Volume 191 — Illinois Appellate Court Reports

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

<p>Abstract of the Decision.</p> <p>1. Sales, § 175*—when proof of general custom, as to time for payment competent. In an action for the value of coal sold, where the defendant filed a claim of set-off for an alleged breach of the contract, evidence offered by defendant to show there was a general custom among coal dealers to pay for their coal during the month following the shipment, held competent to show that defendant was not in default at the time of plaintiff’s breach of the-contract.</p> <p>2. Sales, § 320*—right to set-off or recoup damages in suit for price. The fact that a buyer of coal had uot paid therefor does not preclude him in a suit for the price from setting off or recouping damages suffered by him on account of the breach of the contract in not furnishing the stipulated quantity of coal where he was not in default in making payment, for the reason the parties acted upon the understanding that the price was not to be paid until all the coal was delivered.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 6*-—when evidence shows refusal of tenant to accept written lease. Evidence held to show that a tenant did not accept a written lease, although he signed one of the duplicates, where he afterwards scratched out his signature and sent it to the landlord stating that he refused to he hound thereby for the reason it did not include a certain oral agreement, and this although the evidence showed that he did not return the other duplicate, which was not signed by him.</p> <p>2. Landlord and tenant, § 330*—form of judgment when proof fails to establish lease sued on. In an action based solely on a written lease, where the defendant denied his acceptance thereof and set up a different contract under which he conceded he owed plaintiff a certain sum, held that on failure of plaintiff to prove the lease sued on, and his failure to amend his statement of claim, the court could enter only a judgment of dismissal or for the defendant for costs, and that it was error to enter a judgment in favor of plaintiff for the amount conceded by defendant to be due upon the other contract.</p> <p>3. Set-off and recoupment, § 18*—claims of recoupment. A claim of recoupment must arise out of the contract upon which the suit is brought, ór be connected in some manner directly therewith.</p> <p>4. Set-off and recoupment, § 37*—necessity of proving contract out of which claim for recoupment arises. Where a plaintiff fails to prove the contract sued on, the defendant cannot prove another and different contract and then recoup damages for its breach.</p>

<p>1. Corporations, § 727*—when court will talce jurisdiction of bill concerning affairs of foreign corporations. The rule that courts of equity will decline to take jurisdiction of a controversy relating to the affairs of a, foreign corporation, where the wrongs complained of are merely against the sovereignty by which the corporation was created or the laws of its existence, or are such as to require for their redress the exercise of the visitorial powers of the sovereign, or where full jurisdiction of the corporation or of its stockholders is necessary to such redress and is wanting, does not apply when a bill is filed on behalf of a foreign corporation, by minority stockholders, to set aside an alleged fraudulent conveyance made by such corporation’s agents to another corporation over which the court has acquired jurisdiction by its voluntary appearance. *</p> <p>2. Corporations, § 727*—when jurisdiction of bill not defeated for want of jurisdiction of parties. On a bill filed in behalf of a foreign corporation by the minority stockholders to set aside an alleged fraudulent conveyance made by the corporation’s agents to another corporation, the fact that one of the agents had not entered a general appearance, or was not served with process, will not defeat the jurisdiction of the court where it does not appear its jurisdiction over the person of such agent is indispensable or even necessary in order to grant the relief.</p> <p>3. Equity, § 211*—grounds for general demurrer. The mere fact that a bill prays for more kinds of relief than may be properly granted is no ground for sustaining a general demurrer to the bill and dismissing it for want of equity.</p> <p>4. Equity, § 211*—when bill not obnoxious on general demurrer. Where a bill in equity sets out various claims to the interposition of the court and a general demurrer is filed, the demurrer will be overruled if any of the claims afford a proper case for the jurisdiction of the court.</p>

<p>Abstract of the Decision.</p> <p>1. Landloed and tenant, § 197*—when ■finding as to injury to premises 6y tenant contrary to evidence. In an action by a landlord to recover damages to his flat alleged to have been caused by the defendant as his tenant, a finding in favor of defendant held contrary to the weight of the evidence, where a preponderance of the evidence showed that the damage was done after notice to quit had been served on defendant and before he turned over the keys to the flat, and it also appeared that he refused to turn over the keys on the next day after he moved out, hut returned them by mail so that plaintiff did not receive them until two days thereafter, and it did not appear that defendant denied that he was at the premises in the interim between the time he moved out and the time plaintiff received the keys by mail, from which fact a reasonable inference would arise that the damage was deliberately committed either by the defendant himself or by some one for whose acts he was responsible.</p> <p>2. Evidence, § 40*—when failure to deny material fact raises presumptive evidence would be unfavorable. There is a well-established principle of law that where a fact material to the issue is within the knowledge of one of .the parties to a lawsuit, the failure to disclose such fact, when the opportunity is offered, gives rise to the presumption that the evidence would have been unfavorable.</p>

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

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

<p>Error to the Municipal Court of Chicago; the Hon. Oscar M. Torbisoh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 88*—when tenancy from year to year created. Evidence held to show that a landlord acted as an agent of his lessee in collecting rent from another person who occupied the premises at the time of the making of the lease, and such landlord did not by accepting the rent elect to treat such other person as a tenant from year to year of the premises.</p> <p>2. Judgment, § 457*—when decree is res adjudícala. A person cannot be injuriously affected by a judgment or decree of court who was not a party to such judgment or decree and was not in any way interested therein.</p> <p>3. Judgment, § 457*—when party bound by former adjudication. Evidence held to support a finding that a party was not interested in a prior forcible entry and detainer suit, wherefore the judgment in such suit was not res adjudicate.</p> <p>4. Landlobd and tenant, § 448*—when different premises are substituted. Evidence held not to sustain a contention that there was a substitution by a landlord of other premises for those leased.</p>

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

<p>1. Creditors’ spit, § 40*—when receiver may he appointed. A receiver for property may properly be appointed in a suit before the defendant has answered, where the complainant can satisfy the chancellor that he has an equitable claim to the property and that the receiver is necessary to preserve it from loss, or where a clear case of fraud is shown, or of imminent danger to the property, and such procedure is especially proper in cases of creditors’ bills in aid of the enforcement of judgments.</p> <p>2. Receivers, § 3*—what is nature of receiver. A receiver is an indifferent person between the parties, appointed by the court, and on behalf of all parties, to receive the thing or property in litigation pending the suit,</p> <p>3. Receivers, § 18*—when may talce possession. Where the assets are openly visible, the receiver can at once take actual possession, but where their character, amount and whereabouts are unknown, a court of chancery may require a defendant to appear before it and submit to an examination.</p> <p>4. Appeal and error, § 1416*—when findings of master are supported hy evidence. Evidence held sufficient to support findings of fact of a master and his recommendations even though a defendant appeared as a witness and specifically denied the truth of the charges against him.</p>

<p>Abstract of the Decision.</p> <p>1. Elevators, § 22*—when finding of negligence sustained hy evidence. Evidence held to show that a five-year-old boy was killed by the sudden starting of an elevator when his one foot was on the floor as he was about to leave the elevator, causing him to fall into the elevator shaft, even though one witness answered a question as to the length of time of the accident,—which question enumerated a member of supposed happenings, such as a supposition that the boy was off the car and jumped to get on it,—-in the affirmative.</p> <p>2. Negligence, § 107*—when negligence of parent will he imputed to child. In an action by parents, or personal representatives, the negligence of such parents of a child of tender years, which contributes to an injury resulting in death, is imputable to the child.</p> <p>3. Negligence, § 202*—when question of imputed negligence for jury. The rule that the question as to whether or not- a person is in the exercise of ordinary care is usually for the jury, is applicable to a case where,a mother is charged with negligence contributing to the injury of her child.</p> <p>4. Elevator, § 7*—what duty of operator. Persons operating elevators are carriers of passengers, and such passengers have a right to rely for their safety upon the efficient management of the conductor thereof.</p> <p>5. Negligence, § 109*—when parents negligent as matter of law. Evidence held not to show as a conclusion of fact or as a matter of law that a mother of a five-year-old boy was guilty of negligence proximately contributing to the child’s injury, though she released her hold of the boy while leaving the car, the accident being due to the sudden starting of the elevator.</p> <p>6. . Elevator, § 19*—when operator negligent. Evidence held to show that an operator of an elevator was guilty of gross negligence in starting the car while passengers were alighting.</p> <p>; 7. Death, § 67*—when verdict not excessive. A verdict of five thousand dollars for the death of a five-year-old boy killed by falling into an elevator shaft, held not excessive.</p> <p>8. New trial, § 28*—when new trial properly refused. The refusal of a new trial because a juror made incorrect and misleading answers on his .voir dire, held not improper, since it did not appear that the juror was prejudiced or biased against the defendant.</p> <p>9. Appeal and error, § 474*—when misconduct of counsel will not he considered on appeal. A contention that an attorney made improper remarks to the jury will not be considered on appeal where no attention is called to the specific part of her argument which is contended to he prejudicial.</p> <p>10. Teial, § 121*—what argument of counsel proper. It is not prejudicial error for an attorney to tell the jury what he considers a fair compensation for a plaintiff’s injuries.</p> <p>11. Trial, § 128*—what remarles of counsel not objectionable. Remarks of an attorney in a personal injury case, in stating his version of what occurred in his office, are improper, but harmless error when the result is not affected.</p> <p>12. Appeal and error, § 474*—when objection must be made to remarles of counsel. An appellant cannot complain of remarks of an attorney in argument when no objection was made to such remarks at the trial.</p>

<p>1. Larceny, § 3*—what is nature of crime. Under the common law petit larceny was a felony, but in this State it is made a misdemeanor by statute (Hurd’s R. S. 1912, ch. 38, sec. 168, J. & A. f 3792), and the offense has been removed from the category of infamous crimes (J. & A. IT 3972).</p> <p>2. Indictment and information, § 41*—how offense must be described. Where a statute defines an offense, no essential element thereof as defined by the statute can be omitted from the indictment or information, but it is not necessary to use the very words of the statute.</p> <p>3. Larceny, § 21*—when felonious taking sufficiently described in information. The word “steal” has a uniform signification and means the felonious taking and carrying away of the goods of another.</p> <p>4. Larceny, § 21*—when information sufficient. In an information charging petit larceny, if the use of the word' “feloniously” is essential to charge the offense, the word “steal” is sufficient to charge such felonious intent.</p> <p>5. Labceky, § 3*—necessity for felonious intent. A larcenous intent, that is an intent to steal, is clearly an essential element in petit larceny, but a felonious intent seems neither a necessary nor an appropriate averment in a misdemeanor case.</p>

