inconsistent where the inconsistency arises from the giving of an improper instruction at her instance.</p> <p>7. Damages, § 93*—rule in determining whether damages excessive. Where a plaintiff entitled to vindictive damages offered no proof of the financial worth of defendant, the question whether the verdict is excessive must be determined as if defendant were known to be penniless.</p> <p>8. Libel and slander, § 155*—when damages awarded grossly excessive. In an action for slander, a verdict for twenty-five hundred dollars held grossly excessive, where it appeared that the suit was prosecuted in the hope of gain rather than to recover recompense for lacerated feelings, and there was no proof offered as to the financial worth of defendant.</p>

<p>1. Judgment, § 96*—conclusiveness of order entered by consent. Parties who have consented to the entry of court orders, in pursuance of which moneys were paid out by a receiver, cannot be heard to say either that the orders were improvidently entered or that the money was improperly paid out.</p> <p>2. Receivers, § 52*—when not personally responsible for errors of court in directing distribution of money. A receiver in obeying orders of a court does not become a guarantor of the correctness of the court’s rulings and become personally responsible for any error of court made in directing how he shall distribute the money that comes into his hands.</p> <p>3. Receivers, § 30*—when parties estopped to complain of acts done in pursuance of court order. Where parties are given notice of various petitions of a receiver for direction and authority to pay out money for various items, they are chargeable with notice of the orders entered, and if they acquiesce in what is done by absolute silence, they are estopped from complaining that the receiver should not have credit for the money thus paid out.</p> <p>4. Receivers, § 51*—when allowance for solicitor’s fees improper. An allowance to a receiver of a certain lump sum paid by him to certain attorneys for services rendered by them as his solicitors, held improper where the bill rendered by them for services was itemized but the charges were not, and it appeared that some of the items were for services rendered the receiver and others were not.</p> <p>5. Receivers, § 50*—when forfeits right to compensation. A receiver held to forfeit his right to compensation for services where, owing to his negligence, he failed to account for more than $480 in his report which, but for objections thereto, he would have improperly retained.</p> <p>6. Costs, § 21*—when improperly taxed against receiver. The costs of a reference to a master of a receiver’s report held improperly charged to the receiver, where the only respect in which the report was incorrect were certain credits the receiver took for commissions and attorneys’ fees and a failure to charge himself with certain moneys received; and the evidence taken and time expended on the hearing regarding those matters was a trifle as compared with that involved in determining exceptions which were not well taken.</p> <p>7. Mortgages, § 538*—when direction of payment to solicitor of party erroneous. A decree in a foreclosure proceeding directing the payment of an amount found due .to the holder of the legal title and the amount of the cost of a reference to his solicitor, held erroneous.</p> <p>8. Appeal and error, § 340*—when receiver entitled to appeal. A receiver is entitled to appeal from a decree requiring him to pay out of his own funds to replace trust funds that had been distributed by him pursuant to orders of the court and denying him compensation for his services.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.</p>

<p>Appeal from 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>Abstract of the Decision.</p> <p>1. Municipal corporations, § 860*—nature of suit to recover penalty for violation of ordinance. A suit to recover a penalty for the violation of a city ordinance is a civil suit, and the rules applicable to criminal proceedings do not apply.</p> <p>2. Municipal corporations, § 863*—when service of process in suit for violation of ordinance waived. In a suit to recover a penalty for violation of an ordinance, the defendant by entering his appearance in the case and participating in the trial of the merits of the charge waives the issuance and service of summons or other process upon him.</p> <p>3. Municipal Court of Chicago, § 13*—statement of claim in suit to recover penalty for violation of ordinance. In a suit in the Municipal Court to recover a penalty for violation of a city ordinance, the complaint, if one has been made, may stand as a statement of plaintiff’s claim, and if it is not sufficiently definite the defendant may move for a rule on plaintiff to file a more specific statement, as in other cases of the fourth and fifth class under the Municipal Court Act.</p> <p>4. Municipal corporations, § 863*—sufficiency of complaint charging violation of ordinance. A complaint charging defendant with violating a city ordinance held to sufficiently describe the offense and the ordinance violated, where the ordinance was described by the number of the section of the Municipal Code, and the acts he was charged with doing were also specifically set forth.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 29*—judicial notice of rules of court. The Appellate Court on writ of error to review a judgment of the Municipal Court cannot take judicial notice of the rules of that court.</p> <p>2. Municipal Court op Chicago, § 29*—when Appellate Court will determine sufficiency of affidavit of merits under section 55 of Practice Act. On writ of error to review a judgment of the Municipal Court, where the error assigned involves the construction of a rule of that court regarding the sufficiency of an affidavit of merits, hut such rule is not incorporated in the transcript of the record, the Appellate Court will assume that section 55 of the Practice Act, J. & A. ¶ 8592, controls.</p> <p>3. Pleading, § 153*—section 55 of Practice Act construed. The requirement of section 55 of the Practice Act, J. & A. ¶ 8592, that a plaintiff shall file with his declaration an affidavit showing the nature of his demand in order to be entitled to a judgment by default for want of a sufficient affidavit of merits, is as broad as the requirement that the defendant’s affidavit of merits shall specify the nature of his defense.</p> <p>4. Pleading, § 153*—when affidavit of merits sufficient under section 55 of Practice Act. Under section 55 of the Practice Act, J. & A. ¶ 8592, where plaintiff’s affidavit showing the nature of his demand consists merely of the common count in assumpsit for moneys laid out and expended by plaintiff for the use of defendants at their request and a promise to repay the same on demand, an affidavit of merits, which specifically asserts that no moneys were so laid out and expended and that no such promise was ever made, states a complete defense on the merits and also “the nature of such defense,” and it is error to strike such affidavit from the files.</p> <p>5. Municipal Court of Chicago, § 13*—when rule of court as to sufficiency of affidavit of merits inapplicable. A rule of the Municipal Court that a mere denial will not he regarded as a sufficient affidavit of merits can have no reasonable application to a case in which the nature of the defense shown by the affidavit of merits is a complete and specific denial of all the facts alleged in plaintiff’s affidavit of claim.</p>

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

<p>Abstract of the Decision.</p> <p>1. Brokers, § 90*—sufficiency of evidence to show plaintiff was procuring cause. In an action for broker’s commissions for finding a tenant for defendant where a verdict on conflicting evidence was returned for plaintiff, held that the verdict would not be disturbed on the ground the evidence did not show plaintiff was the procuring cause of the demise, there being a legitimate inference from the evidence that the prospective tenant’s attention was first called to the property by plaintiff and that the lease which was actually made was the result, and it also appearing that the tenant who would have been the best witness was not called, from which the jury may have drawn an inference unfavorable to the defendant.</p> <p>2. Brokers, § 84*—admissibility of evidence. In an action" to recover broker’s commissions for finding a tenant for defendant, refusal to permit defendant to testify to the amount of rental -he was paying held not error, for the reason the fact sought to be elicited had little bearing on the issues involved.</p>

<p>1. Negligence, § 121*—when words in declaration sufficient to charge wilful misconduct. Although the words “wrongfully and unlawfully” in a declaration, standing alone, do not necessarily charge wilful misconduct, yet where they were followed by the words “procured, assisted, aided and abetted,” and the act charged was in the nature of a deliberate trespass, it was held that the declaration was sufficient to support a cause of action for wilful misconduct and not mere negligence, especially in the absence of an averment of negligence.</p> <p>2. Dead bodies, § 1*—who entitled to possession and control While a dead body is not "property” in the ordinary, technical meaning of that term, the law recognizes a right, in the nature of a property right, arising out of the duty of the nearest relatives to bury their dead, to take possession of the remains. This is an -exclusive right that, in the absence of any testamentary disposition, belongs to the surviving spouse, if any, and if none, to the next of kin.</p> <p>3. Dead bodies—when declaration states cause of action for wilful and wanton trespass. In a suit brought by a surviving husband for the mutilation of the body of his deceased wife by the undertakers, the declaration alleged the defendants “wrongfully and unlawfully procured, assisted, aided and abetted in cutting off and removing the hair from the head of the said dead body and otherwise mutilating the same,” in consequence whereof the remains “were rendered unfit to be viewed by the plaintiff and his relatives and friends,” whereby “the plaintiff suffered greatly, both in mind and in body, and great, indignity, insult and humiliation were put upon him.” Held, that the declaration stated a cause of action for wilful and wanton trespass and not mere negligence.</p> <p>4. Dead bodies—right of action for intentional mutilation. The intentional mutilation of a dead body will support an action on the case against the wrongdoer on behalf of the person entitled to the exclusive custody and possession of the corpse for purposes of burial.</p> <p>5. Damages, § 28*—when recoverable for mental suffering. In an action by the husband for the wilful mutilation of the dead body' of his wife, damages are recoverable for mental suffering proximately resulting from the wrongful act, even though no actual pecuniary loss is alleged or proved.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 666*—when failure to look and listen for trains not negligence as matter of law. It cannot be said as a matter of law that a person approaching a railroad crossing is in fault in failing to look and listen, if misled without his fault or where the surroundings excuse such failure.</p> <p>2. Negligence, § 228*—when instruction defining ordinary care not objectionable. An instruction defining “ordinary care” as that degree of care and caution which a reasonably prudent and cautious person would have exercised “under like circumstances,” held not objectionable as confining the question of plaintiff’s due care to a consideration of his situation at the precise moment of the injury.</p> <p>3. Automobiles and garages, § 932*—when amount of verdict for injury to automobile warranted by the evidence. In an action for damages to plaintiff’s automobile resulting from a collision between it and a railroad engine at a street crossing, the amount of the verdict in favor of plaintiff held supported by the evidence, where there was evidence that the reasonable value of the use of plaintiff’s automobile was a certain sum per week, which when added to the cost of the repairs necessitated by the collision equaled practically the amount of the verdict.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 132*—discretion of court in ruling on motion to vacate. Motions to vacate a judgment are addressed to the sound judicial discretion of the court, and unless there has been an abuse of such discretion the ruling of the trial court will not be disturbed.</p> <p>2. Judgment, § 146*—-when affidavit in support of motion to vacate insufficient to show diligence. An affidavit by defendant’s attorney filed in support of a motion to vacate a judgment, stating that the reason he was not in court at the time the case was called was that he had mislaid his calendar and was unable to procure another, and that the case was called for trial on the first day after the summer vacation was ended, and that he was not in the city until the day before the trial, held not to constitute a showing of due diligence.</p> <p>3. Judgment, § 145*—when affidavits insufficient to show defense on motion to vacate default. On motion to vacate default judgment for work and materials furnished in constructing a building for defendant, affidavits setting up that plaintiffs failed to furnish defendant with “lien waivers,” as required by the contract, held insufficient to show a defense, where one of the affidavits stated that it was -understood at the time defendant made a certain payment that the waivers were to be delivered when the balance due was paid or signed notes for that amount were delivered, and it did not appear that defendant delivered or offered to deliver the signed notes, or ever paid or offered to pay the balance due.</p>

