Volume 194 — Illinois Appellate Court Reports

<p>1. Fraud, § 115*—sufficiency of evidence in action for misrepresenting financial worth of person. A verdict for .the plaintiff held sustained by the evidence, in an action for fraud and deceit in inducing the plaintiff to sell chattels on credit to a third person, by misrepresenting his financial worth and the value of notes put up by him as collateral security.</p> <p>2. Appeal and error, § 1421*—when technical errors not ground for reversal. Technical errors in admitting evidence or in giving or refusing instructions will not justify the reversal of a judgment which is sustained by the evidence, where the merits are with the appellee.</p> <p>3. Appeal and error, § 1186*—when denial of excessive number of requested instructions not error. -Where an unreasonable number of instructions are requested, a judgment will not be reversed for slight errors in refusing some of them.</p> <p>4. Instructions, § 94*—as to disregarding testimony of witnesses testifying falsely. An instruction that the jury should disregard all of the testimony of a witness who wilfully and knowingly testified falsely to any material fact, except in so far as he was corroborated by other credible evidence or facts and circumstances, held not reversible error, where the facts and circumstances of the case were not close and conflicting on any material question.</p> <p>5. Fraud, § 118*—damages for misrepresenting financial condition of person. In an action for fraud and deceit for inducing the plaintiff to sell chattels to a third person on credit, by misrepresenting his financial condition and the value of notes put up by him as collateral, the plaintiff may recover as damages money paid one of the defendants as a commission for making the sale.</p> <p>6. Fraud, § 115*—damages for misrepresenting person's financial condition. The measure of damages in an action for fraud and deceit in inducing the plaintiff to sell chattels to a third person on credit, by misrepresenting his financial condition and the value of notes put up by him as collateral security, is the difference between the actual value of the notes and what their value would have been had the representations been true.</p> <p>7. Fraud, § 135*—instructions as to damages for misrepresenting person’s financial condition. An instruction in an action for fraud and deceit, in inducing the plaintiff to sell chattels to a third person by misrepresenting his financial condition and the value of notes put up by him as collateral security, to the effect that the measure of damages was the agreed price, together with money paid one of the defendants as a commission for making the sale, held harmless error, where the notes, if of any value, were unavailing to the plaintiff.</p> <p>8. Appeal and error, § 1387*—when error in admission of evidence not reversible error. Errors in fihe admission of evidence will not be considered by the Appellate Court where they are so superficially presented that it is impossible to tell wherein the errors lie.</p> <p>9. Appeal and error, § 1160*—when rehearing not granted on questions not raised on original hearing. A rehearing will not be granted by the Appellate Court for the purpose of reviewing questions not raised on the original hearing.</p> <p>10. Fraud, § 59*—when return of collateral condition precedent to action for misrepresenting person’s financial condition. Before bringing an action for fraud and deceit in inducing the plaintiff to sell chattels to a third person on credit, by misrepresenting his financial condition and the value of notes put up by him as collateral, the plaintiff need not return the notes to the latter, where he was not a party to the action.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 120*—how construed. Insurance policies should be so construed, if possible, as to give the parties the relief intended. at the time of taking out the policy.</p> <p>2. Insurance, § 202*—when statements are representations and not warranties. The statements contained in an application for life insurance, providing that tne applicant agreed and warranted that the statements and answers contained in tne application and medical examination were full, complete and true; further providing that applicant agreed that the statements and warranties together with those made to the examining physician in the application and the laws of the society should form the basis of the contract, and that any “untrue or fraudulent answers” made in the application should vitiate the certificate and forfeit all payments thereon, must be deemed representations and not warranties.</p> <p>3. Insurance, § 209*—when statements on medical examination part of application. The statements in answers to the questions of a medical examiner of an applicant for life insurance are a part of the application, where the application is divided into two parts, part one containing among other things the family history, stipulations or what shall constitute the basis of th^ contract, and what shall constitute a forfeiture; part two being the medical examination, and the whole examination being entitled “application for beneficial certificate.”</p> <p>4. Evidence, § 476*—when verdict not disturbed as against weight of. A verdict for the plaintiff will not be disturbed as manifestly against the weight of evidence and credence given to the testimony of one witness as against two others, where two juries have found for the plaintiff and the verdicts have been approved by the trial judges.</p> <p>5. Insurance, § 331*—when notice to medical examiner is notice to insurer. Notice to the medical examiner of a life insurance company of the facts concerning the health of insured acquired at time of the examination is notice to the company.</p> <p>6. Insurance, § 333*—when medical examiner, agent of insurer. A medical examiner of a life insurance company must be deemed the agent of the company although he is paid by the insured for the examination, and the policy contains a provision making him' the agent of the insured.</p> <p>7. Dismissal, nonsuit- and discontinuance, § 26*—when may he set aside. It is within the discretion of the court to set aside an order of dismissal of a case, obtained at the instance of plaintiff to avoid a nonsuit, and to reinstate the case upon the docket at the same term, especially where it appears to the court that it was done in the interests of justice.</p> <p>8. Appeal and error, "§ 1296*—when setting aside dismissal presumed proper. It will be presumed that the trial court did not abuse its discretion in setting aside an order of dismissal of a case obtained by plaintiff and reinstating the case upon the docket at the same term, where the facts upon which the trial court based its decision setting aside the order of dismissal are not before the Appellate Court.</p>

<p>Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p>

<p>1. , Evidence, § 472*—when proof beyond a reasonable doubt required in civil cases. Where the defense of compounding a crime is relied upon to defeat the plaintiff’s claim, the burden of proof is upon the defendant to prove the criminal offense alleged beyond a reasonable doubt.</p> <p>2. Compounding felony,—what does not constitute. The mere acceptance of money or property in an amount sufficient to compensate the private injury is not of itself sufficient to constitute the offense of compounding a crime.</p> <p>3. Contbacts, § 132*—when illegality as compounding felony not established. In an action against the maker and indorser of a check given in settlement of two other checks, held that an agreement to compound the crime of “confidence game” was not established beyond a reasonable doubt.</p> <p>4. Compounding felony,—what does not constitute. The mere consenting that a defendant go upon his own recognizance does not amount to the compounding of a crime.</p>

<p>Error to the County Court of Marion county; the Hon. Chabrles E. Jennings, Judge, presiding.</p>

<p>1. Parties, § 38*—when objection may be raised. The question of a proper party to a lawsuit is a question continuing throughout the trial, and may be raised at any time.</p> <p>2. Parties, § 38*—how objection taken. One of the methods for raising the question of a proper party to a lawsuit is by motion to instruct the jury, followed by motion for a new trial and exception to the judgment.</p> <p>3. Waters and water courses, § 25*—what are remedies for overflow. The action for injury to real estate as a result of an overflow is an action for injury to the fee or reversion, or an action for loss of rental values.</p> <p>4. Landlord and tenant, § 519*—what relation created, by farm lease. Where land is rented either for cash or a portion of the crops, the landlord has no title to the crops, growing or grown.</p> <p>5. Landlord and tenant, § 519*—when landlord does not become a tenant in common. A landlord renting land for either cash or a portion of the crops is not a tenant in common.</p> <p>6. Railroads, § 345*-—when landlord not proper party plaintiff in action for overflow. A landlord renting his land on shares is not a proper party plaintiff to an action against a railroad company for damages sustained to crops as a result of an overflow of water, due to insufficient outlets for a river through a constructed railway embankment.</p> <p>7. Railroads, § 345*—what does not prevent defendant from objecting to party plaintiff in action for overflow. Where a landlord is an improper party plaintiff to an action to recover damages for injuries to crops from overflow, the mere fact that the tenant appears and testifies in the case and makes no claim for the injury does not preclude the defendant from raising the question of improper party plaintiff.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 528*—when not required to give signal for benefit of person unloading car. A railroad company owes no statutory duty to a person who is lawfully alongside its track for the purpose of unloading a car, to ring the bell and blow the whistle of an approaching engine, since the statute requiring such warning was enacted for the protection of persons upon the public highway and about to cross the railroad or enter upon its crossing.</p> <p>2. Railboads, § 516*—what duty owed to person on premises for purpose of unloading car. A railroad company owes a person who is lawfully alongside its track for the purpose of unloading a car, the duty to not wantonly or wilfully or negligently injure him.</p> <p>3. Railboads, § 528*—when failure to signal not an element of wantonness. The failure to give warning of the approach of an engine by the sounding of the bell and blowing of the whistle is of no weight in determining the question of wantonness in injuring a person lawfully alongside the tracks for the purpose of unloading a car, where the railroad company owes no duty to such person to give such warning.</p> <p>4. Railboads, § 528*—when failure to warn may he considered a question of due care. The failure to give a warning as to the approach of an engine to one lawfully alongside a railroad track for the purpose of unloading a car is of weight in determining the question of reasonable care upon the part of the railroad company only when the failure to give such warning contributes to the injury.</p> <p>5. Railboads, § 527*—when evidence insufficient to show negligent operation. Evidence in an action against a railroad company for personal injuries sustained as a result of an engine of defendant knocking plaintiff’s horse against him while he was lawfully engaged in unloading a car on a side track, held insufficient to sustain a finding that the employees of defendant were guilty of negligence in the operation of the engine.</p>

<p>1. Torts, § 12*—when violation of law cannot form basis of cause of action. A court will not lend its aid to one who founds his cause of action upon an illegal or immoral act.</p> <p>2. Negligence, § 48*—what is proximate cause of injury while hunting on prohibited, land. The proximate cause of the injury to one who enters in company with another upon prohibited land in pursuit of a covey of quail and is shot as a result of the careless act of his companion in- discharging his shotgun towards him and at the covey of quail, is the failure to permit the quail to retreat to the premises where the law protected them.</p>