<p>Abstract of the Decision.</p> <p>I. Stipulation, § 19*—when pleading may he considered as evidence. Where a stipulation was entered into contemplating that the title to a fund which was at issue in a garnishment suit, should be submitted for adjudication in an interpleader suit, where a final decree should be entered, in effect each party waived any question as to the sufficiency of the bill and consented to interplead, wherefore one party could not contend that under sec. 29 of the Chancery Practice Act (Hurd’s R. S. ch. 22, sec. 29, J. & A. jf 909) its sworn answer was to be taken as true.</p> <p>2. Interpleader, § 2*—what' is nature of suit. In an interpleader suit the complainant’s office is widely different from that of the ordinary complainant in a suit in equity, and the answers of defendants may be read against one another.</p> <p>3. Interpleader, § 7*—when pleading sufficient. In an inter-pleader suit, where the complainant admitted its indebtedness for certain lumber which two parties claimed to have sold, allegations of one - of such parties that the complainant gave a written order for the lumber, that same was shipped to the complainant and that the latter knew it was purchasing the lumber from such interpleader, were mostly conclusions, and the answer did not set up facts showing liability upon an independent undertaking without reference to the liability to the other claimant.</p> <p>4. Interpleader, § 14*—what must he shown hy answer. In an interpleader suit, where the original bill showed that the debt or fund was claimed by several defendants, that complainant was not interested in it and that it emanated from a common source, it was unnecessary to set forth in detail the alleged title of defendants.</p> <p>5. Interpleader, § 5*—when MU sufficient. A bill showing that1 a fund due for lumber sold was claimed by all of several parties against whom the bill demanded relief, that it had a common source in the lumber or sale thereof, that complainant was not interested therein and was indifferent among the complainants, contained sufficient elements essential to the equitable remedy of interpleader.</p> <p>6. Interpleader, § 14*—when cross-Mil unnecessary. A cross-bill is unnecessary for the assertion and adjustment of a claim of one interpleading, the answer being sufficient.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>Municipal corporations, § 1234*—when notice of suit must he alleged. Where a statement of claim in a fourth-class suit commenced in the Municipal Court against a city to recover for personal injuries fails to allege the giving of notice of the accident to the city as required by section 2 of the Act of 1905 (Hurd’s St. 1912, p. 1290, ch. 70, J. & A. 6190) it is defective, and an amended statement alleging the giving of such notice but filed more than one year after the accident is open to the plea of the statute of limitations.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Ebank H. Gbaham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>1. Broker, § 36*—when broTcer entitled to compensation. Evidence held to show that a person employed a real estate broker to sell certain property, that such broker in good faith undertook the employment and was the procuring cause of the sale, though not present when it was consummated, wherefore he was entitled to commissions.</p> <p>2. Brokers, § 5*—when license necessary. If an ordinance declares it to be unlawful for a person to act as a broker without a license, and prescribes a penalty for its violation, an unlicensed broker cannot recover commissions, even though the ordinance does not declare the contract of employment void.</p> <p>3. Brokers, § 5*—when license sufficient. Where a broker’s license is issued to a partnership, and one of the partners succeeds to the business of the partnership upon dissolution of the firm and continues business individually at the same location, he is to be considered a licensed broker.</p>

<p>Abstract of the Decision.</p> <p>1. Injunction, § 177*—when bill shows offer to do equity. A bill to restrain the collection of a demand by a suit, alleging that the defendants are nonresidents and are insolvent, is not demurrable on the ground that the complainant does not offer to do equity when such complainant sets up a claim in excess of any amount due the defendants.</p> <p>2. Injunction, § 177*—when bill not demurrable. A bill to restrain a suit to collect a certain demand, and setting up a claim in excess of that of the- defendants, held not demurrable in failing to allege that the loss sustained by the complainant was due to defendants’ negligence, it appearing that such loss was due to a failure to insure goods as instructed by the complainant when shipped.</p> <p>3. Injunction, § 174*—who are proper parties. In a suit to restrain certain defendants from prosecuting an action to collect a claim, on the ground that they were nonresidents and insolvent, the attorneys for such defendants were proper parties.</p> <p>4. Set-one and becoupment, § 1*—when court of equity may cause set-off. A court of equity may under special circumstances, interfere and cause a set-off where a court of law can afford .no relief.</p> <p>5. Injunction, § 194*—what are requisites of bill. Insolvency is a distinct equitable ground of set-off, and in a bill to enjoin the collection of a debt by nonresidents who are insolvent, setting up a claim in excess of that sought to be collected by such nonresidents, it is not necessary to allege that the individual members of der .fendant firm are insolvent.</p> <p>6. Injunction, § 194*—when bill for set-off need not show liquidated demand. In a suit to enjoin the prosecution of an action to collect a debt by nonresidents and setting up a claim in excess of that sought to be collected by such nonresidents, it is not necessary that the complainant’s demand should be liquidated by a judgment, when the insolvency of the defendants is admitted.</p>

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

<p>1. Appeal and error, § 1488*—when receipt of incompetent evidence by chancellor not reversible error. Incompetent or irrelevant evidence received by a chancellor is not supposed to have been considered or regarded by him unless it appears affirmatively that his ultimate decision was affected by it.</p> <p>2. Wills, § 226*—when intention of testator as to demonstrative or specific character of legacy controls. The character of a legacy as demonstrative or specific is controlled by the intention of the testator as expressed in the will.</p> <p>3. Wills, § 454*—whether legacy demonstrative or specific. A testator’s will left to certain persons “my property located in Lima, Allen County, Ohio,” describing it, “to be by them sold” and out of the proceeds thereof to pay the following bequests so far' as the proceeds will go in the order indicated.” The following day she executed a codicil changing the trustee and authorized the trustee thus named to sell and dispose of the personalty and realty and directed hei to distribute the proceeds realized from the sale of any or all of said property equally between the testator’s sisters and brothers named in her will, “the proceeds realized from the sale of the Lima, Ohio, property, however to be subject to the specific bequests provided in and by my said last will and testament.” It was held that the legacies payable out of the proceeds of the Lima property were specific, and not demonstrative.</p> <p>4. Wills, § 455*—when specific legacy adeemed. Where a testator who gave a specific legacy payable out of the proceeds of certain realty which she directed her executor to sell, sold the realty herself, the legacy is adeemed.</p> <p>5. Wills, § 214*—when allowance of counsel fees to contestants properly denied. In the circumstances of the particular case, held that the allowance of counsel fees to persons contesting executor’s construction of will properly denied.</p>

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

<p>Abstract of the Decision.</p> <p>1. Judgment, § 101*—when absence of defendant does not render judgment one by default. Where a defendant is in court by appearance, the mere fact that he was not present at the trial does not render the judgment against him a judgment by default, where it was given after evidence and argument had been heard.</p> <p>2. Appeal and ebbor, § 787*—when bill of exceptions necessary. A bill of exceptions must be preserved in order to enable the Appellate Court to pass upon an assignment of error that the finding of the trial court is contrary to the evidence.</p> <p>3. Pleading, § 50*—when evidence against one defendant admissible in action against joint defendant. The fact that the statement of claim in an action against two defendants shows the claim under one construction of the statement, to be wholly and under another partially founded on a written agreement signed by one defendant only, does not render incompetent any evidence whatsoever which shows a claim against the other defendant alone.</p> <p>4. Municipal Court of Chicago, § 13*—when statement of claim in fourth-class case sufficiently exact. Exactness and precision in the statement of claim in a fourth-class case in the Municipal Court of Chicago are not required, hut the claim is sufficient if the defendant is apprised of the nature of the demand against him, and inaccuracy is not a ground for reversal where prejudice therefrom is not shown.</p> <p>5. Municipal Court of Chicago, § 13*—when variance in statement of claim in fourth-class case waived. Variance in a statement of claim in a fourth-class case is waived by failure to object.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>1, Judgment, § 360*—when collateral attach not allowed. The jury, in a suit in the Circuit Court of Cook county, by an administrator, to replevy certain shares of stock claimed for the estate, found that the right of possession was in the administrator, and assessed one cent as damages “for detention of said property.” Judgment was entered on the verdict that "the plaintiff do have and retain the property replevined herein hy virtue of the writ of replevin issued in said cause,” and that plaintiff recover his damages “in form as aforesaid by the jury assessed.” By an order entered nunc pro tunc in the cause, the court directed that the certificates, which had been introduced as evidence in the cause, he impounded in the hands of the clerk of the court subject to its further order. Thereafter the defendant in that cause made demand of the clerk for the certificate and upon his refusal to deliver, filed an affidavit of replevin. The writ was returned by the sheriff unexecuted, and thereafter defendant filed a declaration in the Superior Court of Cook county joining counts in trover. The defendant in the second suit pleaded a part of the matters recited above and the plaintiff, hy replication, set up the same and additional matter of fact and also matters or conclusions of law derived therefrom. To this replication plaintiff demurred on the ground that plaintiff was attempting in a collateral proceeding, involving the same subject matter, to attack the judgment of a court of concurrent jurisdiction and the jurisdiction of such court in the proceeding. It was held that the demurrer was properly sustained and judgment properly rendered for defendant.</p> <p>2. Replevin, § 32*—when officer of court not subject, to. Where an officer of the Circuit Court holds a certificate of stock in his official capacity under the order of the court, replevin for it will not lie against him in a court of concurrent jurisdiction.</p>

<p>Abstract of the Decision.</p> <p>Divorce, & 48*—when decree on ground of desertion sustained. Where the evidence on a bill for divorce by a wife against a husband on the ground of desertion shows that the husband left her more than two years before the date of the filing of bill and never supported nor offered to support her thereafter, and the evidence as to the cause of his leaving is conflicting, a decree In favor of the complainant will not be disturbed on appeal.</p>

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

<p>Wills, § 478*—when construed to charge legacies on certain realty. Language of a will held to disclose the intention of the testatrix to charge pecuniary legacies in favor of her grandchild upon real estate devised to children of testatrix.</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>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>1. Sales, § 373*—sufficiency of evidence. Evidence held sufficient to show that the seller of notes was the ostensible owner thereof, that they were sold for an undisputed amount upon condition that it would repurchase them on the buyer’s request, and that the seller, after request duly made, failed to. comply with such promise.</p> <p>2. Corporations, § 370*—when cannot question authority of president to make a conditional sale of notes. Where a corporation through its president sold notes and received the money paid therefor, it is in no position to question the authority of its president to sell the notes or the validity of his agreement to repurchase them, where the transaction appears to have been in furtherance of its corporate interests.</p> <p>3. Corporations, § 412*—power to make conditional sale of notes. Where a sale of notes is made by a corporation to obtain money for corporate purposes, there is an implied and incidental power to make the sale conditional upon an agreement for repurchasing the notes.</p> <p>4. Appeal and error, § 966*—when no question of law presented , for review. Abstract of the record held to present no question of law but only a question whether the evidence was sufficient to sustain the trial court’s finding, where it did not show any objections to the rulings on the evidence or that any propositions of law were submitted, and the only motion made during the progress of the trial was a motion at the close of the plaintiff’s case to find for defendant.</p>

