Volume 195 — Illinois Appellate Court Reports

<p>Abstract of the Decision.</p> <p>1. Contracts, § 384*—when evidence sufficient to show agreement for rescission. In an action on a contract whereby plaintiff purchased certain jewelry from defendant, on an alleged agreement whereby plaintiff might rescind within a year and receive back the purchase price less ten per cent., evidence held sufficient to sustain a judgment for plaintiff.</p> <p>2. Contracts, § 298*—when tender of performance not necessary. Where a party to a contract refuses to make performance thereof, formal tender of such performance by the other party is unnecessary.</p> <p>3. Motions, § 9*—when order impounding property in suit sufficient. In an action on a contract whereby plaintiff purchased of defendant certain earrings, giving in payment certain other earrings, with a condition that plaintiff might rescind and receive back the purchase price under certain conditions, and where the court had ordered the earrings impounded, held that failure of the court to provide in such order that such earrings be delivered to defendant on satisfaction of the judgment for plaintiff was not erroneous, for the reason that such an order was not essential to the court’s power to release the goods in its custody on affirmance of its judgment.</p>

<p>Appeal from the Superior Court of Cook County; the Hon. Mazzini Slusser, Judge, presiding.</p>

<p>1. Contracts, § 389*—when construction a question for jury. The question of the construction of a written contract is a question of law.</p> <p>2. Certiorari, § 54*—what effect of denial of writ. Denial of the Supreme Court of a writ of certiorari to review a judgment of the Appellate Court may in a particular case be regarded as an affirmance of the views expressed by the Appellate Court in the case sought to be reviewed.</p> <p>3. Appeal and error, § 528*—where writ of error presents no question for review. Where questions of law which govern a case are not raised either by objections to rulings on evidence or on some motion, and no propositions of law are submitted to the trial court, an appeal or writ of error will present no questions for review.</p> <p>4. New trial, § 124*—when assignment of error on denial of motion insufficient. Assignments of error based on the denial of a motion for a new trial in a case tried by the court without a jury, or on the denial of a motion in arrest of judgment, where the record shows no ground for such motion, are not well taken and a writ of error based thereon will present no questions for review.</p> <p>5. Appeal and error, § 1040*—when assignment of error not sufficient. Assignments of error which do not point out the particular errors on which the assignments are predicated, which errors are not apparent from the record, are not well taken, and a writ of error based thereon presents no question for review.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 301*—when extension of time for performance Should he granted. A contract whereby plaintiff agreed to construct a chimney for defendant in “about fifty working days,” and which expressly provides that delivery within the time named is contingent upon causes of delay beyond the control of plaintiff, entitles plaintiff to a reasonable extension of such period depending upon causes which may excuse such delay, and such contract does not limit plaintiff to exactly fifty days in which it must complete such construction.</p> <p>2. Contracts, § 322*—what not equivalent to breach. Where a contract provided that plaintiff should construct a chimney for defendant “in about fifty working days,” and also expressly provided that the time named shall be contingent upon causes of delay beyond the control of plaintiff, and where plaintiff refuses to agree to complete the construction within a named time at the request of defendant, such refusal does not amount to a renunciation or abandonment of the contract by plaintiff, for the reason that plaintiff had a right to anticipate that the character of the work and the season of the year, which was winter, may cause delays which are excusable under the provisions of the contract and which may prevent the completion of construction within such named time.</p> <p>3. Contracts, § 319*—when breach does not arise before time for performance. In an action to recover on a contract whereby plaintiff agreed to construct a chimney for defendant in “about fifty working days,” and where defendant sought to cancel the contract claiming breach by plaintiff, the question whether evidence that a special meaning of the term “working days” obtained in the construction trade was competent as bearing on the question of a breach is immaterial where it appears by applying defendant’s construction of the words to the facts in the case that no breach had taken place when defendant canceled the contract.</p> <p>4. Appeal and error, §1392*—when refusal of peremptory instruction not error. In an action to recover on a contract whereby plaintiff agreed to construct a chimney for defendant in “about fifty working days,” where the facts proved did not amount as a matter of law to a renunciation of the contract by plaintiff, peremptory instruction for defendant held erroneous.</p>

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

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

<p>Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding.</p>

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

<p>Error to the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>Brokers, § 71*—what is not defense to action for compensation. In a suit for broker’s commissions, the fact that the broker recorded or caused to be recorded the written contract for the exchange of property, without authority from either the buyer or seller so to do, would not alone bar the broker’s right to recover if he was otherwise entitled thereto.</p>

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

<p>1. Licenses, § 10*—what is effect of license under ordinance licensing vehicles. Section 2597 of the Chicago Code of 1911, requiring licensed vehicles to have a card stating the name of the owner and number of the licénse, and also the rates of fare and regulations as to baggage, applies only to persons who not only take out a license under article II, but who thereafter engage in the business covered by the license.</p> <p>2. Licenses, § 1*—what is license. A license is a permission or privilege granted by the State, directly or indirectly through the medium of a municipality, to perform certain acts or to carry on a certain business which, if done without such license, would be illegal.</p> <p>3. Licenses, § 1*—what is nature of license. A license of an automobile for carrying persons for hire does not create any contract between the city and the licensee, and the acceptance of the same does not impose any obligation upon the licensee to follow the business covered by the license.</p> <p>4. Municipal corporations, § 864*—when presumption does not arise in suit for violation of ordinance licensing vehicles. In a prosecution for failing to display a rate card, where the defendant is licensed to operate automobiles for hire, there is no presumption of law that the defendant actually engaged in the business covered by the license from the mere fact that he had taken out such license.</p> <p>5. Municipal corporations, § 860*—what is nature of suit for violation of ordinance. An action against a person licensed to operate automobiles for hire, for the failure to display a rate card is penal in its nature, though a civil suit, and the city is bound to prove clearly that the defendant has violated the ordinance in question.</p> <p>6. Municipal corporations, § 864*—what evidence is competent in suit for violating ordinance. In a prosecution of a person licensed to operate automobiles for hire, because of the violation of a regulation requiring rate cards to be posted, evidence that the defendant was not engaged in the business covered by the license was competent and should have been admitted.</p>

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

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

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

<p>Abstract of the Decision.</p> <p>1. Criminal law, § 245*—what may he considered in determining criminal intent. In determining the question of criminal intent, the jury are not hound to accept the testimony of the defendant in reference thereto, but they may consider all the facts and circumstances connected with the case.</p> <p>2. Criminal law, § 520*—when verdict will not he set aside. On appeal in a criminal case, where it appears that a prima facie case was established against the defendant, and there were no errors of law, the verdict of the jury will not be set aside unless from all the evidence there is a reasonable doubt of the defendant’s guilt.</p> <p>3. False pretenses, § 39*—when verdict of guilty will he set aside. Evidence held to show that a verdict of guilty of obtaining money by means of false representations as to assets or liabilities made to obtain credit was justified.</p> <p>on rehearing.</p> <p>1. Criminal law, § 491*—when question may he first raised on petition for rehearing. In a criminal case, the objection that the information on which defendant was convicted is fatally defective may be raised for the first time on a petition for rehearing.</p> <p>2. Indictment and information, § 22*—when sufficient. An indictment or information is sufficient if the defendant is notified thereby of the charge which he is to meet, so that he may make his defense, and if convicted or acquitted thereof may be able to plead former jeopardy to another charge for the same offense.</p> <p>3. Indictment and information, § 41*—when use of language of statute not essential. In an indictment or information it is not necessary to use the very words of the statute creating the offense, but it is sufficient to use words conveying the same meaning, or which are equivalent to the words of the statute, or words which in their signification are inclusive of the statutory words, or which in common acceptation are of the same or similar import, or which substantially follow the statutory words and state them with substantial accuracy within a reasonable intendment.</p> <p>4. Indictment and information, § 23*—when implied allegation sufficient. Whatever is included in or necessarily implied from an express allegation need not be otherwise averred.</p> <p>5. Indictment and information, § 30*—when mode of commission of offense sufficiently described. An information averring that defendant by means of false representations “fraudulently obtained * * * credit and divers sums of money, to wit: Eleven Hundred ($1,100.00) Dollars from the Michigan Avenue Trust Company,” held not fatally defective in that such averment did not sufficiently enable defendant to understand the nature of the charge made against him, such averment being in legal effect equivalent to a direct charge that such trust company was defrauded by means of such representations.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1396*—when verdict will not be set aside on appeal. A verdict based on conflicting evidence will not be set aside on appeal unless clearly and manifestly against the weight of the evidence.</p> <p>2. Negligence, § 189*—when question of contributory negligence is for court. The question as to whether or not a person is guilty of contributory negligence is generally one of fact for the jury, and it only becomes a question of law when the evidence so clearly fails to establish due care that all reasonable minds would reach the conclusion that the person was guilty of contributory negligence.</p> <p>3. Municipal corporations, § 1100*—when instruction sufficient though incomplete. In an action for injuries caused by the defective condition of a sidewalk, an instruction allowing the jury to consider the condition of such sidewalk, and ignoring the question of notice to the city of such condition, is not erroneous when the question of notice is fully covered by other instructions given.</p> <p>4. Appeal and error, § 438*—when question of variance will not be considered on appeal. The question of alleged variance between the allegations and proof cannot be raised for the first time on appeal.</p>

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

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

<p>Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.</p>

<p>1. Municipal Court of Chicago, g 13*—what is nature of affidavit of merits. An affidavit of merits is analogous to a statutory notice of defense under the general issue.</p> <p>2. Municipal corporations, g 1233*—what declaration for personal injuries must aver. Under Hurd’s Rev. Stat. 1912, p. 1290, Sec. 2 (J. & A. ¶ 6190), as to notice to a city of an accident resulting in personal injuries, a declaration which fails to aver such notice states no cause of action. '</p> <p>3. Municipal corporations, g 1224*—what is effect of pleading as to waiving notice of injuries. A city cannot waive the statutory requirement as to notice of an accident resulting in personal injuries (Hurd’s Rev. Stat. 1912, p. 1290, sec. 2, J. & A. ¶ 6190) and no pleading filed by it can have the effect of a waiver or an admission of such notice on the part of the city.</p> <p>4. Municipal corporations, g 1233*—what is effect of doctrine of “express aider” as to pleading notice of injury. In an action against a city for damages for personal injuries, where the statement of claim failed to aver statutory notice of the accident (Hurd’s Rev. Stat. 1912, p. 1290, sec. 2, J. & A. ¶ 6190), and the city filed an affidavit of merits more than a year after the accident stating, in addition to denials, that the city was not notified of the accident as required by statute, held that the doctrine of express aider could not be applied to cure the defect of the statement of claim.</p>

<p>1. Pledges, § 42*—when refusal to return pledged property is conversion. Where a defendant refuses to surrender pledged property upon proper demand and a proper tender of the amount due, there is a wrongful act amounting to a conversion, and a statement of claim alleging such facts states, in substance, a cause of action in trover.</p> <p>2. Municipal Court of Chicago, § 13*—what are essentials of statement of claim. It is immaterial what name a plaintiff in the Municipal Court may give to his action, and if the statement of claim shows a cause of action in tort, it will be treated as such.</p> <p>3. Pawnbrokers and secondhand dealers, § 3*—when pawn tickets ore prima fade evidence. In a suit to recover the value of pledged property which the pledgee refused to surrender, where the pawn tickets recited that the pledged property was to be delivered to any person presenting the tickets, the production of such tickets was prima facie evidence of the plaintiff’s title, and when the plaintiff testified that he was the owner of the pledged property it was immaterial whetherr the pawn tickets were negotiable.</p> <p>4. Pledges, § 22*—when effect of tender cannot be avoided. Where a pledgor of property offered to pay the amount of money loaned with interest, and the pledgee refused such amount on the ground that interest for another month was due, such pledgee could not subsequently avoid the effect of the pledgor’s tender on the ground that one day’s interest should have been included, and the tender was therefore insufficient.</p> <p>5. Pledges, § 22*—what is effect of tender. Where a pledgor of property tendered the amount due to redeem the pledge and demanded the property, the pledgee’s lien upon such property was extinguished and its retention of the same thereafter was unauthorized and unlawful, amounting to a conversion, and such result was not affected by the pledgor’s failure to keep his tender good.</p> <p>6. Pawnbrokers and secondhand dealers, § 3*—what is effect of restriction of liability printed on pawn ticket, A provision of a contract printed on a pawn ticket, limiting the pledgee’s liability for loss or damage to twenty-five per cent, more than the loan, does not apply to a case of conversion, but to loss occurring from negligence or accident.</p>

