Volume 192 — Illinois Appellate Court Reports

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

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

<p>Abstract of the Decision.</p> <p>Brokers, § 37*—when not procuring cause. Where a salesman in the employ of a broker submitted to the owner of property an offer of a prospective purchaser, which the owner declined on account of the amount of commission which he would be required to pay out of the sum offered, and his client then abandoned the idea of purchasing the property, but afterwards purchased the same property for the sum previously offered, through another agent, who accepted less commission than was demanded by the salesman who had in the meantime entered the employ of plaintiffs, also brokers, and who testified that he had notified the owner of his change of employment and had thereafter again taken the matter up with the purchaser, which was denied by the latter, it was helct, in view of all the evidence, that plaintiffs were not the procuring cause and hence were not entitled to commissions.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</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>Abstract of the Decision.</p> <p>1. Sales, § 285*—form and, requisites of express warranty. No particular form of words is necessary to constitute an express warranty in a sale, but it is a question of intention to be gathered from the words used and from the circumstances and subject-matter of the case.</p> <p>2. Sales, § 237*—representation of facts constituting warranty as opposed to matters of opinion. Where in a sale a representation is positive and relates to a matter of fact it constitutes a warranty, but where the representation relates to that which is a matter of opinion merely, it does not constitute a warranty.</p> <p>3. Sales, § 238*—language constituting warranty of machine. Where a contract of sale expressly provided that a balance of two hundred dollars should be paid “when engine and generator are tested and found to be in satisfactory condition,” held the language constituted a warranty that the machine would be in a satisfactory condition when delivered.</p> <p>4. Sales, § 389*—right of recoupment for breach of warranty. Where a contract expressly provided that a balance of two hundred dollars was to be paid when an engine and generator were tested and found to be in satisfactory condition and the plaintiff failed to deliver the machine in a satisfactory condition, there was a breach of warranty on the part of the plaintiff so that under the circumstances the defendant was not required to rescind the contract and to return the machine, but had the right to recoup the damages sustained by reason of the breach in an action for the balance due on the machine.</p> <p>5. Sales, § 389*—right to recoup for breach of express warranty. Where it was not denied by the plaintiff that the defendant after the receipt of a machine was compelled to expend two hundred dollars in putting the same in a satisfactory condition, and it was not disputed by the plaintiff that the repairs were proper and necessary under the warranty, if the contract contained such an alleged warranty, helct that upon finding such a warranty to exist, judgment should have been entered in favor of defendant for costs rather than in favor of plaintiff for two hundred dollars as a balance due for machinery sold and delivered on a written contract..</p>

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

<p>Abstract of the Decision.</p> <p>1. Account stated, § 17*—mistake or fraud as ground for opening. The law will not hind a party to an account stated that is shown to he unjust and to have occurred by mistake or fraud in the settlement of the same.</p> <p>2. Account stated, § 17*—necessity of olear evidence of fraud or mistake for opening. Where parties after full and fair opportunity for examination and deciding upon their mutual accounts have adjusted and settled them, the law will not permit the deliberate settlement to be reopened, except for the clearest evidence of fraud or mistake in the settlement, the burden of proving which rests upon the party asserting it.</p> <p>3. Account stated, § 24*—effect of refusal of evidence to show mutual mistake as ground for opening. In an action upon an account stated, where defendant offered to show that the account stated was made by the parties while laboring under a mistake of fact as to the actual earnings of certain departments of defendant corporation for certain years, held the trial court’s refusal to permit the defendant to show such mutual mistake and that there were no profits in the departments for the years in question constituted reversible error.</p>

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

<p>Abstract of the Decision.</p> <p>1. Trial, § 193*—impropriety of directed verdict if evidence to sustain recovery. In an action for a real estate commission, where the evidence was conflicting, the court’s refusal to allow the cause to go to the jury does not raise the question of preponderance of the evidence, but whether the jury could without acting unreasonably, in the eye of the law, find a verdict in favor of the theory of the plaintiff under the evidence.</p> <p>2. Bbokebs, § 89*—sufficiency of evidence as to whether contract was covered hy license. Where plaintiff’s theory of the evidence was that a contract for the exchange of properties dated prior to the renewal of his license as a real estate broker was treated by all parties as null and void and that after another license had been issued to him he renewed his efforts to procure an exchange of the properties, inducing defendant to come from Mississippi to Chicago to negotiate another contract in regard to the same properties, and that the terms were agreed upon in plaintiff’s office and that instead of returning to his office to close the deal, according to their understanding, defendant and the purchaser a few days later signed a written contract, in Michigan, for the purpose of avoiding the commission, under the terms of which contract the properties were transferred, held that it was error to refuse to allow the cause to go to the jury on plaintiff’s theory.</p> <p>3. Brokers, § 90*—evidence as to ability,of purchaser to perform. In an action by a broker for a real estate commission, where although it appeared that a third party did not have title to property which he agreed to exchange for defendant’s, there was evidence tending to prove that he had a right to demand that the property be deeded to himself or to any one whom he might designate, and he actually procured the delivery of the property to the defendant in exchange for the property mentioned in the contract as belonging to the defendant, evidence held to require submission to the jury the question whether such third party was ready, able and willing to carry out his part of the contract for the exchange of the properties.</p>

<p>1. Trial, § 163*—when construction of contract question of law. Where a contract is in writing its construction presents a question of law, if its terms are unambiguous.</p> <p>2. Master and servant, § 856*—when relation of independent contractor may exist as to part of work. One employed to do certain work may be an independent contractor as to certain parts of the work and merely a servant or agent of the party employing him as to the residue of the work.</p> <p>3. Master and servant, § 857*—what is effect of retention of partial control. One entering into a contract with another, who reserves the right to control the contractor in a given particular, thereby reserves to himself the powers of a master as to that particular.</p> <p>4. Master and servant, § 857*—retention of right to supervise. While the owner of premises contracting with another for the improvement of same has the right to see that the work is performed in accordance with the contract, and an independent contractor is not converted into a servant by provisions in the contract reserving to the employer certain rights of supervision during the progress of the work, and upon its completion, such right of supervision implies merely the right to approve or disapprove the results of the work, and does not give the owner the right to make directions as to the mode of arriving at such results.</p> <p>5. Master and servant, § 857*—what is test in determining relationship as servant or contx-actor. The absolute test in determining whether one employed to do certain work is a servant or contractor is not the exercise of control by the employer, but it is the right to exercise control; it is the possession by the employer of the right of interference that puts upon the employer the duty of seeing that the employee does his duty properly.</p> <p>6. Master and servant, § 856*—how relationship between employer and contractor determined. The relationship between an employer and one contracting with him is to be determined by the contract as a whole, by its spirit and essence, and not by the phraseology of a single sentence or paragraph.</p> <p>7. Master and servant, § 857*—when contract creates relationship of master and servant. Contract between the owner of premises and a contractor construed as giving the owner the right to control the selection of material under the contract and, hence, to render the owner liable for injury to an employee caused by a defect in the material selected.</p> <p>8. Master and servant, § 856*—what is effect of provision requiring superintendence by contractor. A provision in a contract between the owner of premises and a contracting company, which required the president of the latter to personally, daily, superintend the work, is not inconsistent with a construction of the contract giving the owner power to control the selection of materials for use in the performance of the work contemplated by the contract.</p> <p>9. Master and servant, § 856*—what is effect of provision for compensation on commission basis. A provision fixing a contract- or’s compensation at a certain percentage of the amount fixed as the maximum cost of the work, all savings in the actual cost to accrue to the employer, is not inconsistent with the latter’s power to control the selection of material under the contract.</p> <p>10. • Master and servant, § 857*—what is effect of stipulation in contract for maximum cost. A provision in a contract between the owner of premises and a contractor fixing a certain amount as the maximum cost of the work, including the contractor’s commissions, does not defeat a construction of the contract rendering the contractor a mere employee in so far as the contract permitted the owner to control the selection of materials for use in the performance of the work, on the theory that such control would vest in the owner power to require the use of materials of a value far in excess of the stipulated cost and thereby render the contract unconscionable, since the question whether the contract was unconscionable as between the contracting parties could not arise in an action against the owner for injury to an employee.</p> <p>11. Master and servant, § 870*—when instruction on liability ■ for acts of contractor correct. In an action against the owner of premises for injury to an employee due to the use of insufficient material in the performance of work under a contract giving the owner power to control the selection of materials, an instruction on the liability of the owner for the acts of the contractor “in and about providing the materials used in the construction,” held, correct.</p> <p>12. Appeal and error, § 1100*-—when questions raised in reply brief not considered. A point raised for the first time in the reply brief will not be considered.</p>

<p>1. Telegraphs and telephones, § 27*—when limitations on liability inapplicable. Conditions on the back of a telegraph blank limiting liability in certain cases, which upon their face apply only to “unrepeated messages,” are inapplicable where the sender contracted and paid the additional charge imposed for a “repeated message.”</p> <p>2. Telegraphs and telephones, § 27*—what not an assent to limitations on liability. Where the face of a telegraph blank bore a printed direction to the sender to “read the conditions on the back and sign name and address thereon for reference,” the fact that the sender signed his name and address on the back of the blank in the place provided for that purpose, followed by the printed words “sender’s name and address,” is not tantamount to an assent to be bound by conditions limiting liability in certain cases, which appeared above such signature.</p>

<p>1. Cabbiebs, § 248*—when Mil of lading need not he introduced to recover for delay. In an action against a carrier to recover damages for the negligent delay of a shipment of live stock, the introduction in evidence of the bill of lading is not essential to a recovery.</p> <p>2. Evidence, § 99*—competency of portion of instrument. In an action against a carrier to recover damages for the negligent delay of a shipment of live stock, the plaintiff is entitled to introduce in evidence merely the face of the bill of lading, and the defendant, if it sees fit, may introduce the conditions appearing on the back of same in so far as they are pertinent and material to the case.</p> <p>3. Appeal and ebbob, § 1185*—when conditions on hack of hill of lading not reviewahle. Conditions appearing on the hack of a bill of lading will not be reviewed where the plaintiff in an action against a carrier merely introduced the face of the bill in evidence and defendant did not see fit to introduce the remainder.</p>