<p>1. Pbincipal and agent, § 69 *—when agent entitled to commissions. In an action for contingent commissions under a written contract by which a plaintiff was to act as insurance agent for sev-. eral companies, held that the plaintiff’s right to such commissiops1 became vested at the end of the year, although the total amount could not be ascertained until the expiration of another year, and such right was not affected by a contract relating to future relations between the parties.</p> <p>2. Pbincipal and agent, § 83*—what amount of agent’s commission. In an action for insurance commissions, a contention that office expenses of the plaintiff were not considered in determining the amount of the plaintiff’s claim was not maintainable, it appearing that all expenses were satisfied, being charged against premiums, and the contention was contrary to the previous practice of the parties.</p> <p>3. Appeal and ebbob, § 1810*—when Appellate Court may include interest in judgment. In an action on an instrument in writing tried before the court without a jury, the court may include interest on the judgment rendered on appeal.</p>

<p>Appeal from the. Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p> <p>Certiorari denied by Supreme ”Court (making opinion final).</p>

<p>Appeal irom the Municipal Court of Chicago; the Hon. Oscab M. Tobeison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>1. Divorce, § 172*—when persons may not remarry. Under the statute an attempted marriage less than two months after the divorce of the husband from another woman is void.</p> <p>2. Marriage, § 29*—what allegations are material in seeking annulment. In a bill to annul a marriage and set aside a divorce, the fact that the complainant did not know of the defendant’s prior marriage or divorce within the time prohibited by statute for remarrying is immaterial to her right to relief and need not be alleged.</p> <p>3. Divorce, § 58*—when decree void. Where a marriage is void, a divorce thereafter granted based on the void marriage is void.</p> <p>4. Marriage, § 29*—what contention cannot he maintained in seeking annulment. In a bill to annul a marriage and set aside a divorce, the contention that the complainant does not come into court with clean hands cannot be made the basis of a legal defense where the State is an interested party.</p>

<p>1. Vendor and purchaser, § 16*—what is option contract. A contract whereby a plaintiff was under no obligation to sell, but the defendants were under obligations to buy certain premises if acquired through foreclosure of a trust deed, is free from ambiguity and uncertainty, and is an option contract to sell in the event of the happening of the condition.</p> <p>2. Vendor and purchaser, § 65*—when contract not ambiguous. Under a contract whereby a plaintiff acquiring premises through foreclosure of a trust deed was to sell the same to the defendant, there was no ambiguity as to the subject-matter of the purchase, the term “premises” being usually used to signify land and its appurtenances.</p> <p>3. Vendor and purchaser, § 65*—when vendor has no title to convey. Where a contract provided that a plaintiff was to sell certain premises if acquired under a trust deed, and such plaintiff had no title to the premises as against the mortgagor or his assigns or grantees, but only took a master’s deed under foreclosure of a second trust deed, he had no title to the premises and the deed tendered by such plaintiff would have conveyed no title.</p> <p>4. Mortgages, § 96*—what is interest of mortgagee. The fee title held by a mortgagee is in the nature of a base or determinable fee measured by the mortgage debt, and when paid the mortgagee’s title is extinguished by operation of law.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 889*—what evidence admissible in suit on benefit policy. In a suit on a fraternal benefit certificate, evidence of conversations between the beneficiary, the plaintiff and another woman were erroneously admitted, where it did not appear that such woman was the agent of the society or clothed with authority to bind it.</p> <p>2. Insurance, § 896*—what evidence as to medical examination improper. In a suit on a fraternal benefit certificate, evidence of what was said between the applicant and a medical examiner was erroneously admitted, the examination being signed and being a warranty, upon which with the application, the insurance was issued.</p> <p>3. Insurance, § 908*—what instructions erroneous. In a suit on a fraternal benefit certificate, an instruction submitting the question that the society had misled the insured, or waived strict compliance with the contract, and had induced the applicant to make false statements, was erroneous, when there was no proper evidence warranting such question.</p> <p>4. Insurance, § 908*—when instruction as to warranty erroneous. In a suit on a fraternal benefit certificate, an instruction that the statements in the application for insurance were warranties and that the plaintiff could not recover if they were untrue, unless the defenses were waived, was erroneous when not warranted by the evidence.</p> <p>5. Insurance, § 908*—when instruction not based on evidence. In a suit on a fraternal benefit certificate, where there was no evidence that the applicant was not asked whether he had had delirium tremens, a suggestion to such effect to the jury was improper.-</p> <p>6. Insurance, § 908*—when instruction erroneous. In a suit on a fraternal benefit certificate, an instruction as tp waiver of the defense whether the insured was addicted to the excessive use of intoxicants was erroneous when not based on the evidence. .</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>1. Ry íXeoads, § 364*—what provisions of lease of right of way are valid. A provision of a lease of a portion of a right of way,1 stating that the lessee assumes the risk of damage by fire, is valid between the parties thereto and enforceable like any other provision in a contract.</p> <p>2. Landlord and tenant, § 404*—when subtenant bound by provisions of lease. While there is no privity of contract between a landlord and a subtenant, such subtenant is charged with notice of the terms of the lease, and is bound by its conditions.</p> <p>3. Appeal and error, § 1491*—when exclusion of evidence reversible error. In an action against a railroad for the destruction of property by fire, where a lease restricting the railroad’s liability was excluded when competent, and the court gave an erroneous reason for such exclusion operating to mislead the defendants and prevent them from making proof technically sufficient as a foundation for secondary evidence, the action of the court was reversible error.</p> <p>4. Railboads, § 364*—what is effect of condition of lease releasing railroad from, liability for fire. A stipulation of a lease of a portion of a right of way stating that the railroad was not liable for damages by fire escaping from engines operated upon the lessor’s railway cannot be construed as protecting merely the railroad and leaving its agents and servants liable.</p> <p>5. Assignments, § 31*—when action may be brought in name of assignor. While section 18 of the Practice Act (J. & A. If 8555) permits the prosecution by the owner of a non-negotiable chose in action in his own name, he is not precluded from bringing the action in the name of his assignor.</p> <p>6. Payment, § 24*—how pleaded and proved. Payment may be pleaded specially or proved under the general issue.</p>

<p>Abstract of the Decision.</p> <p>1. Replevin, § 106*—when burden of proof on defendant in ao Hon on bond. In an action on- a replevin bond given in a suit which was dismissed by the plaintiff in replevin, the burden is on the defendant to show property in himself in mitigation of damages.</p> <p>2. Replevin, § 124*—when evidence offered insufficient to establish title in action on bond. Defendant in an action on a replevin bond, given in a replevin suit which he had voluntarily dismissed, sought to establish his title to the property by introducing a certified copy of a chattel mortgage which described a note secured thereby, giving its date, amount and stated that it was payable to defendant and that it was signed by the mortgagor, and gave the date of its maturity. There was no offer to show an indebtedness from the mortgagor to defendant nor any other offer to show the contents of the note than that contained in the copy of the mortgage. The only excuse for failure to produce the note was defendant’s evidence that he was unable to find it, though he had made a careful search for it. It was held that even though the proof of loss of the mortgage was sufficient under the Mortgage Act, sec. 5 (J. & A. IT 7580), it was not sufficient as a ground for secondary evidence of the contents of the note and there was no sufficient offer to prove their contents, and that the evidence offered was not sufficient to show title in defendant.</p>

<p>1. Courts, § 141*—when statutes and decisions not binding on. Constitutional and statutory provisions regulating the salaries of clerks of courts of record for the performance of duties imposed upon them by the laws of the State and the construction placed hy the courts upon such provisions are not necessarily decisive of the rights of such clerks to fees for performance of duties imposed upon them by the Federal Naturalization Act.</p> <p>2. Aliens, § 13*—when Federal regulation of naturalization exclusive. U. S. Const, art. I, § 8, clause 4, gives Congress the power to establish uniform rules of naturalization, and this jurisdiction, when exercised, is exclusive and repeals former laws hy which the states naturalized citizens and fixed the fees and their application.</p> <p>3. United States, § 1*—when enforcement of Federal act not obligatory upon State court. Congress possesses no power to compel a State court to enforce the Federal Naturalization Act.</p> <p>4. United States, § 1*—when naturalization expenses not obligatory upon State or county. The State is not hound to pay for the clerical services required in the naturalization of aliens in State courts under the Federal Naturalization Act, nor is the county hoard hound to make the clerk any allowance for a clerical force or other expenses incidental to such proceedings.</p> <p>5. Aliens, § 13*—how expenses to be met. It is the purpose of the Federal Naturalization Act that the expenses of clerical assistance necessary to carry out the requirements of the act should, in the State courts, he met hy the fees fixed by the act and not borne hy the State.</p> <p>6. Clerks of court, § 14*—when entitled to fees fixed by Federal act for naturalization services. The county has no claim to fees collected hy its Circuit Court clerk for performing services and fixed in accordance with the Federal Naturalization Act, especially where the county has not provided or paid for any clerical assistance.</p>

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

<p>Interlocutory appeal from the Circuit Court of Lake county; the Hon. Chakles Whitney, Judge, presiding. Heard in this court.</p>

<p>Marriage, § 29*—when false representations by husband as to his chastity not ground for annulment. False representations by a man before marriage, made to Ms intended wife, as to Ms not having had intercourse with other women are not ground for annulment of the marriage by the wife.</p>

<p>1. Appeal and error, § 1137*—what effect of denial of motion to dismiss appeal because State real defendant. Even though a motion in the Appellate Court to dismiss an appeal on the ground that the State is the real defendant be denied, the denial does not remove the question from the case.</p> <p>2. Courts, § 83*—when Circuit Court has jurisdiction of suit against State officers. The Circuit Court has jurisdiction ■ of a bill by a taxpayer to declare void a contract by the State Highway Commission for the purchase of cement for the construction of State aid roads and to enjoin the Commission from purchasing material for the construction of such roads.</p> <p>3. Appeal and error, § 208*—when appeal in cases involving revenue lies to Appellate Court. A suit by a taxpayer to declare void a contract of the State Highway Commission for the purchase of cement for the construction of State aid roads, and to enjoin the Commission from purchasing material for the construction of such roads, does not involve the revenue directly but only indirectly, and the indirect reference to the revenue does not authorize an appeal direct to the Supreme Court.</p> <p>4. Appeal and error, § 219*—when lies to Supreme Court in proceeding in which State directly interested. Where a suit is brought by a taxpayer to declare void a contract of the State Highway Commission for the purchase of cement for the construction of State aid roads and to enjoin the Commission from purchasing any material for the construction of such roads, the State is directly interested and the appeal therein lies directly to the Supreme Court and not to the Appellate Court.</p>