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

<p>1. Appeal and error, § 38*—what is extent of Appellate jurisdiction of Appellate Court. Under section 8 of the Appellate Court Act (J. & A. ¶ 2968) and section 91 of the Practice Act (J. & A. ¶ 8628) the jurisdiction of the Appellate Court in matters of appeal is confined to appeals from final judgments, orders or decrees entered “in any suit or proceeding at law or in chancery.”</p> <p>2. Courts, § 101*—how jurisdiction of Superior Court is conferred. The authority of the Superior Court to hear and determine questions" under the Workmen’s Compensation Act of 1911 (J. & A. ff 5459) was conferred by section 10 of such Act.</p> <p>3. Workmen’s Compensation Act, § 12*—what is nature of proceeding in Superior Court. A proceeding in the Superior Court as to the application of the Workmen’s Compensation Act, under section 10 of the Act of 1911 (J, & A. 115459), is sui generis—a creature of the statute—a summary proceeding in which facts and questions are “investigated” in any manner that may seem to be “reasonably necessary.” ®</p> <p>4. Workmen’s Compensation Act, § 12*—what is nature of suit for compensation. A proceeding in the Superior Court under section 10 of the Workmen’s Compensation Act of 1911 (J. & A. If 5459) is not a suit conducted in accordance with either the forms and modes of procedure of either a suit at law or in chancery, does not involve any personal or property right that can be enforced at law or in equity and is not brought for the recovery of damages occasioned "by the infringement of a right.</p> <p>5. Appeal and error, § 316a*—when Appellate Court is without jurisdiction to entertain appeal. The Appellate Court is without jurisdiction to entertain an appeal from the Superior Court where a decision is entered under section 10 of the Workmen’s Compensation Act of 1911 (J. & A. If 5459) allowing a certain sum to be paid for injuries.</p>

<p>Abstract of the Decision.</p> <p>1. Sales, § 398*—what not recoverable in action for breach of warranty. In a suit for damages for breach of warranty in the sale of an automobile, evidence that the defendant failed to overhaul the car without expense as agreed was incompetent, since there was no averment in the statement of claim of liability for failure to make repairs without cost and the plaintiff did not amend his pleading.</p> <p>2. Municipal Court op Chicago, § 13*—what is extent of abolition of formalities in pleading. While the formalities of pleading have been abolished by statute, it is still the law in the Municipal Court that a party is. limited in his evidence to the claim he has made.</p> <p>3. Sales, § 400*—what evidence not admissible in suit for breach of warranty. In a suit for damages for breach of warranty in the sale of an automobile, where the only warranty proved was that the car was guaranteed for life against' any defect in manufacture or workmanship, evidence that the automobile was defective in design and plan of construction, and that the life of an ordinary automobile was at least two years, was incompetent.</p> <p>4. Sales, § 236*—what not warranty. Where an automobile which was sold was warranted against defects in manufacture, an agreement by the seller to overhaul the ear without cost after a trip was not part of the warranty but a special agreement.</p> <p>5. Sales, § 263*—what is extent of warranty where automobile is sold. Where an automobile is warranted against any defect in “manufacture and workmanship,” the word “manufacture” evidently refers to the process of converting the raw materials into finished parts for use in the automobile, and the word “workmanship” evidently refers to the character of the work done by workmen in the factory.</p> <p>6. Sales, § 400*—what evidence proper in suit for breach of warranty. In an action for damages for breach of warranty in the sale of an automobile, warranted against defects in manufacture and workmanship, evidence tending to prove that noise in the engine and other parts was due to improper fitting of the several parts was improperly excluded.</p> <p>7. Sales, § 401*—token question for jury arises in suit for breach of warranty. In an action for damages for breach of warranty in the sale of an automobile, warranted against defects in manufacture, evidence tending to prove that the tires were defective warranted a submission to the jury of such question.</p> <p>8. Parties, § 31*—what does not constitute change of parties. Where a suit was brought against “Renault Freres Selling Branch” and it appeared that there were two corporations of the same name, and the plaintiff filed an amended statement of claim adding the words, “Á New York corporation,” and procured another writ which was served upon the agent of the foreign corporation, there was no change of parties, but merely a wrong service in the first place, and the amendment did not change the name of the defendant or substitute a different defendant.</p>

<p>1. Appeal and error, § 199*—what is extent of jurisdiction of Appellate Court. The Appellate Court has no authority to declare any act of the Legislature unconstitutional and void.</p> <p>2. Appeal and error, § 624*—what cause not transferable. An appeal from a judgment entered in a fourth-class case in the Municipal Court cannot be transferred to the Supreme Court.</p> <p>3. Appeal and error, § 2*—what is nature of right of appeal. The right of appeal is strictly statutory and can only be prosecuted when and in the manner authorized by statute.</p> <p>4. Appeal and error, § 6*—what is nature of writ of error. A writ of error is regarded, as a writ of right, requiring no statutory authorization to maize it available.</p> <p>5. Appeal and error, § 38*—what is purpose of statute giving Appellate Court jurisdiction. The main purpose of section 8 of the Appellate Court Act (J. & A. If 2968) was to give to the Appellate Courts jurisdiction over a certain class of cases of which the Supreme Court, prior to 1877, had jurisdiction, and it was not intended to confer any right of appeal in any case where that right did not already exist.</p> <p>6. Appeal and error, § 38*—what statutes referred to appeals when Appellate Court was given jurisdiction. At the time of the passage of the Appellate Court Act, the only “then existing law” that conferred any right of appeal was section 67 of the Practice Act of 1872, now section 91 of the Practice Act (J. & A. If 8628).</p> <p>7. Municipal Court of Chicago, § 10*—what is nature of practice. The jurisdiction and practice of the Municipal Court are essentially different from the jurisdiction and practice of city courts.</p> <p>8. Appeal and error,'§ 38*—what is effect of statute as to appeals to Appellate Court. - The clause in section 8 of the Appellate Court Act (J. & A. If 2968), authorizing appeals to the Appellate Court from the judgments of city courts, was not intended to refer to any city court thereafter created unléss such court when organized should be substantially of the same class or grade as the city courts then in existence.</p> <p>9. Municipal Court of Chicago, §22*—when appeal does not lie. Neither section 8 of the Appellate Court Act (J. & A. If 2968) nor any other statute gives any right of appeal to the Appellate Court from the judgments of the Municipal Court in fourth-class eases.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Insurance, § 745*—when by-laws part of contract. In an action to recover on a policy of insurance on the life of one who died from an overdose of morphine self-administered, where the policy makes the by-laws and application a part of the contract, it is not only necessary that the beneficiary show that the death was “accidental,” as provided by the terms of the policy, but also that it fell within the provision of the by-laws limiting the insurer’s liability to death caused by “external, violent or accidental means,” and not within the exceptions in the by-laws and application relieving the insurer from liability, where death was caused by the “intentional or unintentional taking of poison,” or while deceased was under the influence of any narcotic.</p> <p>2. Insurance, § 419*—what agency of accidental death. A death which is the result of an accident, or is unnatural implies an external and violent agency as its cause.</p> <p>3. Insurance, § 419*—what constitutes accidental death. An accidental death is one which is undesigned or unintended, the word “accidental” being, in such connection, the antithesis of “intentional.”</p> <p>4. Insurance, § 419*—when death accidental. In an action to recover on a policy of insurance which provided for the payment of an indemnity upon the “accidental death” of insured, where the evidence shows that insured died from an overdose of morphine self-administered, that morphine in small quantities is not poisonous but only when taken in excess, and that his taking of the overdose was unintentional, held that the death was “accidental.”</p> <p>5. Insurance, § 419*—when death by poison is by accidental means. Where a certificate of insurance provided for payment of a prescribed indemnity in case of death caused by “external, violent and accidental means,” held that a death due to an overdose of morphine, taken by insured without intent to cause death thereby, was within the meaning of the words quoted.</p> <p>6. Insurance, § 419*—when evidence sufficient to show accidental death. Evidence in an action to recover on an insurance policy on the life of one who died from an overdose of morphine self-administered, examined and held to show that deceased did not intentionally take a poisonous amount, but either acted in ignorance of the effects of morphine in general, or because he did not know that such an amount would affect him injuriously.</p> <p>7. Insurance, § 419*—when death by morphine defeats recovery. In an action to recover on a certificate of insurance, where it was stipulated that insured’s death was due to “an overdose of morphine," and where it appeared that morphine was a narcotic, an overdose of which was poisonous, and that at the time of death insured was under the influence thereof, held that such stipulation precluded plaintiff from recovering, it appearing that the application for such insurance, signed by plaintiff, expressly excepted, as grounds of liability of defendant thereunder, such injuries as insured might receive “while under the influence of * * * narcotics, or in consequence thereof, * * * nor from intentional or unintentional taking of poison,” such stipulation being necessarily construed as an admission that insured’s death was due to a poisonous dose of morphine.</p>

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

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

<p>1. Street railroads, § 64*—what constitutes negligence at crossing. To drive an electric car at a speed which makes it impossible to stop within less than twenty-five feet, directly alongside and past another car which is standing at a public street crossing unloading passengers is negligence, since under such circumstances a motorman should proceed slowly and cautiously and have his car under such control that it could be stopped at once.</p> <p>2. Street railroads, § 64*—what may be relied on in operation of car at crossing. In passing behind a street car standing on one of two parallel tracks, the view of the car approaching from the opposite direction on the other track is obstructed by the standing car until the distance from a place of safety to one of danger is but a step or two, and in such case the pedestrian or passenger has a right to rely upon his sense of hearing as well as of sight and to expect the approaching car to give warning of its approach, and to observe city ordinances as to speed.</p> <p>3. Appeal and error, § 1411*—when Appellate Court not justified in disturbing verdict of jury. Where there is sufficient evidence upon an issue of fact to warrant its submission to the jury, the Appellate Court is not justified in disturbing the verdict of the jury upon that issue unless such verdict is clearly and manifestly against the weight of the evidence.</p> <p>4. Appeal and error, § 1411*—what is duty of court on appeal as to verdict. Where it is assigned that a verdict is against the weight of the evidence, it is the duty of the Appellate Court to examine and weigh the evidence, but that duty does not permit the court to substitute its judgment for that of the jury on a pure question of fact, unless the conclusion of the jury is palpably wrong.</p> <p>5. Appeal and ebbob, § 1411*—when verdict will not be disturbed on appeal. Verdict as to negligence of street railway or as to contributory negligence of person struck by car while passing behind another standing car, held not manifestly against the weight of evidence.</p> <p>6. Instbuctions, § 89—when instruction as to number of witnesses not erroneous. An instruction, stating that “the fact that the number of witnesses testifying on one side is larger than the number testifying on the other side does not necessarily alone determine the preponderance of the evidence is on the side for which the larger number testified,” and also stating the matters which the jury might take into consideration in determining the preponderance of the evidence, without again referring to the number of witnesses, is not prejudicially erroneous, under the facts of this case.</p>

<p>1. Carriers, § 102*—when carrier liable for delay. A carrier is liable for delay in the shipment of merchandise, even though increased traffic causes such delay, and the shipper knows of the increased traffic, where such carrier continues to receive shipments without giving notice that they would be accepted subject to delay.</p> <p>2. Carriers, § 102*—that is duty of carrier when delay may be anticipated. A carrier has no right to accept shipments which the law presumes will be delivered within a reasonable time unless otherwise stipulated, when it knows or by the exercise of reasonable care should know that delay is inevitable.</p> <p>3. Carriers, § 106*—that mil be presumed in action for delay in shipment. It will be presumed that a carrier by the exercise of reasonable care should have had knowledge of a congested condition of traffic in shipments of hay, when similar conditions existed during several years prior thereto.</p> <p>4. Carriers, § 100*—that is not excuse for delay in shipment. Where a bill of lading provided for storage of property shipped if not removed by the consignee within a certain period, a contention of the carrier in a suit by the consignee for delay, that such delay was caused by the congested condition of the terminal tracks due to the failure of consignee to remove the goods which arrived, would not excuse the carrier’s delay.</p> <p>5. Carriers, § 110*—what is measure of damages for delay' at common law. At common law the measure of damages in case of a delayed shipment is the difference between the market value of the goods at the time and place they should have been delivered and the value at the time and place of actual delivery.</p> <p>6. Carriers, § 108*—when evidence as to damages for delay insufficient. In an action for delay in a shipment of hay by a carrier, where the plaintiff introduced evidence as to the value of such hay at the time and place of shipment, but gave no evidence as to the value at the time and place it should have been delivered, there was no evidence from which the jury could arrive at the proper measure of damages, and an instruction as to the measure of damages was erroneous.</p>