<p>Abstract of the Decision.</p> <p>1. Instructions, § 16*—when must he harmonious. A series of instructions must be harmonious and not misleading.</p> <p>2. Instructions, § 16*—when erroneous for laclo of harmony. Instructions constituting a series, in an action by a school teacher against a school district for breach of a contract of hiring, and in which the issue was as to whether plaintiff was to be hired to teach the whole school or only the advanced grades as principal, one of which tells the jury they must find for the defendants unless the plaintiff proved that he was employed to teach the principalship, another of which tells them that plaintiff may recover if he has proven that he was employed to teach the school, another of which tells the jury that one promise is a good consideration for another, and that the plaintiff may recover if he proved that he was employed to teach the principalship, held inharmonious and misleading.</p> <p>3. Schools and school districts, § 174*—what evidence admissible in action for breach of contract to hire teacher. Where the question in issue in an action by a school teacher against a school district for damages for breach of a contract of hiring was as to whether the plaintiff was employed to teach as principal of the higher grades or to teach the entire school, and In which the testimony of a witness for plaintiff that one of the directors had told a certain person in her presence that he had hired plaintiff for the higher grades was denied by such director, a letter written subsequently to such conversation by plaintiff’s witness to such director inquiring as to whether he had hired a teacher for the primary room or intended to have only one teacher, was admissible as going to the credibility and weight to be given to the evidence of such witness.</p> <p>4. Master and servant, § 42*—what is remedy for breaeh of contract when no services performed. Where no services are performed under a contract of hiring, the action must be for a breach of the contract.</p> <p>5. Master and servant, § 52*—what is measure of damages for breaeh of contract of hiring. The measure of recovery for breach of a contract of hiring, where no services have been performed, is the wages to be paid, less any sum actually earned or which might have been earned by the exercise of reasonable diligence in- seeking other similar employment.</p> <p>6. Master and servant, § 47*—who has burden of proof in action for breach of contract of hiring. The burden of proof in an action for breach of contract of hiring, no services having been performed, is upon the defendants to show that plaintiff did earn, or by reasonable diligence could have earned, wages in other similar employment.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ebbor, § 1327*—what presumed in favor of judgment. Every legal presumption will be indulged in favor of a judgment.</p> <p>2. Appeal and ebrob, § 365*—necessity for preserving errors. Before a judgment will be reversed or set aside, the party complaining must preserve and present in the manner provided by law the errors upon which he relies to overthrow the same.</p> <p>3. Appeal and ebrob, § 1712*—when error considered waived. Errors not urged or argued are deemed upon appeal to have been waived.</p> <p>4. Evidence, § 476*—how preponderance determined. The preponderance of evidence is not necessarily determined alone by the greater number of witnesses, but where there are the same number of witnesses testifying on each side, there may still be a preponderance on one side or the other.</p> <p>5. Animals, § 10*—when agistment contract established. An implied contract to pasture an animal for hire through an agent and to safely return it is established by a preponderance of the evidence in action to recover for the value of _ the animal which had been lost while being pastured by defendant, where the evidence did not simply rest upon a bare statement by one party and a denial by the other, but was also based upon a conversation between plaintiff and defendant and defendant’s agent relative to the renting of the pasture, and the amount due, plaintiff further testifying that defendant said it was all right, and that he saw the book of account, neither defendant nor his agent denying the conversation, nor that a book was kept, but that the book was lost.</p> <p>6. Animals, § 10*—who has burden of justifying loss of animal under agistment contract. The burden of proof is upon one receiving an animal under an implied contract to pasture the animal for hire and to safely return it, to prove that the loss of the animal occurred without his fault.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 130*—burden of showing sales of tincture of ginger not medicinal. The burden is on the prosecution, in an action for violating an ordinance by selling as a beverage tincture of ginger, to prove by the clear weight of the evidence that sales were made by the defendant or his agents under such circumstances which the former, if acting in good faith, was bound to know that the purchasers intended to use such tincture as a beverage and not medicinally.</p> <p>2. Intoxicating liquors, § 147*—sufficiency of evidence to show sale of tincture of ginger as beverage. Evidence that the defendant was told five or six year$ prior to a prosecution for selling tincture of ginger as a beverage, that three persons were using it to excess, and that he had heard rumors to the same effect as to others, and that thereafter he refused to sell to them, does not prove knowledge that other purchasers bought it for unlawful purposes.</p> <p>3. Intoxicating liquors, § 134*—admissibility of evidence that purchasers were using tincture of ginger as beverage. In a prosecution for violating an ordinance by selling tincture of ginger as a beverage, evidence that five or six years before the seller was informed that three persons were using it to excess, and that he heard a rumor to the same effect regarding others, may be considered by the jury in connection with all of the other evidence, in determining whether the defendant made sales in good faith for medicinal purposes only.</p> <p>4. Appeal and error, § 1411*—when verdict on conflicting evidence sustained. Where there is a conflict in the evidence, a verdict will not be disturbed on appeal, although apparently against the weight of the testimony, if the facts and circumstances by reasonable intendment sustain ti^e verdict.</p> <p>5. Intoxicating liquors, § 147*—sufficiency of evidence to sustain verdict for defendant for selling tincture of ginger as beverage. The evidence held sufficient to sustain a verdict for the defendant in a prosecution for selling tincture of ginger as a beverage in violation of an ordinance.</p> <p>6. Intoxicating liquors, § 131a*—evidence to prove sales of tincture of ginger to drunkard. Evidence that a person for whom tincture of ginger was purchased was a drunkard, is not admissible in a prosecution for selling such compound for use as a beverage in violation of an ordinance, where it does not appear that the seller knew for whom it was intended.</p> <p>7. Appeal and error, § 1507*—when repetition of objectionable questions not reversible error. A judgment will not be reversed because of the conduct of counsel in following a line of examination after objections have been sustained thereto, where the court is not of opinion that the verdict was affected by such improper conduct.</p>

<p>1. Executors and administrators, § 184*—when widow’s award barred by antenuptial settlement. An antenuptial contract under which a widow took possession of property of her deceased husband, held to bar her right to her widow’s award.</p> <p>2. Husband and wife, § 29*—burden of showing fairness of antenuptial settlement. Since the parties to an antenuptial settlement occupy a confidential relation towards each other, the party seeking to sustain the agreement has the burden of proving its fairness, and that the intended wife had full knowledge of the extent and value of the intended husband’s property.</p> <p>3. Husband and wife, § 29*—burden of showing fairness of antenuptial settlement. The rule that one seeking to sustain an antenuptial settlement has the burden of showing its fairness, and that the intended wife had knowledge of the extent and value of the intended husband’s property, does not apply to an executor who in his official capacity relies on such a settlement to defeat a claim for a widow’s award.</p> <p>4. Estoppel, § 55*—when widow estopped from attacking ante-nuptial settlement. A widow who takes possession of property under an antenuptial settlement is estopped from insisting on errors that might have prevailed had she refused to accept under the settlement.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 55*—when consideration sufficient A note given by a third person direct to a creditor of a college and intended as a gift to the college, and accepted hy the creditor as so much cash, is based upon a sufficient consideration.</p> <p>2. Appeal and ebbob, § 1325*—when presumptions in favor of findings. The same presumptions follow the finding of the court that follow the verdict of a jury as to question of fact.</p> <p>3. Appeal and ebbob, § 1325*—when court presumed to have considered only competent evidence. It will be presumed that a court in coming to a conclusion as to a finding of fact, considers only-competent testimony.</p> <p>4. Witnesses, § 39*—when wife incompetent. A wife who acts as an agent of her husband in securing the renewal of a note is an incompetent witness in an action by the husband involving the note, where the husband is disqualified because of the fact that he is a party in interest.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. Geobge A. Cbow, Judge, presiding.</p>

<p>1. Novation, § 2*—who has burden of proving. A person who pleads a novation has the burden of establishing it by a preponderance of the evidence.</p> <p>2. Novation, § 1*—what essentials of. The essentials of a novation are a previous valid obligation, an agreement of all of, the parties to the new agreement, the extinction of the old obligation and a valid new contract.</p> <p>3. Novation, § 2*—sufficiency of evidence to establish. The evidence held not to show a novation whereby the seller of a business was released from liability and the purchaser accepted by the former’s creditor in his stead.</p> <p>4. Principal and agent, ’§ 228*—when agent’s declarations not evidence of authority. A witness may not state his conclusion as to what an agent said about his authority.</p>

<p>Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Wahash county; the Hon. Enoch E. Newlin, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Clay county; the Hon. Thomas M. Jett, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the City Court of East St. Louis; the Hon Robert H. EYannigan, Judge, presiding.</p>

<p>1. Equity, § 313*—when sworn answer evidence. Statements in a sworn answer to a chancery bill which waive answer on oath are to he taken as true where no replication is filed.</p> <p>2. Municipal cobpobations, § 1149*—when expenses of mayor's lobbying trip payable from contingent fund. Expenses of a successful voluntary trip of the mayor of a city to lobby before congress for an appropriation for the repair of city levees, which had been damaged by a flood, do not fall within the class of contingent expenses which may he paid from the contingent fund.</p> <p>3. Municipal cobpobations, § 1149*—when expenses of mayor's lobbying trip payable from particular fund. The expenses of a successful voluntary trip of the mayor of a city to lobby before congress for an appropriation for the repair of city levees, which had been damaged by a flood, are not payable from a fund raised by the city to build, raise or repair levees.</p> <p>4. Municipal corporations, § 1149*—when expenses of mayor’s lobbying trip payable from particular fund. Expenses incurred by the mayor of a city on a successful voluntary trip to lobby before Congress for an appropriation for the repair of city levees, which had been damaged by a flood, are not payable under section 3, art. VII, ch. 24, Rev. St. (J. & A. 1362), relating to payments for improvements necessitated by any casualty or accident arising after the making of an annual appropriation bill.</p> <p>5. Municipal corporations, § 164*—validity of contract to pay expenses of mayor’s lobbying trip. The agreement of a city to reimburse its mayor for expenses incurred by him on a successful voluntary trip to lobby before congress for an appropriation for the repair of city levees damaged by a flood, is against public policy and void.</p>

<p>1. Judgment, § 11*—when presumed to have been entered. Where there is no proof as to when a judgment was in fact entered, it will be deemed to have been entered before execution upon it is issued.</p> <p>2. Judgment, § 373*—when imports verity. A judgment entered before the execution thereon imports a verity, and, in the absence of fraud, cannot properly be attacked by parol evidence, especially in a collateral proceeding.</p> <p>3. Execution, § 183*—when cannot he questioned collaterally. Where all" the steps taken in connection with an execution and levy appear to be regular, they cannot be questioned in a collateral proceeding.</p> <p>4. Execution, 64*—when lien prior to that of conditional vendor. The lien of an execution creditor secured by levy of execution upon goods sold under conditional contract, title to remain in vendor until purchase price is fully paid, takes priority over that of the conditional vendor.</p> <p>5. Bankruptcy, § 8*—when trustee entitled to possession as against conditional vendor. Under the Federal Bankruptcy Act, sec. 67, providing that "claims which for want of record or other reasons would not have been valid liens as against the claims of the creditors of the bankrupt, shall not be liens against his estate,” and subrogating the trustee in bankruptcy to the rights of the creditor for the benefit of the estate, the trustee is entitled to possession of personal property sold under conditional contract, title being retained in vendor until the purchase price was fully paid, where the 'goods are taken under execution by an execution creditor, as against the claim of such conditional vendor.</p> <p>6. Sales, § 432*—when vendor on conditional sale entitled to possession. One who sells goods under conditional contract, title to be retained in vendor until purchase price is fully paid, has a right to take possession of the property upon default as against the claim of the vendee.</p> <p>7. Bankruptcy, § 8*—when vendor on conditional sale entitled to possession as against trustee. A conditional vendor of personal property is entitled, upon default, to the possession of the property as against the trustee in bankruptcy of the vendee, as such trustee acquires no greater rights therein than the bankrupt.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 59*—when third person estopped to deny corporate existence. One who enters into a contract with a corporation and transacts business with it in that capacity will not be heard to deny its corporate existence in an action involving an alleged breach of the contract.</p> <p>2. Contracts, § 360*—lohen plea not demurrable. Pleas which set up as partial defense to an action for damages for breach of contract, facts which have arisen since the contract was entered into and show failure to keep material provisions of the contract, are not demurrable.</p> <p>3. Instbuctions, § 129*—what are requisites of instruction directing a verdict. If an instruction in an action of assumpsit for damages for breach of a contract directs a verdict for either party or amounts to such a direction in case the jury shall find certain facts, it must necessarily contain all the facts which will authorize the verdict directed, and it is immaterial that it does not undertake to instruct the jury as to the whole case but only as to particular parts of the contract.</p> <p>4. Set-off and becoupment, § 8*—when damages may 6e set off. Damages incurred by the payment of liens upon a telephone exchange and equipment which had been seized under execution, may properly be set off in an action of assumpsit for damages for the breach of a contract to lease the telephone system.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vakdeventeb, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Damages, § 116*—when damages not so excessive as to warrant reversal to determine permanency of nervous injury. An award of $2,500 damages in an action against a city for personal injuries, held not so excessive as to require a reversal in order to give the defendant sufficient time to determine whether an injury to the plaintiff’s nervous' system was permanent, where her right to recover did not rest upon the question whether she was suffering from traumatic neurosis.</p> <p>2. Evidence, § 424*—when opinion evidence that injury caused existing physical condition admissible. A physician may testify, in an action for personal injuries, that the plaintiff’s condition, as detailed to the witness, indicated that it was the result of some injury.</p>