<p>1. 'Fraud, § 18*—when statements not sufficient ground for action. An action against a life insurance company for fraud and deceit, in that it misrepresented the value which the policy would have at the end of twenty years, cannot he maintained where the alleged false and fraudulent statements did not relate to existing facts, but consisted in predictions or promises of the company as to the value which the policy would have at the end of twenty years.</p> <p>2. Fraud, § 78*—necessity of averring scienter. In an action of fraud and deceit, it is necessary to aver scienter.</p> <p>3. Limitation of actions, § 46*—what concealment of cause of action prevents running of statute. The concealment of a cause of action which will prevent the operation of the statute of limitations must be something of an affirmative character which is intended to prevent and does prevent the discovery of the cause of action.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Negligence, § 48*—what constitutes proximate cause. In an action for personal injuries, where either of two causes may produce a result and only one of them is shown to have been present, it may be concluded by the jury that the cause shown to have been present at the time the result was produced is responsible for it.</p> <p>2. Negligence, § 204*—propriety of verdict directed for defendant. Where plaintiff seeks to hold an equipment company liable for alleged negligence in placing “kindall frames” so close to a railroad track as to he likely to he struck by a passing car, and the evidence clearly established that the frames as placed afforded sufficient room for all properly loaded cars in good order to safely clear the frames, and no evidence tended to show that the Equipment Company was chargeable with notice or knowledge that the car in question which struck the frames was so improperly loaded or permitted to project outward that it was liable to strike the frames, which were placed in such manner as not to fall unless violently struck by a defective car or other violent means, held that a peremptory instruction to find the Equipment Company not guilty for the wrongful death of its watchman while walking near the pile and a passing car was properly given by the court.</p> <p>3. Railroads, § 695*—sufficiency of declaration to support proof of improper loading of car. Where a count attempts to charge a railroad company with negligence in having the car in question project outward, and the sufficiency of the charge is not challenged in the court below, an Appellate Court will hold it sufficient to support proof of negligence in permitting the car to so project outward and in operating the car in such condition.</p> <p>4. Railroads, § 740*—where question of negligence requires submission to jury. In an action for wrongful death from being injured by falling frames when struck by a passing freight car which was found to be tightly loaded between its projecting sides, and the nuts or heads upon the bolts by which the iron pockets were presumed to be securely fastened to the body of the car were found to be drawn into the wood on the inside of the sill, whereby the pockets were enlarged and the stakes spread outward, and it appeared that cars of like width in good order had been hauled upon the same track without striking the frames as they were placed at the time of the accident, held the court erroneously directed a verdict in favor of the defendant Railroad Company.</p> <p>5. Railroads, § 740*—questions for jury. Whether the sides of a freight car improperly project so as to strike a pile of frames alongside a railroad track-and whether a railroad company is chargeable with knowledge that its sides so project are questions requiring submission to the jury under the evidence.</p> <p>6. Railroads, § 516*—duty towards persons near defective car moved on track. Where the sides of a car improperly project prior to an accident, and the railroad company is chargeable with knowledge of such projection, the duty is imposed upon the railroad company to exercise reasonable care to see that the track upon which it moves the car is in a reasonably safe condition to permit such car to be moved thereon without injury to persons rightfully near such car.</p> <p>7. Railroads, § 740*—question of notice as to clear space for jury. The question whether a railroad company is charged with notice of the clear space between a pile of frames and its track is one for the jury.</p> <p>8. Railroads, § 762*—where question of contributory negligence requires submission to jury. In an action for the wrongful death of a watchman injured by frames falling when struck by a passing freight car, whether deceased was in the exercise of due care for his own safety is one of fact requiring submission to the jury.</p>

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

<p>Abstract of the Decision.</p> <p>1. Equity, § 247*—necessity of amendment of supplemental Mil on demurrer sustained. Where a demurrer interposed by defendant to an original bill and supplemental bills is sustained and leave was given to file an amended bill, and an amendment was filed t.o the original bill, but no leave was asked or granted to amend the supplemental bill, the supplemental bill ceases to be a part of the case for review.</p> <p>2. Landlobd and tenant, § 155*—rule as to exceptions anrl reservations. Exceptions or reservations embodied in a leasehold contract for the benefit of the lessor will, in the case of doubt or ambiguity, be construed least favorable to the party claiming the benefit of the exceptions or reservations.</p> <p>3. Injunction, § 192*—insufficiency of Mil to shou> property rights in lessor. Where it was contended that a windmill, pump and well on the portion of premises leased to defendant, together with the tank, which was in part upon the portion of the premises reserved to complainant, were fixtures running with the land, and the bill does not set forth the manner in which or means whbreby the water was carried from the pump to the tank, or how the pipe, if it be such, carrying the water was connected or fixed to the pump and tank, there are not enough specific allegations to determine whether or not such instrumentalities are fixtures.</p> <p>4. Landlord and tenant. § 84*—inadmissibility of parol evidence to aid construction. Where a bill to restrain the interference with a certain water supply reserved to the complainant in a lease predicates a right to relief upon an alleged oral agreement entered into between the lessor and lessee contemporaneous with the written contract under seal, it is inadmissible to vary the terms of the written conti-act, as the leasehold contract cannot rest partly in writing and partly in parol.</p> <p>5. Landlord and tenant, § 84*—when the doctrine of practical construction may be invoiced. In an action to restrain a lessee from interference with lessor’s water supply alleged to be reserved in a lease, the doctrine of practical construction may only be properly resorted to when the terms of the contract are uncertain and ambiguous.</p>

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

<p>1. Appeal and error, § 1078*—necessity of cross-error to appellee's right to review. Where appellant has assigned all errors necessary to the review of all findings and rulings adverse to him and no cross-errors have heen assigned, the findings of fact must, as against appellee be considered to be supported by the evidence.</p> <p>2. Corporations, § 748*—when want of license not a defense. In an action to recover a commission for securing a loan, the fact that defendant is a foreign corporation and has not complied with Hurd’s R. S., ch. 32, sec. 67c (J. & A. If'2527) does not constitute a defense, since it is not primarily unlawful to contract for a commission to secure a loan.</p> <p>3. Corporations, § 748*—enforceability of unlawful contract against foreign corporation. While contracts made in violation of Hurd’s R. S., ch. 32, sec. 67c (J. & A. H 2527) are not enforceable at the instance of the corporation, they are enforceable against the corporation unless they are unlawful in themselves.</p> <p>4. Brokers, § 4*—construction of requirement of license as to isolated acts. An ordinance making it unlawful for one to engage in the business or act in the capacity of a broker, within the city, without first obtaining a license, applies only to persons engaged in the business of brokerage as an occupation or vocation and not to those who have participated in isolated acts.</p> <p>5. Brokers, § 28*—what constitutes an unlicensed brolcer. In an action to recover a commission for securing a loan, held as an ultimate fact that plaintiff was not at the time of the transaction involved a broker or acting in the capacity of a broker within the meaning of sections 192 to 198 of chapter XV of the Ordinances of the City of Chicago, making it unlawful for one to engage in the business or act in the capacity of a broker, within the city, without first obtaining a license.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 404*—liability for negligence in starting car. Where a child of tender years was thrown from a street car to the pavement because of the starting of the car while he, with the assistance of his mother, was alighting therefrom and the car was started because of the negligent order of the conductor, held that the child was entitled to recover such damages as such starting of the car was the proximate cause.</p> <p>2. Carriers, § 390*—duty towards passenger alighting from street car. Where there was no doubt as to the act of a street car conductor in causing the car to start while a passenger was attempting to alight therefrom being negligence under any view of the duty of the carrier to its passenger, an instruction that it was the duty of the carrier to exercise for the safety of its passengers the highest degree of care “consistent with the operation of the road,” is held not to require a reversal, although erroneous, the rule being that such carrier must use the highest degree of care for the safety of its passengers consistent with the practical operation of the road.</p> <p>3. Carriers, § 390*—duty towards alighting passengers. It is the duty of a carrier, when its street car has been stopped to permit passengers to alight therefrom, to see that the same is not started while such passengers are in the act of so alighting.</p> <p>4. Instructions, § 52*—effect of use of mandatory word. An instruction regarding the elements the jury might take into consideration in determining whether plaintiff had proved his case by a preponderance of the evidence, the use of the words “should take into consideration” is held not to be reversible error, although “may” or some equivalent should have been used instead of a mandatory word such as “should.”</p> <p>5. Instructions, § 41*—province of jury as judges of facts. An instruction informing the jury that they are, “under the instructions of the court and from the evidence,” the sole judges of the facts is not faulty as making the jury “the sole judges of all questions of fact.”</p> <p>6. Damages, § 110*—where verdict not excessive for permanent injuries. Where plaintiff, of tender years, from the time of an accident had walked with a limp and had a curvature of the spine and shortening of a leg, with other permanent injuries, while he had previously been a sound, healthy boy, a verdict for twenty-seven hundred and fifty dollars held not excessive.</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 29*—compensation where several brokers. Where an owner of real estate employs several real estate brokers to effect a sale of his property, the broker whose efforts actually bring about the sale is the one who is entitled to the commission for a sale, provided the owner acts in good faith.</p> <p>2. Brokers, § 37*—necessity of showing procuring cause of sale. Where several brokers are employed to procure a purchaser for real estate and one of them brings an action for commissions, he not only must prove that he commenced negotiations with a party who subsequently purchased the property but, in order to recover, must also show by a preponderance of the evidence that he actually brought about a consummation of the sale, or was prevented from so doing by the fraud, procurement or misconduct or fault of the owner.</p> <p>3. Brokers, § 90*—evidence insufficient to show procuring cause of sale. In an action for real estate commissions, evidence held. insufficient to show that a broker “actually brought about a consummation of the sale.”</p> <p>4. Brokers, § 54*—evidence held insufficient to show bad faith in owner. Where a broker sought to recover commissions for effecting a sale of real estate, evidence held insufficient to show that the owner acted in bad faith in selling -the property through another agent, such as to entitle each broker to a commission.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and erbob, § 1265*—necessity of showing error in proceedings in trial court. When the record and proceedings of a trial court are sought to he reviewed by writ of error, the burden is on tfye plaintiff in error to show that the proceedings were erroneous, to overcome the presumption of regularity and freedom from error indulged in on review.</p> <p>2. Appeal and ebrob, § 1265*—presumptions to support finding of trial • court. In reviewing a judgment by writ of error every reasonable intendment not negatived by the record will be indulged in support of the judgment below.</p> <p>3. Appeal and ebrob, § 1303*—presumption of sufficiency of evidence to sustain finding. Where in an order of dismissal the trial court found no costs to have accrued to either party, the' finding is presumed to be based upon evidence sufficient to sustain it in the absence of a statement of facts or stenographic report in the record.</p> <p>4. Appeal and error, § 1303*—effect of statutory requirement as against finding. The fact that the statute requires a defendant demanding a jury to pay a fee of six dollars, does not overcome a finding of the court to the contrary, that no costs had accrued to either side upon the entry of an order of dismissal, since a presumption of the sufficiency of the evidence to sustain the finding prevails as against a presumption that the statutory fee was paid in a given case.</p> <p>5. Municipal Court of Chicago, § 26*—necessity of statement of facts, transcript or report for review. If a party has not preserved the evidence for review in the manner prescribed by statute, he is not in a position to question the sufficiency of the evidence to support the finding of the trial court.</p> <p>6. Appeal and erbob, § 639*—impropriety of affidavits to support motion for certificate of importance and appeal. Affidavits in support of a motion for a certificate of importance and appeal are wholly out of place in the Appellate Court.</p> <p>7. Municipal Court of Chicago, § 19*—modification of judgment. .Municipal Court Act (Hurd’s R. S„ .see. 284, J. & A. j[ 3333) provides for the vacation, setting aside or modification of a judgment after the expiration of thirty days, upon a proper petition.</p> <p>8. Costs, § 65*—necessity for motion to retax for review. The taxation of costs is a-matter that cannot be reviewed by an Appellate Court without a motion having been first made in the trial court to retax the costs.</p>