<p>Abstract of tlie Decision.</p> <p>1. Appeal and error, § 1302* *—when presumed that court judicially noticed ordinance. Since the Municipal Court Act (J. & A. ¶ 3371) requires the trial court to take judicial notice of general ordinances of the City of Chicago, where the record fails to show that the court did not take judicial notice of an ordinance, the court on review will presume that it did.'</p> <p>2. Municipal Court oe Chicago, § 26*—record for review. It is the duty of a party seeking to have a judgment of the Municipal Court reviewed on error to prepare and submit a document containing such facts as were before the trial court, whether such facts were offered in evidence or only considered in evidence under the rule of judicial notice obtaining in the Municipal Court, and it will therefore be presumed that facts omitted from the statement were sufficient to justify the ruling below.</p> <p>3. Appeal anq error, § 1275*—when presumed that evidence showed violation of ordinance. In a prosecution in the Municipal Court for the violation of an ordinance, as against a contention that the record fails to show a violation of the ordinance because the ordinance was not incorporated in the record, it will be presumed that the evidence was sufficient to sustain a finding of the violation of the ordinance, it being the duty of the trial court under the Municipal Court Act (J. & A. If 3332) to take judicial notice of city ordinances, and the burden being upon the plaintiff in error to prepare a statement showing all matter passed upon below.</p> <p>4. Municipal corporations, § 863*—how action for penalty may he commenced. In an action by a city to recover a penalty for the violation of an ordinance, process may properly be had by summons or by a warrant or by arrest on view.</p> <p>5. Municipal corporations, § 864*—when evidence sufficient to show date of violation of ordinance. In an action by the City of Chicago for the sale of intoxicants in violation of Chicago Code of 1911, sec. 1539, evidence held sufficient to show the date upon which the offense was committed.</p> <p>6. Appeal and error, § 462*—when failure to object to court’s talcing judicial notice bars review. Where in a prosecution by the City of Chicago for the sale of intoxicants in violation of Chicago Code of 1911, sec. 1539, the court stated that it would take judicial notice that a bottle and glasses in evidence contained less than a gallon, its action is not subject to review where defendant made no objection and failed to attempt to disprove the court’s contention.</p> <p>7. Appeal and error, § 996*-—when record insufficient to preserve question for review. Where in a prosecution hy the City of Chicago for .the sale of intoxicants in violation of Chicago Code of 1911, sec. 1539, the court below took judicial notice that a bottle and glasses in evidence held less than a gallon, and the ordinance was not incorporated in the record, the action of the court will not be reviewed, since the materiality of the inquiry as to the capacity of the bottle or glasses was not apparent.</p> <p>8. Intoxicating liquors, § 105*—when liquor illegally sold need not he introduced in evidence. In a prosecution for violating a city ordinance regulating the sale of liquor, the liquor claimed to have been sold need not be introduced in evidence.</p>

<p>Abstract of the Decision.</p> <p>1.' New trial., § 115*—when denial on remittitur proper. Where, upon a motion for a new trial after a verdict for plaintiff for somewhat less than the amount of her claim, the trial court held that an item of plaintiff’s claim had been improperly submitted to the jury, its action in permitting the plaintiff to remit the amount of the objectionable items and thereupon deny a new trial, upon the assumption that the jury allowed an item properly submitted as well as the improper item, was not erroneous, where from the items of plaintiff’s claim and the amount of the verdict the court was able to determine with reasonable certainty what items were included in the verdict.</p> <p>2. Contracts, § 384*—when verdict not against weight of evidence. In an action for services claimed to have been performed under an express contract, a judgment allowing one of the items of plaintiff’s claim held not against the weight of evidence.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 8*—when action commenced by attachment not for unliquidated damages. An action to recover an alleged overpayment on a purchase by plaintiff commenced by attachment is improperly dismissed by the Municipal Court as being an action to recover unliquidated damages, where the matter in dispute was not the value of material purchased by plaintiff from defendant but whether it was of the character described in the contract between the parties, the basis for determining the value being undisputed.</p> <p>2. Municipal Court of Chicago, § 8*—when action commenced hy attachment not for unliquidated damages. An action to recover an alleged overpayment on a purchase by plaintiff, commenced by attachment in the Municipal Court, is improperly dismissed as being an action to recover unliquidated damages, where the question in dispute was the amount of material shipped to plaintiff by defendant and not its value.</p> <p>3. Appearance, § 8*—what constitutes general. The filing of an affidavit of merits and claim of set-off constitutes a general appearance, conferring jurisdiction over the parties.</p> <p>4. Appeal and error, § 551*—when exceptions unnecessary. An adverse ruling under Practice Act, sec. 81 (J. & A. If 8618) may be reviewed on appeal or error without a formal exception.</p> <p>5. Trial, § 290*—when propositions of law unnecessary. The purpose subserved by propositions of law is to determine whether the trial judge entertains correct views of the principles of law involved in the proceeding, and, hence, they are unnecessary where the ruling of the court itself showed the principles of law which the court applied to the facts.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 906*—when report of evidence not received as part of record. Where on an appeal from the Municipal Court of Chicago the record is in two parts, one certified to as the transcript of the record and the other certified to on a later date as an additional record, the latter being in loose form and containing two documents, one certified to by the trial judge as “additional report of proceedings subsequent to the entry of judgment” and the other certified to by him as a correct stenographic report of the evidence introduced and proceedings in the cause, which purports to have been presented, signed and sealed two days after the additional record was certified to by the clerk of the court, but there is nothing to indicate that' such stenographic report became a part of the record below or that it was an actual part of the additional transcript when the latter was certified to by the clerk, a motion to strike such stenographic report from the record will be granted.</p> <p>2. Appeal and error, § 1751*—when judgment affirmed because of insufficient record. On a writ of error, where the errors relied upon by plaintiff in error are predicated on proceedings of which no record is duly preserved and no error appears on the face of the record, the judgment will he affirmed.</p>

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

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

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

<p>Abstract of the Decision.</p> <p>Husband and wife, § 264*—when evidence insufficient to warrant decree for separate maintenance. Evidence examined and held insufficient to warrant a decree for separate maintenance.</p>

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

<p>1. Contempt, § 69*—what evidence necessary to establish direct criminal contempt. On a proceeding for criminal contempt, where the act of contempt charged is the making by defendant to the court, on the call for trial- of certain criminal prosecutions in which defendant represented the complaining witnesses, representations that the complaining witnesses had left the State and that before leaving they stated to him that they did not wish to have anything further to do with the prosecutions and would not return to the State, in order to show that the making of the representations by the defendant on the occasion and in the circumstances was a contempt, it must appear beyond a reasonable doubt from the personal knowledge of the court, or by admissions of the defendant himself in open court and in the presence of the court, and from no other source, that the representations were false when made, that defendant knew of their falsity when he made them and that he made them knowing their falsity and with a wilful and malevolent intention of assailing the dignity of the court, or of interfering with its procedure and the due administration of justice.</p> <p>2. Contempt, § 68*—when evidence inadmissible to support charge of direct criminal contempt. On a proceeding for criminal contempt charged to have been committed by making false representations to the court, as to the absence of complaining witnesses in criminal cases called for trial, where the court had no personal knowledge of the falsity of the representations nor of the intention or motives of defendant in making them, and defendant, under oath, stated that he believed at the time of making the representations that they were true, from what the witnesses themselves had told him and what he had learned from other sources; that he would not have made them had he known them to be untrue; that he had no intention of deceiving or misleading the court and had no interest in the disposition of the cases in which they were made, the testimony of witnesses brought before the court in other proceedings to which defendant was not a party, and reports and rumors brought to its notice in private, are insufficient to support the charge, even though such reports and rumors are subsequently made a part of the record.</p> <p>3. Contempt, § 61*—what sufficient to purge. A joint operation of act and criminal intent being necessary to support a charge of criminal contempt, a person may purge himself of contempt by showing that he acted innocently or through ignorance and without any intention wrongfully to mislead or deceive the court.</p> <p>4. Contempt, § 61*—when testimony under oath sufficient to purge. In purging of contempt, the contemnor’s testimony under oath is the equivalent of a sworn answer.</p>

<p>Error to the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in this court at the March term, 1913.</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>Appeal from the Superior Court of Cook county; the Hon. John M. O’Connob, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in this court at the March term, 1914.</p>

<p>1. Appeal and error, § 269*—when judgment for portion of amount claimed final. A judgment on an affidavit of merits of the defendant for a portion of the amount claimed by the plaintiff taken under section 55 of the Practice Act of 1907 (J. & A. ¶ 8592) is a final judgment and appealable.</p> <p>2. Pleading, § 232*—when permission to file amended affidavit of merits in discretion of court. It rests within the discretion of the trial court to allow a second amended affidavit of merits to be filed after the original affidavit and an amended affidavit have been stricken on motion of plaintiff.</p> <p>3. Appeal and error, § 966*—when proceedings after appeal perfected not reviewed. Where an appeal has been perfected from a judgment on an affidavit of merits of the defendant, the Appellate Court will not consider an order of the trial court made thereafter overruling a demurrer to counts of the declaration.</p>

<p>Vendor and purchaser, § 298*—when vendor not entitled to earnest money on default of purchaser. A contract for the sale of real estate recited that the purchaser had paid $100 as earnest money and provided that should the purchaser fail to perform, the earnest money should, at the vendor’s option, he retained as liquidated damages; that it should he held by her agents for the mutual benefit of the parties and. that in the event of the retention of the money, it should be such agents’ duty to apply it, first, to the payment of any expenses incurred for the vendor by her agents and second, to the payment to the vendor’s broker of a commission of “..........per cent on the selling price” for his services in pro-</p> <p>curing the contract, rendering the overplus to the vendor. At the same time the vendor’s agents and the purchaser by her agent executed a joint escrow agreement which recited that “the accompanying contract & $100 are deposited” with a trust company “to be delivered by it only upon the joint order of the undersigned or their respective legal representatives or assigns.” On the same paper was a direction to the trust company, signed in the same manner as the escrow agreement, that if the balance of the purchase price was not deposited by a day named, the trust company was authorized and directed to pay $50 to the vendor’s agents and $50 to the purchaser’s agent. The purchaser having defaulted and the sale not having been made, the trust company, on demand, paid $50 to the vendor’s agents and $50 to the purchaser’s agent. In an action by the vendor against her agents to recover the $100 earnest money, it was held that a judgment for defendants was proper.</p>