<p>1. Master and servant, § 836*—when servant not independent contractor. Under a contract whereby a city had the right to inspect and approve not only the material and labor but also the tools, appliances and methods used by a contractor, the foremen! of the contractor were compelled to obey the orders o'f the city engineer, the city had the right to dismiss employees who did not obey instructions as to carrying out the contract, and the city reserved the right to make alterations in the plans, the contractors were not independent contractors but servants of the city within the rule as to the doctrine of respondeat superior.</p> <p>2. Master and servant, § 836*—what is immaterial in determining whether person is independent contractor. Under a contract whereby a contractor was a servant of a city, since the city retained the control and supervision of the work, it was immaterial that such control was not actually exercised.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 170*—what constitutes rendition. The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and verdict.</p> <p>2. Judgment, § 232*—what constitutes entry. The entry of a judgment is a ministerial act which consists in spreading it upon the record or writing it at large in a docket or other official book.</p> <p>3. Municipal Court of Chicago, § 19*—how judgment evidenced. A judgment of the Municipal Court of Chicago is evidenced not by an order, as entered on half sheets, but by the order as spread out on the record by the clerk.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 1ST*—when minor children entitled to recover under Dramshop Act. Minor 'children are entitled to recover damages for injuries to their means of support by reason of the intoxication of their father under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), although the mother is able to support them, as the act is intended to protect the family of a drunkard against immediate or probable want of support.</p> <p>2. Intoxicating liquors, § 208*—what evidence not admissible in action under Dramshop Act. Evidence that a drunkard frequented other saloons is inadmissible on the question of damages, in an action by the wife and children for damages for injuries to their means of support by reason of intoxication, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), where the wife objected to the sale of intoxicating liquors to the husband, as an action may be maintained against one or all of the persons selling intoxicating liquors to a drunkard for the entire loss, and a recovery and satisfaction against one constitutes a bar to a recovery against another who may have contributed in causing the same intoxication.</p> <p>3. Judgment, § 460*—judgment under Dramshop Act against one liquor seller as bar to judgment against another. A recovery and satisfaction against one person selling liquor to a drunkard, in an action by the wife and children for damages for injuries to their means of support, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), constitutes a bar against another who may have contributed in bringing about the same intoxication.</p> <p>4. Intoxicating liquors, § 189*—liquor sellers’ joint and several liability under Dramshop Act. Under the Dramshop Act (J. & A. ¶ 4609), the wife and minor children of a drunkard have the right to sue either one or all of the persons who sold the husband and father intoxicating liquor, for damages for the entire injury to their means of support.</p> <p>5. Intoxicating liquors, § 232*—inequality of interest of plaintiffs in damages recoverable in action under Dramshop Act. The amount of damages recoverable in a joint action by the wife and children of a drunkard, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), is not limited to the period that all the plaintiffs have an equal interest in the whole of the recovery, and even if one of the children marries and is no longer dependent upon the father, the jury may determine from the evidence the extent to which each of the plaintiffs is injured up to the time of trial, and return a verdict for the gross amount.</p> <p>6. iNtoxicating liquors, § 232*—damages recoverable in action under Dramshop Act not required to have accrued prior to bringing of action. In an action by the wife and minor children of a drunkard for damages for injuries to their support, due to the intoxication of the husband and father, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), a recovery may be had for all damages accruing to the plaintiffs which naturally and proximately proceeded from such intoxication, although a part thereof accrued after the commencement of the suit.</p> <p>7. Intoxicating liquors, § 251*—when instruction in action under Dramshop Act not prejudicial. In an action by the wife and minor children of a drunkard, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), for damages for injuries to their means of support due to the intoxication of the husband and father, an instruction to the effect that although the evidence as to damages resulting from injury to the plaintiffs’ means of support were indefinite, still the jury should establish the damages from such evidence pertaining thereto as was before them, held not to be prejudicial in the light of other instructions, and because of the fact that the amount of the verdict showed that the jury did not speculate as to the damages.</p> <p>8. Intoxicating liquors, § 250*—when instruction in action wilder Dramshop Act not misleading. In an action by the wife and minor children of a drunkard, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), for damages for injuries to their means of support due to the intoxication of the husband and father, an instruction to the effect that if the jury found from the evidence that the wife served notice on the defendant or his agents not to sell liquors to the husband and that defendant failed to comply with said notice, then, if they found from the evidence that the plaintiffs were entitled to damages, exemplary damages might be assessed for failure to comply with said notice, held not misleading as authorizing the awarding of exemplary damages although no actual damages resulted after the giving of the notice, because of the fact that the word “actual” was omitted before the word “damages.”</p> <p>9. Intoxicating liquors, § 249*—ichen instruction in action under Dramshop Act not prejudicial. In an action by the wife and minor children of a drunkard, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), for damages for injuries to their means of support due to the intoxication of the husband and father, an instruction to the effect that there could be a recovery for injuries to the person as well as to the means of support, held not prejudicial where the court in eighteen other instructions had charged the jury that a recovery could be had only for damages for injuries to their means of support.</p> <p>10. Intoxicating liquors, § 245*—when verdict in action under Dramshop Act not excessive. In an action by the wife and minor children of a drunkard, under the Dramshop Act, see. 9 (J. & A. ¶ 4609), for damages to their means of support due to the intoxication of the husband and father, a verdict for $1,500 held not excessive.</p> <p>11. Appeal and error, § 1411*—when verdict on conflicting evidence will not be disturbed. Where there is a conflict in the evidence, the verdict of the jury on questions of fact will hot be disturbed unless such verdict is manifestly and clearly against the weight of evidence.</p>

<p>1. Negligence, § 12*—duty of carrier to anticipate use to which property shipped may be put. When a common carrier knows, or in the exercise of ordinary care should know, that a car contains a poisonous substance known as white lead, and knows or should know that the car .is intended to be used to carry brewery refuse intended as cattle feed, it is its duty to anticipate that the refuse may be fed to cattle.</p> <p>2. Action, § 32*—when action of tort will lie. An action of tort may lie for breach of duty imposed by law independently of contract.</p> <p>3. Negligence, § 20*—when action of tort will lie against carrier for failure to furnish suitable car to third person. An action of tort to recover damages arising out of the failure of a carrier to perform its duty to furnish a suitable car to the consignor of brewery refuse, intended to' be used as cattle feed, lies in behalf of one purchasing such feed from the consignee against such carrier, independently of contract, when his cattle died due to the fact that the feed became contaminated with white lead which was on the floor of the car.</p> <p>4. Carriers, § 71*—when carrier not relieved of duty to furnish suitable car. The fact that the consignor of brewery refuse, intended for cattle feed, agrees with the carrier tó clean a car in which the feed is to be shipped does not relieve the carrier from its duty to furnish a suitable car for such purpose, as the consignor is simply the agent of the carrier.</p> <p>5. Negligence, § 79*—when contributory negligence in not discovering poison in fodder is for jury. It is a question of fact for the jury whether the purchaser of brewery refuse, intended for cattle feed, was in the exercise of ordinary care in failing to take measures to ascertain the nature of a poisonous whitish substance in a railroad car and in the feed, when three other persons besides such purchaser noticed such substance in the feed and on the bottom of the car and bought it from the consignee for the purpose of feeding it to their cattle, and actually fed it to them.</p> <p>6. Sales, § 241*—when rule of caveat emptor inapplicable in action against third person. The rule of caveat emptor does not apply in an action against a carrier, by a purchaser from the consignee for damages for loss of cattle due to the presence of white lead in brewery refuse, intended for cattle feed, as a result of contamination due to an unclean car.</p>

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

<p>Attorney and client, § 119*—how amount of attorney's fee computed on settlement direct with client. An agreement between an attorney and bis client provided that the client would pay the attorney for his services in a certain matter a sum of money “equal to one-half of whatever amount is received as damages out of said claim.” It was held that on a direct settlement between the parties of the claim to which the agreement related the attorney was entitled to receive from the defendant an amount equal to one-half of the amount for which the defendant had Settled with the client, not an amount equal to that which the client had been paid. Following Czecziotka v. Hammond Glue Co., 185 Ill. App. 559.</p>

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

<p>Abstract of the Decision.</p> <p>1. Instructions, § 81*—when instruction singling out particular facts improper. An instruction which singles out particular facts and gives them undue prominence has a tendency to mislead and confuse the jury and is improper.</p> <p>2. Instructions, § 48*—when instruction as to weight and effect of evidence improper. In an action by brokers to recover commissions on the sale of real estate, an instruction which states that it is not sufficient for the plaintiffs to show that they called the purchaser’s attention to the property, gave him the price and description and tried to sell it to the purchaser before he bought it, but that plaintiffs “must go further and prove by a preponderance or greater weight of the evidence that they were the direct and procuring cause of the purchase of said property” by the purchaser is objectionable, in that it singles out isolated facts, telling the jury that such facts are not enough to prove the issue, invades the province of the jury and is argumentative and misleading.</p> <p>3. Instructions, § 133*—when omission of reference to theory of cause improper. An instruction which omits all reference to a theory of the facts which, in truth, would entitle plaintiffs to recover is erroneous.</p> <p>4. Instructions, § 48*—when instruction on facts improper. In an action by brokers to recover commissions on the sale of real estate, an instruction which contains a repeated inference amounting to an assertion that the facts enumerated therein are not in themselves sufficient to prove that plaintiffs were in fact the procuring cause of the sale, which was the principal issue in the case, is erroneous.</p> <p>5. Trial, § 124*—when argument of counsel improper. Evidence examined and held that statements made by counsel in his argument to the jury were of such character as to arouse the passion and prejudice of the jury, the effect of which was not removed by the action of the court in finally sustaining an objection.</p> <p>6. Trial, § 128*—when argument of counsel improper. It is improper for counsel in argument to the jury to state facts which are not in evidence, and especially to fortify such statements by personal asseveration as to their truth.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>L Action on the case, § 1*—when evidence sufficient to support verdict. Evidence in action of trespass on the case to recover for death of plaintiff’s decedent by assault by defendants’ servants, examined and held to support verdict for defendants.</p> <p>2. Appeal and error, § 1526*—when ruling of court harmless error. Ruling of court upon instructions examined and held, harmless error. Baker, J., dissenting.</p>

<p>1. Insurance, § 205*—when misrepresentation in application as to name of applicant invalidates contract. A false statement in an application for life insurance as to the applicant’s name invalidates the contract of insurance.</p> <p>2. Insurance, § 821*—when misrepresentation in application as to relationship of beneficiary invalidates contract. Where an applicant for insurance states in his application that the beneficiary is his “wife,” whereas she is not his wife, but a woman with whom he is sustaining illicit relations, the misrepresentation invalidates the contract of insurance.</p> <p>3. Insurance, § 365*—when tender of return of premiums not essential. In an action by the beneficiary of a policy of life insurance against the insurer, the latter is not required to return the premiums to the beneficiary or the wife of the insured as a condition to setting up misrepresentations in the application for insurance as a defense, the title to the premiums being in the personal representative of the insured.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 319*—when parol evidence inadmissible to vary terms of written contract. In an action on a written contract, parol evidence tending to show that the contract was not to take effect until one of the parties had paid the other a certain sum of money, is inadmissible.</p> <p>2. Contracts, .§ 56*—when delivery of written agreement not essential to validity. Where a contract in writing is entered into whereby in consideration of the assignment to the party of the first part of a judgment rendered in favor of the parties of the second part against a third person, the party of the first part agrees to make certain payments to other persons, a delivery of the contract to the parties of the second part is not essential to its validity.</p> <p>3. Evidence, § 333*—when evidence as to consideration for contract admissible. In an action on a contract whereby one party agrees to pay certain sums in consideration of the assignment to him of a judgment in favor of the other party against a third person, evidence that there was no judgment against such person at the time the contract was executed, and that the first party did not collect any money on the judgment, is admissible.</p>

<p>Chattel mortgages, § 267*—when report of sale under power in mortgage insufficient. A report to the mortgagor of the sale of mortgaged chattels under a power of sale in the mortgage does not sufficiently comply with the requirements of Hurd’s Ill. St. 1913, ch. 95. sec. 26 (J. & A. ¶ 7603), where it omits to give the name of the purchaser or purchasers of the chattels, even though the mortgagor made no inquiry of the mortgagee as to the purchaser's name and was not injured by his lack of knowledge.</p>

<p>1. Prohibition, § 1*—when writ will lie. To warrant the issue of a writ of prohibition against official action, the action sought to be restrained must be judicial in character and' must be one not in the jurisdiction of the tribunal or officer in question.</p> <p>2. Civil service, § 10*—when hearing of charges not judicial function. The hearing of charges against officers in classified civil service under the authority granted by section 12 of the State Civil Service Act (J. & A. If 10638) is not the exercise of a judicial function.</p> <p>3. Prohibition, § 2*—when issue against member of State Civil Service Commission unauthorised. The issue of a writ of prohibition prohibiting a member of the State Civil Service Commission from hearing charges against the relators, officers in the classified civil service, in the manner provided by section 12 of the State Civil Service Act (J. & A. If 10038) is unauthorized.</p> <p>4. Prohibition, § 2*—when writ will not lie. A writ of prohibition does not lie to bring before the higher tribunal matters which may properly be brought before it by writ of error or certiorari, nor to correct errors of inferior tribunals whereof they have jurisdiction.</p> <p>5. Civil service, § 26*—when proceedings of State Civil Service Commission reviewable by certiorari. A writ of certiorari will lie to review the proceedings of the State Civil Service Commission, held under section 12 of the State Civil Service Act (J. & A. If 10638), discharging officers in the classified civil service.</p>

<p>1. Negligence, § 112*—when negligence of driver of automobile not imputed to guest. The negligence of the driver of an automobile cannot be imputed to one riding therein as guest of the driver.</p> <p>2. Negligence, § 191*—when a question of fact for the jury. In an action against a municipal corporation to recover for the death of one drowned by an automobile in -which he was riding running into an open drawbridge maintained by a municipality, where the evidence shows that the deceased was one of a party of eight in the automobile who, including the chauffeur, had been drinking for about six hours, the question whether deceased was negligent in riding in the machine, under the circumstances, was one of fact for the jury.</p> <p>3. Appeal and error, § 1410*—when evidence sufficient to warrant finding of drunkenness. In an action to recover for the death of a person drowned by an automobile running into an open drawbridge, evidence examined and held sufficient to support a finding that deceased and other members of the party were intoxicated.</p> <p>4. Negligence, § 188*—when evidence sufficient to show injury not result of an accident. In an action to recover for the death of one drowned by an automobile running into an' open drawbridge, where the evidence shows that the chauffeur was so drunk that he did not know in what direction he was going, the occurrence cannot be considered an accident but rather a probable result of the conditions.</p> <p>5. Negligence, § 208*—when instructions as to contributory negligence proper. In an action to recover for the death of one drowned by the running into an open drawbridge of an automobile driven by a drunken chauffeur, it is not error to instruct that there would be no recovery unless the jury find that the deceased himself was guilty of no negligence contributing to the injury, and exercised ordinary care to avoid the occurrence alleged.</p> <p>6. Appeal and error, § 1523*—when giving of instructions harmless error. The giving of an improper instruction is not ground for reversal where such instruction is not calculated to mislead the jury.</p> <p>7. Appeal and error, § 1514*—lohen reference in argument of counsel to contradictory statements not ground for reversal. Where defendant introduces evidence of previous statements by witness for plaintiff contradicting his evidence on the stand, reference by counsel for defendant in the course of his argument to the evidence of such contradictory statements is not ground for reversal.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1377*—when refusal to permit further cross-emarmnation of plaintiff not ground for reversal. The refusal of the trial court, after a plaintiff called as a witness in his own behalf had been examined and cross-examined and after two postponements of the hearing, to permit him to be recalled for further cross-examination, held not an abuse of the trial court’s discretion.</p> <p>2. Infants, § 23*—when disaffirmance of contract in reasonable time. Evidence examined in action to recover purchase price paid by infant on purchase price of land, and held to show that contract had been disaffirmed in reasonable time after plaintiff had arrived at age.</p>