<p>Abstract of the Decision.</p> <p>1. Pledges, § 24*—effect of conditional delivery of stock to pledg- or. Where it appeared that defendant executed and delivered a' note to plaintiff and deposited with him as collateral security a certificate of stock in a corporation, and that the note being not paid when due, defendant called at -plaintiff’s office and requested permission to take the collateral, sell it and bring back the proceeds, saying that he had a chance to sell all his stock in the com-pany including that in plaintiff’s hands, but that the purchaser wanted all or none, and the amount then due to plaintiff was computed and a demand note -for that amount made out and signed by defendant, and the collateral was delivered to him for the purpose and upon the understanding stated and defendant sold the stock but failed to account for the proceeds, held that the delivery of the stock by plaintiff to defendant was not an unconditional delivery of the same, but that defendant received it merely as the agent of the plaintiff for the special and limited purpose of selling the same for plaintiff’s benefit, and that plaintiff’s lien was not thereby lost, and the failure or refusal of defendant to return either the stock or the proceeds constituted a conversion.</p> <p>2. ' Trover and conversion, § 34*—joinder of trover and case. It is permissible to join counts in trover and in case in the same declaration.</p> <p>3. Trover and conversion, § 34*—propriety of declaration in case and trover. Upon a declaration in trespass on the case and in trover for the conversion of a certificate of stock intrusted to a pledgor to sell and account for the proceeds to the pledgee, held the trial court erred in finding no recovery could be had except in assumpsit.</p> <p>4. Pledges, § 46*—measure of damages for conversion 8y pledgor. Where a pledgor secures possession of stock in a corporation from his pledgee for the purpose of effecting a sale of the same and accounting for the proceeds to the pledgee, upon his failure to do so the measure of damages is the value of the collateral with interest from the time of the conversion, unless such amount exceeds the sum due the pledgee, and such value is, of course, material in a tort action.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Bbitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

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

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

<p>1. Insurance, § 191*—duty of insured to surrender policy for paid-up endowment or cash value. Where an insurance policy provides that if it shall lapse or become forfeited it may be surrendered for a nonparticipating paid-up endowment or for a cash surrender value as indicated in a table, the language creates an option requiring the exercise of the privilege of the beneficiary or insured within a certain time, so that a failure to exercise the option within the limited period of time terminates the right based on such language in the policy.</p> <p>2. Insueance, § 191*—futility of surrender of self-executing policy. Where a policy provided that if it should lapse or become forfeited and be not surrendered for a paid-up endowment policy, the company would write in lieu thereof, without any action on the part of the insured, a nonparticipating paid-up term policy for a period indicated by a table incorporated therein, held thq language printed in italics in the policy made that provision of the policy self-executing, so that nothing was left for the insured or beneficiary to do to get the benefit thereof.</p> <p>3. Insueance, § 191*—effect of provision for surrender in an otherwise self-executing policy. Where a policy provided that in case of lapse, without any action on the part of the insured, the company would write a nonparticipating paid-up term policy as indicated by an incorporated table, the language that “the paid-up term policy will be delivered on the legal surrender of this policy,” does not change the effect of the preceding provision for a self-executing automatic term policy, independent of any act on the part of the insured or beneficiary, the law not requiring the doing of a useless thing.</p> <p>4. Death, § 9*—elements of legal presumption of. Where a person leaves home with the expectation of returning thereto within a short time and he remains away and his absence is unexplained and unaccounted for and no intelligence is received from him and he is not heard from, and his whereabouts cannot be ascertained although diligent search and inquiry are made in the vicinity of his home and at such places as he would be likely to go and from such persons as he would be likely to meet and know, and nothing is heard from or of him, and he remains away from his family and home for a period of seven years, a presumption arises from these facts that he is dead, unless there are other facts and circumstances shown which will rebut and overcome such presumption of death.</p> <p>5. Death, § 9*—sufficiency of evidence to raise legal presumption of. In an action on an insurance policy, based on the legal presumption of death after the expiration of seven years from the time of the disappearance of the insured, evidence held to warrant the jury in arriving at the conclusion that he was dead.</p> <p>6. Death, § 3*—sufficiency of evidence to show diligent search. In an action on a policy of insurance, inquiries made under the facts are held sufficient for the jury to hold that a diligent search had been made such as to raise a presumption of death after the expiration of seven years from the time an insured had disappeared.</p> <p>7. Municipai, Court of Chicago, § 17*—effect of reading instructions from memoranda. Where the instructions to the jury in the Municipal Court consisted of one connected oral charge, the fact that certain paragraphs were presented to the court in writing and that the court while instructing the jury may have read from the memorandum containing such paragraphs, does not make that part of the charge a written instruction, the record expressly stating and showing that the court instructed the jury orally.</p> <p>8. Death, § 8*—inadmissibility of rumor without statement of source. It is improper to give a general rumor without stating ■ the source of the rumor to explain the disappearance of an insured, as against the presumption of death arising after the expiration of seven years.</p> <p>9. Death, § 8*—when rumor is admissible as showing reason for disappearance of one presumed dead. Where the record shows that whenever a witness could give the source of his information as to a rumor as affecting the reason for the disappearance of an Insured, the court permitted him to state the source thereof and the character of the rumor, held that the jury had before them the evidence as to the rumor, especially since the fact of the rumor was made the subject-matter of part of the oral charge of the court to the jury.</p>

<p>Abstract of the' Decision.</p> <p>1. Municipai, Court of Chicago, § 13*—sufficiency of affidavit of merits to raise general issue. An affidavit of merits that defendant is not liable to the plaintiff on the bond described in plaintiff’s statement of claim in any sum or amount is, in effect, a plea of the general issue presenting the issues of the case in the Municipal Court, as it by necessary implication denies the statement of facts making up the issue presented by the plaintiff’s statement of claim.</p> <p>2. Municipal Court of Chicago, § 13*—effect of allegations of law and conclusions. An allegation in a statement of claim in the Municipal Court that the amount of plaintiff’s damages, under a bond, is fixed by a deficiency decree rendered in certain foreclosure proceedings, to foreclose a trust deed to secure the payment of a note given in part payment of the purchase price of the property mentioned in the bond sued upon, is a conclusion and a statement of the law of the case.</p> <p>3. Municipal Court of Chicago, § 13*—allegations not requiring denial. A statement that a deficiency decree was entered in a foreclosure proceeding for a certain sum, which is the amount of the damages sustained by the plaintiff by reason of the defendant’s not erecting a building in accordance with a contract and the conditions of a bond, does not constitute a statement of fact, such as to require denial in an affidavit of merits under the procedure in the Municipal Court.</p> <p>4. Municipal Court of Chicago, § 13*—matters of conjecture. Where the statement of claim as filed in the Municipal Court alleged that if a certain building had been erected the property would have been of sufficient value to have satisfied a certain note and costs and expenses, it is merely indulging in conjecture and does not set forth a fact requiring denial in an affidavit of merits.</p> <p>5. Debt, action of, § 21*—improper evidence of damages. In an action on a bond conditioned to erect a building on real estate to a certain value, the admission of the deficiency decree to establish the amount due is held erroneous, as not constituting the measure of damages.</p>

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

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 325*—insufficiency of evidence to show surrender. In an action for rent under a written lease where defendant claimed that the written lease had been surrendered and canceled and that a new parol agreement had been entered into, the evidence was held insufficient to sustain defendant’s contention.</p> <p>2. Evidence, § 476*—number not determinative of weight of evidence. The preponderance of the evidence is not necessarily determined hy the number of witnesses alone, as the appearance and demeanor of the witnesses on the stand may be taken into consideration.</p> <p>3. Landlord and tenant, § 326*—determination of question as to length of term of parol lease. A reviewing court will not disturb the finding of the trial court on a question of fact as to whether or not a parol lease was for one or two years, unless it is clearly and manifestly "gainst the weight of the evidence.</p> <p>4. Landlord and tenant, § 325*—sufficiency of evidence to establish parol lease. A finding of the trial court that parol lease was for two years, held not so clearly and manifestly against the weight of evidence as to require its disturbance by an Appellate Court.</p> <p>5. Frauds, statute oe, § 96*—when part performance of oral lease insufficient at law. Part performance under a parol lease for two years does not operate, in an action at law, to take the lease out of the Statute of Frauds.</p> <p>6. Landlord and tenant, § 452*—ineffectiveness of parol lease to modify written lease. A parol lease, invalid under the Statute of Frauds, cannot operate as a waiver, surrender or cancellation of a prior written lease.</p> <p>7. -' Landlord and tenant, § 449*—what constitutes surrender. Where a lessee elects to avoid a parol lease, he cannot claim benefit ¡of it as a consideration for the cancellation and surrender of a written lease.</p> <p>8. Landlord and tenant, § 452*—ineffectiveness of executory parol lease to cancel written lease. Under the contention that a parol lease is not void hut only voidable, still it does not become a good consideration for the cancellation of a written lease unless it has been fully executed or put in writing, as contemplated hy the agreement.</p> <p>9. Landlord and tenant, § 452*—sufficiency of parol agreement to abrogate written lease. A lease, even though under seal may be abrogated by parol agreement.</p>