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

<p>Corporations, § 173*-—when majority stockholder cannot transfer rights and property of corporation. Where the property and good will of a business has been transferred by the owner to a corporation, he receiving therefor a majority of the stock in the corporation, an agreement between him and the other stockholders, as individuals, to wind up the corporation and transfer the corporate property and good will to the minority stockholders is invalid, when not ratified by the corporation, and a bill by the minority stockholders for specific performance and an injunction cannot be maintained.</p>

<p>Mandamus, § 51*—when petition to compel restoration to public office insufficient. A petition for a writ of mandamus to compel the restoration of the petitioner to a public office, based on the provisions of the Civil Service Act effective July 1, 1911 (J. & A. ¶ 10629), is defective where it does not allege that he had taken the oath of office before the act went into effect.</p>

<p>Religious societies, § 30*—when use of property not interfered with. A bill to restrain the Trinity Methodist Episcopal Church of Chicago from interfering with W., one of the complainants, in occupying as a parsonage and conducting religious worship in M. Chapel in accordance with the discipline and laws of the Methodist Episcopal Church, alleged that the defendant was a religious corporation in the boundaries of the R. Conference of the Methodist Church; that M. Chapel was erected by the Trustees of Trinity Church on property which had been conveyed to them and was dedicated according to the discipline of the Methodist Church; that thereafter M. Chapel was incorporated as a religious corporation; that the latter corporation was situated in the boundaries of the R. Conference; that the Presiding Bishop, at a session of the R. Conference, appointed complainant W. pastor of M. Church and said</p> <p>W. thereafter used the building for a parsonage and for religious worship according to the Methodist discipline until he was evicted by defendants, and prevented from entering. Held, that the title to the real estate on which M. Chapel was situated was in the Trustees of Trinity Church and that no facts are alleged from which a constructive or resulting trust arises in favor of M. Church, and that the manner in which the trustees devoted the property to religious uses could not be controlled by the R. Conference nor by the Presiding Bishop, even though the property had been conveyed to the trustees for religious purposes.</p>

<p>Municipal Court of Chicago, § 6*—when without jurisdiction on question of interstate commerce. The Municipal Court of Chicago has no jurisdiction of a controversy as to whether or not a carrier charged on an interstate shipment a greater sum than it was authorized to charge by its schedule of rates posted and filed with the Interstate Commerce Commission.,</p>

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

<p>1. Negligence, § 20*-—liability in absence of privity of contract. Where a person undertakes to do an act or discharge a duty, hy which the conduct of another may be properly regulated and governed, the performance must be made in such a manner that those who are rightfully led to a course of conduct or action in reliance upon the proper performance of such duty will not suffer loss or injury by reason of its negligent performance, and in the event of loss, recovery may be had although no privity of contract is established.</p> <p>2. Negligence, § 20*—right to recover for negligent examination made at instance of another. Where plaintiff purchased certain material in reliance upon a certificate of test and examination made by defendants, who were experts in that line, which certificates were generally recognized throughout the trade as fixing the character and value of the materials covered, it was held that plaintiff was entitled to recover for the negligence of the defendants in making such examination and test, although made at the instance of the vendor of the materials, and there was no privity of contract between plaintiff and defendants.</p>

<p>1. Appeal and error, § 1883*-—when affidavit of defense properly stricken in action on bond. In an action on a bond on a writ of error in a forcible entry proceeding, where the affidavit of defense failed to deny a failure to prosecute the writ of error with effect or noncompliance with the judgment, the denial therein simply going to the dismissal of the writ of error from the judgment rendered against the particular defendant named in the bond, the judgment itself running not only against this defendant but others, it was held that the affidavit was insufficient and was properly stricken from the files.</p> <p>2. Appeal and error, § 1877*—what not a defense in action on bond. In an action on a bond given on a writ of error in a forcible entry proceeding, the right of the defendant, a religious corporation, to recover rents from real estate cannot be considered.</p> <p>3. Appeal and error, § 1886*—right to have damages assessed by jury in action on bond. Under Practice Act, sec. 59 (J. & A. ¶ 8596), the defendant in an action upon a bond given upon the prosecution of a writ of error in a forcible entry proceeding is entitled to have the damages assessed by a jury, notwithstanding the striking out of his affidavit of defense.</p> <p>4. Appeal and error, § 1034*—when rules not judicially noticed. Rules of the Municipal Court will not be judicially noticed in the Appellate Court.</p>

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

<p>Interpleader, § 19*—when attorneys’ fees not allowed. No soHeitor’s fees will be allowed to a party filing a bill of interpleader, but only his costs.</p>

<p>Pawnbrokers and secondhand dealers, § 2*—when pledge in excess of statutory amount not available. Where the pledgor of goods attempted to evade the provisions of the Pawners’ Societies Act (J. & A. ¶ 2681) prohibiting loans to any one person in excess of two hundred and fifty dollars, by taking out loans far in excess of that amount in the names of fictitious persons, the property pledged cannot be replevied by his personal representative on the theory that the loans being illegal were void, since even though defendant was cognizant of the character of the transaction, the parties being in pari delicto, no cause of action could arise out of the transaction.</p>

<p>Abstract of the Decision.</p> <p>1. Mortgages, § 733*—what shows contract to settle second mortgage in consideration of waiver of redemption. Where a third mortgagee acquires certain other property by purchase from the owner of the mortgaged property by a deed reciting that a portion of the purchase price of the purchased property be retained by the third mortgagee to apply on incumbrances on the mortgaged property, including incumbrance of a second mortgagee, such recital constitutes evidence sufficient to corroborate the second mortgagee’s claim that the third mortgagee promised to settle the second mortgagee’s incumbrance in consideration of the second mortgagee’s promise to forbear from redeeming the mortgaged property after foreclosure sale.</p> <p>2. Appeal and error, § 966*—when question not presented in record not considered. The question of the duty of a party to reduce damages resulting from a breach of contract will not be considered in appeal where such question is not raised in the record.</p> <p>3. Fbatjds, statute of, § 118*—when must he pleaded. Statute of Frauds to be available as a defense must be pleaded.</p>

<p>1. Cabbiers, § 186*—when reshipment does not affect continuous passage. Where perishable goods, shipped in a car over connecting railway lines, are reconsigned by the shipper, while in the possession of the carrier at their original destination, the shipment is one continuous passage, and each carrier beginning with the initial carrier is presumed to have received the shipment in good order, and the last carrier is prima facie negligent, in the absence of evidence of the place where the goods were damaged in transit, and the burden is upon it to prove that it provided all suitable means of transportation and exercised that degree of care which the nature of the case required.</p> <p>2. Carriers, § 199*—when presumption against final carrier rehutted. Where the final carrier proves that it transported the goods in transit only a short distance and was in possession of them only a short time, and no evidence of its negligence is introduced, the presumption of its liability is rebutted.</p> <p>3. Carriers, § 123*—what insufficient to disprove negligent icing. Where it appears that the final carrier is not negligent, the next preceding carrier is prima facie negligent where perishable goods are damaged in transit and evidence by this carrier that the car was iced and that there was no delay, introducing no evidence of the temperature of the car or that any inspection was made, does not sufficiently prove that the defendants exercised that degree of care which the nature of the goods required.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Assignments, § 31*-—what assignee must show. In an action by the assignee of a chose in action, the plaintiff must prove an indebtedness of defendant to the plaintiff’s assignor and the assignment of same to the plaintiff.</p> <p>2. Brokers, § 5*—what is effect of failure to procure license. One acting as a real estate broker without a city license cannot recover commissions.</p>

<p>Abstract of the Decision.</p> <p>1. Equity, § 574*—when Mil of review insufficient. Bill in the nature of a bill of review to set aside the decree of divorce rendered in favor of complainant on the ground that such decree was procured through the fraud, coercion, duress and undue influence of the defendant and as the result of the mental incapacity of the complainant, held insufficient on the ground that allegations setting forth the grounds for the bill were mere conclusions.</p> <p>2. Judgment, § 343*—what are requisites of hill to impeach judgment. A bill to impeach a judgment or decree for fraud must substantially state the facts relied on as constituting the fraud.</p> <p>3. Fraud, § 72*—what are requisites of allegations setting up. The party alleging fraud must set forth in his pleadings the facts relied upon to show same, and mere conclusions of the pleader without averments of the facts will not support an allegation of fraud.</p> <p>4. Judgment, § 321*—when may he annulled for fraud. While a court of equity may annul a judgment or decree obtained by fraud, to justify the exercise of the power it must be made clearly to appear that the judgment or decree has no other foundation than fraud.</p> <p>5. Divobce, § 61*—when decree not set aside at the instance of successful party. A decree of divorce rendered in favor of the complainant upon her allegations and proof of extreme and repeated cruelty will not be set aside on a bill in the nature of a bill of review by such complainant setting forth that the grounds upon which said decree of divorce was based, and her testimony in support thereof were in fact true, but that she was induced to institute such proceeding through the fraud of the defendant.</p> <p>6. Divobce, § 59a*—when allegations of hill of revieio insufficient. Allegations in a bill in the nature of a bill of review to set aside a decree of divorce rendered in favor of the complainant in a suit instituted by her to the effect that at the time of the institution of such proceedings she was in pecuniary distress and suffered vexation and annoyance by the acts of defendant, held insufficient to show such coercion, duress and undue influence on the part of the defendant as to justify the relief sought.</p> <p>7. Equity, § 560*—when hill to set aside decree fails to explain laches. A bill to impeach a decree of divorce entered in favor of the complainant in a suit instituted by her, on the ground that such proceeding was instituted through the fraud, coercion and undue influence of the defendant, held insufficient to explain a delay of nearly a year in filing a bill to impeach said decree.</p>