<p>Municipal cobpoeations, § 1141*—effect of purchase of lighting plant in excess of authorised indebtedness on rights of mortgagee. Where a village, whose legal bonded indebtedness could not exceed $4,200, bought an electric light heating and power plant pursuant to the terms of an agreement providing that the village should pay $4,200 in cash or bonds and that village bonds should be issued for the purpose, and that the property should be subject to a first mortgage lien for $7,296, the village expressly not assuming this debt, and the village was unable to pay for the plant out of the income derived from its operation, but .such plant was in fact operated at a loss, the holder of the first mortgage is not entitled to a first lien and a foreclosure to the exclusion of the rights of the village, but only to its pro rata share of the proceeds of the sale based upon the amount that each had contributed, including cost of repairs by the village, after paying the costs and expenses of the suit and a reasonable amount for the use of the plant, to be deducted from the village’s share.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Watebs and wateb courses, § 32*—when damages for flooding lands not excessive. A verdict in favor of the plaintiff for three hundred dollars, held not excessive for injuries to land and crops from the overflow of a stream as the result of brush and tree tops being cast into it so as to form an obstruction, during the defendant’s lumbering operations on adjoining land.</p> <p>2. Master and servant, § 836*—when doctrine of respondeat superior applies to action for flooding lands. One who purchases standing timber to be cut and removed- is answerable, under the doctrine of respondeat superior, for injuries caused an adjoining landowner from the obstruction of a stream by brush and tree tops cast into it by men employed by the defendant to cut the timber into saw logs, ties, etc., for a compensation to be determined by the amount cut by them.</p> <p>3. Master and servant, § 856*—who are independent contractors. Men are employed, not for any fixed time, to cut and remove standing timber, held not independent contractors where they are paid according to the amount of timber they produce.</p> <p>4. Waters and water courses, § 31*—instructions in action for flooding land. An instruction in an action for injuries sustained from the overflow of a stream from the obstruction thereof by brush and tree tops cast into it in lumbering operations, held not to assume that those who caused the obstruction were the servants or employees of the defendant where the instruction in fact left that question to the jury.</p> <p>5. Waters and water courses, § 31*—instruction as to contributory negligence in action for flooding land. A requested instruction held properly denied, in an action against those cutting and removing timber, for damages to adjoining land from brush and tree tops being deposited in a stream so as to cause an obstruction, to the effect that if the plaintiff did not take steps to compel the owner of the land to remove the obstruction he was guilty of negligence contributing to his injury which would preclude a recovery, since it -tended to raise a false issue.</p> <p>6. Waters and water courses, § 26*—when notice to remove obstruction from stream condition precedent to action for flooding land. The doctrine that there can be no recovery for the continuance of a nuisance erected by one on his own land, without a previous request or notice to remove it, does not apply to an action against persons other than a landowner, who cut and removed timber from land and obstructed a stream in doing so, to the injury of an adjoining landowner.</p>

<p>Appeal from the Circuit Court of Jackson county; the Hon. W. W. Duncan, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jackson county; the Hon. A. W. Lewis, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Compromise and settlement, § 16*—when finding of absence of compromise sustained by evidence. A finding that a claim for rent and a tenant’s damages for nonrepair of demised premises had not been compromised, held proper under conflicting evidence.</p> <p>2. Landlord and tenant, § 375a*—instruction as to duty to make repairs. An instruction in an action to recover rent by one holding property under a trust deed, that the plaintiff could recover unless he had agreed to make repairs, held not prejudicial to the defendant, where the jury was further instructed that if the latter rented property from the grantor in such deed, under an agreement by the latter to keep the property in repair, that such agreement was binding on the plaintiff.</p> <p>3. Landlord and tenant, § 325a*—instruction as compromise of claim for rent. An instruction in an action for rent, as to a compromise of the tenant’s claim for dapage for nonrepair, held not prejudicial where the jury found against such claim.</p> <p>4. Trial, § 45*—calling attention of jury to inconsistency of general verdict and special findings. A statement made by the trial judge to the jury that: “There seems to be a variance between the special finding and general verdict; they are not consistent. Are you satisfied with this verdict? If not, you may retire with the officer to your room to further consider the same,” held not to call attention to any particular finding.</p>

<p>Abstract of the Decision.</p> <p>1. Drainage, § 112*—duty as to persons outside of district. A levee and sanitary district which is organized for the express purpose of “draining property, protecting it from overflow, and for sanitary purposes” owes the duty to one outside its district to construct its levees in such a manner as not to obstruct the natural flow of surface water from such premises.</p> <p>2. Drainage, § 112*—liability for flooding lands outside of district. A levee and sanitary district which, in the construction of a levee, exercises reasonable care to furnish an outlet for surface waters from land adjoining the district equal to that existing before the construction of the levee, is not liable to a tenant of such adjoining land for damages due to overflow.</p> <p>3. Drainage, § 112*—when overflow not due to act of God. In an action against a levee and sanitary district by a tenant of adjoining premises outside the district for damages to crops and other property due to overflow, evidence held to sustain a finding that the damage was not due to an “act oí God,” where the only outlet was a pipe which was of insufficient dimensions which became clogged with refuse, although the rainfall was unusually heavy.</p> <p>4. Drainage, § 112*—right of tenant outside of district to recover for flooding of land. A tenant of lands outside a sanitary and levee district may sue and recover for the loss to crops and other property occurring from the negligence or wrongful act of a levee and sanitary district in the construction of a levee resulting in the flooding of tenant’s land after an extraordinary flood, although the crops were planted after the levee was constructed.</p> <p>5. .Action, § 61*—what constitutes a continuing nuisance. The failure of a levee and sanitary district to provide a proper and sufficient outlet for the escape of surface water -from adjoining land outside the district, so that a tenant of such adjoining land may have as sufficient an outlet for "the drainage of surface waters due to extraordinary floods as existed before the erection of the levee, constitutes a continuing nuisance for which successive suits may be maintained.</p> <p>6. Drainage, § 112*—when overflow from adjoining premises not adequately provided for. In an action against a levee and sanitary district to recover damages due to overflow, evidence held sufficient to sustain a finding that a twenty-four inch pipe through the levee did not furnish an outlet for water coming from adjoining premises outside the district, equal to that existing prior to the construction of the levee.</p> <p>7. Drainage, § 112*—what evidence admissible in action for overflow. Evidence that there were stalks in the intake end of an outlet pipe of a levee, constructed for the passage of surface water from land adjoining a levee and sanitary district, is admissible in an action by a tenant of such premises for damage to his crops and other property alleged to be due to “negligent construction” of such levee.</p> <p>8. Drainage, § 112*—evidence admissible in action for overflow. Evidence in an action by a tenant of premises outside a levee and sanitary district against such district for damages to his crops and other property alleged to be due to the failure to provide a proper outlet for surface water, that in stages of high water the river would rise higher than the intake end of the pipe through the levee, is admissible.</p> <p>9. Evidence, § 233*—when weather burean records inadmissible. The records of the weather bureau at St. Louis that the greatest rainfall occurring in over forty years occurred during a particular storm are inadmissible to prove conditions existing in Madison county in an action by a tenant occupying premises outside a levee" and sanitary district against such district for damages to his crops and other property, alleged to be due to the accumulation of water as a result of the improper construction of outlets in the levee for the passage of surface water.</p> <p>10. Appeal and error, § 1566*—when erroneous instruction harmless The giving of an erroneou.s instruction relating to the measure of damages does not constitute reversible error when it is not assigned as error that the damages awarded are excessive.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and ereoe, § 1410*—when judgment not disturbed. A judgment should not be reversed upon appeal unless it is manifestly against the weight of the evidence.</p> <p>2. Payment, § 15*—when finding sustained as to misapplication. A finding that the officers of a bank improperly applied payments on an alleged overdraft of a customer instead of on a note which he owed to the bank, and that the customer was not indebted on such overdraft, is sustainable in an action by the bank on the note, where the entire evidence hinges upon statements of two officers of the bank as to the correctness of the application of payments and the amount of overdraft and the denial of such statements by defendant.</p> <p>3. Blanks and banking, § 145*—what evidence admissible on claim of overdraft. Evidence that a witness for the plaintiff had gone away shortly before the trial of a case involving a promissory note is admissible in an action by a bank against a customer on such note, where the defendant claimed that the plaintiff’s officers had improperly applied payments on an alleged overdraft instead of on the note, and that he did not have as much of an overdraft as was claimed by the bank, and that such witness, who was the cashier of a bank for defendant at another town, had no authority to borrow money from the plaintiff and have it, charged to the defendant’s account.</p> <p>4. Banks and banking, § 145*—what evidence admissible to rebut claim of overdraft. In an action by a bank against a customer on a promissory note, and in which the correctness of an overdraft, the authority of an employee of defendant, who was cashier of defendant’s bank in another town, to borrow money of plaintiff and charge it to defendant’s account, and the alleged failure to credit payments on the note instead of on the overdraft were involved, evidence by the defendant as to a conversation, with an officer of the plaintiff regarding the correctness of the overdraft in which he stated that such cashier had “skinned” him out of a lot of money, is admissible, especially where both parties had testified concerning the correctness of the overdraft.</p> <p>5. Appeal and ekkob, § 1523*—when instruction harmless. An instruction in an action by a bank against a customer on a note, the defense to which was that the bank had improperly applied payments on an alleged overdraft instead of on the note, and that the customer was not indebted on such overdraft, that if plaintiff had overcharged defendant’s account without his permission or authority to an amount equal to a certain sum and defendant had not afterwards ratified the action of the bank in so doing then defendant would be entitled to have such sum credited on the note, criticized, but held to be harmless because of the fact that the entire overdraft was disputed, instead of part of it.</p>

<p>1. Appeal and ebbob, § 1271*—what presumed in support of decree. When a party brings to the Appellate Court a praecipe record merely, it will he presumed in support of the decree that the portions of the record omitted, if incorporated into the transcript filed, would sustain the findings of fact found in the decree.</p> <p>2. Equity, § 401*—how jurisdiction obtained over master. Jurisdiction over the person of a master in chancery, who is a party defendant in a petition filed in an action, in the conduct of which such master collected illegal fees, for the recovery of the amount wrongfully collected as fees, is obtained by the personal service upon him of a notice stating that at a certain time the solicitor for the petitioner would ask that a rule he entered against him to answer the petition “this day filed,” and by the entry of a rule in accordance with such notice.</p> <p>3. Appeabance, § 15*—when jurisdiction over person waived. An objection to the jurisdiction of a court of equity over the person of a master of chancery,—who is a party defendant to a petition filed in the same action in which he acted as master, to recover fees illegally collected, and who has been personally served by a notice stating that at a certain time the solicitor for the petitioner would ask that a rule be entered against him to answer the petition “this day filed,” a rule being entered in accordance with such petition —is waived by the filing of an answer to the petition after the overruling of a demurrer thereto.</p> <p>4. Equity, § 401*—when equity may compel master to refund illegal charges. A court of equity has the power to compel one of its masters -in chancery to refund fees illegally collected, by a summary proceeding, conducted in and as a part of the same suit in which such illegal fees were collected.</p> <p>5. Equity, § 394*—what is status of master. A master in chancery is an officer of the court.</p> <p>6. Equity, § 397*—when agreement loith master for compensation illegal. It is illegal for a master in chancery to demand, or request by agreement between attorneys, that his fees be prepaid, as they should be taxed as costs.</p> <p>7. Equity, § 396*—what are fees for taking testimony. The fees of a master for taking and reporting testimony are a fixed amount provided by statute.</p> <p>8. Equity, § 399*—how fees of master for reporting on issues fixed. The fees of a master in chancery for examining the issues referred to him and reporting the conclusions thereon are wholly within the discretion of the court.</p> <p>9. Equity, § 401*—when evidence shows that master required an agreement for fees. In a suit in equity in which an order was made requiring a master in chancery to refund part of the fees collected, evidence held to sustain a finding that the master requested that an agreement be made as to his fees before he filed his report and that he refused to file his report until his fees were paid.</p> <p>10. Contracts, § 139*—when contract void as against public policy. Any contract by which a public officer is to accept or receive for his services more than his statutory fees is contrary to public policy and void.</p> <p>11. Equity, § 401*—when petition to require master to refund fees not barred by laches. A party to an action who paid to a master in chancery, before the filing of his report, fees in excess of what he was entitled to, is not guilty of laches in filing a petition to recover such fees where such petition is filed within six months after the payment of such fees, and less than one month after the entry of the final decree.</p>