<p>Abstract of the Decision.</p> <p>1. Release, § 26*—when error to submit validity of release to jury. Where a person employed as a maid in the household of an attorney was injured by one of defendant’s trains, was offered a certain amount in full settlement of all claims, which was fully explained to her by her employer, who advised her to accept the settlement, and she thereupon accepted such sum and signed a release, after same had been read to her by her employer, in the absence of any representative of defendant, nothing having been said or done which could possibly have been construed into a trick or device to deceive, and the evidence being clear that she understood what she was signing, it was held error to submit the validity of the release to the jury.</p> <p>2. Cabbibbs, § 422*—when intending passenger guilty of contributory negligence. Where a person intending to become a passenger upon an interurhan train was struck by the train while attempting to cross the tracks in front of it, and her own evidence disclosed that she knew of the approach of the train and signaled it before she reached an intervening track which she was obliged to cross, and continued to look at it up to the time she was struck, having misjudged its distance and speed, it was held that contributory negligence was shown as a matter of law.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and ebroe, § 372*—when invalidity of contract under Statute' of Frauds not considered. Where the question as to the invalidity of an oral contract under the Statute of Frauds was not raised below, it will not be considered for the first time in the Appellate Court.</p> <p>2. Sales, § 332*—when judgment for value of goods sold must he reversed. Where in an action to recover for the reasonable value of lumber alleged to have been sold and delivered to defendant there was no evidence whatever of quantity, quality or value of same, a judgment in favor of plaintiff must be reversed, there being no contention that a price was agreed upon between the parties.</p> <p>3. Sales, § 327*—what evidence insufficient to prove quantity and value of goods sold. In an action for the reasonable value of goods alleged to have been sold to defendant, proof merely of the amount of the bill entered on plaintiff’s books is insufficient to prove the quantity, quality or value of the goods sold.</p>

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

<p>1. Master and servant, § 856*—when relationship of independent contractor to be determined from contract. The question as to whether one contracting to perform certain work in the construction of a building was an independent contractor must be determined as a matter of law from the terms of the contract under which the work was to be performed.</p> <p>2. Master and servant, § 856*—when relation of independent contractor established. Contract under which one of the parties agreed to do the stone-setting on a building under construction for a stipulated sum, construed as rendering such party an independent contractor, especially under evidence that he hired, paid, controlled, ^directed and discharged the men employed in stone-setting, and that neither he nor they were under the direction or control of the other party to the contract or his agents.</p> <p>3. Master and servant, § 133*—when duty to furnish safe place cannot be delegated to independent contractor. The duty of a master to furnish his employee a safe place to work cannot be delegated to an independent contractor, so as to relieve him from liability.</p> <p>4. Master and servant, § 156*—when master liable for injury to servant by defective instrumentality owned by independent contractor. Where the owner of a building in course of construction undertook to do the work of stone-cutting, letting the work of stone-setting to an independent contractor, and an employee of the former was killed by the breaking of a guy wire supporting a derrick owned and operated by the independent contractor, thus permitting the fall of stone being hoisted, it was held that the master was liable, under evidence that he was in possession of the premises, and that he and his superintendent were frequently around the derrick and in a position to observe the character and condition of the guy rope, and that the defects therein were patent.</p> <p>5. Evidence, § 396*—when opinions incompetent. 'Opinions of witnesses having no scientific knowledge on the subject are incompetent as to the tensile strength of a steel cable.</p> <p>6. Appeal and ebbob, § 1474*—when admission of opinion evidence harmless. The admission of opinions incompetent because of the lack of scientific knowledge on the subject by the witnesses giving them is harmless where their testimony conformed to that of a competent witness whose testimony was not contradicted or impeached.</p> <p>7. Witnesses, § 99*—when administrator may call party as a witness. In an action by an administrator for the wrongful death of an employee of the owner of a building, the plaintiff may call the codefendant of such owner, who was an independent contractor owning the defective instrumentality causing the injury, as his witness.</p> <p>8. Tbial, § 246*—when verdict for codefendant not inconsistent. ■Where in an action against the owner of a building under construction and his independent contractor, who owned and operated the defective instrumentality causing the injury, the declaration averred a state of facts showing the duty of both to have inspected the appliance, a verdict in favor of the independent contractor is not inconsistent with a verdict against the owner, independently of whether a verdict alone without judgment thereon could affect a judgment against such owner.</p> <p>9. Instructions, § 131*—when not erroneous as omitting essential elements. An instruction directing a verdict for plaintiff which requires the jury to find all facts essential to liability on the part of defendant is not reversibly erroneous because it requires a finding • of other additional facts not essential to the creation of such liability.</p> <p>10. Master and servant, § 786*—when instruction does not ignore doctrine of assumed risk. .An instruction in an action for the wrongful death of an employee, which requires the jury to find that the deceased not only did not know but "in the exercise of ordinary care could not have known of the defective condition of the appliance causing injury,” is not erroneous as ignoring the doctrine of assumed risk because it does not also require a finding that deceased did not have equal opportunity of knowing.</p> <p>11. Instructions, § 65*—when not erroneous as assuming facts. An instruction concluding with the words “if you find all the foregoing facts from the evidence,” etc., is not erroneous as assuming the existence of such facts.</p> <p>12. Instructions, § 81*—when not erroneous as singling out facts. An instruction which merely recites such facts as were necessary to be proved under the averments of the declaration is not subject to criticism as unduly singling out and giving undue prominence to such facts.</p> <p>13. Instructions, § 88*—when not erroneous on preponderance of evidence. An instruction directing a verdict in case the jury found “from a preponderance of the evidence” instead of “by a preponderance of the evidence” is not ground for reversal.</p> <p>14. Appeal and error, § 1533*—when instruction harmless. An instruction directing an assessment of damages if the jury found “the defendants or either of them was guilty of the negligence charged against them or either of them” is not ground for reversal.</p> <p>15. Instructions, § 151*—when refusal proper. The refusal of an instruction covered by instructions given is not erroneous.</p> <p>16. Master and servant, § 802*-—when instruction as to duty to warn properly refused. In an action for the wrongful death of an employee, an instruction that the master was not bound to warn decedent of open and obvious danger is properly refused where the declaration was not predicated upon any claim to the contrary, no such question being involved in the case.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge presiding. Heard in the Branch Appellate Court at the March term, 1914.</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 March term, 1914.</p> <p>Certiorari allowed by Supreme Court.</p>

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

<p>1. Mechanics’ liens, § 128*—apportionment of liens. Mechanics’ Liens Act, 1903, sec. 16 (Hurd’s R. S., ch. 82, sec. 30, J. & A. ¶ 7154), . relative to incumbrances and apportionment of liens, held, not to differ materially from the Statute of 1845, sec. 20.</p> <p>2. Mechanics’ liens, § 131*—practice for distribution of proceeds. In a foreclosure proceeding where, after it has been determined that a mechanic has a lien and in what amount, and that his lien is superior to the lien of the mortgage or trust deed as to a portion of the premises as improved, it is not necessary, though proper, for the court to determine before entering a decree of sale what proportion of the proceeds of the sale shall be paid to the lien holder and what to the mortgagee or trustee, since the court may order the proceeds of the sale to be brought in and the proper proportions may be ascertained by taking of evidence after the sale, and the taking of this evidence may be unnecessary where the property sells for enough to satisfy both liens.</p> <p>3. Mechanics’ liens, § 128*—distribution in case of prior incumbrances. In foreclosure of a trust deed, where a cross-complainant asked that he be decreed a superior lien for material furnished upon premises subsequent to the execution of the trust deed, and it appeared that such claimant had increased the value of the building in excess of the amount claimed as a lien for materials furnished, a decree, upon the recommendation of the master, entering an order of sale, finding that complainant had a “first and prior lien” on the premises for the amount due under the notes and trust deed and was “first entitled to be paid the same” out of the proceeds of the sale, and a further finding that the cross-complainant had a lien on the premises in a certain sum, subject to the lien of the complainant, and was next entitled to be paid such sum out of the proceeds, held erroneous since the cross-complainant had a lien paramount to that of complainant on the premises to the extent of the additional value given to said premises by improvements or repairs made by him under the Mechanics’ Liens Act, 1903, sec. 16 (Hurd’s R. S. ch. 82, sec. 30, J. & A. ¶ 7154).</p> <p>4. Mechanics’ liens, § 130*—burden of apportionment. Where after a sale of premises under foreclosure it is found that the net proceeds were not sufficient to satisfy both the liens of the complainant under a trust deed and that of a cross-complainant under a mechanic’s lien, and it becomes necessary to take further evidence to ascertain the proper proportionate amount of such proceeds to which each party is entitled, the burden of showing what amount of the proceeds the cross-complainant is first entitled to he paid upon his prior lien is upon cross-complainant, since the complainant’s lien is first in point of time.</p>