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

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1034*—when rules of Municipal Court not judicially noticed. The Appellate Court will not take judicial notice of rules of the Municipal Court.</p> <p>2. Appeal and error, § 482*—when no question of law presented. Where on a trial before the court without a jury no propositions of law were submitted, no questions of law are presented for review.</p> <p>3. Fraud, § 12*—what is effect of independent investigation. No action for damages arising from fraud will lie where the plaintiff relies wholly on his own inspection of the thing purchased and not on any fraudulent statement of the defendant.</p>

<p>1. Carriers, § 189*—when connecting carrier liable under Gar-mack amendment on reshipment. In an action against a railway company to recover damages for the shrinkage in weight and depreciation in value of stock, shipped from one State to another over connecting lines, the shipper, under the Carmack amendment to the Interstate Commerce Act, is entitled to recover from the connecting carrier where such carrier, without any reference to the contract of the initial carrier, makes a new contract of shipment from the place of delivery to it, to which the shipper assents.</p> <p>2. Cabbiebs, § 107*—when evidence of reasonable running time admissible. Where in an action against a carrier for damages caused by delay in the transportation of stock, evidence as to the reasonable running time between the termini of the shipment was claimed to have been improperly admitted because the question did not show whether the witness was to include time consumed in feeding and watering, it was held that the evidence was properly admitted, the witness evidently having understood the question as including stops, and having in his answers made allowance therefor.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

<p>1. Husband and wife, § 255*-—where separate maintenance proceeding to be brought. In separate maintenance proceedings where the husband is a resident of the State, section 2 of the Separate Maintenance Act (J. & A. U 6160) determines the county in which suit must be brought, but where he is a nonresident, Chancery Act, sec. 3 (J. & A. If 883) controls.</p> <p>2. Husband and wife, § 265*—when no personal decree permissible in separate maintenance proceedings. In proceedings for separate maintenance where no personal service is had upon a nonresident defendant, and he does not enter his appearance therein, no personal decree can be entered against him.</p> <p>3. Husband and wife, § 255*—when court may proceed in rem in separate maintenance proceedings. In separate maintenance proceedings "where no personal service is had upon a nonresident, nonappearing defendant, but property owned by him, is found within the jurisdiction of the court, the court has power to proceed in rem by requiring such property to bear the obligation of defendant to provide for the support and maintenance of his wife.</p> <p>4. Husband and wife, § 265*—when insurance fund may be subjected to payment of alimony. In separate maintenance proceedings against a nonresident, nonappearing defendant, upon whom no personal service has been had, the court may by decree make proper allowance for the support and maintenance of the wife and subject a fund in the hands of an insurance company over whom jurisdiction had been obtained, owned by the defendant under the terms of a twenty-year tontine policy, to the payment of the amount allowed.</p> <p>5. Husband and wife, § 265*—form, of decree in rem, in separate maintenance proceeding. Where in a separate maintenance proceeding against a nonresident, nonappearing defendant, upon whom personal service had not been had, the court after making a decree for support proceeds in rem against property owned by defendant within its jurisdiction, the decree should be in the nature of the usual foreclosure decree, finding the amount due, and directing that if such amount be not paid within a specified time, the property will be sold to satisfy the decree, and such a decree is in rem and not in personam.</p> <p>6. Husband and wife, § 265*—when decree in separate maintenance proceeding is in rem. Even though a decree in separate maintenance proceedings against a defendant over whom personal jurisdiction was not acquired, in terms orders the defendant to pay the amount found to be due to the complainant within a specified time, or, that in default thereof, the property of defendant, over which the court had acquired jurisdiction, be sold to satisfy the same, the alternative feature of the decree preserves its character as a decree in rem.</p> <p>7. Husband and wife, § 241*—when decree in separate maintenance proceedings erroneous as not based on evidence. A decree in separate maintenance proceedings awarding a certain sum to complainant for her support and maintenance is erroneous where no evidence was introduced as to the present “condition in life” of the husband, or his present means or ability to 'pay alimony.</p> <p>8. Husband and wife, § 242*—when decree in gross erroneous in separate maintenance proceedings. A decree in separate maintenance proceedings awarding a certain sum in gross to complainant for her support and maintenance is erroneous.</p> <p>9. Appeax, and error, § 1039*—when assignee of insurance policy may assign error. Where in a separate maintenance proceeding, against a nonresident defendant over whom personal jurisdiction had not been acquired, complainant joined as parties defendant an insurance company, and the assignee of an insurance policy upon the life of defendant, such assignee is entitled to assign error upon a decree awarding the fund to complainant, and such an assignment necessarily involves a consideration of the validity of that portion of the decree upon which the right of complainant to the fund is based.</p> <p>10. Husband and wife, § 265*—when decree in separate maintenance not sustained on theory that complainant was a creditor. In separate maintenance proceedings against a nonresident defendant over whom personal jurisdiction was not acquired a decree awarding complainant in gross a fund in the hands of an insurance company under the terms of a twenty-year tontine policy upon her husband’s life without evidence as to his means or condition in life, cannot be sustained upon the theory that complainant was a creditor of her husband merely because on a prior suit for limited divorce in another State a monthly allowance of temporary alimony had been made in her favor, payment of which had ceased upon a reconciliation being effected, especially where the bill' was not framed upon that theory and the decree does not find anything due her on account thereof.</p> <p>11. Insurance, § 503*—when interest of beneficiary ceases in twenty-year tontine policy. Under a twenty-year tontine policy, by the terms of which a certain sum was payable to the beneficiary upon due proof of the death of the insured “during the continuance of this policy,” and providing further that the insured if living at a certain date should be entitled to receive, in cash, the value of the policy at that time, the interest of the beneficiary ceases upon the expiration of such period, the insured still surviving.</p> <p>12. Insurance, § 180*—what are rights of assignee of twenty-year life policy. An assignment without consideration of a twenty-year tontine policy prior to the date when it matures conveys a contingent future interest only, subject, in equity, to the right of the wife of the insured, who was also the beneficiary named in the policy, to have a reasonable provision made for her support and maintenance.</p> <p>13. Insurance, § 180*—what are rights of assignee as against wife of insured in separate maintenance proceedings. Where prior to the expiration of a twenty-year tontine policy which the insured had assigned to a third person as a gift, the beneficiary thereunder, who was the wife of the insured, commenced separate maintenance proceedings against the insured, joining the insurance company and the assignee as parties defendant, such assignment does not prevent the court from subjecting the fund to the payment of a reasonable allowance for the support and maintenance of complainant while living s'eparate and apart from her husband and without her fault.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 26*-—when stenographic report not filed in time. Under the Municipal Court Act, sec. 23, par. 6 (J. & A. ¶ 3335) providing for the signing and filing of a stenographic report upon application made within thirty days after the entry of a final order or judgment, “or within such further time as may, upon application therefor within said thirty days, be allowed by the court,” where judgment was entered May 23rd and on the same day an order was entered extending the time for filing the stenographic report to August 31st, a further order entered on stipulation August 7th, extending the time for filing the report to September 8th, is void.</p> <p>2. Municipal Court of Chicago, § 26*—when party not estopped to object of failure to file report in time. The indorsement of “O. K.” upon a stenographic report by counsel for defendant in error does not estop the latter from objecting that it was not filed in time.</p> <p>3. Municipal Court of Chicago, § 26*—what does not create estoppel to move striking of report. The fact that counsel for defendant in error knowingly permitted plaintiff in error to “go to considerable expense in having printed the abstract of record and the brief and argument” does not estop defendant in error from moving to strike the stenographic report as not having been filed in time.</p>