<p>1. Municipal Coubt op Chicago, § 8*—when has jurisdiction of proceeding under Lien Act. The Municipal Court of the city of Chicago has jurisdiction to enter a personal judgment against a resident contractor in an action brought in such court as a fourth-class case against the resident owner of a building and such contractor for a mechanic’s lien for work and labor performed pursuant to the Mechanics’ Liens Act, see. 28 (J. & A. H 7166), where due notice is given to the owner of the amount due and service is made upon him by summons, although such contractor is served by publication and mailing only, as provided by the Chancery Act, upon a summons being returned “not found,” and does not enter his appearance and there is no evidence showing that such contractor is not in fact a resident of the city of Chicago.</p> <p>2. Municipal Coubt op Chicago, § 8*—when defendant presumed to 5e a resident of city. A party defendant to an action in the Municipal Court of the city of Chicago, for a mechanic’s lien will be deemed to be a resident of the city of Chicago for the purpose of entering a personal judgment against him, although he is served by publication and mailing only, where the affidavit upon which the publication notice is based does not state that he is a nonresident, but that upon due inquiry, he cannot be found so that service of process can ^>e served upon him, and that upon due inquiry, his present place of residence cannot be ascertained, but his last known place of residence was a certain street and number in such city, and there was no showing that he was not in fact a resident of such city.</p> <p>3. Appeal and ebbob, § 1214*—-when codefendant cannot assign error. A party defendant to an action for a mechanic’s lien, who is the owner of the property involved in the suit, cannot assign error as to the manner in which his codefendant, the contractor, is served with process, where, although judgment is rendered by default against such contractor upon service by publication and mailing, he enters his appearance to the writ of error and urgesi no objection to the jurisdiction of the court, and such party defendant does not attempt to show that the claim sued upon is an unjust one or that any step necessary to charge the owner with statutory liability has been omitted.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Habby M. Fisher, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1265*—when regularity of proceedings presumed. On an appeal or writ of error the findings and judgments of a trial court are presumed to he correct until the contrary is made to appear.</p> <p>2. Municipal corporations, § 867*—when acquittal of defendant in action on ordinance not open to review. The question whether judgment was properly rendered for the defendant, in an action on an ordinance for a penalty, will not be considered on writ of error where the ordinance was not included in the statement of the facts or in the stenographic report of the evidence.</p> <p>3. Municipal corporations, § 864*—when failure to prove ordinance justifies finding for defendant. Where an ordinance is not set out but is only referred to by section number in the plaintiff’s statement of claim in the Municipal Court, in an action to recover a penalty, and the ordinance was neither offered in evidence nor considered at the trial, the only finding that the trial court could make was in favor of the defendant.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Habey M. Fisheb, Judge, presiding.</p>

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

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

<p>Appeal from the Municipal Court of Chicago; the Hon. John J. Stjeeivan, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>Abstract of the Decision.</p> <p>1. Cbiminal law, § 174*—what weight given testimony of accomplice. A conviction may be sustained upon the unsupported testimony of an accomplice, but such evidence is of doubtful integrity, and must be received with extreme caution.</p> <p>2. Receiving stolen goods, § 9*—when conviction not sustained. The guilt of a defendant who had been charged with receiving stolen property, held not to have been established beyond a reasonable doubt.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Chabi.es A. Whxiams, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 228*—intoxication as proximate cause of injury from imprisonment of husband for crime committed while drunks. The intoxication of a man held, in an action under section 9 of the Dramshop Act (J. & A. If 4609) against those selling and furnishing him intoxicating liquor, to be the proximate cause of the damages sustained by his wife and children from his imprisonment for a crime committed while drunk.</p> <p>2. Intoxicating liquors, § 168*—when civil damage act strictly construed. The entire Dramshop Act must be strictly construed since it is penal in character.</p> <p>3. Intoxicating liquors, § 172*—when person may recover under civil damage act. A person seeking to recover under section 9 of the Dramshop Act (J. & A. j[ 4609) for injuries caused by the sale or furnishing of intoxicating liquors to another, must bring himself clearly within the terms of the section.</p> <p>4. Intoxicating liquors, § 202*—when declaration sufficient in action under civil damage act. A declaration in an action under section 9 of the Dramshop Act (J. & A. If 4609), which does not allege an injury to the person, property or means of support of either of the plaintiffs, does not state a cause of action.</p> <p>5. Intoxicating liquors, § 202*—when declaration sufficient in action under civil damage act against property owner. A declaration in an action under section 9 of the Dramshop Act (J. & A. If 4609) by a wife and" children against the keepers of saloons and the owners of the property where the business was conducted, to recover for injuries sustained from the sale of intoxicating liquor to a husband and father, does not state a cause of action against the property owners where it does not allege that liquor was sold or given the husband in the property or buildings owned by either of the other defendants.</p>

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

<p>Abstract of the Decision.</p> <p>1. Carbters, § 555*—when evidence shows delivery and acceptance of baggage. Evidence in an action by a passenger against a connecting railroad to recover damages for the loss of baggage while in the hands of such connecting railroad, the passenger having bought a ticket from one railroad over its lines to a point on another railroad, and having checked his baggage through to his destination at the initial point, held sufficient to establish a delivery to the first railroad and an acceptance thereof by the second railroad.</p> <p>2. Cabbiers, § 555*—what is relation of'initial carrier to connecting carrier. A railroad company which sells a ticket for continuous passage over its line to a point on a connecting line, and accepts baggage to he shipped to such ultimate destination, is the agent of the second railroad.</p> <p>3. Carriers, § 545*—what is liability for baggage. A railroad company is the insurer of the baggage of a passenger so long as the relation of common carrier exists.</p> <p>4. Carriers, § 552*—when liability as insurer of baggage terminated. The liability of a common carrier as an insurer Of the baggage of a passenger exists until its arrival and discharge at its destination, and until the owner has had reasonable time and opportunity to claim and take it away.</p> <p>5. Carriers, § 552*—what is a reasonable time to claim baggage. A passenger does not claim his baggage within a reasonable time after its arrival where he delays making an effort to secure it until twenty-four hours after its arrival.</p> <p>6. Carriers, § 554*—lohat is liability for loss of baggage not promptly called for. A common carrier is liable only as a warehouseman where the owner of baggage delays claiming it for an unreasonable length of time, and its only duty is to hold the baggage until called for.</p> <p>7. Troves and conversion, § i*—iohat essential to conversion. In order to constitute a conversion, a demand must first he made for goods.</p> <p>8. Carriers, § 559*—right of commercial traveler to sue for loss of employer’s baggage. A commercial traveler, who is carrying as baggage, articles of merchandise belonging to his employer, and which he has in his possession for the purpose of delivery to customers of his employer, cannot recover for the loss of such articles in an action against a common carrier for the loss of baggage.</p>

<p>1. Carriers, § 121*—sufficiency of evidence to show negligence in freezing of goods. Evidence in an action hy a shipper against a carrier for damages for loss incurred as a result of several carloads of apples being frozen while in transit, held to establish a prima facie case of negligence.</p> <p>2. Carriers, § 121*—what does not overcome prima facie case of negligence in freezing of goods. Where a prima facie case of negligence is made out, in an action by a shipper against a carrier for damages for loss incurred as a result of fruit being frozen while in transit, by proof that the fruit was in good condition when loaded and in bad condition when reaching a certain point on the carrier’s line, such presumption of negligence is not overcome by proof that there was no delay in handling the cars while in transit, and that the weather was extremely cold at the time of loading, and before and after loading.</p> <p>3. Carriers, § 130*—when shipper not negligent in shipping fruit in cold weather. The act of a shipper in shipping fruit during freezing weather does not constitute negligence even though he does not ask the carrier to heat the cars while in transit, where he heats the cars at the time they are loaded, papers them, places shavings on the floor and papers the doors upon the outside, and there is no provision in the bill of lading requiring the shipper to furnish stoves for heating while in transit and the shipper is not asked to assume the risk of- freezing in transit.</p> <p>4. Carriers, § 121*—what is duty of carrier as to fruit shipped in cold weather. It is the duty of a carrier accepting fruit in freezing weather to provide all suitable means of transportation and to exercise the degree of care which the nature of the property requires, especially where the shipper is not required by the bill of lading to furnish stoves for heating nor to assume the risk of freezing in transit.</p>

<p>1. Fixtures, § 2*—when contract does not show intent to change law. Under a contract providing that a concessionaire should furnish a statement of the cost of buildings, and providing that “in determining the cost no account shall be taken of movable fixtures, as tables and chairs, nor of any linen, silver or table and kitchen utensils,” no intention to change the rule of law as to fixtures is shown.</p> <p>2. Fixtures, § 13*—what are. Items furnished by a lessee, such as bar fixtures, railings, filter, tank and piping, refrigerators, range, shelving, brackets, bar fittings and curtains, held not appurtenances or fixtures of a permanent character attached to the building.</p> <p>3. Landlord and tenant, § 219*—whén landlord liable for cost of improvements. Under a contract whereby a concessionaire in an amusement park was granted space therein, held that the landlord was liable for the cost of constructing buildings, booths and tunnel outside of the space leased, it appearing that the lessee was granted the right to sell certain articles anywhere within the park and that such sale was advantageous to the landlord.</p> <p>4. Contracts, § 201*—when milk is “drink." Under a contract whereby a lessee of an amusement park was required to pay a commission on drinks sold, held that milk sold as part of a meal with eatables was not to be considered a drink, but when sold alone it was to be so considered.</p> <p>5. Contracts, § 2$>2*—when contract is modified. Where a contract provided that a lessee company in an amusement park was to pay twenty-five per cent, on all drinks, including champagne, to the lessor company, and the master found that such contract had not been modified, held that such finding was against the manifest weight of the evidence, it appearing that a reduction to ten per cent, as to the item of champagne was agreed to informally by the directors of both companies, and that similar other changes had been agreed to in this informal manner.</p> <p>6. Equity, § 425*—lohen findings of master are reasonable. Under a contract requiring a hotel lessee in an amusement park to pay a commission of twenty-five per cent, on candy, peanuts, etc., sold by it, which commission was credited to the lessor, held that findings of a master that such commission was fair and reasonable were proper.</p> <p>7. Payment, § 3*—what constitutes. Under a contract requiring a lessee in an amusement park to pay commissions to the lessor, held that credits on an account constituted payment, the lessor being indebted to the lessee.</p> <p>8. Contracts, § 201*—when ice cream properly classed as “food:’ Under a contract as to commissions to be paid by a lessee in an amusement park to the lessor, held that ice cream could not be properly classed as candy, but as a “food,” whether sold in a dish, cone or sandwich.</p> <p>9. Equity, § 425*—when findings of master and court are proper. Findings of a court that a lessor amusement park should be paid a commission or revenue derived from advertisements on menu cards, by a lessee of a restaurant, approved.</p> <p>10. Equity, § 425*—what findings are proper. Findings that the use of space by a lessee outside of that contracted for was with the acquiescence of the lessor company and for its benefit, and that the lessee was not chargeable for its use, approved.</p> <p>11. Equity, § 425*—when findings are reasonable. Under a contract providing for commissions to be paid by a lessee in an amusement park, held that findings as to the reasonableness of commissions and other items were proper.</p> <p>12. Equity, § 431*—when objection to findings are necessary. Findings of a master not excepted to cannot be objected to on appeal.</p> <p>13. Corporations, § 1088*—when corporate officer not entitled to interest on salary. Where a president of a corporation voluntarily refrained from drawing his salary, the corporation was not liable for interest thereon, and a finding that the payment of such interest was unwarranted and illegal was proper.</p> <p>14. Landlord and tenant, § 301*—when rebate to tenant improper. A finding of a master that a rebate allowed a lessee of an amusement park on its electric light bill was unwarranted, held proper, since the fact that the lessor benefited by the light supplied by the lessee did not entitle it to a rebate not granted to other lessees.</p> <p>15. Corporations, § 186*—when stockholder entitled to accounting. In an action by a stockholder charging a misappropriation of corporate funds, held that findings that no conspiracy existed but that there should be an accounting, because of mistakes and improper charges, were proper.</p> <p>16. Corporations, § 187*—when equity has jurisdiction to aid stockholders. Where an officer or directors of a corporation permit funds thereof to be diverted, even though acting in good faith, the jurisdiction of a court of chancery may be invoked by a stockholder against the corporation and its directors to secure a proper application of such funds or property, and in such case the element of fraud need not exist, and the decree which gives redress is not an interference with the internal management of a corporation.</p> <p>17. Corporations, § 188*—when demand is condition precedent to suit by stockholder. Findings of a master that the majority owner of stock of a corporation controlled the election and acts of its directors, wherefore a demand to restore money wrongfully diverted to the prejudice of the corporation would be futile and was not a condition precedent, held sustained by the evidence.</p> <p>18. Costs, § 4*—when allowance improper. In an action by a stockholder charging a misappropriation of corporate funds, where an accounting was ordered, a finding and order providing for the payment of the complainant’s expenses and attorneys’ fees from the moneys recoverable was improper and without authority.</p> <p>Headnotes eob Additional Opinion.</p> <p>1. Costs, § 1*—when allowed. Nothing can be allowed and taxed as costs but items of cost designated by the statute to be so allowed and taxed, except in cases brought by trustees for the construction of wills where the cost of litigation is borne by the estate.</p> <p>2. Appeal and error, § 499*—who may object to allowance of costs. On a stockholder’s bill for an accounting, where the corporation did not object to an allowance of costs and attorneys’ fees, a defendant stockholder who was a party and whose interests would be adversely affected, had the right to object to such allowance on appeal.</p> <p>3. Interest, § 21*—when allowed in action by stockholder. On a stockholder’s bill for an accounting, where various items were erroneously charged in the accounts of the corporation,- an amusement park, with a lessee therein, held that the statute provided for the allowance of interest for “money received to the use of another and retained without the owner’s knowledge,” on such items.</p> <p>4. Appeal and error, § 1712*—when assignment of error not waived. Assignment of error held not to have been waived where urged on the oral argument, although but slight mention was made of same in the printed briefs and argument.</p>