<p>Appeal from the County Court of Cook county; the Hon. David T. Smiuey, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Instructions, § 150*-—propriety of limitation of number. The practice of tendering to a trial court a large number of instructions is to be condemned by every sound canon of legal ethics pertaining to the trial of causes, since it tends to mislead the jury and to produce unjust results and to inject errors into the record, imposing an unnecessary burden on trial and reviewing courts.</p> <p>2. Negligence, § 187*—sufficiency of circumstantial evidence to establish. In an action for a fracture of the skull sustained by plaintiff, where the evidence as to what fell upon and injured him was wholly circumstantial, but there could he no doubt that a brick or some material did fall upon him from above, and from all the facts and circumstances shown by the evidence it was a fair and reasonable inference that the object would not have fallen upon him if there had been some guard around the edge of the trentih to prevent loose material from being knocked or shoved into the trench by other workmen who were at work around the trench in which the plaintiff was working under orders from the defendant, or if the trench had been covered with planks, there being no such guards or covering and plaintiff not being in a position to know how extensive the work might be carried on above him, or whether any work would be carried on while he was in the excavation which would affect his safety or expose him to peril from above, held that a verdict in favor of the defendant was manifestly against the evidence, since defendant knew all the facts and controlled the operations above plaintiff and, if there was danger of obstacles falling upon the plaintiff as result of the operations above, it was the duty of the defendant, in the exercise of ordinary care for the plaintiff, to discontinue such work or to guard plaintiff against such danger, the neglect on the part of the defendant to discharge this duty being shown by the evidence.</p> <p>3. Master and servant, § 137*—what degree of care required of employer in building construction. In an action by an employee for personal injuries received while working upon the construction of a building, held erroneous to instruct the jury that where a servant works at a particular place under orders from his superior, the master is not bound to take more care of the servant than the servant is bound to take of himself.</p> <p>4. Master and servant, § 137*—rule as to safe place to work as applied to building construction. In an action for personal injuries by an employee engaged in constructing a building, an instruction that the jury might find for the defendant if they find that the inferences in favor of a pure accident are reasonable and logical, whether such inferences were supported by a preponderance of the evidence or not, held erroneous, since it was the duty of the defendant to exercise reasonable care to provide the plaintiff with a reasonably safe place in which to work, the defendant having ordered the plaintiff to work in the trench and the work which plaintiff was doing in the trench not creating any danger or making any changes in the risk of plaintiff’s work as it progressed.</p> <p>5. Master and servant, § 137*—when safe place to work rule applies to building construction. An instruction to the jury that the general rule of law which ordinarily obliges the master to exercise ordinary care to furnish a servant with a reasonably safe place in which to work does not apply in cases where the work the servant is employed to do is in connection with construction and demolition of buildings, if of such a nature that the character of the surroundings and situation is continually changing, held misleading as applied to the evidence in the case.</p> <p>6. Master and servant, § 410*—where negligent order immaterial. In an action to recover for personal injuries received by an employee in connection with the construction of a building, where the negligence averred in certain counts of the declaration was the failure of the defendant to place any covering or protection over an excavation to prevent loose stone and other material being knocked or pushed or dropped into it while the plaintiff was working therein, held that the court erred in instructing the jury that under such counts of the declaration plaintiff must prove a negligent order to entitle him to recover.</p>

<p>Error to the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Depositions, § 38*—grounds for suppression. Where a deposition is taken upon oral interrogatories propounded by the commissioner in person to the witness, a motion to suppress the deposition on such a ground is not well taken under Hurd’s R. S. ch., 51, sec, 30 (J. & A. IT 5547).</p> <p>2. Municipal Coubt of Chicago, § 13*—insufficiency of defense as ground for striking affidavit of merits. Portions of an affidavit of merits filed in the Municipal Court may be stricken where the same do not present a defense to the action.</p> <p>3. Appeal and ebbob, § 1488*—effect of improper evidence where other evidence sufficient to sustain court’s finding. Where it was contended that the trial court erroneously admitted a letter from defendant to plaintiff and the invoice of articles thereon referred to, without any proof that the letter was properly addressed and mailed, with postage prepaid, or that it was received by the plaintiff, held that even if the evidence was improperly admitted it would not constitute reversible error, since it will be presumed that the trial court disregarded any improper evidence when there is sufficient competent evidence to justify the finding of the court on a trial without a jury.</p> <p>4. Depositions, § 42*—waiver of insufficiency of foundation for introduction of letter. The objection that a trial court improperly admitted a letter from defendant to plaintiff and an invoice of articles therein referred to, without any proof that the letter was properly addressed and mailed, with postage prepaid, or was received by plaintiff, cannot be taken advantage of where such evidence was in a deposition and the objection was not raised before the trial.</p> <p>5. Sales, § 199*—effect of delivery to carrier to pass title to consignee. Where the purchaser of goods delivers the same to a carrier for transportation to the seller under an express contract providing for the return of the same, the title to the goods passes to the consignee when they are delivered to such carrier.</p> <p>6. Sales, § 430*—waiver of right to object to return of goods. In an action for the invoice price for goods returned under the provisions of an express, contract providing for the return of the same, where defendant’s agent testified that defendant was prepared to repurchase the goods as soon as it had an opportunity to inspect them, and that it had at all times been prepared to accept the goods as soon as it had an opportunity to inspect and had been given the information as to the quantity and quality on hand, the refusal of the goods upon such ground by the consignee was a waiver of all other grounds of which the consignee then had knowledge, such as the claim that they should not have been shipped by express.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Samuel C. Stough, 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. Dents E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Mabcüs A. Kavanagh, Judge, presiding.' Heard in this court at the October term, 1913.</p>

<p>1. Pleading, § 459*—effect of pleading over and going to trial after demurrer sustained to plea. In an action by a widow for the death of her husband under the Mines and Miners’ Act, a plea of the statute of limitations is waived where, after demurrer sustained, defendant, instead of standing by its plea, files the general issue and goes to trial on the second plea.</p> <p>2. Pleading, § 45*—sufficiency of defective statement of good cause of action to save amended counts from statute of limitations. Where a widow sought recovery for the death of her husband under the Mines and Miners’ Act of 1899, as amended in 1907, secs. 18, 33, a defective statement of a good cause of action in the original counts held to have saved amended counts stating the same cause of action from a plea of the • statute of limitations, on the ground that the amended counts were not filed within the statutory period of a year after the death.</p> <p>3. Parties, § 35*—when marriage of woman does not constitute misnomer. Where a woman’s name as plaintiff was properly given upon the institution of an action for the wrongful death of her husband, her subsequent marriage does not constitute a misnomer, as a designation of the person plaintiff.</p> <p>4. Mines and minerals, § 173*—sufficiency of evidence to show statutory duty. In an action by a widow for the death of her husband from an explosion in defendant’s mine, evidence held sufficient to warrant the jury’s finding that defendant owed statutory duties under the Mines and Miners’ Act of 1899, as amended in 1907, secs. 18, 33.</p> <p>5. Mines and minerals, § 182*—when violation of statutory duty for jury. In an action under the Mines and Miners’ Act of 1899 and 1907, secs. 18, 33, held the questions whether defendant owed a statutory duty to the deceased and whether there were violations of such a statutory duty were proper issues for the jury.</p> <p>6. Mines and minerals, § 173*—where evidence supports finding of violation of statutory duty. In an action by a widow for the death of her husband in an explosion in defendant’s mine, evidence held sufficient to warrant the jury in finding that statutory duties were violated.</p>

<p>I. Interest, § 8*—what constitutes instrument in writing within statute. Where recovery was sought for breach of contract to supply cast borings held that a letter of offer, neither before nor after acceptance, was such an instrument in writing as to come within the sense of such words used in the interest statute.</p> <p>2. Sales, § 382’5-—where huger may charge resulting loss on purchase elsewhere. In an action by a buyer for breach of contract for failure to deliver cast borings, where the buyer made request for quotations for a like quantity and they were bought at the lowest price that they could be bought and they cost the buyer a certain sum more than the purchase price, held, under the circumstances, in the absence of a standard market price, the proper measure of damages was used in awarding an actual compensation and no more for the loss sustained by reason of the seller’s repudiation of the contract, since the buyer took the usual best and probably only way of supplying the default made by the seller- by ■ buying at the best price possible.</p> <p>3. Interest, § 6*—when not allowed in action on breach of contract of purchase. In an action for breach of .contract to supply cast borings where the damages were unliquidated and determinable only upon proper proof as to the amount, thereof, held that interest could not be properly allowed, as on money withheld for unreasonable and vexatious delay.</p>

<p>1. Appeal and ebbob, § 839*—when extension of time following Lincoln’s birthday inoperative. Where plaintiff secured a verdict and judgment, and the court gave defendant sixty days from December 14, 1912, to file a bill of exception, the time for the filing of the bill under the order ordinarily expiring on February 11, 1913, an order of court on February 13, 1913, extending the time for filing of the bill comes too late and the Appellate Court will strike from the record a bill of exceptions filed within the attempted second extension since Lincoln’s birthday, February 12th, is not a holiday with reference to the performance of judicial functions or clerical duties by the officers of the court such as to excuse the failure to 'file the bill of exceptions within the time allowed by the court expiring on that day.</p> <p>2. Holidays, § 1*—how Lincoln’s birthday not dies non juridicus. On a motion to strike a bill of exceptions filed after the expiration of the time given within which to file such bill of exceptions, the fact that the time given expired on Lincoln’s birthday, held not to excuse the filing of the same, since Lincoln’s birthday is not a ■holiday with reference to the performance of judicial functions or clerical duties by officers of the court.</p> <p>3. Appeal and ebbob, § 1595*—when declaration aided by verdict. Upon a motion in arrest of judgment upon a verdict in favor of plaintiff, if the declaration contains terms sufficiently general to include by fair and reasonable intendment any matters necessary to be proved and without which the jury could not have given the verdict, the want of an express averment is cured by the verdict.</p> <p>4. Masteb and sebvant, § 555*—when verdict negatives assumption of rislc. In an action by á brakeman for the loss of a foot while uncoupling cars in a moving train, upon a motion in arrest of judgment upon a verdict, held that the declaration must be construed to state a cause of action and to negative the assumption of risk by the plaintiff, after verdict all intendments and presumptions being in favor of the pleader.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>1. Appeal and ebbob, § 1870*—ineffectiveness of delivery of property to execution debtor to release surety on stay bond. Where under the Municipal Court Act, sec. 23, par. 1 (J. & A. j[ 3335), a judgment debtor files a stay of execution bond, conditioned for the prosecution of a writ of error with effect, and to pay the amount of the judgment, costs, interest and damages rendered and to be rendered in case of affirmance, held that the fact that the bailiff on the filing of the bond delivered property levied upon to the execution defendant did not release the surety.</p> <p>2. Appeal and ebbob, § 1859*—when surety is estopped to deny binding effect of stay bond. In an action upon a stay bond used by a judgment debtor to procure a review in the Appellate Court of a judgment against him, the principal and his surety are estopped from denying the binding character of the obligation.</p> <p>3. Appeal and ebbob, § 1852*—sufficiency of consideration for stay bond. A stay bond on an execution given to secure the review of a judgment in a higher court is supported by a sufficient legal consideration, the execution of the bond not being contrary to statute or the policy of the law.</p> <p>4. Appeal and ebbob, § 1850*-—when validity of statute cannot be raised. Where a stay bond is given under the Municipal Court Act, see. 23, par. 1, (J. & A. ¶ 3335), to review a judgment by a judgment debtor in an action on a bond, the surety cannot raise the question of the unconstitiitionality of the statute.</p> <p>5. Municipal Coubt of Chicago, § 13*—when judgment may be entered on striking affidavit of defense. Where an affidavit of merits filed in the Municipal Court fails to state a good defense to an action, the proper procedure is to strike the affidavit from the record and to enter judgment on the plaintiff’s affidavit of claim as in case of default.</p> <p>6. Costs, § 8*—when damages permissible for prosecution of writ of error for delay. Where a writ of error is prosecuted for delay, the Appellate Court may affirm the judgment with an assessment of damages and costs.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 124*—when reasonable time for delivery a question of fact. In an action by a purchaser to recover the purchase price of goods, where it appears that he had bought them on November 13,1913, the defendant stating that they would be shipped in a week, and that on February 18, 1914, plaintiff informed defendant that if they had not been shipped he did not wish them, the question whether a reasonable time for the delivery had elapsed before the countermand is one of fact.</p> <p>2. Sales, § 128*—what delivery not sufficient to vest title in purchaser. The delivery of goods by the seller to a forwarding company to be shipped to the purchaser does not vest title in the purchaser, where such delivery is not made in a reasonable time.</p> <p>3. Sales, § 117*—when demand not necessary in action to recover hack purchase price. In an action to rescind a contract and recover the purchase price, where the goods were not delivered! in a reasonable time, no demand is prerequisite. '</p> <p>4. Contracts, § 261*—when evidence sufficient to show right to rescind. Evidence examined and held to show that plaintiff had the right to rescind and did rescind before bringing an action to recover the purchase price paid for goods.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 380*—when evidence sufficient to show ratification of act of agent. In an action against a corporation to recover the purchase price of flowers bought by an agent of its predecessor to fulfil a contract which such predecessor had for the decoration of a hotel, evidence of one who was the president of the predecessor when the contract was made that the agent had made the contract for the decorating, that he had authority to buy what wa.s necessary to fulfil the contract and that the principal office of the predecessor had received payment from the hotel under the contract of the agent, is sufficient to show that the purchase by the agent had been ratified by his principal.</p> <p>2. Corporations, § 597*—when debt assumed hy succeeding corporation. Where the holders of all the stock of a succeeding corporation agree to assume all the debts incurred by a branch of its predecessor before October 1, 1912, and that a third person should assume the debts incurred after that date, a debt incurred by such branch on October 1, 1912, is assumed by the corporation.</p> <p>3. Corporations, § 597*—where evidence sufficient to show succession to another corporation. Evidence which shows the identity of name of a second corporation with a first, that the second had the same president as the first, that it carried on a business of the same character as the first and by agreement of the stockholders took the goods, accounts, etc., and assumed the debts of a branch of the first from a certain date, and that the charter of the second recited that it was “formed for the purpose of continuing and taking over one of the same name,” is sufficient to warrant a finding that the second was a successor of the first.</p> <p>4. Corporations, § 325*—when contract intra vires. Where the charter of a corporation authorizes it to carry on all kinds of interior decorations, it may if necessary to complete a contract for decorating, buy flowers to be used for that purpose.</p>