<p>1. Corporations, § 104*-—when prospectus binding agreement. Prospectus of a new corporation to be formed stating the terms and conditions upon which the stock was to be issued and signed by the subscribers to the stock, held a binding agreement.</p> <p>2. Corporations, § 213*—when transaction construed as intended to give stock appearance of having been fully paid. In an aiction to enforce the individual liability of stockholders, evidence held to show that the formation of a corporation, the subscription of all but sixteen shares of its stock by a certain person with a bonus of one share of common stock for every share of preferred stock subscribed for, and the transfer to the corporation of all the property and assets of an insolvent corporation was a mere colorable transaction for the purpose of giving the stock so subscribed for the appearance of being fully paid, the object being to secure additional capital for the latter corporation, after it had vainly endeavored by other means to secure it, the person so subscribing for the bulk of the stock being a mere go-between, and the actual subscribers being fully cognizant of the character of the transaction.</p> <p>3. Corporations, § 213*—when value of property given in e®. change for stock insufficient. In an action to enforce the individual liability of stockholders in an insolvent corporation, who had paid but fifty per cent, of the par value of the stock in cash, and who claimed that the value of the property and assets of another corporation turned over to the corporation in which they were stockholders more than equaled the entire par value of the stock issued, and hence that the stock held by them was' fully paid and nonassessable, evidence held to show that the value of such property was less than a third of the alleged value.</p> <p>4. Corporations, § 213*-—when good will of corporation of no value in payment for stock. The good will of a corporation transferred to another corporation in part payment of its capital stock "will not be considered as of any value in a proceeding to enforce the individual liability of stockholders in the latter corporation, where at the time of such transfer the former corporation was in desperate financial straits, its operating expenses having exceeded its income, and its directors having determined upon a dissolution.</p> <p>5. Corporations, § 213*—when leasehold of no value in payment of stock. In an action to enforce the individual liability of stockholders in an insolvent corporation, in determining whether certain property turned over to the corporation was of sufficient value to render the stock fully paid, a leasehold, assigned to the corporation, the terms of which were so onerous in character as to constitute a serious obstacle in procuring financial aid, will be considered a liability and not an asset.</p> <p>6. Corporations, § 219*—when evidence shows notice that stock was not fully paid. In an action to enforce the individual liability of stockholders in an insolvent corporation, who were intimately connected with it and with another corporation to whose property and rights it succeeded in pursuance of a reorganization scheme evolved to procure additional capital for the latter, the evidence was held to show that the defendants had knowledge that the stock was not fully paid.</p> <p>7. Corporations, § 219*—when purchase of stock at less than par places purchaser on notice. The purchase of stock in a corporation at fifty per cent, of its par value places the subscriber on notice as to whether the stock was actually fully paid and nonassessable.</p> <p>8. Corporations, § 232*—when decree in action to enforce stockholders’ liability conforms to bill. Decree in an action to enforce the individual liability of stockholders in an insolvent corporation held to conform to the allegations of the amended bill.</p> <p>9. Corporations, § 232*—when decree enforcing stockholders’ liability will not be set aside. A decree pro rating the liability of stockholders in an insolvent corporation upon a basis of the difference between the amount actually paid in on the stock issued and the par value thereof will not be set aside on the ground that it should have been based upon the difference between the value of certain property turned over to the corporation, together with the cash received upon the stock subscriptions and the par value of the stock, where the court below in determining the value of such property had failed to deduct a liability, which would have rendered the net amount of stock unpaid the same on either basis.</p> <p>10. Corporations, § 233*—who are creditors within bill filed in behalf of all creditors. The holder of corporate bonds made a creditor by the bonds themselves and by the decree of foreclosure entered thereon is within the protection of a bill filed under R. S. ch. 32, sec. 25 (J. & A. If 2442), in behalf of the complainant and all other creditors.</p> <p>11. Corporations, § 235*—when suit to enforce stockholders’ liability tolls statute of limitations. A bill filed on behalf of the complainants and all other creditors of the defendant corporation against the corporation, and also against the stockholders of such, corporation to enforce the individual liability of the stockholders, will prevent the statute of limitations from running against any of the creditors who came in under the decree.</p> <p>12. Equity, § 440*—when re-reference properly denied. Where in an action to enforce the individual liability of stockholders, the master entered a rule upon defendants to close proof within thirty days on a certain claim, and they requested the master to report to the court recommending the disallowance of the claim upon the evidence already taken in the case and on objections filed to the claim, and the master recommended the disallowance of the claim on the ground that it was barred by the statute oí limitations, and defendants took no further steps for a re-reference for hearing on the merits, being content to rely upon the master’s ruling upon a question of law in their favor until the court was about to enter a decree after having intimated that the exceptions to the master’s report would be sustained, the refusal of a re-reference for the introduction of evidence on the merits was within the discretion of the court.</p> <p>13. Corporations, § 231*—what evidence admissible in action to enforce stockholders’ liability. In an action to enforce the individual liability of stockholders to the extent of their unpaid stock holdings, where the evidence showed that the corporation was in fact a reorganization of an insolvent corporation, the books and papers of the latter are properly admitted in evidence.</p>

<p>Abstract of the Decision.</p> <p>1. Trial, § 246*—when defendant cannot object to verdict as uncertain. Where in an action against a defendant, hoth as an individual and as trustee under a will, the court at the close of plaintiff’s evidence instructed the jury to return a verdict for the defendant as trustee, and while the cause was not formally dismissed as to defendant as trustee, the subsequent conduct of both the court and defendant’s counsel showed that both were of the opinion that the suit had been in effect dismissed as to defendant in such capacity, the defendant cannot insist in the Appellate Court that a verdict finding the “defendant guilty” was uncertain, because it did not show whether it was against him individually or as trustee, or in both capacities.</p> <p>2. Landlord and tenant, § 230*—when required to keep stairways and halls in safe condition. A landlord who leases separate portions of the same building to different tenants, reserving the halls, stairways or other approaches for the use of his tenants, is under an implied duty to the tenants, their boarders, agents and servants to use reasonable diligence to keep such halls, stairways or approaches over which he has reserved control, in a reasonably safe condition.</p> <p>3. Landlord and tenant, § 232*—when notice of defect must be shown. A landlord is chargeable with negligence in failing to keep the common passages and stairways in repair, only after notice of the existence of the dangerous condition, or after the defect has continued for such a length of time as to charge him with constructive notice.</p> <p>4. Landlord and tenant, § 232*—when landlord chargeable with constructive notice of defect. Where in an action against a landlord for injuries sustained by a member of the tenant’s household caused by the defective condition of a stairway used in common in an apartment house, there are facts and circumstances in evidence from which the jury may reasonably infer that defendant in the exercise of reasonable diligence could have discovered the defective condition, the defendant may be charged with constructive notice thereof.</p> <p>5. Landlord and tenant, § 258*—when will admissible in action against landlord for injury. In an action for personal injuries against the lessor of premises in his capacity as trustee under a will and as an individual, the will is properly admitted in evidence to show that defendant had control of the property, although the action was dismissed against him in his capacity as trustee.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavahagh, 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. Clabence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.</p>

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

<p>1. Specific performance, § 99*—when damages not decreed. Damages will not be decreed in an action in equity for specific performance of a contract where it appears from the evidence the complainant knew at the time he brought the action that the court could not grant specific performance.</p> <p>2. Specific performance, § 4*—when bill retained though performance impossible. Where it develops in an action for specific performance brought in good faith, that the defendant never had the property in his power which he sought to convey to the plaintiff, or without the plaintiff’s knowledge before the litigation began, or through his tortious action after it had begun had put it out of his power specifically to perform, the bill need not be dismissed because the plaintiff could recover damages in an action at law.</p> <p>3. Specific performance, § 4*—when bill shows knowledge by complainant of impossibility of performance. Allegations of bill for specific performance of a contract to convey, held to show that at the time of the filing of the bill complainant had knowledge of the impossibility of performance by defendant, thus preventing the retention of the bill for the purpose merely of assessing damages.</p> <p>4. Equity, § 56*—-when objection to adequacy of legal remedy not waived. Withdrawing a general demurrer and filing an answer, claiming the benefit of a demurrer, does not deprive a party in an action in equity of the right to raise the question that the defendant has an adequate remedy at law.</p>

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

<p>1. Mechanics’ liens, § 190*—what not ground for demurrer. The failure of a petition to foreclose a mechanic’s lien to allege the filing of a notice of claim of lien within four months after the delivery of the articles for which a lien is sought is not ground for demurrer.</p> <p>2. Mechanics’ liens, § 94*—when lien not barred by failure to begin suit or file notice in time. Except as to purchasers the failure of a lien claimant to file notice of claim for lien or begin suit within four months after furnishing the materials for which a lien is sought does not deprive him of a lien, but merely postpones his claim to those of “other creditors or incumbrancers.”</p> <p>3. Mechanics’ liens, § 23*—when gas stoves within the act. Gas stoves installed in an apartment house are within the Mechanic’s Lien Act of 1903, sec. 1, authorizing a lien in favor of one furnishing “fixtures, apparatus or machinery” in the building, altering, repairing or ornamenting of a building.</p>

<p>Abstract of the Decision.</p> <p>1. Carriers, § 55*—what are powers of agent. A local station agent in charge of a railroad company’s business at a particular station is presumed to have authority to represent the company in all matters connected with the transaction of its business at that particular station, but he is not presumed to have authority to act for the company at other stations, and when he attempts to do so, his act, unless ratified, will not bind the company.</p> <p>2. Carriers, § 55*—when agent cannot hind carrier. The promise of the local agent of a railroad company and its train dispatcher to supply cars to a shipper on the tracks of another railroad is not binding upon the former company.</p> <p>3. Cabbies, § 55*—what not acquiescence in acts of agent. Knowledge by the vice-president of a railway company from its chief local dispatcher that one of its local agents has received an order or request from the local agent of another road to supply the order for cars made to the latter by one of its patrons does not make such company liable for damages for a delay in filling the order where no contract exists, the act of supplying the cars where the agents of the company have not agreed to do so not constituting acquiescence.</p> <p>4. Cabbiebs, § 55*—when compliance with previous contracts of agent does not show authority. The act of the local agent of a railway company in supplying cars for the patrons of another company upon the request of the local agent of the latter does not make the former liable for failure to supply such cars on the ground that the local agent had authority to make a contract binding on it on account of his previous like conduct ratified by the company.</p>

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

<p>Abstract of the Decision.</p> <p>1. Trial, § 246*—when verdict in favor of codefendant not inconsistent. In an action for the death of an employee of a contracting carpenter, caused by the collapse of a floor, and another contractor who was charged with overloading the floor, a verdict in favor of the latter is not inconsistent with a verdict against the former, who was charged with directing the decedent to work in a place, which in the exercise of reasonable care he should have known was unsafe.</p> <p>2. Master and servant, § 170*'—when notice to foreman of defect binding on master. Notice to a foreman in charge of work, of the unsafety of the place in which an employee was at work, is notice to the master.</p> <p>3. Master and servant, § 155*—when plaintiff need not show that third person was negligent in overloading floor. In an action for the death of an employee of a contracting carpenter, caused by the collapse of a floor, which it was charged was overloaded by another defendant, to sustain a verdict against the former it is not necessary that plaintiff show that the latter negligently overloaded the floor, it being sufficient to show that the floor was overloaded and that the former, decedent’s employer, had knowledge of that fact.</p> <p>4. Master and servant, § 710*—when negligence question for jury. In an action against a contracting carpenter for the death of his employee, caused by the collapse of a floor, which it was charged had been overloaded by another contractor, whether defendant knew or in the exercise of reasonable care should have known that the floor was unsafe and dangerous when he directed decedent to work underneath it was a question for the jury.</p> <p>5. Trial, § 215*—when rights to he determined as of time of •making motion for directed verdict. Where a defendant moves for a directed verdict and offers no evidence, his rights must be determined as they existed when the motion was made, notwithstanding another joint defendant subsequently offers evidence in his own behalf.</p>

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

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

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

<p>Error to the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in this court at the October term, 1914.</p>