<p>1. Appeal and error, § 1414*—when findings not disturbed. The Appellate Court will not interfere with the finding of the lower court where there is a conflict in the evidence unless such finding is clearly and manifestly against the weight of evidence.</p> <p>2. Principal and agent, § 180*—when undisclosed agency established. Evidence in an action by an automobile supply company against an undisclosed principal to recover for supplies furnished to a company, held to sustain a finding that the defendant was an undisclosed principal of the company to which the supplies were sold.</p> <p>3. Election of remedies, § 8*—what does not constitute. In the absence of full knowledge of all facts, neither the commencement of a suit against an agent, nor the prosecution of the suit to judgment, the judgment remaining unsatisfied, constitutes an election which will operate as a bar to an action against the undisclosed principal.</p>

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

<p>1. Automobiles and garages, § 2*—when finding as to warning of intention to turn sustained. A, finding in an action for damages for injury to an automobile truck, due to a collision between two automobile trucks, that the driver of plaintiff’s automobile gave timely warning of his intention to turn north, after having proceeded in an easterly direction, held sustained by the evidence.</p> <p>2. Evidence, § 10*—when ordinance judicially noticed. Judicial notice may be taken of a city ordinance where there is an admission of the existence thereof by counsel.</p> <p>3. Roads and bridges, § 228*—when driving on wrong side of street negligence. The driving of a motpr vehicle on the wrong side of a road is prima facie evidence of negligence.</p> <p>4. Roads and bridges, § 228*—how “rule of the road" on turning corners determined in Chicago. In determining what is the “rule of the road” in the city of Chicago for the passage of one motor vehicle by another upon turning at a street corner, both vehicles turning to go in a northerly direction after having proceeded in an easterly direction, the Rev. Mun. Code of Chicago, art. 3, sec. 216, relative to vehicles turning corners, and the Rev. Ord. of Chicago, ch. 72, sec. 2493, relative to proceeding as close to the right-hand curb as possible, except when passing another vehicle, govern.</p> <p>5. Roads and bbidges, § 228*—when “rule of the road” violated in turning curve. The driver of a motor vehicle is proceeding on the wrong side of the road in the city of Chicago when he drives to the left of the center of the street for two blocks in an easterly direction behind another motor vehicle which had just turned ahead of it around a corner, and upon signal being given by the first driver of his intention to turn north at a street corner, turns to the left and north and while attempting to pass, runs into the first vehicle, the first driver having all the time kept to the right.</p>

<p>Error to the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.</p>

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

<p>Abstract of the Decision.</p> <p>1. Accord and satisfaction, § 8*—when accord and satisfaction shown. Where defendant purchased certain goods upon the strength of an alleged agreement on the part of plaintiff’s representative, by which the plaintiff was to assume certain indebtedness due the defendant, and in paying for such goods, defendant deducted from its check the amount of such indebtedness, advising the plaintiff thereof and tendering the check in full payment of the account, and the latter after several weeks delay, acknowledged the receipt of the check, stating its version of the arrangement with the defendant, and requesting the latter to explain its understanding of the agreement, if different, which the defendant did, whereupon plaintiff cashed defendant’s check and retained the proceeds without replying to defendant’s letter, it was held that the transaction constituted an accord and satisfaction.</p> <p>2. Appeal and error, I 1805*—when cause not remanded on reversal on merits. Where the facts are not in dispute but the trial court misinterpreted the law applicable to them, the judgment will he reversed without remanding the case.</p>

<p>Appeal from the County Court of Cook county-; the Hon. D. T. Smiley, Judge, presiding.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Contracts, § 385*—when evidence shows. In an action to recover back money paid under an alleged contract providing that defendant should return the money paid if unsuccessful in the undertaking, evidence held to warrant the jury in finding that the contract was made.</p> <p>2. Contbacts, § 130*—when evidence does not show guilty knowledge of illegal purpose. In an action for the return of money paid by plaintiff to defendant to procure the discharge of persons then about to be tried on a criminal charge, under a contract whereby defendant agreed to return the money if unsuccessful in procuring the discharge of the persons in question, evidence held to warrant the jury in finding that plaintiff did not have guilty knowledge of defendant’s intention to use the money for an illegal purpose.</p> <p>3. Contracts, § 161*—when illegal purpose of one party does not invalidate. In an action to recover back money paid by plaintiff to defendant under a contract providing that the money should be returned under certain conditions, it is not a defense to the action that defendant had a private purpose to use the money unlawfully, unless plaintiff knew of such purpose.</p>

<p>1. Appeal and error, § 1836*—duty to follow opinion on remand. An instruction in a second trial of a cause, as the result of a remand, which ignores the opinion of the Appellate Court, granting the new trial, construing the contract sued upon, and laying down rules to control the new trial, held error, for the reason that expediency, if not a rule of law, requires that such rules be held to be the law of the case whenever it may come up, either at nisi prius or in the Appellate Court notwithstanding arguments in favor of reconsidering the rules laid down.</p> <p>2. Sales, § 326*—what evidence admissible. In an action on a contract for the sale of ice, where plaintiff could not recover the full contract price of ice owned prior to the expiration of the contract, and which it continued to own after that time, evidence is competent as to the amount of such ice, if any, and the difference, if any, between its market value and its contract value.</p> <p>3. Appeal and error, § 1837*—when question is for jury under opinion of Appellate Court on remand. Where the Appellate Court, in an opinion granting a new trial in an action for the sale of ice, rules that defendant has the right to show whether the ice was merchantable before, at or after a named time, a peremptory instruction held erroneous, for the reason that a question oí fact for the jury is involved.</p>

<p>Abstract of the Decision.</p> <p>1. Cabbiebs, § 263*—when prospectus not part of contract with passenger. The contract between a common carrier and a passenger is the ticket purchased by the passenger, which shows on its face that such is the intention of the parties; and a prospectus regarding the trip for which the ticket was purchased is no part of the contract, where no reference is made to it in the ticket, though alluring promises were made in the prospectus, which induced plaintiff to purchase the ticket, which were not performed by defendant.</p> <p>2. Cabbiebs, § 276*—when duty to furnish wholesome food implied from tichet. A clause in a ticket sold by a common carrier to a passenger, “meals and berth included,” is to be construed to raise an implied contract that the food should be wholesome and fit for consumption.</p> <p>3. Pleading, § 434*—what is effect of allegation under a videlicet. Where an allegation in a declaration is made under a videlicet, the date is immaterial.</p> <p>4. Appeal and errob, § 1526*—when instruction harmless. An instruction which inaccurately states the date when the contract sued upon was made, as a result of a similarly inaccurate allegation in the declaration, under a videlicet, though ordinarily reversible error, becomes harmless where the evidence will sustain no other verdict.</p>

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 293*—when maker put on notice as to ownership. An agreement executed by the maker of notes, purporting to extend the time of payment after the maturity of the notes, which sets out the name of the owner thereof as being other than a person to whom the maker has made payment on account of the notes, is sufficient to put such maker on notice that the person to whom she made such payments is not the owner of the notes, and that such payments to him are at her own risk, even though the agreement does not correctly state the name of the real owner.</p> <p>2. Bills and notes, § 293*—when payment not binding on holder. Payments on the principal of a note secured by trust deed, to the person named therein as successor in trust, who did not have possession of the notes, and whose office was not the place of payment fixed in the trust deed, held not binding upon the owner of the notes where such person failed to turn over the sum so paid, although previous interest payments made to him had been turned over to the owner through his attorney, especially where, after! making the payment, an extension agreement was signed by the parties acknowledging that a sum was due in excess of the amount which would be due if the payment so made had been deducted, and the interest notes made at the same time called for an amount which showed that interest was being charged on such excess.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

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

<p>1. Attobney and client, § 150*—when Lien Act complied with as to notice. The Attorneys’ Lien Act, requiring personal notice to the debtor of a claim for lien, is complied with where notice is actually received by the debtor.</p> <p>2. Attobney and client, § 150*—when action under Lien Act not affected by place of injury. In an action under the Attorneys’ Lien Act, the question at issue is not affected by the fact that the injury was suffered in Indiana, and the contract between the parties was signed in this State.</p> <p>3. Attobney and client, § 146*—how Lien Act construed as to liability. The Attorneys’ Lien Act merely affects the distribution of the sum paid to plaintiffs’ client by the defendant, and does not increase or diminish the liability of the defendant.</p> <p>4. Attorney and client, § 150*—when allowance of interest under Lien■ Act erroneous. The allowance of interest on a claim of attorneys under the Attorneys’ Lien Act held error, as payment of the full amount claimed, to plaintiff’s client was not the liquidation of an account between plaintiff and defendant, under the statute which provides that creditors shall be allowed interest “from the day of liquidating accounts.” (J. & A. If 6691.)</p>

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

<p>Abstract of the Decision.</p> <p>1. Contracts, § 53*—when invalid. A written contract signed by one who is not named in the body of the instrument as one of the contracting parties is invalid.</p> <p>2. Contracts, § 351*—when action may he maintained on invalid writing. An action on an invalid written contract may be maintained if there is in the statement of claim an allegation of a verbal contract sufficient to support the action.</p> <p>3. Appearance, § 12*—when confers jurisdiction. In an action where defendant has entered an appearance, held error to allow a motion to dismiss on the ground of want of jurisdiction, for the reason that in such case the court has jurisdiction to try all issues.</p>