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

<p>Street railroads, § 97*—when crossing ahead of an approaching street car is not contributory negligence. At the trial of a suit brought for personal injuries received as a result of a collision of the defendant’s street car with a single-horse buggy driven by a companion of the plaintiff, ijt appeared, among other things, that the plaintiff might have assumed control of the driving of the horse had he wished; that the buggy was driven across the car line at right angles in the face of the approaching car; that the plaintiff saw the approaching car; that he supposed it was coming at an ordinary rate of speed; and that he felt sure it was far enough away for the buggy to clear the track. Held, that the issue as to the plaintiff’s exercise of due care for his own safety was properly submitted to the jury, and that, upon the whole evidence, a finding by the reviewing court that the plaintiff was guilty of contributory negligence would not be justified.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 28*—necessity of preserving exception to judgment in hill of exceptions. On appeal from a judgment of the Municipal Court in a non jury case, the sufficiency of the evidence to support the judgment cannot he inquired into where the appellant chooses the hill-of-exceptions method of review and the bill does not show any exception to the judgment.</p> <p>2. Appeal and error, § 578*—Amendment of 1911 to section 81 of Practice Act construed. The Amendment of 1911 to section 81 of the Practice Act, J. & A. ¶ 8681, merely inserts a provision for an alternative method of presenting questions for review in the form of a “stenographic report’’ of the trial, and does not have the effect of abolishing the former rule which requires formal exceptions, and the same to be preserved in the bill of exceptions, where the party chooses the bill-of-exceptions method of review.</p> <p>3. Municipal Court of Chicago, § 27*—when hill of exceptions cannot he treated as stenographic report. Failure of bill of exceptions to show that any exception was taken to the judgment of the Municipal Court cannot be cured by treating the bill as a stenographic report where it appears on its face not to be a stenographic report.</p>

<p>Error to 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>1. Landlord and tenant, § 502*—what not evidence of a declaration of forfeiture. In an action of forcible entry and detainer it appeared that the written lease covering the premises involved contained a provision that if default were made in the payment of the rent reserved, or any .part of it, when due, the lessor might, at his election, without notice, declare the term ended; that the lessee tendered the rent due January 1, 1913, to an employee of the lessor authorized to receive the same on the third of January following; that such employee refused to receive the same telling him that she had been so instructed by the lessor by telephone that morning and, in reply to his question as to the reason therefor, that he should see the lessor; that evidence that the lessor had told said employee over the telephone prior to such tender: “Don’t accept any rent because I forfeit the lease,” was ruled out as proof of forfeiture; and that the court directed the jury to find the defendant not guilty. Held, that the evidence so ruled out was not evidence of a declaration of forfeiture, and that the tender of the rent due having been made prior to declaration of forfeiture, the lessee was not in default.</p> <p>2. Landlord and tenant, § 463*—what not a declaration of forfeiture. A mere mental declaration of forfeiture for nonpayment of rent, or the communication of such declaration to a third person in no way connected with the lessee, does not amount to a declaration of forfeiture terminating the lease.</p> <p>3. Landlord and tenant, § 470*—when provision in lease does not dispense with declaration of forfeiture. A clause providing that the lessee waived all right to any notice or demand under any statute relating to forcible entry and detainer, held not to dispense with a declaration of forfeiture for nonpayment of rent arising under a different clause in the lease.</p>

<p>Abstract of the Decision.</p> <p>I. Bills and notes, § 422*—when note sued on not admissible in evidence. In a suit on a promissory note purporting on its face not to be due, held that the note was improperly admitted in evidence.</p> <p>2. Evidence, § 327*—when terms of note cannot be varied by parol. In an action on a promissory note purporting on its face not to be yet due, the admission of testimony offered by plaintiff to show that there was an understanding that the note was to become due when defendant collected money on a certain note which had been given to defendant by a third person, held error.</p> <p>3. Evidence, § 338*—when parol evidence inadmissible. The rule that when a written instrument is incidental to an agreement the whole transaction may be shown by parol, held not applicable when the suit instead of being based on a parol agreement is based on the terms of the written instrument which plaintiff endeavors to alter by offering evidence of the parol agreement.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1818*—conclusiveness of decision of Appellate Court. The decision of the Appellate Court on a former writ of error holding that an instrument sued on constituted an evidence of indebtedness in writing within the meaning of section 16, ch. 83, Hurd’s R. S., J. & A. ¶ 7211, held res adjudicata in a subsequent suit involving the same question under the same facts and issues.</p> <p>2. Sales, § 329*—sufficiency of evidence to sustain finding. In an action to recover the purchase price of lumber, where the defendant claimed that he had never accepted or received the lumber and that he had never signed the delivery ticket which was offered in evidence, held that the evidence was sufficient to sustain a finding for plaintiff.</p> <p>3. Interest, § 8*—when allowed on a written instrument. Where the evidence of an indebtedness in writing is, in effect, a written contract, interest is properly allowed thereon since the time it became due, where the contract has been performed and accepted.</p>

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

<p>1. Carriers, § 45*—when bill of lading is receipt or contract. A bill of lading may be a receipt or a contract or both depending upon the terms thereof.</p> <p>2. Carriers, § 50*—when bill of lading creates implied contract. Where a bill of lading merely takes the form of a receipt it carries with it an agreement to safely carry the property mentioned therein, but such duty arises not by reason of any express terms in the bill of lading, but by the implied contract created by' the common law.</p> <p>3. Limitation of actions, § 11*—when bills of lading not evidences of indebtedness in writing. Bills of lading as shown by the record held to be in the form of receipts, and not express contracts for the transportation and delivery of grain, so that they could be regarded as evidences of indebtedness in writing within the meaning of section 16 of the Limitation Act, J. & A. ¶ 7211.</p>

<p>Abstract of the Decision.</p> <p>1. Pleading, § 34*—when reference to exhibits ineffective. A count in a declaration merely referring to certain exhibits as "A” and “B” hereto attached, held not to add to the strength of the count, change its character or modify it.</p> <p>2. Municipal corporations, § 252*—mode of paying expenses of special assessment. It is within the legislative authority of a city or village to fix, in advance, the mode of payment of expenses in connection with special assessments, by ordinance, and while such ordinance remains in force it is binding and excludes every other mode of payment.</p> <p>3. Municipal corporations, § 404*—proof essential to establish liability for special assessment funds. Where a local improvement ordinance provides that the sum raised by a special assessment shall be applied to the payment of the expenses of advertisements incurred in a special assessment, to entitle a party to recover from the municipal corporation under the ordinance for printing done, in connection with the special assessment, he must show that defendant had collected such fund and actually had the money in its possession, or, if no longer in its possession, that it had wrongfully used the fund contrary to the purpose for which it was collected.</p> <p>4. Municipal corporations, § 1152*—validity of warrants. A party receiving a warrant issued by a municipal corporation upon its general funds for printing done in connection with special assessment matters is not entitled to recover on it where it appears from the evidence that no appropriation had been previously made to pay either the warrant or the claim for which the warrant was given in payment.</p>