<p>1. Pleading, § 304*—when affidavit necessary to denial of execution of writing. Under section 52 of chapter 110 of the Practice Act of the Illinois Statutes (J. & A. j[ 8589), the execution of an instrument in writing upon which any action may be brought cannot be denied unless a plea shall be filed with affidavit denying the execution.</p> <p>2. Pleading, § 304*—how execution of note filed as claim in Pro-hate Court must he denied. Section 52 of chapter 110 of the Practice Act (J. & A. If 8589), requiring any one denying the execution of an instrument in writing upon which any action may be brought to file a plea with affidavit denying the execution, applies to a claim on a note filed in the Probate' Court.</p> <p>3. Conteacts, § 373*—when consideration need not he proved. Where the instrument sued on recites an adequate consideration, the claimant need not prove the consideration by any evidence other than the instrument itself.</p> <p>4. Wills, § 68*—when instrument not void as a testamentary disposition. An instrument acknowledging an indebtedness from the maker to the payee, who was the husband of the maker, and providing for the deduction of the amount from the maker’s share of the payee’s estate in the event that she survived him, or the payment of same out of her estate should he survive her, provides for payment within a time certain and is not invalid as an attempted testamentary disposition.</p> <p>5. Interest, § 12*—when interest allowed after maturity. Under section 2, ch. 74, of the Illinois Statutes (J. & A. "|f 6691), entitled “Interest,” which provides that interest shall be allowed “for all moneys after they become due on any bond, bill, promissory note, or other instrument in writing,” interest may be allowed on a non-negotiable instrument for a certain sum of money, acknowledged therein to be payable to a party therein named, after maturity.</p>

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

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 683*—when evidence insufficient to show negligence. Where in an action for personal injuries there was evidence that a shore or support fell and struck the plaintiff, an employee of the defendant, hut it did not appear where it fell from or where it was standing before it fell or that at the time of the accident it was being used by the defendant, and there was evidence that the plaintiff before using shores had been in the habit of leaning them against upright columns, although warned not to do so, and a witness for the defense testified that the plank which struck the plaintiff “was an upright leaning against another upright,” the evidence was insufficient to support plaintiff’s claim that it fell because it had not been nailed.</p> <p>2. Master and servant, § 584*—when doctrine of res ipsa loquitur inapplicable. In an action for damages by a servant against the master for injuries received from a falling shore, the single fact that the plaintiff was struck by a falling shore is not sufficient to show the negligence of the defendant.</p> <p>3. Master and servant, § 127*—what is duty as to safe place where conditions are changing. It is the duty of the master to use reasonable care to furnish a reasonably safe place to work, even where the conditions are changing from time to time during the performance of the work.</p> <p>4. Master and servant, § 833*—when modification of instruction harmless. It is not prejudicial error for the trial court to modify an instruction on assumption of risk offered by the defendant in an action of negligence by striking out the words, “and the law presumes plaintiff charged for such risks,” where these words merely repeat essentially what was already contained in the instruction, namely, that plaintiff “contracted with reference to” such risks.</p> <p>5. Limitation of actions, § 58*—when additional count not tarred. A demurrer to a plea of the statute of limitations to ti.i additional count filed after verdict is properly sustained where the additional count set up the same cause of action originally declared on.</p>

<p>1. Municipal corporations, § 164*—when burden on municipality to show illegality. Where it is within the general power of a village to purchase a water meter and it failed to take the necessary steps to authorize the particular act in question, the burden is upon the village to plead and prove facts rendering the contract of purchase illegal.</p> <p>2. Municipal corporations, § 166*—what constitutes ratification of contract. In an action on a contract to recover the purchase price of a meter sold in a village where it appears from the evidence that the meter was sent to the village on the order of the president of the village board, and that it was received and used by the village, such acts of the village constitute a ratification of the contract, rendering it liable for the purchase price.</p>

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

<p>Abstract of the Decision.</p> <p>1. Corporations, § 19*—for what purpose may not he organized. A corporation for the purpose of transacting the business of real estate brokerage cannot be organized under any existing statute of this State.</p> <p>2. Corporations, § 669*—when foreign corporation cannot he authorized to enter State. Since a corporation for the purpose of transacting the business of real estate brokerage may not be organized under any existing statute of this State, under the Foreign Corporation Act of 1905, sec. 2 (J. & A. If 2527) a foreign corporation organized for that purpose cannot he authorized to do business in this State.</p> <p>3. Corporations, § 709*—when foreign corporation doing business in State. A foreign corporation organized for the purpose of transacting a real estate brokerage business is doing business in this State, where it maintains a general office here and not merely solicits residents to purchase lands, but actually executes the contracts therefor in this State.</p> <p>4. Corporations, § 745*—when officer of foreign corporation cannot recover on contract. A director of a corporation, in the absence of proof to the contrary, must be held to have been conversant with the character and scope of business in which the corporation was engaged, and the manner in which it was transacted,- and where the corporation was illegally doing business in the State, he cannot recover upon a contract for compensation entered into with it.</p> <p>5. Contracts, § 157*—when illegal contract not enforced. Where a contract between a principal and an agent grows directly out of an illegal transaction, in the execution of which the agent has been concerned and in which he participated, the law will not assist the principal to recover from the agent or assist the agent to recover from the principal.</p> <p>6. Corporations, g 714*—when contract with foreign corporation illegal. A contract between a foreign corporation, which could not be authorized to transact business in this State, and one of its officers, which contemplated the performance of services by him and the transaction of business by such corporation in this State, is illegal.</p> <p>7. Corporations, § 745*—when foreign corporation not estopped to raise defense of ultra vires. As between a foreign corporation and one of its officers, the former cannot be estopped to assert the illegality of a contract between them which was ultra vires because contemplating the transaction of business in this State, which the corporation" was not authorized and could not under the law be authorized to transact.</p> <p>8. Assumpsit, action op, § 71*—when quantum meruit proper for recovery on illegal contract. The fact that a contract between a foreign corporation and one of its officers for the performance of services by the latter was illegal because it was not authorized to transact business in this State, does not preclude a recovery upon the quantum meruit, but in such case inquiry should be permitted as to the amount already paid to such officer under the terms of the contract.</p> <p>9. Appeal and error, § 1794*—when judgment against garnishee reversed. A reversal of a judgment against the defendant in the principal action necessarily requires a reversal of the judgment against the garnishee.</p> <p>10. Frauds, statute op, § 24*—when agreement not to he performed within one year. An agreement on the part of one of the officers of a corporation to finance the corporation, which was organized to sell lands under a contract, giving it brokerage rights for a period of three years, is within the Statute of Frauds.</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, 1913.</p>

<p>Abstract of the Decision.</p> <p>1. Executors and administrators, § 252*—when amended state-merit of claim not inconsistent. A claim as originally filed, “To services rendered by claimant * * * to be compensated for by legacy to claimant for * * * $3,000.00,” implies the existence of a contract or agreement as the basis of the claim, and is not inconsistent with a claim subsequently filed, based upon a contract to bequeath.</p> <p>2. Wills, § 64*—what evidence proper in action to enforce contract to bequeath. In an action by a claimant of an estate on a contract to bequeath, the jury are entitled to know all the facts and circumstances concerning the existing relations between the parties, their disposition and conduct towards each other and the character and extent of the services performed by the claimant, for the purpose of enabling the jury to weigh- the testimony of the witnesses, in the light of all the facts and circumstances of the case, and determine the credibility of the same.</p> <p>3. Wills, § 54*-—what proof required to enforce contract to bequeath. In an action on an oral contract, which the claimant claimed was made between the deceased and herself, in which contract she claimed the deceased agreed to give her a certain sum of money if she would stay with her until the death of the deceased, it is only necessary to enable the claimant to recover thereon to prove her case by a preponderance of the evidence.</p> <p>4. Wills, § 52*-—when consent implied to contract to bequeath. Where statements were made by the deceased in the presence of the claimant that she had agreed to bequeath the 'claimant a certain sum of money to stay with her until her death, the assent of the claimant to such arrangement may properly be implied.</p> <p>6. Wills, § 52*—when evidence shows contract to bequeath. Evidence held sufficient to establish a contract on the part of decedent to bequeath a definite sum of money to a servant who had been in her employ many years and whose wages, in comparison with the character of the work performed, had been inadequate.</p> <p>6. Executors and administrators, § 313*—when award of execution against estate improper. The award of an execution against an administrator in an action by a claimant- on a contract made by the claimant with the deceased is improper, the judgment in such case should be against the administrator to be paid in due course.</p> <p>7. Appeal and error, § 1804*—when cause not remanded for error subsequent to judgment. Where no error intervened prior to the entry of judgment against an administrator, on which judgment execution was erroneously issued from the Circuit Court, a venire facias de novo will not be awarded, but the judgment will be reversed and the cause remanded with directions to the Circuit Court to enter a judgment upon the verdict against the administrator to be paid in due course of administration.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 8*—when has jurisdiction over an accounting. An affidavit of defense in an action for rent, setting up an agreement which, if true, involved an inquiry in the nature of an accounting between the plaintiff and the defendant, if it arises on a book account, may properly be heard and determined by the Municipal Court in an action of the fourth class and under section 17 of an act in regard to actions on account (J. & A. T 43), and section 2 of the Municipal Court Act (J. & A. If 3314) and it is not improper to refuse to strike the same from the files on the motion of the plaintiff that it does not state facts sufficient to constitute a cause of action.</p> <p>2. Municipal Court of Chicago, § 8*—when action based on a book account. Where the plaintiffs in an action for the recovery of a certain sum of money relied upon a book account kept by them, the action may properly be considered as an action on book account permitting an accounting in a fourth-class action in the Municipal Court.</p> <p>3. Landlord and tenant, § 463*'—what is effect of forfeiture., Where the lessors first broke the agreement with the lessee, by compelling her to vacate the premises at the end of the eleventh month, they cannot demand a forfeiture of her right under the agreement because she failed to pay a rental for the twelfth month.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 312*—when performance to satisfaction of party a question of fact. Whether or not the dissatisfaction of the defendant to the compliance of the plaintiff with a contract to lay composition floor perfectly satisfactory to the defendant and a certain third party was based on substantial grounds is a question for the jury, and where the evidence is in irreconcilable conflict in that regard, and the court of appeal cannot say that the verdict of the jury was unwarranted, the verdict of the jury will be sustained.</p> <p>2. Appeal and error, § 479*—when objection to instruction necessary. 'Where no objection was interposed to an instruction, the principle of law stated therein will not be reviewed.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 420*—when objection below to insufficiency of affidavit of merits essential. An objection that the affidavit of merits filed by the defendant in an action for attorney’s fees did not aver as grounds of defense that there had been an accord and satisfaction and that such fees had been paid, all of which was testified to by the defendant, cannot be raised for the first time on appeal.</p> <p>2. Appeal and error, § 883*—when instructions must be set out in full. Alleged error in giving instructions will not be considered on appeal or writ of error unless all the instructions given are set out in full in the abstract.</p> <p>3. Appeal and error, § 1530*—when instruction harmless. An instruction, although subject to criticism, held not prejudicially erroneous where the testimony relative to the matters therein presented stands uncontradicted.</p> <p>4. New trial, § 67*—when newly-discovered evidence not ground for new trial. Newly-discovered evidence held not of such a character as to warrant the granting of a new trial.</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>Appeal from 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 Circuit Court of Cook county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Replevin, § 195*—who may sue on bond on death of sheriff. The right of action upon a replevin bond given to the sheriff in an action is vested on the death of the sheriff in his administratrix and not in his successor.</p> <p>2. Judgment, § 680*—when plea defective as not showing former adjudication on merits. A plea in an action upon a replevin bond that does not show that a former adjudication upon such bond, in an action by the successor in office of the sheriff who had since died, was upon the merits is open to demurrer.</p> <p>3. Replevin, § 204*—when receipt admissible in connection with return. 'Where the return of the sheriff to a writ of replevin specifically refers to the receipt thereon indorsed for a description of the property returned, such receipt may be considered as part of the record in connection with the return, and is admissible in evidence in an action upon the bond for the purpose of showing that all of the property mentioned in the writ was not in fact delivered to the replevin plaintiff.</p>