<p>Abstract of the Decision.</p> <p>1. Frauds, Statute of, § 24*—when lease void under. A verbal agreement for a lease for a year to begin in futuro is void under the Statute of Frauds.</p> <p>2. Landlord and tenant, § 88*—when lessor’s assent to holding over essential to renew term. A tenant under a written lease cannot, by holding over after the expiration of the term, and refusing to surrender possession, create a tenancy at will or at suffranee, for the reason that until the landlord recognizes the new tenancy, by acceptance of rent, or otherwise, the holding over is a mere offer to become a tenant on the terms of the former lease, not assented to by the landlord.</p>

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

<p>Abstract of the Decision.</p> <p>1. Criminal law, § 136*—when evidence of conversation competent to show admission. The rule that evidence of a conversation, where a defendant charged with an offense, unequivocally denies it, is incompetent in a criminal case to prove an admission, has no application to a case where defendant, being charged with an offense, in part denies and in part admits it, and evidence of such a conversation is competent to prove an admission.</p> <p>2. Druggists, § 9*—when evidence sufficient to show sale of morphine without prescription. On an information charging defendant with the sale of morphine without the prescription of a duly registered physician, in violation of the Municipal Code of Chicago, evidence held to show clearly that defendant sold the morphine as charged.</p>

<p>Abstract of the Decision.</p> <p>1. Trial, § 155*—when weight of conflicting evidence for jury. In an action to recover for personal injuries, where the testimony is conflicting, the jury are warranted in taking plaintiff’s testimony as true, where there are undisputed facts tending to support it, it being for the jury to say what the facts were.</p> <p>2. Master and servant, § 260*—when carpenter and employee operating elevator not fellow-servants. A carpenter engaged in repairing an elevator in the master’s buildings, and another person employed by the same master, who has occasion at times to use the elevator, but who is not regularly employed in such work, are not fellow-servants, hut a servant so using the elevator becomes pro hac vice its conductor, for the negligent acts of whom, while so employed, the master is liable.</p> <p>3. Master and servant, § 697*—when evidence sufficient to show negligence. Where plaintiff, a carpenter and millwright, is engaged in repairing the gate of an elevator in one of the master’s foundry buildings, and enters the shaft in reliance on the promise of another servant who operates the elevator that he will not lower the elevator until plaintiff signals, but such other nevertheless lowers the elevator without signal, injuring plaintiff, evidence held to warrant the jury in finding that the servant in charge of the elevator was negligent, and that his negligence was that of the master.</p> <p>4. Master and servant, § 350*—when negligence of another employee not assumed risk. A carpenter and millwright employed by a foundry corporation and engaged in repairing an elevator belonging to defendant, does not, by his contract of employment, assume the risk of an injury caused by the negligent act of another servant, who, while in charge of the elevator, lowers the car without signal from plaintiff, after having agreed not to lower it before receiving plaintiff’s signal.</p> <p>5. Master and servant, § 699*—when evidence sufficient to support finding of freedom from contributory negligence. In an action by a servant to recover for personal injuries received while repairing an elevator in one of the master’s foundry buildings, in the usual course of his employment, where plaintiff- enters the elevator shaft to remove a cleat holding the elevator gate in place, relying on the promise of the servant in charge of the elevator that he will not lower the elevator car until plaintiff signals, and where the injury is caused by the lowering of the elevator car before such signal, held that the jury might properly find from the evidence that plaintiff was not guilty of contributory negligence, and that plaintiff, in securing and relying on the promise, did all that was reasonably required for his own safety, although he did not throw off the power by the use of the safety rope, and tie it up so that the power could not be thrown on, or place timbers in the shaft to arrest the descent of the car, both of which he might have done.</p> <p>6. Master and servant, § 823*—when instruction on preponderance of evidence not reversible error. In an action by a servant to recover for personal injuries caused by the negligent operation of an elevator car while plaintiff was repairing the elevator gate, an instruction to the effect that the preponderance or greater weight of the evidence meant the preponderance or greater weight of only such evidence as the jury might believe, and that any evidence not believed need not be considered in determining where the weight or preponderance lay, held, under the facts of the case, not reversible error, though open to serious objection, in that the jury cannot refuse to consider any part of the evidence in determining the question of its preponderance, but must consider all the evidence, and though in another case the error might require a reversal.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 76*—what record must show. An objection that the trial court erred in denying a motion for a continuance cannot be reviewed where the affidavit for continuance is not made a part of the record by the certificate of the judge who heard the cause, and the fact that such affidavit is copied into the transcript by the clerk does not make it part of the record.</p> <p>2. Divorce, § 23*—when residence shown. In a suit for divorce, where the testimony of the complainant, her children and members of her household shows residence in this State for some time before the filing of the bill, and the defendant introduces no evidence of any tangible fact tending to show that complainant was not an actual and bona fide resident, the jury are properly instructed that complainant was a resident of the State.</p> <p>3. Divorce, § 46*-—when question of adultery need not be submitted to jury. In a suit for divorce where the evidence of adultery of the defendant is clear and convincing, and uncontroverted, the question need not be submitted to the jury.</p> <p>4. Divorce, § 42*—what evidence inadmissible to show adultery. In a suit for divorce where the defendant alleged adultery of the complainant, evidence of incontinence with another person occurring twenty years before the adultery charged would not tend to prove such allegation and is properly excluded.</p> <p>5. Divorce, § 42*—when circumstantial evidence of adultery admissible. Circumstantial evidence of adultery must be sufficiently significant in character and sufficiently near in point of time to lead the guarded discretion of a reasonable man to a belief in a material element and the fact to he proved, and if too remote or insignificant it will be rejected.</p>

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

<p>Abstract of the Decision.</p> <p>1. Chattel mortgages, § 48*—when invalid against third persons. While a chattel mortgage not acknowledged as required by the statute may be good as between the parties, it is invalid as against a bona fide purchaser, for value, of the mortgaged property, who may set up its invalidity in defense.</p> <p>2. Chattel mortgages, § 55*—who must acknowledge. The Chattel Mortgage Act (Rev. St., ch. 95, sec. 3, J. & A. (Hf 7576 et seq.), requiring a chattel mortgage to be acknowledged by the mortgagor, is not complied with where such mortgage is acknowledged by the attorney in fact of the mortgagor.</p> <p>3. Chattel mortgages, § 85*—what is effect of defective execution. A chattel mortgage, not executed as provided by the statute, confers no right on the mortgagee to take the mortgaged property from the possession of a bona fide purchaser for value, claiming under a transfer from the mortgagor.</p> <p>4. Chattel mortgages, § 85*—when invalid against third persons. A chattel mortgage, not executed, acknowledged and recorded as required by the statute, is invalid against those not parties or privies.</p> <p>5. Chattel mortgages, § 195*—when inadmissible in evidence. In an action of replevin to recover part of the goods covered by a chattel mortgage from a bona fide purchaser from the mortgagor, for value, held error to admit the mortgage in evidence, where it appeared that the mortgage had been acknowledged by the attorney in fact of the mortgagor.</p> <p>6. Chattel mortgages, § 125*—how construed. A chattel mortgage must be strictly construed against those seeking to enforce it, for the reason that it is a creature of statute, and contrary to the common law.</p> <p>7. Chattel mortgages, § 193*—when verdict improperly directed. In an action of replevin to recover part of the goods covered by a chattel mortgage from the possession of one not a party or privy to the mortgage, held error to direct a verdict for the plaintiff where the mortgage itself was incompetent.</p>

<p>1. Railroads, § 205*—when city may require track elevation. In the exercise of the police power, a city had a right, within reasonable limits, to require a railroad company to elevate its tracks so as to avoid grade crossings, and to protect the lives and property of citizens.</p> <p>2. Railroads, § 220*—what are elements of damages for railroad elevation. In an action to recover for damages to land, caused by the elevation of the tracks of a railroad company in compliance with a city ordinance, among the proper elements of damage are, the change in the grade of adjoining streets, through which the plaintiff had ingress and egress, and the closing of an alley, which cut off travel through it, in so far as such damage may have exceeded any benefits which may accrue to the land as a- result of the improvement.</p> <p>3. Railroads, § 220*—when instruction on damages for track elevation erroneous. In an action to recover for damage to land due to the elevation of railroad tracks, an instruction that the loss of the use of the switch track, removed incidentally in compliance with a city ordinance requiring such elevation, was an element of damage to be taken into consideration by the jury in assessing damages, held to be reversible error, for the reason that it introduced an element of damage not sanctioned by the law.</p> <p>4. Appeal and error, § 1782*—when verdict including improper element of damages reversed. Where a verdict is for a lump sum and includes several elements of damage, one of which is for injury to legal rights which do not exist, the judgment must be reversed, where the amounts assessed for the proper elements of damage cannot be ascertained, either from the verdict or from the evidence.</p> <p>5. Railroads, § 220*—what is measure of damages for track elevation. The measure of consequential damages to land, due to track elevation operations, is the difference between the value of the property as a whole at the time immediately preceding the track elevation, and its value thereafter, as affected' by the changed conditions, which are regarded as elements of damage.</p> <p>6. Railroads, § 220*—what are consequential damages from track elevation. Where no land of the plaintiff is taken as the result of the track elevation operations complained of, the damages recoverable are consequential.</p> <p>7. Railroads, § 220*—when ordinance confers no additional rights. A city ordinance containing an agreement to pay damages incident to track elevation operations which was required by the ordinance gives no right to any person injured thereby which such person did not have aside from the ordinance.</p> <p>8. Railroads, § 220*—when track elevation ordinance confers no right of action. A city ordinance requiring a railroad company to elevate its tracks, and incidentally necessitating the removal of a switch track abutting the plaintiff’s property at grade, in order to comply with the ordinance, gives no right of action against the railroad company, either under the Constitution of 1870 or at common law, for the damages caused by such elevation and removal.</p> <p>9. Railroads, § 220*—when purchaser of land in view of existing conditions bound to take notice of possible danger. Persons who buy land and make improvements thereon, with reference to the convenience of an existing switch track, abutting their land at grade, for shipping their product, do so with the implied knowledge that a city ordinance may be passed, compelling the railroad company to elevate its tracks, and thereby abolish such grade switch tracks.</p> <p>10. Railroads, § 220*—when oumer of land not entitled to damages for removal of switch due to track elevation. The fact that the plaintiff purchased his property and made improvements thereon, with reference to an existing switch track connection at grade with the tracks of a railroad company, and the convenience of the same for shipping his product, does not operate to give a right against the city to have the railroad company maintain the tracks at the existing grade, or to create a right of action against the city for damages caused by. the removal of the track, when made necessary by the compliance of the railroad company with a city ordinance requiring it to elevate its tracks.</p>

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

<p>Abstract of the Decision.</p> <p>1. Sales, § 114*—when breach of contract shown. Where a contract for the sale of grain provided for prompt shipment on shipping instructions to be given by defendants, and containing an option to plaintiff which had the effect of. extending the time of delivery, but where it appeared that plaintiff, during the whole time, constantly pressed defendants for shipping instructions, which were never given, held that the evidence showed a breach by defendants.</p> <p>2. Sales, § 124*—what essential to “prompt delivery." By legal intendment, “prompt delivery” means within a few days at most.</p> <p>3. Sales, § 341*—when time for compliance by purchaser not extended. Where a contract for the sale of grain provided for prompt shipment on shipping orders to be given by defendants, which also contained an option to plaintiff which had the effect of extending the time of delivery for thirty days, evidence held to show no ground for defendants to believe that the time of performance had been extended by the exercise of plaintiff’s option, although it appeared that a resale was not made until more than thirty days after the expiration of a reasonable time for giving shipping instructions, it appearing that during the whole time plaintiff constantly pressed defendants, by letters and telegrams, for such instructions.</p> <p>4. Sat.es, § 60*—when contract executory. Where a contract for the sale of grain provided for prompt shipment on shipping instructions to be given by the vendee, held that the contract was in its essence executory.</p> <p>5. Sales, § 306*—when notice of resale not required on breach by purchaser. In a contract for the sale of grain which is essentially executory, notice of a resale is not required.</p> <p>6. Evidence, § 280*—when marlcet reports admissible to show values. Trade journals and market reports are primary evidence tending to show market values, for the reason that they are based on a survey of the whole market and are a source of information on which the business world relies, for which reasons they are more satisfactory than individual entries of sales and inquiries.</p> <p>7. Evidence, § 51*—who has burden of disproving marlcet reports. Where market reports admitted as tending to show market value do not state the correct market price, the burden is on the adverse party to show that fact.</p>