<p>1. Carriers, § 83*—place of delivery. Where the bill of lading issued by a railroad company designates the destination of the" consignment as a certain side track in a city, delivery must be made at the side track so specified.</p> <p>2. Carriers, § 71*—place of delivery for purpose of inspection. Where the bill of lading issued by a railroad company designates the destination of the consignment as a certain side track in a city, the lawful holder of such bill of lading has the right to inspect the consignment at such side track and cannot be required to make the inspection upon another side track, which, by the rules of the railroad known to such holder, has been set aside for inspection, ordering and diverting purposes, the siding designated in such bill of lading being, under the company’s rules, reserved solely for cars intended to be immediately unloaded.</p> <p>3. Carriers, § 80*—right of carrier to change place of delivery. A clause in a bill of lading providing for carriage “to its usual place of delivery at said destination” does not give the carrier the right by its rules to change the place of destination specifically named by setting apart tracks at a different point at which the holder of the bill of lading might inspect the consignment, and upon the presentment of the bill of lading have the car diverted to its proper destination, and this is true although the holder of the bill of lading had knowledge of the carrier’s custom in that respect.</p> <p>4. Carriers, § 80*—when evidence of general custom, inadmissible to construe bill of lading as to place of delivery. Where a bill of lading specifically designated the destination as a particular siding in a certain city, the fact that it also contained a provision for carriage “to its usual place of delivery at said destination” and that, under the rules and general custom of the company, cars were delivered at a certain “holding and inspection track” about two miles from the siding designated, and diverted to such siding only for the purpose of immediate unloading, and on the production of the bill of lading does not create an ambiguity permitting evidence of such general custom, and thereby establishing a destination other than that named in the bill of lading.</p> <p>5. Carriers, § 83*—when presentation of bill of lading unnecessary to require delivery at place provided in bill of lading. Where the bill of lading issued by a railroad company designates the destination of the consignment as a certain side track in a city, the lawful holder of such bill of lading may require delivery to be made at such side track without being required to present the bill of lading as a condition precedent to having the car placed upon such siding.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 710*—what does not constitute doing business in violation of Foreign Corporation Act. A foreign corporation by entering into a single written contract signed in the city of Chicago whereby it granted to the licensee the right to manufacture at his factory and elsewhere certain fire windows embodying an invention owned by the corporation, and also granted the right to sell the same throughout the United States and territories, the corporation to be paid royalties and a certain sum per square foot of the area of each window sold, held not to constitute doing business in this State in violation of the Foreign Corporation Act of 1905, J. & A. ¶ 2531.</p> <p>2. Corporations, § 710*—effect of single act of lousiness as violation of Foreign Corporation Act. The doing of a single act of business in this State does not constitute a violation of the Foreign Corporation Act of 1905, requiring foreign corporations to obtain a license in this State.</p>

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

<p>1. Divorce, § 67*—when lack of prescribed residence of complainant will not justify vacation of decree. Where.a divorce is granted by a court having general jurisdiction of the "subject of divorce, in a jurisdiction where a bona fide residence of the complainant is a prerequisite to the right to a decree or to any correct action by the court with respect thereto; and the complainant’s bill alleges such residence, and the court finds as a fact that it exists, a court of equity is not justified, in either a direct or a collateral proceeding, in vacating such decree of divorce at the suit of such complainant, who participated in fraudulently procuring such erroneous finding, after the lapse of a long interval, during which such complainant acted on the assumption of the validity of such decree and the other divorced spouse married an innocent party, there having been issue of such marriage.</p> <p>2. Judgment, § 306*—when judgment or decree will not be vacated, in equity. Where the record discloses jurisdiction of both the parties and the subject-matter, a bill to vacate a judgment or a decree is subject to all the usual rules as to equitable limitation and equitable estoppel, and want of clean hands, laches, estoppel and the intervening rights of third parties may defeat the bill.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in this court at the March term, 1911.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Michael L. McKinley, Judge, presiding. Heard in this court at the March term, 1913.</p> <p>Certiorari allowed by Supreme Court.</p>

<p>1. Banks and banking, § 115*—sufficiency of declaration in suit for wrongful payment of check. In an action by a depositor against a bank for wrongful payment of a check which was drawn payable to third parties, the declaration held defective in stating plaintiff’s right to maintain the action.</p> <p>2. Appeal and error, § 866*—when abstract of record insufficient. An abstract consisting of a mere index of the record is insufficient.</p> <p>3. Banks and banking, § 134*—when evidence insufficient to show hank liable for wrongful payment of check. In an action by the drawer of a check against the bank on which it was drawn to recover the amount of the check on the ground that the bank did not pay the check to the proper payees, held that a judgment entered on a verdict for defendant would be affirmed, it not appearing by what right the plaintiff was entitled to maintain the action, and it appearing that the check went to and was paid to the persons that a representative for the plaintiff intended.</p>

<p>1. Landlord and tenant, § 508*—what not justification for forcibly ejecting tenant. Where a person orally leased certain premises of a brewing company for a saloon, and agreed to sell only the company’s beer during the term of the lease, held that a breach of the agreement to sell the company’s beer furnished no justification for a trespass of the company in entering the premises and forcibly ejecting the tenant and his property.</p> <p>2. Landlord and tenant, § 508*—what constitutes forcible entry by landlord. Where an entry by the landlord upon premises occupied by a tenant was through the means of an armed man and a posse of hired men, held that the entry constituted a forcible entry and not a peaceable entry, though no physical resistance was made.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Michael L. McKinley, judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 112*—when order of default not default judgment. An order of court held to be a mere order of default inartificially expressed and not a default judgment.</p> <p>2, Principal and agent, § 8*—when evidence sufficient to establish agency to contract. In an action against a brewing company to recover for plumbing work done in a saloon which was operated by a third party, whom the plaintiff claimed was authorized by defendant to contract for the work, held that a judgment in favor of plaintiff was sustained by the evidence.</p>

<p>Garnishment, § 130*—when assignment of benefit of contract protected. Where an insolvent corporation had a contract to furnish work and materials to a customer and assigned it to an officer of the corporation and the contract was performed by the assignee after the assignment, held that the assignment was not of an existing claim or indebtedness making it invalid as a preference so that a creditor of the corporation in an attachment proceeding in which the customer was summoned as garnishee would he entitled to reach the sum due from the garnishee or the profits of the assignee as against the latter, who performed the work and was an intervening claimant in the proceeding, it also appearing that the creditor was instrumental in procuring said assignee to take the contract.</p>

<p>1. Municipal Court of Chicago, § 13*—when statement of claim sufficient to inform defendant as to nature of case. A statement of claim in a fourth-class case in the Municipal Court for personal injuries, held to reasonably inform the defendant of the nature of the case within the meaning of section 40 of the Municipal Court Act, J. & A. ¶ 3352.</p> <p>2. Municipal Court of Chicago, § 28*—When judgment will not he reversed for insufficiency of statement of claim. The fact that a statement of claim in a fourth-class case in the Municipal Court for personal injuries did not allege that plaintiff was in the exercise of due care when injured, held not sufficient ground for reversal of a judgment, where nothing was done in the court below to save such point for review except a motion for an arrest of judgment after verdict.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal corporations, § 972*—duty to maintain streets in safe condition for children. A city is charged with a duty subject to certain general limitations and conditions to keep its streets in a reasonably safe condition, not only for ordinary travel, but also for children at play using the streets in a manner common and usual for children in a city.</p> <p>2. Municipal corporations, § 968*—when defective street constitutes proximate cause of death of child. Where a child playing in a street was killed by a cake of ice falling from a wagon because the wagon ran into a hole in the street, held that the negligence of the driver of the wagon would not excuse the negligence of the City in permitting the holes to be in the street if such negligence of the City was the proximate cause of the accident.</p> <p>3. Negligence, § 53*—proximate cause. For an act of negligence to be the proximate cause of an injury, it need not be the sole or exclusive proximate cause, but it must be a proximate cause, either alone or concurrently with some other.</p> <p>4. Municipal corporations, § 1100*—sufficiency of instructions. In an action against a city for the death of a child caused by a cake of ice falling from a wagon when the wagon ran into a hole in a street, held that the instructions given did not properly present the law material to the issues, where the court gave instructions to find the defendant not guilty if the street was reasonably safe for travel and the negligence of defendant was not the proximate cause of the accident, and refused to give an instruction requested by plaintiff to the effect that though the driver of the wagon was guilty of negligence contributing to the accident such negligence would not prevent recovery if the negligence of the defendant was the proximate cause of the injury.</p> <p>5. Negligence, § 223*—sufficiency of instruction as to liability for unforeseen accidents. A portion of an instruction telling the jury “that a person or corporation is not liable or responsible for injuries or accidents which could not have been foreseen or expected by a reasonably prudent person as a result of its negligence,” held improper if standing alone as making the liability of defendant depend upon whether the precise injury complained of and the manner of its occurrence ought to have been foreseen, but held that the giving of the same was not reversible error where it was followed by a clause which explained or developed the preceding clause by speaking of “any accident or some accident.”</p> <p>6. Evidence, § 232*—when portion of coroner’s verdict inadmissible. In.an action against a city for the death of a child alleged to have been caused by a hole in a street, a part of a coroner’s verdict which purported to determine' that the condition of the street caused the accident, held not competent evidence for the jury.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1712*—when assignments of error waived. Assignments of error which are not argued may be considered as waived.</p> <p>2. Pleading, 249*—when allowing filing of amended, replication not error. Permitting plaintiff during the trial to file an amended replication to a plea of the statute of limitations, held not error.</p> <p>3. Master and servant, § 702*—when contributory negligence and fellow-servant relation questions for jury. In an action by a servant against his employer to recover for personal injuries received while placing certain iron couplers on a machine, for testing the strength of the couplers by a heavy hammer, where at the time of the injury the hammer on being partly raised unexpectedly fell by becoming detached from a hook connected to the hammer by defendant’s foreman, held under the facts of the case the questions whether plaintiff was guilty of contributory negligence or whether the foreman was a fellow-servant were questions for the jury upon which their verdict in favor of plaintiff was conclusive, it appearing that the plaintiff was an inexperienced minor, that the manner of performing, the work was unsafe, that the foreman was plaintiff’s “boss,” and that the foreman had knowledge that the hook did not fasten securely to the hammer.</p> <p>4. Master and servant, § 359*—assumption of risk. Where a youthful and inexperienced servant was injured while engaged in placing iron couplers on a testing machine for the purpose of testing the same with a heavy hammer, held under the facts of the case that the doctrine of assumption of risk was inapplicable.</p> <p>5. Master and servant, § 561*—necessity of proof of specific negligence alleged. In an action by a servant against his employer for personal injuries, the specific negligence charged in the declaration must be proved to warrant a verdict for plaintiff.</p> <p>6. Master and servant, § 694*—when proof sufficient to sustain allegation in declaration. In an action by a servant against his employer to recover for personal injuries, plaintiff’s testimony held sufficient, if believed by the jury, to sustain an allegation in plaintiff’s declaration that the injury resulted from obeying a negligent order of defendant’s foreman.</p> <p>7. Trial, § 33—when refusal to adjourn for day not abuse of discretion. Refusal of court during the trial to adjourn for a day to allow a witness for defendant to -arrive from another State on the ground that the train which the witness had taken was delayed on account of floods, held not an abuse of discretion.</p>