<p>Abstract of the Decision.</p> <p>1. Vagrancy, § 1*—when information sufficient after verdict. An information charging vagrancy substantially in the language of the statute, held sufficient after verdict, no objection having been interposed below, nor demand for bill of particulars filed.</p> <p>2. Criminal law, § 416*—when objections to evidence must be made below. Questions relating to the competency of evidence cannot be raised for the first time in a court of review.</p> <p>3. Vagrancy, § 1*—when evidence sustains conviction. In a prosecution for vagrancy, where the State shows that defendant had no employment and no visible means of support, the facts being peculiarly within his knowledge, in the absence of any credible proof by him of such fact the jury are warranted in finding that he had no lawful means of support.</p>

<p>1. Records, § 7*—when need not be in English language. A memorandum of the list of “papers filed and writs issued” kept by the clerk of the court from which papers and writs a record thereof is made is not a record and the constitutional provision with reference to the preservation of court proceedings in the English language does not apply.</p> <p>2. Records, § 7*—when cannot be objected to. An objection to the sufficiency of a record which is referred to in the certificate to a bill of exceptions as “a record” is without merit where the transcript of the record which contains the first bill of exceptions is certified to be “a true, perfect and complete transcript of the record in this case,” etc., and is on its face a complete record from the initial step therein to final judgment.</p> <p>3. Appeal and error, § 1289*—when adoption of rule by Municipal Court presumed. Under section 28 of the Municipal Court Act (J. & A. IT 3340), which requires the practice in actions of the first class to conform to practice in the Circuit Court until otherwise provided for by the rules of the Municipal Court, in the absence of a showing that such rule was not adopted by that court, it must on appeal be presumed that one was so adopted, particularly where both parties in the lower court apparently proceeded on that theory.</p> <p>4. Municipal Court of Chicago, § 13*—ivhen statement of claim sufficient. A statement of a claim presumably filed under the rules of the Municipal Court, if it apprises the defendant of the nature of the plaintiff’s claim, is sufficient after verdict.</p> <p>5. Municipal Court of Chicago, § 13*—when statement of claim, sufficient though treated as a declaration. Statement of claim in an action of the first class for injury to a passenger caused by the sudden starting of a car as she was in the act of alighting, held sufficient after verdict, even though considered as a declaration.</p> <p>6. Carriers, § 309*—lohen relation created. When a person boards a car of a street car company, at the place where it usually stops for taking on passengers, for the purpose of becoming a passenger for hire, a contractual relation exists.</p> <p>7. Municipal Court of Chicago, § 13a*—when ownership need not be proved. Failure of plaintiff to prove that defendant was the owner or operator of the car upon which plaintiff was a passenger is not available where ownership was not denied in the affidavit of merits, and was in fact admitted.</p> <p>8. Municipal Court of Chicago, § 13*—when defenses not set up in affidavit of merits waived. Where an affidavit of merits is filed specifying the nature of the defense relied on, all defenses, the nature of which are not set out in the affidavit, are considered waived.</p> <p>9. Damages, § 34*—what are requisites to recovery for future suffering. In an action for personal injuries, present damages for apprehended future consequences of an injury cannot be recovered unless there is such a degree of probability of their resulting as amounts to a reasonable certainty that they will result therefrom.</p> <p>10. Appeal and error, § 1623*—when admission of evidence not curable by remittitur. Improper admission of evidence as to the probability of future suffering held incurable by remittitur.</p> <p>11. Evidence, § 434*—when hypothetical question erroneous. A hypothetical question in an action for personal injuries where there is nothing in the question from which the witness could assume that each and all of the conditions named in it did not exist prior to the accident complained of is improper.</p> <p>12. Evidence, § 437*—when hypothetical question must be based on evidence. A hypothetical question requiring the witness to base his opinion in part on what he found by his examination of the patient, and not confined to what he testified that he found, is erroneous.</p> <p>13. Damages, § 213*—when instruction erroneous. An instruction to jurors that they might assess the measure of damages in an action for personal injuries from the facts and circumstances in evidence in connection with their general knowledge, observation and experience in the business affairs of life in determining the amount of time that the plaintiff lost was error, such element being capable of pecuniary measurement.</p> <p>14. Appeal and error, § 1655*—when erroneous instruction not curable by remittitur. A remittitur will not cure error in instructions permitting recovery on an element of damages as to which there was no evidence, there being no basis in the evidence on which the court „could determine how much should be remitted.</p>

<p>Abstract of the Decision.</p> <p>1. Fraud, § 57*—when consideration paid recoverable in assumpsit. One purchasing stock on the strength of fraudulent representations may, on rescinding the contract promptly after the discovery of the fraud, recover the consideration paid in assumpsit for money had and received.</p> <p>2. Principal and agent, § 174*—when agent liable for fraud though acting as agent. The fact that one procuring the sale of corporate stock by means of fraudulent representations acted as agent of the corporation is no defense in an action of assumpsit against him to recover the consideration paid.</p> <p>3. Assumpsit, action of, § 44*—when action for money had and received lies. The action for money had and received is an equitable action and lies for money had and received by the defendant which in equity and • good conscience he should not retain, but should pay to plaintiff, and the right of recovery depends upon showing that defendant actually received' the money, and that in equity and good conscience he should pay it to plaintiff, in which case the law implies a promise, although there is no privity between the parties.</p> <p>4. Principal and agent, § 174*—when agent liable for fraud though receiving no benefit. In an action for money had and received, by one who purchased corporate stock, on the strength of fraudulent representations by the defendant, the fact that the latter, acting as agent of the corporation, turned the consideration paid over to the corporation and obtained no direct benefit himself is no defense.</p> <p>5. Fraud, § 23*—when representations relate to existing or past facts. Misrepresentations inducing the purchase of corporate stock which related to the value and purchase price of land owned by the corporation,- the value and income on a lease held by it, the disposition of the proceeds of the sale of stock, absence of promotion profits and the like, held to refer to existing or past facts.</p> <p>6. Fraud, § 4*—when fraudulent intent shown. Misrepresentations inducing the sale of corporate stock held to have been made with intent to deceive.</p> <p>7. Fraud, § 9*—when negligence not shown. One purchasing corporate stock in reliance on defendant’s fraudulent representations is not chargeable with negligence, where he had no means of further investigation.</p>

<p>Error to the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

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

<p>Abstract of the Decision.</p> <p>1. Chattel mortgages, § 54*—when acknowledgment of invalid. The acknowledgment by a third person of a chattel mortgage signed by the owner of the property is invalid, and such a mortgage is inadmissible in evidence in a replevin suit in which the claim to possession is based on the mortgage.</p> <p>2. Usury, § 38*—when chattel mortgage not invalidated by usury in loan for which security. The fact that the loan which a chattel mortgage secures is tainted with usury does not render the mortgage invalid.</p> <p>3. Appeal ahd ebrob, § 1487*—when refusal to submit question of good faith in executing second mortgage not error. In suit by a chattel mortgagee to replevy the mortgaged property from one who had replevied the property under another mortgage, it is-not error to refuse to submit to the jury the question whether plaintiff’s mortgage was executed in good faith, where the evidence relative thereto merely tends to show that the loan secured by plaintiff’s mortgage was tainted with usury.</p>