<p>1. Contracts, § 187*-when construction bp parties to be followed. When parties to an ambiguous contract by their own acts place a construction upon it, such construction is the best evidence of what the contract was supposed to mean.</p> <p>2. Insurance, § 155*—when evidence insufficient to support verdict. Evidence in an action to recover unpaid premiums on an-insurance policy, examined and held insufficient to support the verdict.</p>

<p>Error to the Criminal Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.</p>

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

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

<p>1. Insurance, § 84*—when ladle of insurable interest avoids life policy. A policy of life insurance naming as beneficiary a person who has no insurable interest in the life of the insured is a wager policy and void.</p> <p>2. Insurance, § 84*—when taking out policy and payment of premium by insured does not cure lack of insurable interest. The fact that the insured took out the policy in the first instance and paid the first premium before delivering the policy to the beneficiary does not validate a life policy naming as beneficiary one having no insurable interest.</p> <p>3. Insurance, § 332*—when notice to agent does not validate life policy naming beneficiary having no insurable interest. Notice by a beneficiary of a life policy to the collecting agent of the insurer that he is neither a cousin nor next of kin to the insured is not a waiver by the insurer of the beneficiary’s lack of interest, though he is designated in the policy as cousin of the insured.</p> <p>4. Insurance, § 84*—when statement in application insufficient to create insurable interest. The statement by the insured, in an application for insurance, that the reason for naming the beneficiary is because he contributes to her support and will care for her in case of her death is insufficient to create an insurable interest,</p> <p>5. Insurance, § 84*—when moral claim insufficient to constitute insurable interest. A moral claim of the insured in a life policy upon the beneficiary named therein for support during her lifetime does not constitute an insurable interest.</p> <p>6. Insurance, § 159*—when beneficiary without insurable interest not entitled to premiums. One named a beneficiary in a life insurance policy who had no insurable interest in the insured is not entitled to receive back premiums paid by him, such payments being considered as made as agent and being due to the estate of the insured, if returned.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 325*—when evidence insufficient to support claim for rent. Evidence examined and held to show that tenant was entitled to credit on amount claimed to be due for rent.</p> <p>2. Witnesses, § 257*—when conduct tends to discredit testimony. A false statement made to the trial court by a witness, knowingly and intentionally, tends to discredit his uncorroborated testimony as to other matters.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1380*—when leave to defend after confession a matter of discretion. The granting of leave to defend after judgment has been confessed, under power contained in a lease, is a matter addressed to the sound discretion of the court, and unless it can be said that there has been an abuse of discretion, the court of review will not disturb the action of the trial court.</p> <p>2. Landlord and tenant, § 325*—when evidence insufficient to show alteration of lease. In an action by a lessor against a lessee for rent, a naked charge in the affidavit of defendant that the lease was materially altered or changed after its execution, without a showing that the alteration was authorized or made by any one having authority from the landlord, is an insufficient defense.</p> <p>3. Landlord and tenant, § 418*—when lessee not released By assignment to third person. A lessee is still liable for the rent payable under the lease notwithstanding the assignment of the lease to a third person, unless he is relieved from that liability by the landlord or some one acting under the landlord’s direction.</p> <p>4. Alteration of instruments, § 24*—when materiality question of law. The question of the materiality of .an alteration in a written instrument is one of law for the court and not of fact for the jury.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Taxation, § 19*—Act of 1898 as providing new system for assessment of property. The Act of 1898 (J. & A. ¶ 9516-9576) was intended to provide a new system for the assessment of property and not to amend the General Revenue Act, and as to that subject it is substantially complete in itself, constituting an entire plan for making the assessment.</p> <p>2. Statutes, § 146*—when new statute prevails over old one. Where the Legislature frames a new statute upon a certain subject-matter with an evident intention to revise the whole subject-matter legislated upon, there is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and that whatever is excluded is discarded, and that the provisions of the new law shall be substituted for those of the old.</p> <p>3. Taxation, § 19*—what portions of general revenue law are superseded, 6y the Act of 1898. The language o£ section 55 of the Act of 1898 (J. & A. ¶ 9572), providing that “all the provisions of the general revenue law in force prior to the taking effect of this act shall remain in force * * * except in so far as by this act is otherwise expressly provided,” does not mean that every section of the general revenue law in force prior to the taking effect of the Act of 1898 shall remain in force unless the later act expressly provides otherwise, but also means that wherever the later act legislates on the subject-matter of the earlier, the earlier act shall fall, and such legislative intent is as clearly indicated thereby as though there were an express provision that the earlier law should not remain in force.</p> <p>4. Taxation, § 199*—when statute provides penalty for refusal to make and swear to schedule. The provision in the Act of 1898 (J. & A. ¶ 9534) that on the refusal of a person to make and swear to a schedule of his property for taxation, the assessor shall list his property and add to the valuation an amount equal to fifty per cent, of such valuation, provides a penalty for such refusal.</p> <p>5. Statutes, § 152*—when statute imposing penalty is repealed by implication. Where there are two statutes imposing a penalty and the penalty imposed by one is not the same as that imposed by the other, the later statute repeals the earlier by implication.</p> <p>6. Mandamus, § 16*—when petition for leave to apply for writ properly denied. Rev. St., ch. 120, see. 24 (J. & A. ¶ 9238), providing that one required by law to list personal property who shall refuse, neglect or fail when requested by the proper assessor to do so shall be guilty of a misdemeanor, held repealed by implication by Act of 1898, sec, 19 (J. & A. ¶ 9534), providing that on the refusal of a person to make and swear to a schedule of his property therein required, the assessor shall list his property and add to the valuation an amount equal to fifty per cent, of such valuation, and hence a petition for a writ of mandamus to compel a judge to grant leave to file an information charging an offense under the act, is properly denied. .</p>

<p>Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

<p>Error to the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Instructions, § 85*—when instruction as to burden of proof improper. In an action of trover to recover for the conversion of an automobile, where the conversion was by defendant’s agent, an instruction that the burden was on the defendant to show by a preponderance of evidence that in doing the acts constituting the conversion such agent was not acting for defendant is erroneous.</p> <p>2. Trover and conversion, § 47*—what proper measure of damages. In an action to recover damages for the conversion of an automobile, the measure of damages is the value of the automobile at the time of the conversion.</p> <p>3. Chattel mortgages, § 224*—when purchaser of property charged with notice. Where a chattel mortgage duly recorded provides that if the mortgagor sells or assigns the mortgaged property the mortgage debt shall at once become due and payable “without notice to any one,” and that the mortgagee in such case at its option may take immediate possession of the mortgagéd property, any person claiming title to the mortgaged property under the mortgagor is charged with notice of the provisions of the mortgage, and such person taking under the mortgagor is not entitled to notice if the mortgagee exercises its option.</p> <p>4. Trover and conversion, § 36*—what sufficient to show conversion. Where the facts relied upon to prove a conversion are that an agent of1 defendant negotiated a sale of the property converted, and where a second sale of such property took place the same day, it is unimportant whether the conversion took place at the first or second sale.</p>

<p>1. Judgment, § 110*—when entry by default improper. It is error to enter a default after striking the affidavit of defense without first striking the pleas, proper practice requiring that where the affidavit filed with the plea is stricken, the plea shall be ordered stricken for want of the required affidavit before entering default.</p> <p>2. Conflict of laws, § 15*—what law governs certificate of deposit. A certificate of deposit, made in a foreign State by a bank of that State and payable to a payee in that State, is governed by the laws of such foreign State.</p> <p>3. Evidence, § 7*—when courts do not take judicial notice of foreign law. Where an affidavit of defense sets up a defense grounded on the law of a foreign State, where the contract was made and by the law of which it is governed, it is error to strike the plea or to attempt, prior to the trial, to determine the fact of the law of such foreign State, as the courts do not take judicial notice of the laws of a foreign State, but such laws are questions of fact, to be proved as other facts are proved.</p> <p>4. Appeal and error, § 1034*—when judicial notice not taken. The same rule which prevents the trial court from determining, the law of a foreign State before proof of such law is made will prevent the Appellate Court from determining such question on appeal from the decision of the trial court.</p>

<p>Abstract of the Decision.</p> <p>1. Vendor and purchaser, § 333*—when evidence inadmissible in action to recover bade purchase price payments. Where by the provisions of an agreement to sell real estate it appears that vendor will not be required to make conveyance for a period of more than two years, testimony as to the reasonableness of or the time taken by vendor to perfect his title is irrelevant.</p> <p>2. Vendor and purchaser, § 164*—when purchaser to have possession. An agreement to sell real estate wherein it is provided that vendor shall make certain repairs, and that vendee shall pay taxes and other assessments before conveyance, evidences an intention of the parties that vendee shall have possession of the premises before such conveyance.</p> <p>3. Vendor and purchaser, § 164*—when possession to be given in reasonable time. Where an agreement to sell real estate shows an intention of the parties that vendee shall have possession before conveyance, and the agreement fixes no definite time when such possession is to be delivered to vendee, the law implies that such possession shall be delivered within a reasonable time.</p> <p>4. Vendor and purchaser, § 164*—where parol agreement as to delivery of possession valid. Where an agreement to sell real estate requires that possession be delivered to vendee before conveyance but fixes no time for such delivery, the parties may validly make a parol contract as to what shall be deemed such reasonable time.</p> <p>5. Evidence, § 350*—when parol evidence of collateral agreement admissible. Where an agreement to sell real estate requires that possession be delivered to vendee before conveyance, but fixes no time for such delivery, parol evidence of a contract fixing such time for delivery is competent, and has no tendency to vary the terms of a written instrument.</p> <p>6. Vendor and purchaser, § 164*—when delay in delivery of possession unreasonable. Where an agreement for the sale of real estate dated March 25th gave vendor a period of more than two years in which to make conveyance, but was construed to require delivery of possession to vendee within a reasonable time, and where there was evidence of a verbal agreement to deliver such possession April 15th, a finding that vendor unreasonably delayed to deliver such possession held warranted by the evidence, where it appeared that as late as May 18th such possession had not been delivered, although there was evidence that at such last mentioned date vendor had not perfected his title, for the reason that under the agreement the time for conveyance and the time for delivery of possession were not the same, and therefore failure to perfect title did not excuse vendor for unreasonable delay in delivering possession to vendee.</p>