<p>1. Libel and slander, § 142*—what evidence inadmissible on plea of justification. Where a libel charged plaintiff with being the head of an organization for the colonization of illegal voters, and a plea of justification in the resulting action for libel charged plaintiff with procuring illegal votes to be cast at a named election, evidence of plaintiff’s acts at an election other than that named in the plea is incompetent, as having no tendency either to prove the truth of the charge or to sustain the plea, for the reason that, since the law requires the plea to be as broad as the charge, the evidence offered under the plea, to be competent, must suffice to prove the truth of the charge.</p> <p>2. Libel and slander, § 104*—when plea of justification had. A plea which attempts to justify a libel without alleging facts sufficient to establish the truth of the charge will he held bad on demurrer.</p> <p>3. Libel and slander, § 140*—when hearsay inadmissible. Where a libel charged plaintiff with being the “head of an organization for colonizing illegal voters,” and “one of the most notorious gambling bosses Chicago ever had,” hearsay testimony not tending to connect plaintiff with the incidents testified to, which were far remote from the date when the libel charged plaintiff with being guilty of the acts named, is incompetent as having no tendency either to sustain a plea of justification or in mitigation of damages, and held not error to strike from the record a deposition containing such testimony.</p> <p>4. Evidence, § 223*—when hearsay. Testimony offered as tending to prove an event which occurred in the absence of the witness, and of which he admittedly had no knowledge, held properly excluded, for the reason that such testimony is pure hearsay, and therefore incompetent.</p> <p>5. Libel and slander, § 163*—when instruction to find defendant guilty, proper. In an action for libel, where defendant failed in two important respects to sustain its plea of justification, held not error to instruct the jury to find defendant guilty, for the reason that such failure entitles plaintiff to such a verdict, provided proper instructions were also given leaving to the jury the questions of mitigation of damages and the good faith and justifiable ends of defendant in publishing the libel, as well as defining the measure of damages, and limiting recovery to such parts of the libel as were unproved, if any.</p> <p>6. Libel and slander, § 140*—when evidence showing suspicion of guilt inadmissible in mitigation. In an action for libel, evidence tending to cast suspicion of guilt on plaintiff is incompetent in mitigation of damages, where such evidence is offered to justify the truth of the libel, and failed to accomplish its purpose.</p> <p>7. Libel and slander, § 63*—when publication upon information from others no defense. It is no defense in an action of libel that the publication of the libel was predicated upon information from others, where nothing is known as to the truth or falsity of the charge, except as indicated by such information, for the reason that conversations with third parties which bear on such truth or falsity, had in the absence of plaintiff, are incompetent.</p> <p>8. Libel and slander, § 105*—what is effect of plea of justification. In an action for libel, a plea of justification is in law a republication of the libel.</p> <p>9. Libel and slander, § 107*—what is effect of plea of not guilty. In an action for libel, a plea of not guilty admits the falsity of the charge.'</p> <p>10. Libel and slander, § 77*—what competent in aggravation of damages. In an action for libel, evidence of a second publication of the libel by defendant, emphasizing the first and ridiculing plaintiff, is competent in aggravation of damages, for the reason that the second publication tended to show malice in the publication of the original libel.</p> <p>11. Libel and slander, § 156*—when verdict not excessive. Where defendant, the publisher of a newspaper of wide circulation and large admitted wealth, failed in two important particulars to sustain its plea of justification of a libel published in its newspaper, which charged plaintiff with serious crimes, as well as with being a saloon and dive keeper, and one of the most notorious gambling bosses Chicago ever had, and where there was a second publication by the newspaper of the libel, emphasizing the first and ridiculing plaintiff, without making a retraction, or expressing regret, or seeking to exonerate plaintiff from the aspersions cast on him by the libel, held that a verdict of $7,500 for plaintiff was not excessive, though plaintiff was admittedly a saloon keeper and a gambler.</p> <p>12. Libel and slander, § 148*—when loss of sleep is an element of damages. In an action for libel, where the words of the libel are actionable per se, plaintiff’s loss of sleep, due to the publication of the libel, is a proper element oí damages.</p> <p>13. Libel and slander, § 148*—when plaintiff’s family relations may he considered. In an action for libel, plaintiff’s family relations may be considered.</p> <p>14. Libel and slander, § 152*—when punitive damages may he awarded. In an action for libel, where the words of the libel are actionable per se, and where malice is proved, plaintiff is entitled to punitive damages without proof of actual damages, where such damages are inconsequential, for the reason that under such circumstances a proper foundation for punitive damages is laid without such proof.</p> <p>15. Libel and slander, § 148*—when circulation and wealth of defendant may he considered. In an action for libel, where the libel is published by a newspaper, the facts that the newspaper had a large circulation and was admittedly wealthy are properly considered.</p> <p>16. Appeal and error, § 1782*—what essential to reversal for excessive damages. A judgment will be set aside on the ground of excessive damages only where it appears that the excess was due to the prejudice and passion of the jury.</p> <p>17. New trial, § 77*—what essential on application on ground of newly-discovered evidence. On a motion for a new trial on the ground of newly-discovered evidence, the material point is whether the evidence in the affidavits filed in support of the motion could have been procured for use at the trial by the exercise of due diligence, and not merely whether such evidence in fact came to the knowledge of the party making the motion, after the trial.</p> <p>18. New trial, § 79*—when due diligence in procuring evidence not shown. On a motion for a new trial on the ground of newly-discovered evidence, where the sources from which such newly-discovered evidence were available to defendant equally before as after the trial, of which defendant makes no use until after the trial, defendant is guilty of such a want of due diligence as will prevent the court from granting the motion.</p> <p>19. New trial, § 79*—when court may consider facts alleged in application for continuance. On a motion for a new trial on the ground of newly-discovered evidence, where one of the principal affidavits is by the attorney for defendant, the trial judge, in weighing the probative force of the affidavits, is warranted in considering, the fact that before the trial a continuance was granted on the faith of an affidavit by the same attorney, alleging that certain named persons were necessary witnesses at the trial, and the further fact that none of the persons were in fact called as witnesses at the trial, and in concluding from the coincidence of the two facts that the affiant was oversanguine, and that at a new trial, if granted, the new evidence alleged might not have appeared.</p> <p>20. New trial, § 71*—when evidence in mitigation of damages not ground for. Where a trial resulting in a judgment is fairly had, a motion for a new trial will be granted only where the affidavits make a strong case, showing evidence not merely cumulative but controlling, and practically conclusive, as well as material to the issues, or where such evidence is practically, conclusive that nominal instead of substantial damages should have been recovered, as it is not enough to support such a motion that the newly-discovered evidence merely tends to mitigate damages.</p>

<p>1. Insurance, § 667*—when evidence is insufficient to show cause of death. In an action on an insurance policy, by which a doctor was insured against septic poisoning, where it appeared that such doctor died from inoculation of the crypts of the tonsils, causing staphylococcic and systematic septicemia, held that the plaintiff’s case failed for lack of evidence as to how the insured became infected with the germ which caused his death.</p> <p>2. Insurance, § 651*—what evidence is inadmissible to show cause of death. In an action on an insurance policy, by which a doctor was insured against septic poisoning, evidence as to what the insured stated as to how he came in ■ contact with the septic matter which caused his fatal illness was incompetent, did not form part of the res gestee, and was also without probative force, as the evidence showed that the insured had no actual knowledge as to the source of the fatal germ, or how it was acquired.</p>

<p>1. Cashiers, § 242*—what limitation of liability as to stock transported may be entered into. A shipper may fix the value of his stock less than the actual value thereof, in order to obtain the lower of two or more tariff rates, and in the event of loss in the value of stock in transit, through the negligence of the carrier, the shipper may recover from the carrier whatever loss he has sustained up to the limit of value first placed upon such stock at the time of shipment.</p> <p>2. Carriers, § 45*—what is effect of bill of lading. The parties to a contract in a bill of lading by which the carrier is to pay for any loss or damage, not exceeding $30, for each animal shipped are bound by it.</p>

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

<p>Abstract of the Decision.</p> <p>1. Partnership, § 386*—when partner may sue another partner. One partner cannot maintain an .action at law against his co-partner, either in an original suit or by way of set-off, upon any transaction relating to the partnership business, unless there has been a final accounting and settlement of all the partnership matters, a balance is struck and a promise to pay such balance.</p> <p>2. Partnership, § 404*—what will he presumed after dissolution. After a partnership has been dissolved it will be presumed that there was an adjustment of the accounts, and that all accounts were taken into consideration in arriving at the amount to be paid the retiring partner, and that the debt of the selling'partner was taken into account in fixing the sale price.</p> <p>3. Partnership, § 337*—who may interpret effect of releases on dissolution. Where a partnership is dissolved, the effect of releases of claims in evidence is a question for the court’s interpretation.</p> <p>4. Contracts, § 164*—when contract need not he construed. Where language of a contract is unequivocal, although the parties may have failed to express their real intention, there is no room for construction, and the legal effect of the agreement must be enforced.</p> <p>5. Partnership, § 337*—when release of partner not restricted. A final clause of a general release executed to partners on dissolution, stating that the property shall be the undisputed personal estate of each partner, does not restrict or detract from the instrument as a general release.</p>

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

<p>Abstract of the Decision.</p> <p>1. Municipal corporations, § 974*—when evidence sufficient to show that alley is public. In an action against a city to recover for death alleged to be due to obstructions negligently permitted to remain in an alley, where the declaration alleges the alley to be a public alley, and where there is uncontradicted evidence supporting the allegation, held that the fact alleged was sufficiently proved, where the point was not raised in the trial court, and where the case was there tried, without objection, on the theory that the alley was public, although no evidence was offered to show an acceptance or dedication of the alley.</p> <p>2. Negligence, § 196*—when proximate cause a question of fact. In an action to recover for death, although there may be two equally tenable theories as to what was the proximate cause of the accident causing the death sued for, one of which would excuse defendant, yet if there is evidence tending to show that defendant’s negligence is such proximate cause, the question as to proximate cause is a question of fact for the jury, and their verdict is final.</p> <p>3. Municipal corporations, § 1098*-—when evidence sufficient to show negligence in permitting obstruction of street. In an action against a city to recover for death due to a fall from a high load, which fall was caused by deceased’s striking steam pipes maintained across a public alley in which deceased was driving a team, evidence held to tend to show that the pipes were an obstruction, and that the city in permitting them to remain in the ■ alley was negligent.</p> <p>4. Negligence, § 156*—when due care may be shown by circumstantial evidence. In an action for death' caused by deceased’s being knocked off a high load by coming in contact with pipes which defendant negligently maintained in an alley where the accident occurred, where there was no direct evidence as to the care used by deceased other than that he was an ordinarily careful man, and a good horseman, held that the jury were warranted in finding deceased not guilty "of contributory negligence, although it appeared that at the time of the accident, deceased must have been standing on top of the load, which was loosely built up on a lumber wagon and not bound on with a chain or other device, for the reason that due care on the part of deceased may be shown as well by circumstances as by direct testimony, and may be inferred from deceased’s habits, and what are known to be the instincts of self-preservation in persons possessed of their natural faculties and are ordinarily sober and careful of their safety.</p> <p>5. Appeal and error, § 1622*—when error in admitting evidence cured. The verdict of a coroner’s jury being competent evidence, its admission was not error although a portion of it may be prejudicial to defendant, where the court, at the request of defendant, instructed the jury to disregard such prejudicial portion and not to consider it in making their verdict.</p> <p>6. Appeal and error, § 1466*—when admission of evidence harmless. In an action to recover for death due to a fall from a high load, the admission of testimony of a witness who did not see the accident, but testified as to the conduct of the deceased prior to it and to what happened immediately after, as tending to show that deceased’s fall was caused by being struck by pipes maintained by defendant across the alley where the accident occurred, held not prejudicial error.</p> <p>7. Appeal and error, § 1466*—when admission of evidence as to experiments harmless. In an action to recover for death due to a fall from a high load, the admission of testimony of a witness who did not see the accident, as to experiments made by him after the accident, as to whether one standing on a load similar to that on which deceased was standing at the time of the accident, and which tended to confirm the theory of the plaintiff that the accident was caused by deceased’s being struck by the pipes, held not prejudicial error.</p>