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

<p>1. Appeal and error, § 1459*-—when error in rulings on evidence harmless. Even though there is- error in admitting or rejecting evidence, such error is not ground for reversal where there is nothing in the evidence so admitted or rejected tending to raise a disputed material issue of fact.</p> <p>2. Druggists, § 6*—when scienter not element of unlawful sale of cocaine. In an action to recover penalties for the unlawful sale of cocaine to a habitual user and without the written order of a registered practicing physician, it is not essential that the sale shall have been knowingly and wilfully made in violation of the ordinance.</p> <p>3. Druggists, § 6*—when ignorance of violation of ordinance against sale of cocaine no defense. In an action to recover penalties for selling cocaine in violation of a city ordinance prohibiting the sale to a habitual user of the drug and without the written order of a registered practicing physician, it is no defense that defendant’s clerk who made the sale had previously dealt with the purchaser as a practicing physician and had no knowledge of his habits. .</p> <p>4. Druggists, § 6*—when evidence of intent in making prohibited sale admissible. In an action to recover penalties for selling cocaine in violation of a city ordinance, proof of the intent or ignorance of the person making the sale is admissible for the consideration of the jury in determining” the amount of the penalty.</p> <p>5. Appeal and error, § 1526*—when remarks and instructions harmless error. Instructions and remarks of the court though erroneous are not ground for reversal where the judgment given was bound to follow from the undisputed facts.</p> <p>6. Appeal and error, § 1491*—when rejection of evidence harmless error. In an action to recover a penalty for the violation of an ordinance, error in rejecting evidence proper to be considered in fixing the amount of the penalty is harmless where the penalty was fixed at the minimum amount.</p> <p>7. Municipal corporations, § 857*—when strict compliance with police 'regulation essential. One engaged in a business brought under police regulation assumes the hazards thereof and must De held to strict conformity with the requirements of the laws or ordinances governing it.</p>

<p>Abstract of the Decision.</p> <p>1. Druggists, § 6*—when scienter not essential to unlawful sale. In a proceeding for a violation of the ordinance of the City of Chicago regulating the sale of cocaine to render the seller liable, it is not necessary that the sale be knowingly and wilfully made in violation of the ordinance, as the seller acts at his peril.</p> <p>2. Druggists, § 6*—when sale on fictitious order unlawful. One selling cocaine on an order is bound to know whether the order relied upon is authentic and made by a registered or licensed physician as provided by the ordinance of the City of Chicago.</p> <p>3. Druggists, § 6*—when sale a question of law. In a proceeding for the violation of the ordinance of the City of Chicago regulating the sale of cocaine, where the undisputed evidence shows that the cocaine was delivered and paid for, but upon a fictitious order, the question as to whether there was a sale is one of law for the court and not of fact for the jury.</p> <p>4. Sales, § 19*—when genuineness of order on which made immaterial. Where there is a delivery by a salesman to a cash purchase of goods out of stock kept for sale, there is a meeting of minds, even though the seller was deceived as to the genuineness of the order and the real beneficiary.</p> <p>5. Druggists, § 6*—when instruction as to absence of guilty motive proper. In a proceeding for violation of the ordinance of the City of Chicago regulating the sale of cocaine, an instruction that in fixing the penalty the jury may consider the absence of a guilty intent or the existence of an honest motive in the mind of defendant’s clerk who made the sale, is proper.</p> <p>6. Appeal and error, § 1512*—when rulings harmless error. In a proceeding for' the violation of the ordinance of the City of Chicago regulating the sale of cocaine, where a judgment against defendant was bound to. follow the undisputed facts and the jury fixed the minimum penalty for the offense, error of the court in its rulings and remarks is not ground for reversal.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

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

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 83*—what are rights of car and vehicle at street intersection. While street cars and other vehicles have equal rights at street intersections, a vehicle is not equally entitled to cross at the same moment the car is crossing without regard to the speed at which the car is running.</p> <p>2. Negligence, § 198*—when contributory negligence a matter of law. Where the facts are admitted and all reasonable minds will agree that the injury was the result of plaintiffs negligence, the court may, as a matter of law, find there was such contributory negligence on plaintiffs part as to defeat a recovery and give the jury a peremptory instruction to that effect.</p> <p>3. Street railroads, § 97*—when driver of automobile guilty of contributory negligence as matter of law. One who attempts to drive an automobile at a street intersection across a car track in front of a rapidly approaching street car, his view of. which was not obstructed, is guilty of negligence as a matter of law.</p> <p>4. Street railroads, § 73*—when failure to give signal at street crossing does not overcome contributory negligence. In an action-against a street car "company .to recover for damages caused by the collision of an automobile and a street car at a street crossing, even if the defendant car company did not give the ordinary signals, if plaintiff, by exercising ordinary care, could have avoided the collision and failed to do so, he was guilty of contributory negligence preventing a recovery.</p> <p>5. Street railroads, § 64*—what insufficient exercise of care in crossing trade at‘Street intersection. In an action against a street railroad company to recover for damage caused by a collision with plaintiffs automobile at a street intersection, a lookout .by plaintiff at a point where he could not have seen for more than sixty feet is not sufficient to establish his exercise of care, but the question of his care depends upon his precautioh when he was at such a distance from the track that he could control his automobile and avoid the danger of the approaching car.</p> <p>6. Street railroads, § 131*-—when evidence shows contributory negligence in action for damage by collision at street intersection. Evidence in action against a street car company for damage caused by collision at street intersection, examined and held to show plaintiff guilty -of such contributory negligence as to bar recovery.</p>

<p>Abstract of the Decision.</p> <p>1. Brokers, § 91*—when evidence of previous transactions insufficient to show right to double commissions. In an action to recover commissions as broker on an exchange of properties, correspondence between the parties relative to a previous transaction prior to the one in suit is irrelevant and insufficient to establish proof of a custom known in law to entitle plaintiff to double commissions, where it tends to show that defendant disputed plaintiff’s right to a commission on such previous transaction.</p> <p>2. Brokers, § 7*—when evidence insufficient to show listing. Evidence in an action by a broker for commissions on the exchange of real estate, examined and held insufficient to show a listing <?f the property with plaintiff.</p> <p>3. Brokers, § 27*—when commissions may be collected from both parties. The rule that a broker may collect a commission from both parties to a real estate transaction where he is not called upon to exercise his judgment or discretion, but is employed merely to find a purchaser on his employer’s terms and to bring the parties together on such terms, cannot be applied in an action for commissions in the absence of proof in the record to disclose the nature of the agreement or character of the relation between plaintiff and defendant.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 340*—when party not mentioned in order affected thereby. On a bill by the lessee" of premises against the lessor and a corporation alleged to be controlled by him to restrain interference with his possession, or interference with the furnishing of water, heat and electricity by such corporation, a joint appeal by both defendants is proper from an order restraining the lessor from such interference although the order does not specifically mention the corporation, the latter being a party of record and affected hy the order, the theory of the bill being that though the lease contained, no provision for the furnishing of electricity and the agreement therefor was made with the corporation, the latter was under the control of the lessor and acted merely as its agent in the matter.</p> <p>2. Appeal and error, § 340*—when party hound hy order as agent may appeal. Where a bill sought to enjoin a corporation on the theory that it acted merely as the agent of its codefendant who controlled and directed, such corporation may join in an appeal from an interlocutory order restraining its codefendant and his agents, although it is not specifically mentioned in the order.</p> <p>3. Equity, § 255*—when original hill superseded hy amendment. An interlocutory order restraining the lessor of certain premises from interfering with the lessee’s possession or use in any way, and interfering with the furnishing of water, heat and electric light and power thereto, which purports to rest on the original and amended bill, must stand, if at all, on the latter as it superseded the former.</p> <p>4. Landlord and tenant, § 26*—what does not amount to an extension of lease. An agreement extending from July, 1914, until August, 1915, is not shown by averments that the lessor stated that the lessee might remain in the premises until August, 1915, and until needed for his use, and that they agreed that the exact date need not be definitely determined at that time “but if either of said parties changed his plans he would notify the other party thereof,” as it contains no actual or' mutual promises, states no terms, does not adopt the terms of the written lease, and is incomplete and uncertain.</p> <p>5. Specific performance, § 44*—when agreement to extend lease not enforced. A lessor’s statement that he would not need premises occupied by his lessee until a certain date, and the latter’s statement that he would not vacate until that date, held not such an agreement to extend an existing lease as would be specifically enforced in equity.</p> <p>6. Specific performance, § 44*—when contract not aided hy self-serving declarations. Where the agreement as pleaded lacks the material elements of a contract, a self-serving declaration by one of the parties subsequent thereto referring to it as an agreement to extend the lease to a certain date cannot aid the same, so as to permit of its specific enforcement.</p> <p>7. Injunction, § 75*—what is character of suit to enjoin breach of contract. A suit to enjoin the breach of a contract seeks a negative specific enforcement of it, and in this State is governed by the same rules as a suit for specific performance.</p> <p>8. Specific performance, § 44*—when agreement to extend lease lacks elements of certainty and mutuality. A court of equity will not enforce an alleged agreement to extend a lease where the parties at the time of the supposed agreement stated that the exact date for the termination of the lease which they proposed to extend was not to be definitely determined, and it was further understood that if either party changed his mind with reference to plans with respect to the same that he would notify the other party, since it lacks certainty and mutuality.</p> <p>9. Landlord and tenant, § 26*—when lessee claims inconvenience or estoppel as basis for extension. Where a bill in equity sets up an alleged contract which is not sufficient to constitute an agreement because it contains no actual promises, states no terms and is indefinite and uncertain, the lessee cannot complain of the inconvenience that he would suffer by reason of his understanding that there was such an agreement, nor can the doctrine of estoppel be invoked.</p>

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

<p>Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>

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

<p>Abstract of the Decision.</p> <p>1. Principal and agent, § 180*—when undisclosed principal cannot he held on contract under seal hy agent. Where the agent for an undisclosed principal executes a contract under seal in his individual capacity, the principal cannot be held liable thereon, even though the contract would have been valid without seal.</p> <p>2. Principal and agent, § 180*—when undisclosed principal cannot be held liable as partner on contract by- agent in his individual capacity. An undisclosed principal cannot be held liable on a contract by the agent under seal and in his individual capacity on the theory that the principal and agent were copartners where they are not sued as copartners.</p> <p>3. Principal and agent, § 180*—when undisclosed principal not held liable on contract by agent under seal and in individual capacity. In an action on a contract for advertising, executed under seal by an agent in his individual capacity for an undisclosed principal, the fact that the contract states that the advertising therein was for the business “of the advertiser,” does not render the principal liable, though she was, in fact, conducting the business, where the contract expressly refers to the agent as the advertiser.</p>

<p>Error to the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.</p>