<p>1. Banks and banking, § 23*—how provision for distribution of proceeds of stockholders’ liability construed. That portion of section 11 of the Banking Act (J. & A. If 683) providing that the amounts collected by the receiver of an insolvent banking corporation from the stockholders thereof shall be disbursed in the same manner in which its assets are distributed, is not necessarily an attempt to limit the rights of creditors as against stockholders since, while both assets and amounts collected from stockholders are to be distributed among creditors as their interests may appear, it does not follow that such distribution shall be necessarily pro rata.</p> <p>2. Statutes, § 38*—what effect of partial invalidity. Even though that part of section 11 of the Banking Act (J. & A. H 683) which provides for the distribution to creditors of the amounts collected by the receiver of an insolvent banking corporation from the stockholders thereof be unconstitutional as an attempt to limit the rights of such creditors as against such stockholders to a pro rata portion of the amounts collected from such stockholders, yet the balance of such section is not thereby rendered invalid, as it is complete and can be given full force and effect.</p> <p>3. Banks and banking, § 23*—when order to receiver to enforce stockholders’ liability proper. On a bill by the receiver of an insolvent banking corporation, filed under section 11 of the Banking Act (J. & A. ¶ 683), for the purpose of securing a dissolution of the corporation, a decree entered after a hearing directing such receiver, among other things, to enforce the liability of stockholders to the corporation, if there be any such liability, is not erroneous, as such section provides that in such case such receiver shall “enforce the liability of stockholders to creditors as provided in section 6 (J. & A. ¶ 678) of this Act,” which section is identical in its terms with section 6 of article XI of the Constitution of 1870.</p> <p>4. Banks and banking, § 28*—when creditor restrained from enforcing stockholders’ Mobility. A petition by the receiver of an insolvent banking corporation to restrain a creditor from prosecuting actions to obtain an unjust and inequitable advantage over other creditors is not prematurely brought, where it appears that at the time the bill was filed there was a necessity of enforcing the liabilities of such stockholders on behalf of all the creditors, and where it further appears that it will be impracticable for such receiver to enforce such liability prior to the time when such creditor, unless restrained, will be able to prosecute such suits to judgment and to obtain satisfaction thereof.</p> <p>5. Injunction, § 332*—when bond not essential. Where a court which has assumed jurisdiction of the entire matter of the affairs of an insolvent banking corporation restrains a creditor from receiving an undue advantage over other creditors, no bond is necessary.</p> <p>6. Estoppel, § 71*—when creditor cannot maintain suit on stockholders’ liability. Where a receiver of an insolvent banking corporation has been duly appointed and a creditor has filed his claim with such receiver, and indicated a willingness to submit all matters connected with his claim to the court, he is precluded from taking any steps which will interfere with the power of the court to adjudicate such claim, for the reason that a creditor cannot claim the benefit of a portion of a decree and at the same time adopt a course calculated to deprive other persons similarly situated of another portion of its benefits.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1174*—how direction of verdict reviewed. In deciding the question as to whether there was error in the direction of a verdict by a trial court, the evidence most favorable to the party against whom the verdict is directed must be taken as true, and the inferences to be drawn therefrom, while they must he such as may be fairly made, must also be such as are most favorable to such party.</p> <p>2. Landlord and tenant, § 41*—when lease not accepted. In an action of forcible detainer, where it appeared that defendant received two copies of a proposed lease unsigned by lessor, and where although defendant signed them, she did not notify plaintiff or return the leases, and where it appeared that after the date of the leases she conversed with plaintiff about a proposed lease which was different from that which she signed and retained, held that such conversation tends to show that defendant did not regard the leases signed as binding on her.</p> <p>3. Landlord and tenant, § 41*—when unsigned lease not binding. Leases not signed by lessor but delivered to and signed by lessee are not within the rule that where a lease contains mutual covenants and is executed by lessor only and accepted by lessee such lease is binding on the lessee.</p> <p>4. Landlord and tenant, § 89*—what is status of tenant holding over under void lease. A verbal agreement for a lease is void under the statute, and tenant holding over under such an agreement becomes a tenant from month to month.</p> <p>5. Fraud, statute of, § 96*—when part performance ineffective. At law part performance does not take a contract out of the Statute of Frauds.</p> <p>6. Landlord and tenant, § 39*—when transaction mere revocable offer to lease. Where a lessor sends to lessee copies of a proposed lease not executed by himself, which the lessee signs and retains without notifying the lessor of her acceptance of the lease, the facts show no more than an offer on the part of lessor to make a lease; and where it appears that the lessor, prior to notice of the lessee’s acceptance of the lease, gave defendant notice to quit, such notice in legal effect amounts to a withdrawal of the offer.</p> <p>7. Landlord and tenant, § 41*—when lease not accepted by lessee. Where a lessor sends to a lessee copies of a proposed lease which the lessee-'signs and retains without notifying the lessor, pending action of the lessor on a request for a lease containing different terms, there was no valid acceptance of the proposed lease so as to bind the lessor, as the lessee’s assent thereto was merely mental.</p> <p>8. Landlord and Tenant, § 41*—When lease not accepted, within reasonable time. Where a lessor sends to a lessee copies of a proposed lease which was dated May 1st, and the lessee did not notify the lessor of her acceptance of such lease until July 28th, held that the acceptance was not made within a reasonable time.</p> <p>9. Contracts, § 40*—what is effect of failure to accept promptly. Where an offer to make a contract is not accepted within a reasonable time, the offerer may regard the offer as rejected.</p> <p>10. Forcible entry and detainer, § 50*—who not a necessary party. In an action of forcible detainer, where the contract was verbal and between plaintiff and defendant alone, a judgment for plaintiff held not erroneous in that defendant’s husband was not joined as party defendant, where it did not appear that the husband was ever in possession of the premises of which possession is sought.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>Brokers, § 71*—when judgment for plaintiff improper. In an action to recover broker’s commissions for negotiating an exchange of real estate, where the affidavit of claim is for “the usual, ordinary and customary brokerage commission,” but where the evidence for plaintiff showed that there was a special agreement as to the rate of commission to be paid plaintiff by defendant, held error to stop defendant in his testimony and to refuse to allow him to continue or to hear his other witnesses and to announce a finding and judgment, where defendant testified that the agreement was that defendant should not be liable for plaintiff’s commissions but should obtain them from the other party to the exchange.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.</p>

<p>1. Carriers, § 314*—when nonpayment of fare not a defense in action for injury to person on car. In an action to recover for personal injury to a ten-year-old boy, owing to the negligent operation of defendant’s electric car, where it appeared that plaintiff boarded the car at the invitation of the motorman and rode thereon for some distance without paying fare, a judgment for plaintiff held not erroneous, for the reason that in such case the only question is whether plaintiff was lawfully on the car, and it is not a defense that plaintiff paid no fare.</p> <p>2. Carriers, § 314*—when liable for injury to child boarding car on invitation of motorman. In an action to recover for personal injury to a boy, where it appeared that plaintiff boarded defendant’s electric car at the invitation of defendant’s motorman, such invitation was an act within the scope of such motorman’s employment, although such motorman may have acted contrary to defendant’s orders, and may have been answerable for disobedience of defendant’s rules, for the reason that such act of such motorman could not affect the status of plaintiff on defendant’s car or render his presence thereon unlawful.</p>

<p>1. Carriers, § 134*—when consignee not entitled to sue for injury to goods. Where, on shipping a carload of eggs, the consignor attaehed a draft for the purchase price to the bill of lading, sending it to a bank for collection, and the consignee refused to accept the eggs because of damage in transit, but later accepted same, under agreement with the consignor, at a reduced price, the consignee is not entitled to maintain an action against the carrier to recover for the negligent injury to the goods, title to same not having been in the consignee at the time the damage was inflicted, and no assignment of the right of action therefor having been alleged or proved.</p> <p>2. Cashiers, § 132*—when showing of title to damaged goods necessary. The right to recover damages against a carrier for negligent carriage of goods is a chose in action, and where the consignee seeks to recover therefor he must show title in himself at the time of the infliction of the injury, or an assignment to him of such chose in action.</p> <p>3. Carriers, § 134*—what does not entitle consignee to sue for damage to goods. Where, at the time of the negligent injury to goods by a carrier, the title thereto was not in the consignee, the subsequent purchase of the same by him upon different terms, without paying a draft accompanying the bill of lading nor securing possession of the latter, does not operate retrospectively, so as to entitle the consignee to recover for damages inflicted in transit.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 10*—when action for trial of ■right to property is of fourth class. A proceeding for the trial of the right to property is an action of the fourth class under the Municipal Court Act, sec. 2, subd. 4 (d) (J. & A. 3314).</p> <p>2. Municipal Court of Chicago, § 27*—when extension of time for filing hill of exceptions not in apt time. Where it appears that an extension of the time for filing a bill of exceptions in a fourth-class action under section 2, subd. 4 (d) of the Municipal Court Act (J. & A. If 3314) was not made within thirty days from ttie rendition of the judgment appealed from, the Appellate Court will strike the bill of exceptions on motion of appellee, for the reason that an extension of such filing time is not allowed except within thirty days from the rendition of such judgment.</p> <p>3. Municipal Court of Chicago, § 24*—when judgment not appeal-able. There being no statute authorizing an appeal from the Municipal Court of Chicago in a fourth-class case, an appeal cannot be taken in such case, and if taken will be dismissed.</p>

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

<p>Abstract of the Decision.</p> <p>1. Banks and banking, § 200*—when evidence sufficient to show identity of depositor. In an action to recover savings bank deposits made by a man named Powel G., where plaintiff’s name was Paul G. and where plaintiff’s identity with such depositor was disputed, evidence, including disputed signatures, examined and held sufficient to prove that plaintiff was the person who made the deposits in question.</p> <p>2. Trial, § 285*—when case not argued on trial by court. A court trying a case without a jury is not required to listen to arguments of counsel.</p> <p>3. Costs, § 67*—when statutory damages not allowed. On an appeal in an action to recover savings bank deposits made by plaintiff, held that plaintiff could not recover statutory damages.</p>

<p>1. Death, § 21*—when nonaction not proximate cause. In an action against a hospital corporation to recover for the death of plaintiff’s intestate under Hurd’s Rev. St., ch. 70, sec. 1 (J. & A. If 6184) providing an action “whenever the death of a person shall be caused by wrongful act,” etc., where it appeared that decedent was brought to defendant’s hospital after a fall occurring elsewhere, with which accident the cause of death was plainly connected, and that the immediate cause of death was cerebral compression and hemorrhage, held that no right of action accrued to plaintiff against defendant, upon the sole ground that defendant failed to cause decedent to be operated upon in order to save his life, for the reason that the words of the statute refer to the direct cause which, without the intervention of any other cause, produces death, and do not include within their meaning a failure to arrest the natural progress of accidental injuries.</p> <p>2. Executors and administrators, § 506*—when award of execution erroneous. An award of an execution for costs against an administrator held erroneous for the reeason that such costs should have been directed to be paid in the due course of administration.</p>

<p>1. Landlord and tenant, § 14*—when tenant under void lease liable for use and occupation. Even though a parol lease of a building is void under the Statute of Frauds, yet the lessor may recover for use and occupation for so long a time as such use and occupation of the building continue.</p> <p>2. Landlord and tenant, § 8*—what constitutes occupancy. In an action to recover for use and occupation of a building under a parol lease, where it appeared that defendant leased the building in question for the purpose of preventing its occupation as a fruit store in competition with that of defendant, held that defendant was in the use and occupation of the building so as to bind him on his oral contract except as to the term, notwithstanding the fact that defendant did not occupy such building during the period for which rent is sought to be recovered, for the reason that as defendant, held the right to occupy, or to prevent others from occupying, he had an interest from month to month and thereby exercised use and occupation, in which case the actual physical presence of defendant on the premises was not necessary.</p> <p>3. Appeal and error, § 1411*—when verdict not disturbed where evidence conflicting. In an action to recover for use and occupation of a building under a parol lease, where the evidence was conflicting as to whether defendant gave notice of a termination of the contract, a finding that such notice was not given, held not erroneous because the trial court believed plaintiff’s testimony to such effect.</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. Vendor and purchaser, § 92*—when delay in performance waived. Although a contract for the sale of land may provide that time shall be of the essence thereof, such a condition may be waived by retaining possession of the land after the right to rescind has accrued.</p> <p>2. Vendor and purchaser, § 87*—what acts sufficient to show rescission. In an action to recover back money paid under a contract to purchase land, where the evidence shows that defendants failed to deliver a deed and abstract at the time of the payment of an instalment as provided by the contract, and plaintiff, about thirteen months after the time for delivery, notified defendants that if performance was not made within three days suit would be brought, and later, upon defendants still failing to perform, abandoned the land, such notice and abandonment amounted to a valid rescission of the contract, the only obligation between the parties at this time being money due and owing from defendants to plaintiff.</p> <p>3. Vendor and purchaser, § 106*—when right to rescind not waived. In an action to recover back money paid under a contract where plaintiff claims a rescission, letters written after the acts relied on to show a rescission expressing a willingness to purchase the property if defendants gave or allowed compensation for damages resulting from their delay in performing, held insufficient to prove either a waiver of reeission or a want of intention to rescind, it nowhere appearing that the amount of compensation to be paid was ever agreed on.</p> <p>4. Vendor and purchaser, § 106*—when evidence insufficient to show retraction of rescission. In an action to recover back money paid under a contract to purchase land where plaintiff had effectively rescinded, and where defendants were urging plaintiff to come to some agreement as to the controversy, the fact that plaintiff discussed with third persons an exchange of the property in question for property belonging to them, held not sufficient to show a waiver of the rescission, as the terms which plaintiff might be willing to make with defendants might depend on what disposition he could make of it.</p> <p>5. Customs and usages, § 16*—what effect of custom, as to actual delivery of stock certificates. In an action to recover back money paid under a contract to purchase land and stock of a Colorado ditch corporation, the fact that no certificates of the stock were ever tendered, held immaterial where it appears that both by the contract and the method of handling such matters in Colorado no actual delivery of stock was contemplated by the parties.</p> <p>6. Vendor and purchaser, § 123*—when vendor required to furnish abstract and deed in reasonable time. Where a contract to purchase land provides that the vendee shall be entitled to an abstract of title and a deed on making certain payments, such abstract and deed must be furnished within a reasonable time after such payments were made.</p> <p>7. Vendor and purchaser, § 123*—what delay in furnishing abstract and deed unreasonable. Where a contract to sell land is construed to require grantors to furnish an abstract of title and deed within a reasonable time after certain payments were made, a delay of one year and eight months in making tender of such deed and abstract held unreasonable.</p>