<p>1. Wills, § 493*—rules as to lapsing of legacy where legatee dies before testatrix. Where the payment of a legacy charged upon land is by the terms of a will postponed until the arrival of the legatee at a certain age, or to some other fixed time in the future, the legacy lapses if the legatee dies before the time arrives, and the postponement of the payment was made on account of the circumstances and for the good of the. legatee. If, however, the postponement was made on account of the circumstances of the estate or for the benefit or aggrandizement of the estate, the legacy does not lapse but vests in and passes to the personal representative of the legatee in case of his death before payment. But these rules are not conclusive as against evidence of the intention of the testator.</p> <p>2. Wills, § 493*—when words in will do not prevent lapsing of legacy. Where a will charged a legacy upon land to be paid to the legatee, his heirs and assigns when he is twenty-one years of age, and the legatee died before the testatrix, held that the use of the words “his heirs and assigns” did not show that the testatrix intended the legacy to go to the heirs of the legatee in view of other provisions in the will and the circumstances of the family at the time the will was made.</p>

<p>1. Damages, § 233*—sufficiency of verdict on assessment of damages after default. Where a recorded verdict of a jury on assessment of damages after entry of default stated that “we the jury find the defendant guilty and assess the plaintiff’s damages at” a certain sum, held that the words “find the defendant guilty and” were obviously inserted by mistake and were surplusage.</p> <p>2. Pleading, § 285*—when additional count to declaration may he filed. Allowing plaintiff to file an additional count to his declaration after entry of default and assessment of damages and before final judgment, held not error where the court required notice to the defendant and gave him time to plead.</p> <p>3. Pleading, § 383*—when additional count states no new cause of action preventing it to he added after verdict. Where the original declaration averred that the defendant “carelessly, negligently and improperly” operated his automobile, an additional count averring that defendant “wilfully, wantonly and maliciously and with gross disregard of the life and limb of the plaintiff” operated his car, held not to state a new cause of action so that it could not he-'added after verdict.</p> <p>4. Judgment, § 132*—when denial of motion to vacate default and for other relief not an abuse of discretion. Overruling of a motion made by defendant to vacate a default judgment, to vacate the verdict, to vacate the default, to quash execution and strike an additional count from the files, to grant a new trial and leave to plead, held not an abuse of discretion, where affidavits in support of°the motion stated that defendant had been informed by his attorney that the case had been abandoned and another affidavit tended to show a defense.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1913.</p>

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

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 451*—when heirs or representatives or mortgagor not necessary parties. Where a husband and wife executed a trust deed to secure the payment of notes, and the wife died, but before her death conveyed her interest in the property to the husband, held on bill thereafter filed to foreclose the trust deed that it was unnecessary to make the heirs or representatives of the wife parties, and that the husband was estopped to make such claim for the reason he took the deed, recorded it and took possession of the property.</p> <p>2. Mortgages, § 531*—when proceedings "before master not invalid. Proceeding before a master in a foreclosure proceeding held not to be invalid for the reason. that certain persons made party defendants and personally served with summons were not defaulted before the reference, and that another person made a defendant in the bill was not served and never appeared, it appearing that such parties were made defendants under a general allegation of a supposed but inferior interest and that they were not complaining.</p> <p>3. Equity, § 396*—right of master to fees. A master is not deprived of his right to fees because under an order of reference instructing him to report his findings as to ultimate facts he also “gave advice” to the court.</p> <p>4. Mortgages, § 43*—when identity of notes question of fact. On a bill to foreclose a trust deed, held that the question whether the notes produced in evidence were those described in the trust deed was one of fact upon which a finding in the affirmative was warranted, though there was a variance between the recital of the trust deed as to the place of payment of the notes and the actual fact as shown by the notes, and though an accelerating clause in the principal note was not repeated in the recitals of the deed.</p> <p>5. Usury, § 2*—when provision in note does not render loan usurious. An accelerating clause in the principal note secured by a trust deed making the amount due in case of default in the payment of any of the interest notes, held not to render the loan usurious.</p>

<p>1. Instructions, § 20*—propriety of referring jury to declaration. Instructions which state, in substance, that plaintiff may recover if she has made out her case as charged in the declaration or in some or more counts thereof, though not commendable, are not erroneous unless the declaration has omitted reference to some substantial defense which is made.</p> <p>2. Master and servant, § 784*—when instructions not erroneous as ignoring defenses. In an action by an employee for personal injuries, instructions given for plaintiff held not erroneous, for the reason that they ignored the defenses arising from the rules concerning assumed risk, fellow-servants and proximate cause, it appearing that the defense of assumed risk was not applicable to the case and that an instruction was given stating that the plaintiff must make out the case charged in the declaration which stated that the negligence was not that of a fellow-servant and alleged that the cause of the injury was the negligence of defendant.</p> <p>3. Master and servant, § 508*—when employee not guilty of contributory negligence in falling down elevator shaft. In an action by an employee for personal injuries received by falling down an open elevator shaft alleged to have been caused by the negligence of defendant’s elevator man leaving the elevator door open in a room which was dimly lighted, held that a verdict for plaintiff was not against the weight of the evidence for the reason that it showed plaintiff guilty of contributory negligence.</p> <p>4. Master and servant, § 111*—when leaving elevator door open proximate cause of injury. In an action by an employee of defendant for personal injuries received by falling down an elevator shaft, where it was alleged that defendant’s elevator man was negligent in leaving the elevator door open when the elevator was at a floor above, held under the defendant’s theory of the case that the accident happened while another employee was scuffling with plaintiff and that plaintiff fell down the shaft while struggling to free herself, that the defense of contributory negligence was eliminated, and that a verdict for plaintiff could he sustained on the theory that the negligence of defendant was one of the proximate causes of the injury.</p> <p>5. Negligence, § 53*—proximate cause. Where an accident is the result of the concurrent negligence of two persons, without the negligence of both of which it would not have occurred, the negligence of each is a proximate cause, and each is liable.</p>

<p>Abstract of the Decision.</p> <p>1. Negligence, § 123*—when declaration states cause of action. In. an action for personal injuries resulting from the negligence of defendant in causing the frozen crust of a sand pile to fall on plaintiff, held that the counts in the declaration were sufficient to state a cause of action.</p> <p>2. Negligence, § 119*-—when averment of duty may he inferred from facts stated. A count in a declaration averring that defendant had knowledge that plaintiff was in a place of danger and likely to be struck by the frozen crust of a sand pile and that he negligently caused it to fall on plaintiff without warning him, held not subject to the criticism that it did not charge defendant with the duty to warn plaintiff, since such duty may he inferred from the facts stated.</p> <p>3. Damages, § 71*—when instruction authorizing recovery proper, though injury was improperly treated by physician. In an action for an injury to plaintiff’s leg, an instruction which told the jury, “that a person who is suffering from an injury is only required to use reasonable diligence to employ a physician of ordinary skill and experience to treat him, and that the law regards the injury, if any, resulting from the mistakes of the physician, if there are any such mistakes, or from the failure of the means employed to effect a cure, as a part of the immediate and direct damages flowing from the original injury,” held properly to state the law, and the giving of it justified on the ground that the cross-examination of plaintiff’s physician tended to suggest that the treatment of plaintiff was unskilful;- and also held that it was not necessary to show that the doctor, who had been practicing for twenty-six years, had especial experience in setting broken legs, to warrant the instruction.</p> <p>4. Negligence, § 185*—when recovery for personal injuries resulting from, fall of frozen crust of sand pile sustained by the evidence. A verdict allowing a recovery for personal injuries alleged to have resulted from defendant’s negligence in causing a frozen crust of a sand pile to fall on plaintiff, held not against the weight of the evidence, where the jury might have justifiably believed from the evidence that plaintiff was in the exercise of due care and justifiably ignorant of the manner in which defendant was working on the other side of the pile, that defendant’s method of doing the work on his side was not a careful one, that he had reason to believe conditions were dangerous and he did not warn plaintiff, and that the work on defendant’s side caused the crust to fall on plaintiff.</p>