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

<p>1. Garnishment, § 9*-—when record on writ of error insufficient for failure to show judgment and return of execution. On a writ of error by a garnishee, the judgment will be reversed where there is no evidence in the record of a judgment against the nominal plaintiff or of the issue of an execution and the return thereof by the proper officer, “no property found.”</p> <p>2. Appeal and error, § 13*—when sufficiency of evidence to support judgment reviewable on writ of error to reverse judgment against garnishee. Section 81 of the Practice Act as amended by the Act of May 31, 1911 (J. & A. IT 8618), does not prevent the Appellate Court from reviewing, on a writ of error to reverse a judgment against a garnishee, the sufficiency of the evidence to support the judgment, where the stenographic report shows that defendant submitted to the court the question whether, on the evidence, plaintiff was entitled to judgment against him, even though there was no formal exception to the judgment.</p>

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

<p>1. Judgment, § 146*—when engagement of counsel in another court not ground, for setting aside judgment by default. The fact that defendant’s counsel was engaged in another court when the case was reached for trial is not ground for setting asidé a judgment by default.</p> <p>2. Appeal and error, § 1858*—when obligors on appeal bond liable. Where the defendant in whose behalf an appeal hond is given under the Insolvent Debtors’ Act (J. & A. If 6223) fails to prosecute his appeal with effect, but permits it to be dismissed and, after the dismissal, does not appear and surrender himself into custody at the proper time, there is a breach of these conditions of the bond which renders the obligors liable on the bond for the amount of the damages sustained by the plaintiff.</p> <p>3. Appeal and error, § 1886*—what judgment on appeal bond proper. On a breach of the conditions of an appeal bond, both the surety and the principal become absolutely liable for the damages, and on a verdict for debt and damages for the plaintiff, it is proper to enter a judgment for debt and damages, the judgment for debt to be discharged on payment of judgment for damages and costs.</p>

<p>1. Shipping, § 7*—what sufficient compliance with requirement of Federal statutes as to navigation by ticensed pilot. Section 4426 of the Federal statutes providing that no small craft of specified kinds shall be navigated without a licensed engineer and a licensed pilot is not violated by the fact that a licensed master of such a craft, in control of its navigation, intrusts the physical handling of the wheel to a wheelsman not having a license as pilot or engineer.</p> <p>2. Shipping, § 7*—when evidence not sufficient to show contributory negligence. In an action to recover for loss of wearing apparel caused by the collision of the steamer of which plaintiff was captain with a scow in tow of defendant’s tug, evidence that as the steamer was approaching the tug, which was on the wrong side of the channel, it signaled that it would hold its course and pass to the right, which was according to the rules of navigation, and that later on it repeated these signals, and that it did so hold its course, is not sufficient to show contributory negligence, even though the signals were not answered by the tug.</p>

<p>1. Bills and notes, § 441*—when evidence sufficient to show execution of note. Evidence held to he sufficient to show a loan ot money hy plaintiff to defendant and the execution therefor by defendant of the note in suit.</p> <p>2. Infants, § 19*—when infancy defense to action on note. The infancy of one of the makers of a judgment note not given for necessaries is a defense as to such infant in an action on the note brought during the continuation of his infancy.</p> <p>3. Infants, § 23*—when not deprived of right to disaffirm contract. In an action against the makers of a judgment note for a loan, one of the makers being an infant, where it does not appear that the defendants have in their possession the money loaned, the infant defendant is not deprived of his right to disaffirm the obligation by the fact he received benefit from the transaction.</p> <p>4. Judgment, § 199*—when setting aside as to one defendant does not affect validity as to other. The setting aside against one defendant of a judgment against two defendants in an action on a judgment note on the ground of his infancy does not affect its validity as against the other.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Beitrer, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>' Error to the Municipal Court of Chicago; the Hon. James C. Mabtin, Judge, presiding. Heard in this court at the October term, 1914.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>1. Words and phrases,—word “or” defined. The word “or” imports a choice between two alternatives, and, as ordinarily used, •means one or the other of two, but not both.</p> <p>2. Execution, § 282*—issuance against body and property at common law. At common law an execution against the property of a defendant and against his body could lawfully be issued simultaneously.</p> <p>3. Execution, § 282*—right to simultaneous executions against body and property under statute. Under R. S. ch. 77, sec. 4 (J. & A. U 6750) providing that the person in whose favor any judgment may be obtained “may have execution thereon in the usual form, directed to the proper officer of any county, in this state, against the lands and tenements, goods and chattels of the person against whom the same is obtained, or against his body, when the same is authorized by law,” a judgment creditor is entitled to have either writ, at his option, but not both at the same time, since to give the disjunctive “or” in the statute the effect of the conjunction “and” would, in effect, merely render the section declaratory of the common law.</p> <p>4. Execution, § 36*—choice of remedies. There is no inconsistency between the remedy by capias ad satisfaciendum and that by execution against the property.</p> <p>5. Execution,—when capias ad satisfaciendum not barred by resort to fieri facias. A judgment creditor electing in the first instance to sue out a fieri facias is not thereby precluded from subsequently securing a writ of capias ad satisfaciendum, upon the return of the fieri facias nulla bona, such election not being final in the absence of satisfaction.</p> <p>6. Execution, § 308*—when imprisonment on ca. sa. regarded as satisfaction af judgment. Where a judgment creditor in a tort action sues out a capias ad satisfaciendum in the first instance, and the defendant is arrested and imprisoned upon such writ, his arrest and imprisonment are regarded prima facie as a satisfaction of the judgment.</p> <p>7. Execution,—effect of imprisonment on ca. sa. as suspending remedies. While imprisonment continues upon a writ of capias ad satisfaciendum, it operates as a suspension of all other remedies on the judgment.</p> <p>8. Execution, § 306*—what is effect of termination of imprisonment on ca. sa. Where imprisonment under a writ of capias ad satisfaciendum is terminated without the consent of the creditor, the judgment remains unsatisfied, except in so far as the imprisonment is a credit upon it, under the statute, at the rate of $1.50 per day.</p> <p>9. Execution, § 306*—what is effect of discharge from imprisonment under Insolvent Debtors’ Act. Where a judgment debtor imprisoned under a capias ad satisfaciendum is discharged under the provisions of the Insolvent Debtors’ Act (R. S. ch. 72, sec. 33, J. & A. j[ 6230), such discharge does not constitute a satisfaction of the judgment, and the same may be enforced by execution against the property. ■'</p> <p>10. Execution, § 306*-—what is effect of discharge from arrest for nonpayment of board. Where a judgment debtor imprisoned under a capias ad satisfaciendum is discharged because of failure of the arresting creditor to advance and pay the jail fees for board, etc., such discharge removes the presumption of satisfaction arising from the arrest and imprisonment of the debtor, and the creditor may thereafter proceed by execution against the property.</p> <p>11. Execution,—what is effect of election to proceed against property or body. The only practical consequence of an election to sue out a writ directed against the property of a judgment debt- or, or one directed against his body, is to suspend his right to sue out another writ until the first has been returned unsatisfied in whole or in part.</p> <p>12. Execution, § 286*—procedure to secure ca. sa. Even though R. S. ch. 77, secs. 4, 5 (J. & A. 6750, 6751) should be construed as permitting the issuance of a writ of capias ad satisfaciendum in tort actions, in the first instance, merely on motion of the judgment creditor and without any preliminary affidavit, it would not render that practice proper where the writ is sought as a second or alternative writ after an execution against the property has been returned unsatisfied the practice in the latter case being governed by section 62 (J. & A. H 6809).</p> <p>13. Execution,—how statute as to body executions construed. The statute permitting the issuance of executions against" the body is penal in character and must be strictly construed.</p> <p>14. Execution,—what essential to issuance of ca. sa. after execution against the property. Under R. S. ch. 77, sec. 62 (J. & A. V 6809), no execution against the body can be issued in any action, whether in tort or in contract, after the return of an execution against the property unsatisfied in whole or in part, except upon a compliance with the terms of that section.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>Appeal from the Superior Court of Cook county; the Hon Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</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>