<p>1. Appeal and error, § 633*—when appeal from refusal to vacate decree may he allowed. An appeal from the denial of a motion to vacate a decree may be allowed at a term later than that at which the decree was actually entered, provided such -motion was made at such prior term and was continued to the term when the appeal was taken, for the reason that a judgment or decree does not become final until disposition is made of a motion to vacate such judgment or decree, if made at the term when the judgment or decree was entered, although such motion may be continued to a later term.</p> <p>2. Appeal and error, § 1197*—when review limited to order appealed from. An appeal from a decree dismissing a bill for want of prosecution and assessing damages on dissolution of an injunction brings up for review only that part of the decree assessing damages and does not bring up the question of dismissal of the bill where neither the prayer for appeal nor the bond show an appeal from the decree dismissing the bill.</p> <p>3. Injunction, § 324*—when suggestion of damages essential on dissolution. It is error for a court to hear evidence and assess damages on the dissolution of an injunction without the filing of a suggestion of damages, a suggestion of damages being necessary to give such court jurisdiction to act on such questions.</p> <p>4. Injunction, § 324*—when evidence insufficient to show filing of suggestion of damages. Where on dismissing a bill and dissolving an injunction the court heard evidence and assessed damages, evidence examined and held insufficient to show that a suggestion of damages had been filed.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, 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. Landlord and tenant, § 431*—when provision for extension of lease by lessor not covenant. A lease demising premises for the term of one year which also provides that if lessee shall fail to notify lessor sixty days before the end of the term of his intention to vacate at the end thereof, shall, at the option of lessor, operate to extend the term for a further period of one year, such provision is a present' demise in case such notice is not given, and on the exercise of the option by lessor, the legal effect thereof is the same as though the lease in express words had embraced a term of two years, and it is not merely a 'covenant specifically enforceable in equity or on which an action at law is maintainable.</p> <p>2. Landlord and tenant, § 434*—when commencement of action for rent by landlord election to renew lease. Where a lease for one year provides that the failure of lessee to give certain notice shall at the option of lessor operate to extend the term of the lease for a further period of the same length, the fact that lessor brings an action to recover for rent due under the lease as so extended is an election by him to treat the lease as being renewed for the further term, it appearing that the notice required was not given.</p> <p>3. Landlord and tenant, § 432*—when consideration exists for extension of lease by faAlwre to give notice. Where a lease for one year provided that the failure of lessee to give certain notice should operate at the option of lessor to extend the-term of the lease, the same consideration which supports other provisions of the lease will support the condition that failure to give the notice provided for should extend the lease, for the reason that the contract was entire.</p> <p>4. Landlord and tenant, § 284*—when lessee liable for rent upon abandonment of premises. Where a lease provided that in case lessee should vacate before the end of the term the lessor might relet the premises on such termís as he should see fit, in which case the lessee would be liable to make good the deficiency, held that lessor could recover rent for the period during which he was unable to rent the premises, it appearing that lessee vacated before the end of the term.</p> <p>5. Landlord and tenant, § 431*—when tenant bound by lease providing for extension of term. In an action to recover rent due under a lease containing a provision that failure of defendant to give certain notice should at the option of plaintiff operate to renew the lease for a further term of the same length, where it appeared that the amounts sought to be recovered were for rents accruing during the term as extended, a peremptory instruction for defendant held erroneous, it also appearing that defendant failed to give the notice required, and that plaintiff exercised his option to treat the lease as extended for a further term.</p>

<p>1. Insurance, § 667*—when medical testimony not discredited by testimony of plaintiff. In an action to recover on a policy of accident insurance wherein plaintiff, the wife of deceased, was named as beneficiary, plaintiff cannot be heard to discredit a medical witness of defendant who testifies that deceased’s death was caused by fatty degeneration of the heart, superinduced by chronic alcoholism, where it appears that plaintiff previously had secured a divorce from deceased on the ground of drunkenness, in which action she testified and procured others to testify that deceased was an habitual drunkard, and where it appears that such decree of divorce was granted on the faith of the verity of such testimony.</p> <p>2. Insurance, § 667*—when evidence insufficient to show accidental death. In an action to recover' on a policy of accident insurance conditioned to pay to the beneficiary named therein a sum of money “in case of bodily injury or injuries received through violent and accidental means, which shall independently of all other causes result in the death” of insured, where the only evidence of an accident was that deceased arose in the night exclaiming, “Oh, my God!” and falling, struck a chiffonier resulting in cuts of the lip and nose, with profuse bleeding, a peremptory instruction for defendant held not erroneous, there being medical testimony that the cause of deceased’s death was fatty degeneration of the heart superinduced by chronic alcoholism, and where it appeared that deceased told a physician that he had heart trouble and carried strychnine to stimulate his heart action.</p> <p>3. Insurance, § 667*—when evidence nsufficient as to cause of death. In an action to recover on a policy of accident insurance conditioned to pay a sum of money to the beneficiary named therein in case insured came to his death “through violent and accidental means, independently of all other causes,” where there was evidence that the cause of death was fatty degeneration of the heart super-induced by chronic alcoholism, evidence held insufficient to prove that deceased’s death was the result of an accident within the meaning of the policy, the only evidence of an accident being that deceased fell and received cuts, although such fall may have hastened the death, for the reason that such evidence is insufficient in its probative value to establish the fact that deceased’s death was caused by the fall “independently of all other causes” without which proof there could be no recovery on the policy.</p> <p>4. Insurance, § 436*—what is effect of failure to furnish proofs of death. Where in a policy of insurance the by-laws of the company are made part thereof, and where a by-law requires as a condition precedent to recovery thereunder that proofs of death be presented to the company within a named time, a failure to present such proofs within the time fixed by such by-law will preclude recovery unless there is a waiver of such condition.</p> <p>5. Insurance, § 120*—how policy construed. Since contracts of insurance are to be construed like other contracts, an ambiguous insurance contract will by construction be given the meaning more favorable to insured, for the reason that the words are the words of the insurer and therefore any ambiguity is chargeable to it, but where the contract is not ambiguous, neither party will be favored by construction.</p> <p>6. Contracts, § 165*—when provisions enforced notwithstanding hardship. Where a stipulation in a contract is lawful and has not been actually or inferentially waived, the courts will enforce the stipulation as made and cannot avoid a hardship resulting from the enforcement of rigorous and inflexible terms by making a new contract for the parties.</p> <p>7. Insurance, § 460*—when delay in sending Manic form of proofs of death not a waiver thereof. Where a policy of insurance as a condition precedent to recovery theréunder required that proofs of death be presented to insurer within a named time, the fact that insurer delayed sending blanks for such proof when requested has no tendency to prove a waiver of the condition, where neither the terms of the contract nor the law require insurer to furnish such blanks.</p> <p>8. Insurance, § 452*—when insurer not estopped to assert failure to furnish proofs of death. In an action to recover on a policy of insurance which, as a condition precedent to recovery that proofs of death be presented to insurer within a named time, and where no fraud is shown in the delay of insurer to furnish blanks for such proof, insurer is not estopped to insist on the condition for the reason that where fraud is absent there can be no estoppel.</p> <p>9. Insurance, § 439*—when mailing proofs of death not a compliance with by-laws. Where a policy of insurance made the bylaws of insurer a part of the contract and where such by-laws required as a condition precedent to recovery that proofs of death be presented to insurer within a named time, mailing such proofs to insurer, held not a presentment within the meaning of the bylaw, although such proofs were mailed within the time fixed thereby.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 384*—when objection must be saved below. Where irregularities occur in the trial court without objection by plaintiff in error, such irregularities cannot be availed of for the first time in the Appellate Court.</p> <p>2. Appeal and error, § 493*—when judgment in excess of ad damnum not available in absence of objection below. The objection that the judgment sought to be reversed exceeds the ad damnum is not available when made for the first time on review, especially where defendant could not have been misled thereby, as where copies of the notes sued on were part of plaintiff’s pleadings, although it may appear from the statement of claim that the judgment is for an amount in excess of what is due.</p> <p>3. Appeal and error, § 1313*—what presumed where no propositions of law submitted. Where in a case tried without a jury no propositions of law are submitted to be held by the trial court, it will be presumed on review that all questions of law were, correctly decided.</p> <p>4. Appeal and error, § 594*—when motion for new trial ineffective to preserve question for review. A motion for a new trial in an action tried without a jury preserves no questions of law for review, for the reason that such motion is aimless and serves no purpose available in a higher court.</p>

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

<p>Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.</p>

<p>1. Bills and notes, § 372*—what does not constitute variance. Where a special count in a declaration declared on a promissory note, alleging plaintiff to be a holder for value before maturity and where the evidence showed that plaintiff took the note after maturity from an indorser who held it before maturity, held no variance, for the reason that a remote indorsee of a promissory note may declare on the note as the immediate indorsee of the first or any intermediate indorser, in which case plaintiff’s title relates back to the title of such indorser.</p> <p>2. Pleading, § 451*—necessity that defense of variance he raised in trial court. The defense of variance is not available for the first time on review, for the reason that if such defense is not made in the trial court it is cured by verdict.</p> <p>3. Pleading, § 451*—necessity that objection on grounds of variance he specific. A general objection of variance is not sufficient, and in order to make the defense available the objection must be sufficiently specific so that, if well taken, the pleading may be amended so as to conform to the proof, for the reason that such objection is one of procedure and does not go to the merits.</p> <p>4. Bills and notes, § 370*—admissibility of note under common counts. A promissory note is competent evidence under a declaration declaring upon it under the common counts.</p> <p>4. Bills and notes, § 420*—when evidence of transactions between mother and payee inadmissible. Evidence of transactions between the maker and payee of a promissory note which relates to the inception of the note is incompetent as evidence in defense where the action is brought by an innocent holder for value before maturity.</p> <p>5. Bills and notes, § 369*—when failure of consideration may not he shown under general issue. In an action to recover on a promissory note where one count declared on the note under the common counts and where defendant interposed a plea of the general issue generally to 'the whole declaration, the admission of evidence tending to prove want of consideration held erroneous, for the reason that such pleas did not raise the defense relied on.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1411*—when verdict of jury will not "be disturbed. Where the evidence is conflicting the verdict of a jury will not be disturbed although the jury may have believed some witnesses and discredited others, especially where the witnesses discredited were contradicted by admitted facts, for the reason that in such ease it is the province of the jury to find the facts, and having the witnesses before them and observing them on the stand, together with their candor lor want of it, they may better decide to which witnesses credit should be given.</p> <p>2. Witnesses, § 275*—when jury may discredit testimony of witness. Where the testimony of a witness is contradicted by admitted facts, it is proper for the jury to regard such admitted evidential facts as controlling, and to discredit the testimony of the witness in so far as in conflict with such facts, as where in an action to recover on a contract whereby defendant agreed to purchase beer of plaintiff for use in a named saloon, defendant first denied ownership of the saloon and later admitted that both the license and “beer book” thereof were in his name.</p> <p>3. Damages, § 88*—when contract provides for liquidated damages and not for penalty. In an action to recover on a contract whereby defendant, a saloon-keeper, agreed to sell no domestic beer except that manufactured by defendant, which contract provided that in ease of breach by defendant a sum of money recited therein to be liquidated damages should be paid to plaintiff, held that the damages provided were liquidated damages and not a penalty, there being no evidence of fraud or circumvention, and the amount, not appearing to be unconscionable or disproportionate to the damages likely to result from the breach.</p> <p>4. Damages, § 66*—measure of damages for breach of contract to buy beer and rent saloon fixtures. In an action on a contract which provided for liquidated damages in case of breach by defendant and also for a payment of rental for the use of saloon fixtures supplied to defendant by plaintiff, and as reimbursement for expenses incurred in installing such fixtures, a judgment for plaintiff held, not erroneous in that it represented the combined amount of such sums.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.</p>

<p>1. Pleading, § 200*—when demurrer admits provisions of foreign law. In a bill to enforce a cause of action predicated by the averments of the bill on the statutory and constitutional provisions of a foreign State, such provisions are before the court as facts, and a demurrer to the bill admits the verity of the provisions.</p> <p>2. Corporations, § 226*—when enforcement of liability in creditors. Under a statute providing that “any creditor of the corporation may institute joint or several actions against any of its stockholders that have not wholly paid the capital stock held by him,” such liability to be “determined by the amount unpaid upon the stock or shares owned by him at the time such action is commenced,” held that the right of action if any, under such statute to enforce a claimed liability, grounded on the alleged fact, that defendants unlawfully acquired from the corporation certain shares of its stock, is in the creditors and not in the trustee in bankruptcy of the corporation, the statute not giving such right of action to the corporation.</p> <p>3. Corporations, § 192*—when stockholder’s liability founded on statute. An action to enforce a stockholder’s liability on his subscription is based upon statute, stock subscriptions having been unknown to the common law.</p> <p>4. Corporations, § 522*—when creditor’s right of action does not pass to trustee of bankrupt corporation. A right of action conferred by statute upon the creditors of a corporation and not on the corporation does not pass to the trustee in bankruptcy of the corporation.</p> <p>5. Corporations, § 226*—when rights of creditors of bankrupt foreign corporation do not pass to trustee. Where the statutes of the State under which a bankrupt foreign corporation is organized give to creditors the right of action to enforce payment for stock, the fact that the corporation was authorized to do business in this State does not operate to give such right of action to the trustee in bankruptcy.</p> <p>6. Corporations, §724*—when liability of stockholder in foreign corporation not enforceable. No action is maintainable in the courts of this State by creditors against resident stockholders of a bankrupt foreign corporation to enforce payment for stock, where the right of action sought to be maintained is predicated on the statutes of the foreign State until the courts of such foreign State, in an appropriate proceeding, shall have determined the relation of creditors, stockholders and corporation to each other as well as the proportionate share of the indebtedness to be borne by each solvent stockholder.</p> <p>7. Parties, § 31*—when substitution unauthorised. In a bill brought in this State to enforce payment for stock in a bankrupt foreign corporation, the allowance of a petition to substitute the trustee in bankruptcy as complainant and to eliminate the original complainants as such, held erroneous where the statutes of such foreign State confer such right of action on creditors and not on the corporation.</p> <p>8. Statutes, § 7*—when remedy under foreign statute not enforceable. No special remedy provided by the legislation of a foreign State is enforceable in the courts of this State under the principle of comity.</p> <p>9. Corporations, § 229*—what parties essential to suit by creditors of foreign corporation. Where, in a bill by creditors of a bankrupt foreign corporation to enforce payment for stock, it is nowhere alleged that the cause of action sought to be enforced is contractual, but where on the contrary such cause of action is admittedly statutory, the corporation and stockholders are necessary parties to the action, a determination of their liabilities and - relations to each other being essential.</p> <p>10. Equity, § 213*—when demurrer to bill properly sustained. Where a bill stated no fact giving the court jurisdiction to decree relief, a demurrer thereto held properly sustained.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 81*—when compensation for continued services presumed to be same as formerly. Where plaintiff performs services as “.a graduate professional nurse” for defendant for a period during which defendant without objection pays plaintiff at stated rate of compensation, and where after such period plaintiff continues to perform services and defendant continues to accept such services without giving notice of any change in such rate, the rate of compensation for such continued services is presumed to be the same as for those for which defendant paid, although such continued services may be slightly different and less exacting than formerly, provided that during such continued services plaintiff was expected at all times to hold herself in readiness to perform the same services as formerly, if required.</p> <p>2. Master and servant, § 81*—when employee presumed to have assented to new contract. If after notice of a proposed change in the terms of an employment an employee continues in the service of an employer without objection, he is presumed to have assented to the new contract and that subsequent services were, rendered thereunder.</p> <p>3. Master and servant, § 84*—when evidence insufficient to establish assent by employee to change in terms of employment. In an action to recover for services, where after an objection by the employer to the rate of compensation which had previously been paid to the employee and a request for a reduction in the rate charged the employee continued in the service of the employer, evidence examined and held insufficient to warrant an inference that after such objection and request the 'employee assented to a change in the terms of the employment;</p> <p>4. Appeal and error, § 1802*—when judgment reversed without remanding. Where a judgment must be reversed as being entered on a wrong theory of the law, and the amount due plaintiff appears with certainty from the record, judgment will be entered in the Appellate Court for the amount which plaintiff is entitled to recover, and the cause will not be remanded.</p>