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

<p>1. Equity, § 345*—when hill must he -dismissed for want of equity. Where the proofs fail to sustain a bill filed in a court of equity, no other course is open to the chancellor but to dismiss the bill for want of equity.</p> <p>2. Equity, § 482*—when decree unauthorized after adverse finding as to jurisdictional facts. On a bill filed by a stockholder against a corporation and representatives of a copartnership to enforce the right of the corporation as against said representatives, on the sole ground that there was fraud and collusion on the part of the corporation and the copartnership in a certain transaction, held that upon a finding by the chancellor that the complainant failed to prove the alleged fraud and collusion, a decree was not authorized on such parts of the bill as standing alone would not give the court jurisdiction.</p> <p>3. Equity, § 493*—necessity of cross-hill for affirmative relief as between codefendants. A decree granting affirmative relief to a defendant against his codefendant, not based on or supported by a cross-bill or answer in the nature of a cross-bill, cannot be sustained.</p>

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

<p>Abstract of the Decision.</p> <p>1. Set-off and recoupment, § 14*—right to set off individual demands against joint demands. A note made payable to the order of one or two joint defendants, and not indorsed, cannot be set off in a suit by plaintiffs on a demand against the defendants jointly.</p> <p>2. Vendor and purchaser, § 25*—when verbal agreements merged in deed. Verbal negotiations or agreements relating to the purchase' of land, held not to become- a contract until the deed was delivered and the consideration furnished.</p> <p>3. Vendor and purchaser, § 25*—when oral contract not enforceable. An oral promise to improve land conveyed, made by the grantors to the grantee at the same time and for the same consideration as the deed, where such deed contains general covenants of warranty, will not support an action.</p> <p>4. Evidence, § 345*—when parol evidence of prior verbal agreements inadmissible. Where a deed constitutes the contract for the purchase of land, parol evidence of an antecedent or contemporaneous verbal agreement by the grantors to improve the land by digging an irrigation well thereon is not admissible.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Notice, § 3*—when doctrine of constructive notice cannot be invoked. The doctrine of constructive notice is resorted to for the purpose of preventing a person from doing an act which will work injury to another, and cannot be invoked to charge a person with assent to a fraud practiced upon him.</p> <p>2. Appeal and error, § 1725*—when decision on former appeal not conclusive on a subsequent one. A decision of the Appellate Court on a former appeal is not conclusive on a subsequent appeal, where there is nothing in the abstract or opinion on the former appeal to show that the evidence on the second trial was substantially the same as on the first.</p> <p>3. Compromise and settlement, § 5*—when arrangement does not .constitute compromise agreement. An arrangement between debtor and creditor with reference to a statement of an account sent to the debtor, where the creditor reduced the amount by making certain corrections but refused to make any allowance that the debtor insisted should be made, held not to constitute a compromise agreement.</p> <p>4. Payment, § 29*—when evidence sufficient to show payment by third person. In an action by a supply company against a contracting company to recover a sum claimed to be due on account for machinery and supplies furnished, where the defense was that a certain person connected with the defendant company had, by an arrangement with an officer of the plaintiff company, directed that a part of a sum paid the latter company for him should be credited to the defendant company, held that a verdict for the defendant company was sustained by the evidence.</p>

<p>1. Landlord and tenant, § 230*—when owners not liable for injury to child of tenant by falling from roof. Where a child of a tenant went upon the roof of a three-story tenement building and in attempting to jump from it to the roof of an adjoining building fell and was injured, held 'that the owners of the buildings were not liable on the theory that they owed to the tenants and their families the duty to exercise care to keep the roof in a reasonably safe condition, it appearing that there were steps leading to the roof and that the roof was used by the tenants for drying clothes, but it not appearing that the owners had knowledge that children went upon the roof, or that the roof was used as a playground or breathing place by the invitation or with the knowledge and consent of the owners.</p> <p>. 2. Negligence, § 45*—when owners of building not liable on theory of maintaining dangerous roof attractive to children. Where a child went upon the roof of a three-story tenement building and in attempting to jump from it to the roof of an adjoining building fell and was injured, held, that the owners of the buildings were not liable on the theory that the roof was a dangerous thing attractive to children, for the reason that the roof was not so located as to attract children from a street or other public place, and for the further reason that neither the roof nor anything connected with it was the proximate cause of the injury.</p>

<p>Appeal from the Probate Court of Cook county; the Hon. Charles S. Cutting, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Bailment, § 1*—when relation is created by renting safe deposit box' Where a corporation engaged in renting safe deposit boxes rents such a box to a party, the relation of bailor and bailee arises.</p> <p>2. Safe deposit companies, § 1*—degree of care required. A bailee depositary for hire, engaged in the renting of safe deposit boxes, is bound to exercise ordinary care for the preservation of property intrusted to it.</p> <p>3. Safe deposit companies, § 1*—degree of care required. The ordinary care exacted of a corporation engaged in renting safe deposit boxes is such care as prudent men take of their own property.</p> <p>4. Safe deposit companies, § 1*—when evidence insufficient to charge company with negligence. Evidence held insufficient to charge with negligence a corporation engaged in the renting of safe deposit boxes, where plaintiff sought recovery for a thousand dollar bill alleged to have disappeared from his rented box.</p> <p>5. Evidence, § 23*—right to base presumption upon a presumption. A conclusion cannot be drawn by indulging in a presumption based upon another presumption.</p> <p>6. Evidence, § 477*—what essential to justify inference from facts. To justify an inference from facts, such facts must be established by direct evidence and not upon a presumption.</p> <p>7. Safe deposit companies, § 1*—degree of care required. A corporation engaged in the renting of safe deposit boxes is not required to prqve a condition of perfect safety in the management of its vault. '</p> <p>8. Safe deposit companies, § 1*—degree of care required. In an action to recover damages for failure to keep property safe in a deposit box, it is erroneous to submit the cause to the jury on the theory that unless the depositary proved its safe deposit boxes absolutely impregnable it should be held negligent, since it was bound to use only ordinary care.</p> <p>9. Judgment, § 206*—when judgment against joint defendants cannot he sustained. Where negligence is shown as against one defendant only, a judgment rendered jointly against such defendant and a codefendant is erroneous.</p>

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

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

<p>1. Limitation of actions, § 11*—when suit on contract for public improvement barred. Where a village becomes liable to pay for an improvement on its acceptance thereof, the claim of the contractor is barred by the statute of limitations where suit is not brought thereon within ten years from the date of such acceptance.</p> <p>2. Municipal corporations, § 401*—when compensation for improvement restricted to particular fund. A contract with a village for work done in making a sidewalk improvement, construed as restricting the contractor for his compensation to the special taxation fund, though the ordinance under which the work was done was adjudicated to be void.</p>

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

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

<p>Appeal from the Superior Court of Cook county; the Hon. Michael L. McKinley, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>1. Bills and notes, § 24*—right of payee to fill in blank for attorney’s fees. Where the amount of attorney’s fees in a judgment note was not written in the blank space provided for that purpose, the authority to fill in the blank for a sum not excessive in amount exists in the payee of the note.</p> <p>2. Alteration of instruments, § 18*—effect of filling in blank left for attorney’s fees. The filling in a blank space left for attorney’s fees in a judgment note is not a material alteration.going to the validity of the instrument, but is supplying a manifest omission.</p> <p>3. Bills and notes, § 24*—when blank in note may he filled in. Where additions or insertions are made in conformity with the apparent character and object of a blank in a note, they are proper and binding upon the maker of the instrument.</p>

<p>Negligence, § 12*—when seller of coat not liable for injuries resulting from, concealed knife therein. Where a lady purchased a fur coat from dealers in ladies garments and after wearing it was injured by reason of a furrier’s knife found concealed in the coat, held that the dealers were not liable for the injury, it appearing that the coat was sent to the furrier’s for alterations after she purchased it, and there being no evidence to show that the dealers knew the knife was in the coat or that their failure to discover it resulted from not using reasonable and ordinary care.</p>