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

<p>Abstract of the Decision.</p> <p>1. Depositions, § 9*—when court may limit scope of interrogatories. Where interrogatories.required answers not only as to the times and places of interviews between representatives of plaintiff and defendant, but also all that was said thereat, a ruling of a justice of the Municipal Court of Chicago that only the questions as to the times and places of such interviews need be answered, held, not an abuse of discretion under section 32 of the Municipal Court Act (J. & A. H 3344), providing that such justice “may permit the filing * * * of interrogatories * * * and * * * require an answer under oath” thereto, where at the trial plaintiff’s representative testified fully, as far as material, as to what was said at such times and places, so that defendant was not prejudiced by such ruling.</p> <p>2. Production of books and papers, § 10*—when subpoena duces tecum unnecessary. Letters and statements sent to one in his official capacity as purchasing agent of a corporation are not letters to a third person, requiring a subpoena duces tecum to such third person to compel the production of such writings at the trial, but are in effect letters to the corporation, and if on proper notice the originals are not produced, held not error to permit plaintiff to introduce copies in evidence.</p> <p>3. Contracts, § 377*—when evidence of transactions before execution admissible. In an action to recover on a written contract for repairing and repainting defendant’s wagons, held not error to admit in evidence written orders for such painting and repairing, “as per contract,” sent by defendant to plaintiff prior to defendant’s formal written acceptance of the contract, it appearing that such orders were sent to plaintiff as under the contract, and afterwards executed by it thereunder, for the reason that the fact that parties treated the contract as being in force prior to such acceptance by defendant does not cause the application of the rule that negotiations leading up to a contract are merged therein.</p> <p>4. Contracts, § 177*—how construed. In an action to recover on an ambiguous written contract, where the construction contended for by plaintiff was that defendant was bound to have each of its wagons repainted by plaintiff at least once a year during the term, at a price stipulated in the contract, contract construed and held to show an intention that each vehicle named should undergo a general overhauling and repainting by plaintiff each year during the life of the contract, such intention being inferred from the use of the words “throughout the year” and “one year” used in the contract.</p> <p>5. Evidence, § 351*—when parol evidence admissible to aid in construction of written contract. "In an action on an ambiguous written contract, held not error to admit evidence of correspondence and conversations between representatives of the parties, either occurring at the time the contract was made, or during its performance, for the reason that such evidence, if it tends to show what construction the parties themselves placed thereon, is always admissible in aid of its construction, the rule being that where it appears that parties have given to the instrument a particular construction by acting upon it in a particular way, the court will usually adopt such construction.</p> <p>6. Witnesses, § 194*—when use of memorandum allowed. In an action to recover on a written contract, held not error to allow a witness to refresh his recollection by consulting a memorandum.</p> <p>7. Witnesses, § 185*—when answer not responsive. Where a witness is called to testify as to market prices for painting a certain sort of wagons, held not error to strike out his testimony where it appears that his testimony is of the prices which he charged in his own business for such work, and not of the market price.</p> <p>8. Interest, § 19*—when improper to allow. In an action to recover on a written contract for repairing and repainting wagons, a judgment of $2,431.10 for plaintiff, which included interest on all items for which plaintiff recovered, held excessive to the extent of $331.17, for the reason that interest to that extent was improperly allowed, plaintiff’s damages, except as to one item which was admitted, being not sufficiently certain to enable defendant to know, prior to verdict, what it owed, and hence the statute as to interest was inapplicable.</p>

<p>Abstract of the Decision.</p> <p>1. Damages, § 56*—what measure for breach of contract. In an action to recover for failure to purchase and accept deliveries of beer under a written contract, where the contract showed that the beer was to be manufactured and delivered after the date of the contract, held that the measure of plaintiff’s damages was the difference between the cost per barrel of manufacture and the contract price.</p> <p>2. Witnesses, § 21*—when witness qualified. In an action where the measure of damages was the difference between the cost per barrel of manufacturing certain beer and the contract price therefor, and where plaintiff corporation’s president testified from personal knowledge as to such cost, a motion to strike out such testimony held not erroneously denied, although witness had refreshed his memory as to the figures to which he testified by looking at the books of plaintiff corporation, which he knew to be correct, for the reason that the objection to the testimony went to the source and extent of witness’ knowledge, and was not put on the ground that the books were the best evidence.</p> <p>3. Contracts, § 384*—what evidence insufficient to show excuse for breach of contract. In an action to recover for the refusal to purchase and accept deliveries of beer under a written contract, evidence held insufficient to show that the beer was of unmerchantable quality, it appearing from the evidence that defendant’s reason for refusing performance of the contract was that he had sold out his saloon, and it also appearing from defendant’s testimony that he was satisfied with the beer both as to price and quality.</p>

<p>1. Carriers, § 139*—when evidence sufficient in action for loss. In an action to recover for loss of goods which defendant contracted to transport for plaintiff for hire, but which it never delivered, where the horses and truck used to transport the goods in question were not owned by defendant, but hired by it from another, held that the evidence, though conflicting, was sufficient to support a verdiet and judgment for plaintiff, in that such evidence sufficiently-showed that the teamster who drove the team in question was employed by the defendant.</p> <p>2. Instructions, § 115*—when refusal of instruction as to issue not involved proper. In an action to recover the value of goods which defendant contracted to transport for plaintiff, but never delivered, where the court instructed the jury, in substance, that one who contracts to transport goods for hire is liable for the safe carriage of the goods, though he hired the horses and wagon by which such goods were transported, held not prejudicial error to refuse to give an additional instruction, which was substantially that the test of the employment of a servant Was the right of the master to discharge, pay or control the servant, the trial court giving as a reason for his refusal to give the instruction that the question involved in the instruction requested was not in issue.</p> <p>3. Carriers, § 138*-—when evidence as to value of lost goods admissible. In an action to recover the value of goods which defendant contracted to transport for plaintiff, but never delivered, held not error to deny a motion to strike out testimony as to the market value of a portion of the goods in question.</p> <p>4. Pleading, § 259*—when amendmient changing cause of action allowed. In a first-class action under paragraph 1, sec. 2, of the Municipal Court Act (J. & A. 3314), to recover for property lost in transportation, where the record shows leave granted to amend the form of the action by changing it from an action on the case to one of assumpsit and where the amendment for which leave was granted was actually filed, held that the court had jurisdiction to enter a judgment on a verdict against defendant on its implied contract to transport the property safely.</p> <p>5. Pleading, § 250*—when amendment at close of case allowed. An amendment in a civil action by changing the form of the action from tort to assumpsit after both sides had rested and before verdict, held properly allowed under section 30 of the Practice Act (J. & A. If 8576), providing that such amendments may be allowed in a civil action at any time before verdict.</p> <p>6. Pleading, § 271*—when defendant to plead to amended declaration. Where the court grants leave to plaintiff to amend by changing the form of action from case to assumpsit, and requires defendant to plead instanter thereto, defendant is not required to plead before the amendment allowed is actually filed.</p> <p>7. Appeal and error, § 1677*—when failure to file amendment waived. Where a defendant is required by the court to plead instanter to an amendment which plaintiff has leave to file, and does so plead before such amendment is actually filed, he thereby precludes himself from invoking, the rule that under such circumstances the Appellate Court on review cannot regard such an amendment as having been actually filed.</p>

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

<p>Abstract of the Decision.</p> <p>1. Divorce, § 15*—what constitutes impotency. Under Rev. St. ch. 40, sec. 1 (J. & A. H 4215), providing that it shall be a cause for divorce if either party to a marriage shall be at the time thereof and shall continue to be “naturally impotent,” “naturally” means “incurably,” and “naturally impotent,” as used in the statute, means impotent or incapable in the matter of performing coition with the other sex as nature prompts, and incurably so.</p> <p>2. Divorce, § 50*—when burden of proving impotency on complainant. In a bill for divorce on the ground of impotency, the burden is on complainant to prove the existence of the defect at the time of marriage, and that it is incurable.</p> <p>3. Divorce, § 15*—when impotency ground. In a bill by a wife for divorce, wherein it is alleged that the husband is impotent by reason of masturbation, such action is maintainable on the ground of impotency where it appears that the husband will not so control himself as to make it possible to determine whether his disorder is curable.</p> <p>4. Divorce, § 45*—when evidence sufficient to support decree. In a bill for divorce on the ground of impotency due to masturbation, rendering defendant incapable of the act of coition, where the evidence as to such impotency was conflicting, evidence held, sufficient to support a decree in favor of complainant for an absolute divorce, for the reason that the decree was not manifestly against the weight of the evidence.</p> <p>5. Divorce, § 43*—when admission as to impotency admissible. In a bill for divorce on the ground of impotency, an admission of defendant of the fact of impotency may be admitted as evidence of such fact if the court is satisfied that it was made in sincerity and without fraud or collusion.</p> <p>6. Trial, § 68*—when offer of defendant for examination by court’s experts properly refused. Where in a bill for divorce on the ground of impotency, and after both parties had rested, defendant offered himself for medical examination by competent and disinterested physicians to be appointed by the court, as to the fact of his impotency, held on all the evidence not reversible error to refuse to follow the suggestion.</p> <p>7. Divorce, § 16*—-when delay in suing not defense. The fact that a bill for divorce on the ground of impotency existing at the time of the marriage was not filed until eight years after marriage is not of itself sufficient to preclude complainant from obtaining a divorce, but merely a fart to be considered by the court in connection with all the other evidence.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John K. Pbindiville, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 454*—when signature that of corporation. An indorsement of commercial paper in the name of a corporation by its president is prima facie the signature of the corporation.</p> <p>2. Bills and notes, § 249*—when holder charged with notice that indorser is corporation. Where commercial paper when presented for discount bears an indorsement which prima facie is the signature of a corporation, the indorsee for discount is charged with notice that the indorser is a corporation.</p> <p>3. Bills and notes, § 249*—when holder charged xoith notice of accommodation indorsement. Where commercial paper, both when presented for discount and when discounted, is in the possession of the maker or payee, the indorser fpr discount is charged with notice that an indorsement not appearing thereon when presented for discount but appearing when discounted “was for accommodation only, especially where there is evidence that such indorsement was procured for the express purpose of inducing the acceptance of such paper for discount.</p> <p>4. Corporations, § 457*—when holder of note on which corporation accommodation indorser charged with notice. A hank accepting for discount commercial paper bearing the indorsement of a commercial corporation, under circumstances charging such discounting bank with notice that such indorsement was for accommodation merely, is also charged with notice that such indorsement of such corporation is ultra vires as being an act not within the scope of the ordinary business of such corporation.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding.</p>