<p>Appeal from Municipal Court of Chicago; the Hon. Henry C. Beitleb, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1269*—when presumption arises that evidence heard in support of bill was not included in certificate. Where the certificate of the trial judge shows that the evidence included in the certificate was “all the evidence” heard on issues raised by a cross-bill, it must be assumed that the evidence heard' in support of the bill is not included in the certificate.</p> <p>2. Appeal and error, § 1269*—when presumed that decree is sustained by evidence. A complainant is precluded from assigning as error a decree dismissing a bill for want of equity where the evidence heard in support of a bill does not appear in the certificate of evidence tendered, for the reason that in order to entitle itself to a reversal defendant must show that there was evidence entitling it to the relief prayed for, without which showing it will be presumed that the decree is sustained by the evidence.</p> <p>3. Appeal and error, § 1394*—what necessary to support decree. In chancery cases a decree granting relief must be supported by a finding of specific facts in the decree itself, or by evidence appearing in the record.</p> <p>4. Equity, § 358*—when decree dismissing bill for want of equity necessary. Where there is no evidence in support of a bill- or where the evidence is insufficient to warrant the court in granting the relief asked for, the proper decree is a decree dismissing the bill for want of equity.</p> <p>5. Appeal and error, § 726*—burden of proof to show decree not warranted by evidence. The fact that defendant secured the incorporation of affirmative findings of fact in a decree dismissing a bill for want of equity does not relieve complainant, if it assigns such decree as error, from the burden of showing by a proper certificate of evidence that the decree is not warranted by the evidence in order to entitle itself to a reversal, as the incorporation of such findings in such a decree is unnecessary, and it is therefore immaterial whether such findings be findings of fact or conclusions of law and fact.</p> <p>6. Appeal and error, § 726*—necessity of proper certificate of evidence. Where a complainant assigns as error a decree dismissing the bill for want of equity, the burden of showing that the decree was not warranted by the evidence cannot be sustained where complainant fails to file a proper certificate of evidence.</p> <p>7. Bills and notes, § 446*—sufficiency of evidence to establish ownership of note. On a cross-bill raising the question of title to a note secured by a trust deed of which defendant was in possession, claiming to be a holder in due course, a decree finding affirmatively that plaintiff was the owner of the note and deed and that defendant was not a holder in good faith and for value in due course and had no title thereto, held sustained by the evidence.</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. Taxation, § 188*—when Act of 1898 construed as revising assessment procedure. The Revenue Act of 1898 (J. & A. ¶¶ 9516-9576) provides for an entirely new system of assessment, with new modes of procedure and a new system of review, and as to that subject is practically complete in itself, constituting an entire plan for the making of assessments.</p> <p>2. Statutes, § 148*—when revision operates as repeal. A subsequent statute which revises the whole subject of a former act and is intended as a substitute for it operates as a repeal of the former, although containing no express words of repeal.</p> <p>3. Taxation, § 665*—what effect of Act of 1898 on prior acts. The provision of Hurd’s Rev. St., ch. 120, sec. 24 (J. & A. ¶¶ 9238), that one failing to file a schedule of his personal property for taxation as therein required shall be guilty of a misdemeanor, is repealed by section 19 of the Act of 1898 (J. & A. ¶ 9534), providing that in such ease the assessor shall list the property at its fair cash value and shall add to such list an amount equal to fifty per cent, of its valuation.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 16*—when right of appeal from order does not exist. Since the right to appeal is entirely statutory, no appeal lies from an order dissolving an injunction under section 123 of the Practice Act (J. & A. fl 8661), providing for appeals from interlocutory decrees granting an injunction, overruling a motion to dissolve, and enlarging the scope of such injunction.</p> <p>2. Appeal and error, § 270*—when order not final so as not to authorize appeal. An order dissolving a preliminary injunction is interlocutory and not final, and therefore no appeal will lie from such order.</p> <p>3. Appeal and error, § 1853*—when appeal bond sufficient in form. An appeal from a decree dismissing a bill is properly before the Appellate Court although the appeal bond recites that “Ernst” E. Lehmann is principal, while in the condition of the bond appellant’s name is given as “Ernest” E. Lehmann, “Ernst” and “Ernest” being idem sonans.</p> <p>4. Usuby, §45*—when hill sufficiently alleges usury. An allegation in a bill alleging that the notes against which relief is sought were given for double the amount of the loan alleges that the notes were usurious.</p> <p>5. Usury, § 64*—when relief will he granted from a usurious transaction. The question whether a loan is usurious is a question of fact, and in determining the question equity will look at the substance of the transaction, disregarding the color or form given it by the parties, and will not permit parties to evade the statute by any conceivable scheme or expedient, for which reason, if in any form or shape the transaction appears to be usurious, it will be so declared, and the proper remedy applied.</p> <p>6. Usury, § 65*—when relief granted in equity. In equity a complainant praying for affirmative relief against a usurious contract must pay the amount of the loan with legal interest, although at law the whole of such interest is in such case forfeited.</p> <p>7. Equity, § 52*—when remedy at law inadequate so as to give equity jurisdiction. Although in an action at law between the original parties to a note, want of consideration is such a defense to the note as to make the remedy at law adequate, yet a bill alleging that at the time when the bill was filed such notes were not yet due, and that the holder had threatened and was about to dispose of some of the notes against which relief is sought, states a case where such remedy is inadequate save in a court of equity, for the reason that the defense of want of consideration as between the parties cannot be set up in an action where plaintiff is a bona fide holder.</p> <p>8. Tender, § 20*—when hill offering to pay into court amount found due sufficient tender. An averment in a bill seeking relief against notes alleged to be usurious, which alleges that complainant is ready and willing and offers to pay whatever amount the court may find to be due, is a sufficient tender of such amount to enable complainant to maintain his bill.</p> <p>9. Equity, § 263*—when supplemental hill will not aid original hill. Where a bill fails to state grounds for relief the defect cannot be cured by a supplemental bill, for the reason that the office of a supplemental bill is to bring before the court matters which have taken place since the bill was filed.</p> <p>10. Injunction, § 13*—when preliminary injunction will issue to prevent disposal of usurious notes. A bill praying relief against usurious notes which alleged that such notes were not yet due and that defendant threatened and at the time the bill was filed was about to dispose of some of the notes, and in which a sufficient tender was made to pay the amount legally due on the notes against which relief is sought, held to entitle complainant to a preliminary injunction.</p> <p>11. Equity, § 344*—when hill should not he dismissed for want of equity. Where a bill, with its amendments and a supplemental bill, stated grounds for relief and also entitled complainant to a preliminary injunction, a degree dissolving such injunction and dismissing the bill for want of equity held erroneous.</p>

<p>1. Continuance, § 7*—when ground alleged insufficient. In an action on a promissory note, the copy of the instrument attached to plaintiff’s pleadings showed an indorsement as stricken out. Defendant’s plea alleged, inter alia, that the indorser in question was the owner of the note and plaintiff was merely the agent and trustee of defendant. The note, when offered in evidence, showed that the indorsement had not been stricken out. Defendant moved for a continuance on the ground of surprise, which motion was overruled. Held, that the denial of the motion was not error.</p> <p>2. Pleading, § 253*—when amendment after verdict properly allowed. In an action on a promissory note, where a copy of the note attached to plaintiff’s pleadings showed an indorsement as having been stricken out, and there was no averment of an indorsement, but the note when offered in evidence showed no indorsement stricken out as shown by such copy, whereupon defendant objected to the admission of the note on the ground of variance, an amendment showing that the note had been indorsed, delivered and protested, held properly allowed after verdict.</p> <p>3. Appeal and error, § 550*—when objection limited to specific grounds. The statement of one or more specific grounds of objection to evidence is a waiver of all other such grounds, for the reason that such an objection is limited to the grounds specified and excludes others not specified.</p> <p>4. Appeal and error, § 508*—when objection to admission of evidence properly overruled. It is not error to overrule an objection to evidence made on several grounds where one of the grounds specified is untenable, for the reason that the court is not bound to separate that part of an objection which is tenable from that which is untenable.</p> <p>5. Evidence, § 138*—when notice to produce notice not essential. The contents of a notice served by one party upon another may be proved without first giving notice to produce the original, especially where the evidence shows that the giving of such notice to produce would be useless.</p> <p>6. Bills and notes, § 289*—when evidence of service of notice of protest by mail sufficient. In an action against an indorser of a promissory note, an objection to evidence of notice of protest sent to defendant held properly overruled, although no demand was first made on defendant to produce the original and although there was evidence that defendant did not receive the notice, where it further appeared that the notice offered in evidence was sent by mail addressed to defendant at a place where he had been in business for ten years prior to the commencement of the action.</p> <p>7. Pleading, § 152*—when affidavit of merits necessary. In an action against the maker and one indorser of-a promissory note where defendants make joint pleas and file a sufficient affidavit of merits therewith, but where such indorser alone files a further plea without filing an affidavit of merits therewith, an order striking such separate plea held not erroneous where the affidavit filed with the joint pleas does not specify the nature of the defense set up by the special plea, as in such ease there is no compliance with the requirement of Hurd’s Rev. St., ch. 110, sec. 55 (J. & A. ¶ 8592), requiring that the affidavit of merits shall specify the nature of the defense.</p> <p>8. Appeal and error, § 384*—when objection to curable defect waived. An objection to an order striking a separate plea filed by a defendant on the ground that plaintiff’s affidavit of claim is defective is unavailable on review, where at the time the order was entered striking such plea the attention of the trial court was not directed to such alleged defect in the affidavit, especially where such defect could have been readily cured if seasonably objected to.</p> <p>9. Trial, § 194*—when direction of verdict proper where different verdict would be set aside. It is not error to refuse a peremptory instruction in favor of both defendants in an action against the maker and one indorser of a promissory note where one defendant has no defense to the action.</p> <p>10. Pleading, § 28*—when competency of evidence not affected by failure to set out in declaration. In an action on a promissory note where plaintiff is indorsee for value, the draft with which plaintiff purchased the note sued on is competent, although not set out in the declaration.</p>