<p>1. Wills, § 371*—when income accruing to "beneficiary before his death does not go to his estate. Under a will providing that the income of the estate shall be divided equally between the testator’s two sons and a grandson and payable quarterly, and providing that in case either should die without issue his portion should be added to that of the survivor or survivors, held that where one of them died without issue, leaving a will devising and bequeathing his entire estate to his wife, that the wife was not entitled to any portion of the income which accrued from the date of the last quarterly payment up to her husband’s death.</p> <p>2. Equity, § 188*—when matters already adjudicated cannot be reconsidered under cross-bill. A defendant in a case, when the merits are determined and the equities settled, cannot, under the guise of a cross-bill, bring the previous proceedings before the court and thus have the court reconsider questions already passed on.</p> <p>3. Estoppel, § 66*—when parties precluded from insisting on different construction of will. Where a beneficiary in a will accepted benefits which accrued to him by reason of the court’s construction of the will, both the beneficiary and a person claiming under him are estopped from insisting on a different construction.</p> <p>4. Judgment, § 495*—when decree approving action of trustee conclusive. A decree approving the action of a trustee in paying a portion of the income of an estate to a person mentioned in a will, held conclusive against the claim of a person that the income was not properly disbursed, where such person was served with a copy of the bill in the proceeding and was defaulted for want of appearance.</p> <p>5. Appeal and error, § 1568*—when setting aside default granting leave to plead, etc., harmless. Error of court in setting aside a default decree, in granting defendant leave to file a cross-bill and also in denying a motion to strike the cross-bill from the files, held not reversible error where the cross-bill was dismissed.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>1. Bills and notes, § 240*—rights of purchaser of draft before its acceptance. The purchaser of a draft before its acceptance in the ordinary course of business, in good faith, for "value, is as "clearly a holder for value as if he had purchased the draft after acceptance.</p> <p>2. Bills and notes, § 248*—when purchaser of draft not charged uñth notice of its infirmity. The fact that the purchaser of a draft gives to the acceptor thereof the right to inspect the goods for the price of which the draft is drawn, does not show notice or knowledge of any infirmity in the draft.</p> <p>3. Bills and notes, § 241*—what essential to charge purchaser of draft with notice of its infirmity. To effect the holder of a draft, notice of its infirmity must exist at the time he acquires the paper, when his relation to it is fixed.</p> <p>4. Bills and notes, § 240*—when notice subsequent to acquisition of draft does not affect title of holder. Notice as to the infirmity of a draft subsequent in time to its acquisition does not affect a purchaser’s title or right to transfer the draft.</p> <p>5. Bills and notes, § 46*—defense not available by acceptor. in an action by the payee against the acceptor of a draft, failure of consideration as between the drawer and drawee is not a defense.</p> <p>6. Bills and notes, § 436*—when written acceptance may not be varied by parol. The terms of an acceptance in writing cannot be varied by any contemporaneous oral agreement.</p> <p>7. Bills and notes, § 34*—what constitutes conditional acceptance. Facts stated in an affidavit of merits held not to show an agreement that the delivery of a draft was conditional, but only an agreement that the acceptance was conditional; but the acceptance as modified by such conditions was delivered to the purchaser of the draft without limitation or reservation that property in the instrument should not be transferred until the happening of the conditions named.</p> <p>8. Municipal Court of Chicaqo, § 13*-—when affidavit of merits may be stricken. In an action in the Municipal Court of Chicago, an affidavit of merits which does not set up facts constituting a defense may be stricken.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Automobiles and garages, § 4*—when evidence of actual value of automobile to be taken in exchange admissible. In an action for defendant’s breach of a contract to sell plaintiff an automobile, where defendant had agreed to allow plaintiff a certain sum for his car which was to be traded in, and plaintiff’s car had been delivered to defendant and sold by it, refusal of court to admit in evidence testimony offered by the defendant to show the actual value of the car taken in exchange, held reversible error.</p> <p>2. Evidence, § 63*—value. The amount agreed upon as the trading value of property may be prima facie evidence of its true value, but is not conclusive.</p>

<p>1. Fraudulent conveyances, § 2*—Bulk Sales Law construed. “Other goods and chattels of the vendor’s business,” within the meaning of the Bulk Sales Law, does not mean any and all fixtures, goods or chattels used in any trade or business, but is- limited to those used in connection with the business of selling merchandise, commodities or other wares, under Hurd’s Rev. St. 1913, ch. 38a, §§ 4-6.</p> <p>2. Fraudulent conveyances, § 2*-—what property covered by the Bulk Sales Law. Where one is engaged in running an employment agency, his desk, chair, filing case, rug and other articles of office furniture are not affected by the Bulk Sales Law such as to render a sale of the same void and fraudulent as to creditors, under Hurd’s Rev. St. 1913, ch. 38a, §§ 4-6.</p>

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

<p>Abstract of the Decision.</p> <p>1. Witnesses, § 253*—when credibility of witness is for jury. The credibility of a witness is for. the jury, in the absence of surrounding conditions such as to make his story impossible or improbable.</p> <p>2. Master and servant, § 197*—when master bound to warn of dangers from fumes of paint and gasoline. Where decedent was given a specific order to paint the interior of a concrete battery well, the jury could properly believe from the evidence that paint and gasoline used in such a receptacle would give off fumes dangerous to the life of one working therein, so that the defendant must have been negligent in giving the specific order without warning of the dangers involved.</p> <p>3. Master and servant, § 379*—when servant does not assume the risk incident to place and work. Evidence held insufficient to show that a painter assumed the risk from fumes in working in a battery well.</p> <p>4. Negligence, § 188*—when evidence sufficient to show due care of deceased. In the absence of direct testimony, the evidence is held to show clue care on the part of decedent, who met his death from the fumes of paint and gasoline while painting a battery well.</p> <p>5. Negligence, § 188*—presumption as to due care for safety. While the burden of proving due care for safety is upon the one asserting it, even if there is no direct evidence as to the conduct of a decedent in this respect, in an action to recover for his death from the fumes of paint and gasoline while painting the interior of a battery well, the decedent is entitled to the presumption that men naturally seek to avoid injury and to preserve their own lives.</p> <p>6. Death, § 58*—what may be considered in arriving at damages by loss of a brother or son. In an action to recover for the death of decedent, an instruction authorizing the jury to consider not only what the parents of the decedent might reasonably have expected, if he had lived, but also what his adult brothers and sisters might have expected, is not erroneous, where the jury are limited to the consideration of the testimony upon the question and are told to consider only what the evidence showed the next of kin might reasonably expect in a pecuniary way.</p> <p>7. Master and servant, § 307*—when court may refuse an abstract instruction as to assumption of risk. In an action to recover for a death caused by paint and gasoline fumes arising while decedent was painting the interior of a concrete battery well, it was not erroneous to refuse to give an instruction containing an abstract statement of the law as to assumption of risk, which ignored entirely the theory and proof that the decedent was obeying a specific order in painting the well.</p> <p>8. Instructions, § 151*-—when requested instruction may be refused. It is not erroneous to refuse a requested instruction practically covered by an instruction given.</p> <p>9. Trial, § 45*—when improper remarks of the court will not require reversal. Where the court’s remarks, indicating hostility towards certain of defendant’s witnesses, are made in chambers, out of the hearing of the jury, they are not so prejudicial as to require a reversal.</p> <p>10. Death, § 67*—when the amount of damages awarded is not excessive. A verdict of five thousand dollars for the death of a young man over eighteen years of age, who was the support of his mother, held not excessive.</p>

<p>Abstract of the Decision.</p> <p>1. Continuance, § 59*—when affidavit admitted by adverse party erroneously excluded from evidence. In an action against two defendants, where one of the defendants made a motion for a continuance on the ground of an absent witness and the motion was denied upon plaintiff’s admission that the absent witness, if present, would testify to the facts set forth in the affidavit filed in support of the motion, held that said defendant was entitled to, the admission of the affidavit in evidence, so far as it was material to the issues between it and plaintiff, and that the court erred in excluding it on the ground that it would • operate prejudicially against the other defendant.</p> <p>2. Evidence, § 103*—rule as to admission of. Where evidence is competent for any purpose it must be admitted, and if its application should be restricted that may be done by an instruction.</p>

<p>1. Pleading—reference to exhibits. A declaration cannot make attached exhibits a part of the pleading by referring to them as such.</p> <p>2. Pleading, § 476*—when counts in declaration sufficient after verdict. In an action for breach of an agreement to repurchase bonds and stock at the expiration of two years, counts in the declaration defective in not averring a proper demand on defendants and tender of performance by plaintiff, etc., held sufficient after verdict.</p> <p>3. Appeal and error, § 1682*—when error in sustaining demurrer waived. Defendants, by filing amended pleas, waive their right to urge error in sustaining a general demurrer to their original pleas.</p> <p>4. Pleading, § 128*—when replication not responsive to plea. In an action for breach of a contract to repurchase stock and bonds at the expiration of two years, where one of defendants’ pleas averred that the place for delivery and payment of the stock and bonds was at a certain bank and that plaintiff at no time delivered or offered to deliver at said bank, held that a replication to the plea averring that none of the defendants were ready or offered at such bank or elsewhere to accept and pay for said bonds or stock was no answer to the plea for the reason it evaded the issue of tender.</p> <p>5. Instructions, § 131*—when rulings on instructions as to tender erroneous. In an action for a breach of a contract, where plaintiff in his pleadings based his right to recover on his complete performance and not defendants’ waiver thereof, the giving of an instruction for plaintiff ignoring the necessity of tender and the refusal of an instruction offered by defendants making such tender essential to plaintiff’s recovery, held error.</p> <p>6. Contracts, § 387*—when proof of performance essential to put defendants in default. Under a contract to repurchase stock and bonds, where a place is designated therein as the place of delivery and payment, in order for plaintiff to put defendants in default he must show in addition to his offer of performance that such stock and bonds were at such place for delivery unless such requirement was waived.</p> <p>7. Gaming, § 16*—when provision in contract for resale not invalid. A contract for the sale of stock and bonds giving the buyer the right to return the same after two years and receive the purchase price, held to tie one of conditional sale and not an option contract, in contravention of section 30 of the Criminal Code, J. & A. 1i 3733.</p> <p>8. Sales, § 374*—when instructions as to contribution to foreclosure sale properly refused. In an action for breach of a contract to repurchase stock and bonds, a requested instruction that plaintiff could not recover if certain persons purchased for the plaintiff and other bondholders the property at a foreclosure sale under a trust deed to secure the bonds, and if he contributed money for that purpose, and another requested instruction of the same purport requiring plaintiff to prove defendants’ consent to such contribution, held properly refused, there being nothing to show that plaintiff’s participation in the foreclosure sale would relieve defendants from their, obligations under the contract.</p> <p>9. Sales, § 374*—when requested instruction as to merger properly refused. In an action for breach of a contract to repurchase stock and bonds, where it appeared that there had been a foreclosure of a trust deed given to secure the bonds, a requested instruction that if in the decree of foreclosure the court found the amount due on the bonds, then they were merged in said decree, and therefore of no validity and not capable of delivery after entry of said decree, held properly refused, it appearing' that the decree was not a final one or judgment for money enforceable by execution.</p> <p>10. Mortgages, § 635*—right to deficiency decree. It is only by virtue of a statute that a money decree in a foreclosure proceeding can be rendered.</p>

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

<p>Abstract of the Decision.</p> <p>1. Execution, § 295*—when declaration to show malice the gist of the action within meaning of Insolvent Debtors’ Act. A count in a declaration, charging among other things that the petitioner, with force and arms, etc., broke open the outer doors of the, judgment creditor’s dwelling and continued to make a great noise and disturbance therein for three days, held to show malice as the term is used in the Insolvent Debtors’ Act, J. & A. ¶¶ 6198 et seq., and held that the judgment against petitioner was, under the doctrine of res adjudicate, conclusive of that question and estopped petitioner from showing the contrary.</p> <p>2. Execution, § 295*—determination as to whether malice is gist of action. Whether malice is the gist of a civil action within the meaning of the Insolvent Debtors’ Act, J. & A. ¶¶ 6198 et seq.. may be determined alone from an inspection of the record thereof and particularly from the allegations of the declaration.</p> <p>3. Execution, § 302*—when rule as to extrinsic evidence inapplicable. The rule that where there are several counts in the declaration" and malice is the gist of some but not of others, the question whether extrinsic evidence may be resorted- to to determine under which count the verdict was rendered, is not applicable where each count charges malice and the judgment necessarily involves the determination of that question as one of the issues.</p>

<p>Appeal from the County Court of Cook county; the Hon. J. E. Hillskotter, 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. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Appeal from the Municipal,Court of Chicago; the Hon. John R Newcomer, 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. Clarence N. Goodwin, 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. Harry M. Waggoner, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>1. Insurance, § 895a*—admissibility of evidenced In an action on a benefit certificate for insurance where the issue was whether the member committed suicide, the testimony of the beneficiary to the effect that she had seen the insured clean his revolver on several occasions prior to his death and that the conditions under which he cleaned it were similar to those existing at the time he was found dead, held material to the issue and properly admissible.</p> <p>2. Insurance, § 747*—when amended by-law of benefit association becomes part of contract. Where the terms of the policy and the application therefor make the provisions of the by-laws then in force and the provisions of all subsequent amendments, alterations and new issues of the by-laws a part of the contract of insurance, such amendments, if reasonable and valid, become a part of the contract.</p> <p>3. Insurance, § 747*—when amendment to by-law of benefit association reasonable. An amendment to a by-law of a benefit association that the association shall not be liable for disability or death of a member resulting from the discharge of firearms, when there is no witness to the discharge of such firearms except the member himself, held to be reasonable and valid and to become a part of the contract of insurance.</p> <p>4. Insurance, § 612a*—burden of proof. In an action on a benefit certificate to recover insurance, the burden of proof rests upon the plaintiff to establish that the assured met an accidental death under conditions imposing liability expressed in the terms of the contract of insurance, notwithstanding the pleas of the defendant of the general issue, setting up suicide and the evidence in support thereof.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Judgment, § 80*—how delay in applying for vacation of may he explained. A proper showing may be made by aflidavits to account for delay in making application to vacate or stay proceedings under a judgment entered by confession.</p> <p>2. Judgment, § 66*—when refusal to vacate constitutes error. Where a note was executed in blank for an amount alleged to be due on a prior note on which the maker was surety, and upon an agreement that the amount due on the prior note at the date of the note sued on should be inserted by plaintiffs’ testate, and the maker relied upon deceased to insert the amount due on the prior note and the evidence tended to show that the pre-exising note had been fully paid, the court erred in refusing to vacate a judgment entered by confession or to stay proceedings with leave to make a defense on the merits.</p> <p>3. Judgment, § 65*—grounds for vacating. A judgment entered by confession on a note should be vacated if it appears that there was no consideration for the note in question.</p>

<p>Abstract of the Decision.</p> <p>1. Equity, § 213*—question raised by general demurrer to bill. Where a bill for an accounting, shows that a real estate broker, while acting as the owner’s agent, took advantage of his position of trust to secure to himself a secret and unlawful profit and that a third party knowingly participated in the fraud and received part of the proceeds, held that the only question raised by general demurrers to the bill was whether the remedy of the owner upon the admitted facts is at law or in equity.</p> <p>2. Equity, § 224*—facts admitted on demurrer. A general demurrer to a bill in equity for an accounting admits the charges made in the bill.</p> <p>3. Trusts, § 78*—when third person may he required to account in equity. A person who actively and knowingly assists a real estate broker in defrauding his principal may be required in equity to account for property which he received, though he occupied no fiduciary relation towards the principal.</p> <p>4. Jury, § 9*—right to jury trial in equity. Where a court of equity has jurisdiction, a party is not entitled as a matter of right to a jury trial in chancery, and such a trial does not violate any constitutional right of trial by jury.</p> <p>5. Trust, § 244*—when hill need not allege insolvency of defendants. Where a violation of trust and fraud are charged in a bill and an accounting and an injunction sought, it is not necessary that there be an allegation that defendants are insolvent or financially irresponsible.</p>

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

<p>1. Frauds, statute of, § 2*—when oral promise to answer for debt of another within statute. The provision of the statute of frauds, J. & A. T 5867, requiring a promise to answer for the debt of another to be in writing, applies to promises, the main purposes of which are to assume or guaranty the debt of another, and does not apply to promises, the object of which is to promote some interest or purpose of the promissor.</p> <p>2. Frauds, statute of, § 2*—when oral promise to pay debt of another sufficiently evidenced by writing. An oral promise of an agent of the owner of a building to see that a party furnishing brick to the original contractor was paid, held to constitute a collateral promise to pay the debt of another, but a letter written by the owner and signed by him, held to constitute a sufficient “note or memorandum” in writing to meet the requirements of the statute of frauds.</p> <p>3. Frauds, statute of, § 126*—evidence admissible to show collateral promise. Where a party promises to pay for goods furnished another, the fact that the latter was charged on the books of account for the same is evidence that the promise was collateral, but such evidence is not conclusive and may be rebutted and explained.</p> <p>4. Frauds, statute of, § 122*—when statement of claim based on collateral promise. In an action against the owner of a building for materials furnished to a building contractor, the averments of plaintiff’s statement of claim construed as basing the right to recover on a collateral promise of defendant to pay rather than an original undertaking.</p> <p>5. Appeal and error, § 438*—when objection to variance cannot be considered. The question of variance between the statement of claim and the proof cannot be raised on appeal where the alleged variance was not specifically pointed out in the trial court.</p> <p>6. Appeal and error, § 522*—sufficiency of objection to variance. An objection for variance between statement of claim and proofs must be in such terms that the court may understand that the question of variance is raised.</p> <p>7. Evidence, § 361*—when evidence to show meaning of words inadmissible. Refusal to permit a party to show that the word “protect” as used in an agreement, had a particular meaning among architects and material men, held not error where it appeared what the parties meant by the use of the word, and it also appeared that when the objection to the evidence was sustained no offer was made to prove that the word had a meaning different from its ordinary meaning.</p> <p>8. Evidence, § 80*—when declarations of agent part of res gestae. In an action against an owner of a building to recover for materials furnished a building contractor, admissions made by the architect after the defendant had written letters to plaintiff concerning payment, held admissible as part of the res gestae, it appearing that no payment had been made up to that time and that the architect was still acting as defendant’s agent.</p> <p>9. Witnesses, § 279*—when impeaching evidence may be refused. Refusal of court to permit impeaching evidence to be introduced, held not error where the witnesses sought to be impeached admitted what was sought to be introduced.</p> <p>10. Appeal and error, § 452*—when objection to admission of documentary evidence not preserved for review. The admission of a copy of a letter in evidence cannot be urged as error, for the reason no notice to produce the original was shown, where no such objection was made in the trial court.</p>