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

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 763*—when instruction as to admission of ownership, management and control of train properly refused. In an action to recover for injuries sustained by the alleged negligent operation of a railroad train, a request by plaintiff that the jury be instructed as matter of law that one of the defendants in the action admitted its ownership, management and control of the train in question by pleading the general issue in the action, held properly refused where such point was raised for the first time by plaintiff at the close of all the evidence, after having offered evidence as to such question as part of his case, such conduct being inconsistent, and where it also appeared that defendant filed with its plea a notice of special defenses which was sufficient under Hurd’s Rev. St., ch. 110, see. 48 (J. & A. f 8593), providing for the filing with such a plea of written notice of special defenses relied on.</p> <p>2. Instructions, § 137*—when defendant may request instruction on plaintiff’s evidence. A defendant which has rested without offering any evidence in defense may at the close of plaintiff’s evidence request that the jury be instructed, as to it, only on plaintiff’s evidence, and further, that the jury be instructed not to consider, as to it, the evidence offered in defense by a codefendant.</p> <p>3. Instructions, § 137*—when right to instruction on plaintiff’s evidence waived. A defendant who rests without offering evidence in defense and cross-examines the witnesses offered by a codefendant waives his right to request that the jury be instructed, as to it, solely on plaintiff’s evidence, and also to request that the jury be instructed not to consider, as to it, any evidence offered in defense by a codefendant.</p> <p>4. Instructions, § 135*—token right to instruction on plaintiff’s evidence waived. A defendant who has rested without offering evidence in defense submits to the jury, as to it, all the evidence in the case where, at the close of all the evidence, it requests a peremptory instruction in its favor as well as instructions on the facts and on the law in the case, without confining such requests to plaintiff’s evidence, for which reason if the jury find a verdict of guilty, such defendant will be precluded from asserting that the jury were not warranted in considering, as to it, all the evidence in the case.</p> <p>5. Railroads, § 770*—when instructions conform to issues. In an action to recover for injuries sustained by the alleged negligent operation of a train, instructions requested by plaintiff examined and held to submit to the jury the question of the ownership, management and operation of the train by a particular defendant.</p> <p>6. Railroads, § 733*—sufficiency of evidence as to negligent operation. In an action to recover for injuries sustained by the alleged negligent operation of a railroad train, where the action was against two defendants, one of whom made no denial of the ownership and control of the agencies involved, a verdict of not guilty against one defendant which offers no evidence in defense will be sustained by the evidence where the jury are warranted in considering, as against such defendant, the evidence offered in defense by its codefendant, if a similar verdict as to such codefendant, found on such evidence, would be sustained thereby.</p> <p>7. Railroads, § 770*—when instruction as to warning signal by locomotive applicable to evidence. In an action to recover for injuries sustained through the alleged negligent operation of a railroad train, held that an instruction as to the effect of sounding the locomotive’s bell or blowing its whistle was based on sufficient evidence in the record, where such record showed that such bell was sounded by an electric ringer from the time the train reached the city limits until it came to a stop after the accident.</p> <p>8. Railroads, §766*—when instruction on doctrine of last clear chance properly refused as misleading. In an action to recover for injuries sustained by the alleged negligent operation of a railroad train, a requested instruction presenting the doctrine of “last clear chance” held properly refused, where the instruction was involved and misleading and did not correctly present such doctrine to the jury.</p> <p>9. Instructions, § 46*—necessity that instruction not invade province of jury. An instruction which clearly invades the province of the jury is properly refused.</p> <p>10. Trial, § 155*—province of fury to consider conflicting testimony. An issue presented by conflicting testimony is a question of fact for the jury.</p> <p>11. Appeal and error, § 1410*—when verdict will not be disturbed as against weight of evidence. Where the evidence is conflicting, the verdict of a jury will not be disturbed on review unless clearly and manifestly against the weight of the evidence.</p> <p>12. Railroads, § 733*—sufficiency of evidence as to negligent operation. In an action to recover for injuries sustained by the alleged negligent operation of a railroad train, judgment for defendants held sustained by the evidence.</p> <p>13. Damages, § 183*—when evidence as to having family inadmissible. In an action to recover for injuries sustained by the alleged negligent operation of a railroad train, evidence that before the injury plaintiff was married and had children, held properly excluded.</p> <p>14. Judgment, § 199*—when error as to one party as affecting other party immaterial. In an action against codefendants, the question as to the vitiation of the judgment as to both defendants by its invalidity as to one, held immaterial in view of the decision of the court on other questions presented by the record.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</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. Mechanics’ liens, § 196—when evidence insufficient to establish joint liability. In an action to enforce a mechanic's lien for constructing stairs in a building, where the judgment was against three defendants jointly, evidence examined and held insufficient to prove a joint liability.</p> <p>2. Municipal Court of Chicago, § 13*—when statement of claim does not warrant joint judgment. In an action by a subcontractor to enforce a mechanic’s lien, where plaintiff’s statement of claim does not show that he is seeking a judgment against the owners of the building and the original contractor jointly, such a judgment is erroneous under section 28 of the Mechanics’ Liens Act (J. & A. ¶ 7166), providing that all suits and actions by subcontractors shall be brought against both contractor and owner jointly and no decree or judgment shall be entered until both are brought before the court by process.</p> <p>3. Mechanics’ mens, § 202*—when judgment for subcontractor erroneous. In an action under Mechanics’ Liens Act, section 28 (J. & A. If 7166), by a subcontractor to enforce a mechanic’s lien for building stairs in a building, a judgment not against all the owners and all the contractors is erroneous.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>1. Taxation, § 662*—when city holding invalid tax title not entitled to reimbursement out of surplus from tax sale. In a petition filed in a bill to foreclose a tax lien, which petition prays an order directing a county treasurer to pay over to petitioner a surplus remaining after the tax sale decreed in the foreclosure action, where the fund is also claimed by a municipal corporation under Act of June 23, 1913, providing that a municipal corporation holding certificates of sale or tax deeds by virtue of Act of 1897, sec. 72 (J. & A. 11463), authorizing municipal corporations to purchase at tax sales in certain cases, shall be reimbursed to the amount paid by it at such sale before any final judgment shall be entered concerning the title to the land sold, a decree granting the relief prayed by the petition is not erroneous as being in conflict with such Act of June 23, 1913, although such reimbursement is not made by such decree, for the reason that such Act of June 23, 1913, has been declared unconstitutional.</p> <p>2. Taxation, § 662*—when holder of iwvaWd taco title entitled to reimbursement. Under Hurd’s Rev. St., ch. 120, sec. 224 (J. & A. ¶ 9443), providing that any judgment setting aside a tax deed shall provide for the reimbursement of the holder of such deed by the claimant as prerequisite to such claimant’s having the benefit of such decree, the holder of a tax title is entitled to reimbursement only when such tax deed is set aside by the decree in question.</p> <p>3. Taxation, § 662*—what does not constitute setting aside taco deed. A decree awarding to the assignee of the owner of land sold for taxes a surplus remaining after such sale does not set aside a tax deed within the meaning of Hurd’s Rev. St., ch. 120, sec. 224 (J. & A. ¶ 9443), providing for the reimbursement of the holder of a tax title where the tax deed is set aside by a judgment decree, notwithstanding the fact that such decree denies reimbursement to a municipal corporation holding an invalid certificate of the sale of the same land to it for nonpayment of assessments made against such land for local improvements.</p> <p>4. Equity, § 151*—what is effect of admissions in bill. In a petition by the assignee of the owner of land sold for taxes, praying that a surplus remaining after the tax sale be awarded to him, the admission of a claimant under tax certificates that it “makes no claim in this suit as to the title” to the property in question, amounts to an admission that the tax certificates relied on are invalid.</p> <p>5. Taxation, § 662*—when holder of invalid taco title not entitled to reimbursement. The holder of an invalid tax deed is not entitled to be reimbursed for the amount paid in acquiring the tax title, whether such holder be a city or an individual.</p> <p>6. Estoppel, § 77*—when assignee of surplus from taco sale not estopped to question right of city to reimbursement. One to whom the owner of land sold for taxes has assigned his right to the surplus remaining after the sale is not estopped to question the right of a city to be reimbursed out of such surplus for the amounts paid at a sale of the same land to it for nonpayment of assessments for local improvements, by reason of the fact that such assignee had no greater rights than such assignor.</p> <p>7. Taxation, § 662*—when city not entitled to reimbursement of amount paid at taw stile. A decree awarding a surplus remaining after the sale of land for taxes to the assignee of the right of the owner of the land in such surplus does not violate the rule that one cannot profit by his own wrong, although such decree denies the right of a city to be reimbursed out of such surplus for amounts paid at a sale of the same land to it for nonpayment of assessments levied against the land to pay for local improvements.</p>

<p>Abstract of the Decision.</p> <p>1. Contracts, § 387*—when evidence insufficient to establish breach of contract. In an action to recover on a contract where defendant agreed that plaintiff should have an exclusive right to sell its motor cars within a named territory and should have as his compensation for such sales an agreed discount from defendant’s listed price therefor, and the breach relied on to sustain the action was that the defendant directly or indirectly sold one of its cars within plaihtifif’s territory, evidence held sufficient to support a finding that plaintiff could not have made the sale, and that he did not sustain any actual damages as a result of such sale.</p> <p>2. Contracts, § 387*—when evidence sufficient to establish breach of contract. In an action to recover on a contract whereby defendant agreed that plaintiff should have the exclusive right to sell its motor cars within a named territory and should have as his compensation for such sales an agreed discount from defendant’s listed price therefor, where the breach relied on to sustain the action was that defendant directly or indirectly sold one of such cars within plaintiff’s territory, evidence held to warrant a finding that plaintiff could have made the sale, and that plaintiff suffered substantial damages.</p> <p>3. Interest, § 56*—how should be computed upon breach of contract. In an action to recover on a contract whereby defendant agreed that plaintiff should have the exclusive right to sell its cars within a named territory, and should have as his compensation an agreed discount on defendant’s listed price for cars sold by plaintiff, and where judgment for plaintiff included the amount of such discount on the price obtained for a car sold by defendant within such territory in breach of the contract, held that interest should be computed on the amount of the discount from the date of such sale.</p> <p>4. Interest, § 81*—when error exists in computation of interest. In an action to recover on a contract whereby defendant agreed that plaintiff should have the sole right to sell its motor cars within a named district, a judgment for plaintiff of $1,921.83, held excessive to the extent of $63.17.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge,'presiding.</p>

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

<p>1. Fraud, § 72*—when hill sufficiently alleges. In a bill praying an accounting on the ground of fraud, averments of the bill held sufficient to show fraud.</p> <p>2. Account, § 19*—when equity jurisdiction of hill for accounting. In a bill praying an accounting where evidence was taken by a master on complainant’s motion for a preliminary injunction, bill and evidence held to show that the accounts in question are numerous and complicated sufficiently to give jurisdiction thereof to a court of equity.</p> <p>3. Account, § 19*—when equity jurisdiction of hill of accounting. Courts of equity have jurisdiction to compel an accounting, although there be an adequate remedy at law, where fiduciary relations exist between the parties, or where fraud is charged or where discovery is sought.</p> <p>4. Fraud, § 55*—when equity jurisdiction on ground of fraud. Fraud is one of the broadest grounds giving jurisdiction to a court of equity, and where fraud exists the aggrieved party is not bound to resort to another tribunal, possessed of less power and appliances to ascertain the truth and grant relief, although another tribunal may also have jurisdiction.</p> <p>5. Account, § 19*—when equity jurisdiction of hill for accounting. The conditions usually held sufficient to give a court of equity jurisdiction to entertain a bill for an accounting are where the accounts in question are complicated or intricate, or are involved with third parties, or where the methods of investigation peculiar to a court of equity are needed, or where it would be difficult for a jury to unravel the numerous transactions involved.</p> <p>6. Account, § 19*—when equity jurisdiction of hill for accounting. The jurisdiction of a court of equity to entertain a bill for an accounting depends not on the absence of any remedy at law, but upon the adequacy and practicability of such remedy and upon the discretion of the court.</p> <p>7. Account, § 19*—when equity will exercise concurrent jurisdiction of hill for accounting. In regard to questions of accounts, the jurisdiction of courts of equity is concurrent with that of courts of law, and no precise rule can be laid down as to when a court of .equity will exercise such jurisdiction, such court reserving to itself a large discretion, and refusing to take such jurisdiction according to the circumstances of the particular case.</p> <p>8. Injunction, § 16*—when equity will enjoin suit at law. Where a bill prays an accounting and it appears that at the time the bill is filed an action is pending at law involving the matters in regard to which the accounting is sought, an interlocutory decree restraining the further prosecution of such action at law is proper, for the reason that such an injunction is warranted when for any reason a court of equity is a more suitable tribunal for the determination of the matter, or where equitable remedies, unavailable at law, are required.</p> <p>9. Account, § 19*—when equity jurisdiction of Mil for accounting. Where a bill prays an accounting, and it appears that when the bill was filed an action at law was pending involving the matters as to which the bill prays an accounting, the fact that under section 68 of the Practice act (J. & A. -H 8605), relating to matters of accounts, and Hurd’s Rev. St., ch. 51, sec. 9 (J. & A. f 5526), relating to the production of books and writings, a court of law has every facility possessed by a court of equity for the conduct of an accounting, does not operate to oust the long recognized jurisdiction of a court of equity in matters of account.</p> <p>10. Account, § 26*—when MU for accounting not fatally defective. A bill praying an accounting is not fatally defective in that complainant made no demand for such accounting before filing his bill.</p> <p>11. Account stated, § 1*—what constitutes. The terms “stated” and “settled” accounts are sometimes used as equivalent expressions.</p> <p>12. Account, § 19*—when equity will entertain Mil to open up stated account. An account stated is only prima facie evidence of its correctness, so that if the balance ascertained be tainted with fraud or mistake, or is brought about by undue advantage, equity will entertain a bill for the purpose of opening it for restatement or correction in part.</p>

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

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

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>Druggists, § 9*—when evidence insufficient to warrant conviction for unlawfully selling cocaine. In. a prosecution charging defendant with illegal sale of cocaine, where it appeared that a person handed defendant money which he asked defendant to keep for him, and then stepped behind the counter of defendant’s drug store and took a bottle of cocaine, after which defendant returned his money at his request, a judgment of conviction held not sustained by the evidence, it not appearing affirmatively that defendant knew of such taking or that there was a secret understanding between defendant and said person to effect an illegal sale.</p>