<p>Abstract of the Decision.</p> <p>1. Execution, § 120*—right of third person to enjoin wrongful seizure and removal of his property. Where a sheriff and judgment creditor wrongfully levy an execution on the property of a person other than the judgment debtor, the owner of the property is not precluded from maintaining a hill to enjoin the removal of the property from his possession for the reason he has a remedy at law in an action for trespass or replevin, where trespass would afford him no remedy for the consequent injury to his business and his loss of prospective profits, and in replevin the determination of the real issue in the suit would require the production of the books of a company which would not be a party to the suit, and a subpoena duces tecum would be ineffective.</p> <p>2. Execution, § 122*—trial of right of property as precluding equitable relief. The proceeding in the County Court for the trial of the right of property is a purely statutory proceeding, and does not, in any event, oust a court of equity of jurisdiction.</p> <p>3. Fraudulent conveyances, § 15*—validity of sales made in violation of Bulk Sales Act. Sales made in violation of the Bulk Sales Act of 1913 are not void, but only voidable as to creditors.</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, 1913.</p>

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

<p>1. Evidence, § 476*—determination of weight of the evidence. While the number of witnesses is a factor that may be properly taken into consideration in determining where the weight or preponderance of the evidence lies, yet it is not necessarily determinative of that fact.</p> <p>2. Bastards, § 62*—when a finding sustained by the evidence. In a bastardy proceeding, where the record shows that there was a sharp conflict in the evidence and it appeared that the trial court who saw and heard the witnesses evidently believed the testimony on behalf of the relatrix, an Appellate Court will not say that the finding of the court was against the weight of the evidence.</p> <p>3. Bastards, § 25*—when cross-examination of defendant proper. In a bastardy proceeding, questions asked of defendant on cross-examination as to whether he had been convicted of several crimes, held proper where defendant in answer to several questions admitted that he had pleaded guilty to certain offenses and denied guilt as to another charge, and the questions were only directed as affecting the credibility of his testimony.</p> <p>4. Municipal Court of Chicago, § 8*—jurisdiction of bastardy proceeding. Under section 50 of the Municipal Court Act, Hurd’s Rev. St. 1911, ch. 37, § 313a, J. & A. ¶ 3364, the Municipal Court has jurisdiction of a bastardy proceeding, if the accused is found and arrested within the city of Chicago, though the child was begotten and delivered without the city.</p> <p>5. Arrest, § 5*—when a warrant presumed served within jurisdiction. It may be presumed that an officer in executing a warrant did not exceed his authority by arresting an accused outside of his jurisdiction, on the contrary the presumption must be that he acted strictly within the scope of his authority and within his jurisdiction.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 705*—when evidence insufficient to show negligence in operating elevator. In. an action to recover for the death of a watchman employed hy defendant alleged to have been caused hy the negligence of defendant in starting an elevator when the deceased was attempting to enter the same, held that the court erred in refusing to direct a verdict for defendant, where it appeared that at the time of the accident the signal system of the elevator was being tested, that the deceased was present and knew such test was being made, and that while the - final test was being made by raising the elevator a short distance, the deceased, at a time not expected and in an unexpected manner, attempted to enter the elevator.</p> <p>2. Appeal and error, § 842*—necessity of certificate of judge to additional till of exceptions. An additional bill of exceptions cannot be considered as such where it does not contain a certificate of the judge.</p>

<p>Abstract of the Decision.</p> <p>1. Customs and usages, § 24*—burden of proving existence of a custom. When a defendant 'relies on a failure to comply with an alleged established custom or usage as part of a contract of employment of an actress, the burden is upon him to prove the existence of such custom or usage.</p> <p>2. Customs and usages, § 27*—when evidence insufficient to establish custom in theatrical profession. Where defendant contended that according to an established custom or usage in the theatrical profession, where an actress is engaged to render services for a new play and no date is specified in the agreement, the engagement is Tor the season or the run of the play, in an action for services rendered, the evidence is held to fail to show the existence of such a custom or usage.</p>

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

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

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

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

<p>1. Appeal and error, § 1851*— what is essential to validity of appeal bond. The provision for appeal bonds, sections 92, 93 of the Practice Act, J. & A. ¶¶ 8629, 8630, is for the benefit of an appellee and is. directory and not mandatory, and an appellee has the right to waive approval by the trial court without thereby invalidating the bond or the appeal.</p> <p>2. Appeal and error, § 1877*—when obligor on appeal bond is estopped to deny validity. Where a bond is filed for the express purpose of taking an appeal and is treated as valid by both parties, it is valid as a voluntary contract, and the expenses incurred by the appellee in defending the appeal, on the faith of the bond, afford a sufficient consideration for entering into it; and in a suit on such appeal bond the obligor will not be heard to say that no valid appeal was ever taken, nor will he be permitted to question the truth of the recitals in the bond.</p>

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

<p>Abstract of the Decision.</p> <p>1. Partnership, § 43*—when inquiry as to partnership is improper. In an action by copartners, the names of such copartners are presumed to be truly set forth in the declaration under section 53 of the Practice Act, J. & A. ¶ 8590, and it is not necessary to prove the copartnership, and when the copartnership is established an inquiry as to its terms is irrelevant and not proper cross-examination.</p> <p>2. Attorney and client, § 134*—what evidence is proper to show amount of compensation. In an action by copartners for a balance due for professional services as patent attorneys, where the plaintiffs supplied the defendant with a typewritten statement of the entire account, it could not be contended by defendant that objections were improperly sustained to questions propounded to witnesses as to what certain sums were in the statement, and as to amounts paid, since the statement was the best evidence of what it contained and could have been offered in evidence.</p> <p>3. Set-off and recoupment, § 13*—what debts are subject of set-off. Debts to be the subject of set-off must be mutual between the parties to the action, and in an action by a copartnership for professional services rendered as patent attorneys, the defendant could not avail itself by way of set-off of payments made to another copartnership, to which the plaintiffs succeeded.</p> <p>4. Attorney and client, § 133*—what must be proved to recover compensation. In action for professional services as patent attorneys, the plaintiffs were bound to prove their employment to perform the services sued for.</p> <p>5. Partnership, § 228*—when defense that partnership was changed is available in action on contract. In an action by a co-partnership for professional services as patent attorneys, a contention that the defendant did not employ the plaintiffs hut employed another copartnership to which they succeeded could not be sustained when it appeared that the defendant had actual notice of the change in the firm by the addition to it of two other attorneys, and continued to avail itself of the services of such firm.</p> <p>6. Attorney and client, § 79*—when defense of improper advice not available in action for compensation. In an action by a copartnership for professional services rendered as patent attorneys, a contention of the defendant that the plaintiffs’ improper advice prevented a settlement of litigation instituted for infringement of certain patents had no substantial basis in the evidence, it appearing that the advice in question was sound in law and in fact.</p> <p>7. Interest, § 23*—when allowed. In an action by copartners for professional services rendered as patent attorneys, the allowance of interest because of unreasonable and vexatious delay in the payment of the claim was proper, it appearing that the good faith of defendant in finally refusing and resisting payment was discredited by the evidence.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

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

<p>Error to 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>Error to the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Vendor and purchaser, § 100*—when buyer must object to title to avoid forfeiture. Where a written contract for the sale of real estate provided that if objections were not made promptly and within ten days after the abstract was furnished, the earnest money paid should at the option of the seller be forfeited as liquidated damages and the contract be void, the mere fact that the buyer had previously objected to the title because of certain building restrictions would not relieve him of giving notice of the same defects, if he intended to rely on them, within ten days after the abstract was furnished.</p> <p>2. Vendor and purchaser, § 242*—when earnest money may he forfeited. Where a seller of real estate did not waive the provisions of a contract requiring objections to the title to be made within ten days after the abstract was furnished, he was entitled to recover the earnest money which the contract provided should be forfeited as liquidated damages, even though building' restrictions existed which were material defects in the title.</p> <p>3. Vendor and purchaser, § 103*—when provision of contract not waived. A seller of real estate does not waive provisions of a contract requiring notice of objections to the title to be made within a certain time, even though it appears that the buyer previously objected to such title because of certain building restrictions and a third party, at whose office the contract was to be completed, agreed to have such restrictions removed, where there was no evidence that such third party was the agent of the seller, or authorized to make the promise.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 322—when officer is liable for debts of corporation. Evidence held to support a finding that an officer of a corporation agreed with a seller of certain goods that if such seller would deliver the goods to a corporation in which the officer was interested he would personally pay for the same.</p> <p>2. Corporations, § 441*—when corporation may guaranty debts of another corporation. Evidence held insufficient to show that a commercial corporation promised to pay for goods delivered to another corporation, and since such commercial corporation had no authority to become the guarantor of the obligations of others, any attempt on its part to do so would have been void.</p> <p>3. Appeal and error, § 1793*—what is effect of partial reversal. When a joint judgment against two or more defendants who are sued on the same theory of liability, and who rely on the same theory of defense, is reversed on appeal or writ of error as to one of such joint defendants, it must be reversed as to all.</p>

Appeal in No. 18,463 from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1912. Error in No. 18,786 to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1912.

<p>Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the March term, 1913.</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>Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the October term, 1913.</p>

<p>Appeal and error, § 1813*—when opinion in former decision adopted. Where the pleadings differ in no material particular from those in another case decided on the pleadings in a mandamus proceeding arising out of the removal of an officer in the civil service of the City of Chicago, at the same time and upon the same investigation in which an opinion was, rendered by the Appellate Court,' such court adopted the opinion as its opinion in the case at bar.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the March term, 1914.</p>