Volume 203 — Illinois Appellate Court Reports

<p>1. Mines and minerals, § 125*—When judgment for plaintiff in action on common-law counts by employee against mine manager for personal injuries is erroneous. Where a miner, holding a certificate of competency from the State Board, brought action against his employer, who had rejected the Compensation Act, and his employer’s mine manager for damages for injuries due to an explosion caused by said miner trying to ram a cartridge which he had prepared into a hole bored by him, the tamping rod striking against sulphur, known both by him and by defendants to be in the vein of coal, or some hard substance, held that a judgment for the plaintiff could not be sustained under common-law counts against the mine manager as he was entitled to the defenses of contributory negligence, assumed risk and fellow-servant, and the evidence showed that plaintiff was not in the exercise of ordinary care for his own safety.</p> <p>2. Workmen’s Compensation Act, § 2*—what is effect of refusal of employer to come under as to mine manager. While the election by an employer not to pay compensation under the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, j[ 5475(1) et seg.] would take away from such employer the defenses of contributory negligence, assumed risk and fellow-servant, such election would not under that act have such effect as to the employer’s mine manager joined as a codefendant.</p> <p>3. Mines and minerals, § 125*—when assumed risk and contributory negligence are not available as defenses. Where a count under the statute against an employer and his mine manager charged a wilful violation of the provisions of the mining statute with reference to the duties of such manager (J. & A. If 7494), held that the defenses of contributory negligence or assumed risk would not be available either to said employer, who had elected not to pay compensation under the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, Ü 5475(1) et seq.], or to said mine manager.</p> <p>4. Mines and minerals, § 107*—duty of mine manager to give special instructions with reference to placing and discharging of blasting shots. Paragraph 14, subd. (a), sec. 20 (J. & A. if 7494), of the Mining Statute, requiring a mine manager to give “special instructions concerning the storage and handling of explosives in the mine,” should not he limited to other storage and handling than in charging and blasting, but should he held to be broad enough to cover special instructions with reference to the placing and discharging of the blasting shots.</p> <p>5. Mines and minerals, § 107*—when mine manager is not relieved from duty to give special instructions concerning storage and handling of explosives. The fact that a miner has a certificate of competency from the State Board does not relieve the mine manager from his duty under the mining statute to give to such miner special instructions concerning the storage and handling of explosives in the mine, where such' manager has knowledge that such miner is inexperienced in the handling of explosives and placing and blasting of shots in the mine.</p> <p>6. Mines and minerals, § 173*—when evidence sufficient to sustain verdict for plaintiff in action by miner against employer and manager for injuries. Where, in an action by a miner against his employer and his employer’s mine manager for damages under section 20 of the Mining Act (J. & A. If 7494), because of injuries received while at work in the mine, the evidence tended to show that such miner; although holding a competency certificate from the State Board, was inexperienced in handling explosives and placing and firing of shots, and it was practically admitted by the defendants that said miner had received no instructions from them concerning such work, held that a verdict in favor of the plaintiff was not against the manifest weight of the evidence.</p> <p>7. Appeal and error, § 1666*-—when question of joinder of defendants cannot be raised on appeal. After plea of the general issue and overruling of a demurrer raising the question of joinder of defendants, such question cannot be raised on appeal.</p> <p>8. Mutes and minerals, § 138*—when mine manager may be joined with master as defendant in action for personal injuries. It is proper practice to join the servant with the master in an action by a miner against his employer and his employer’s mine manager lor damages for injuries while at work in the mine.</p> <p>9. Mines and minerals, § 45*—when mine manager liable for violation of provisions of mining act. The Mining Act, sec. 29 (J. & A. If 7503), gives a right of action for violation of its provisions against the mine manager as well as against the mine operator.</p> <p>10. Instructions, § 38*—when giving in language of statute is not error. Where an instruction was in the language of the statute and was applicable to the facts in the case, the giving of same was not error.</p> <p>11. Mines and minerals, § 191*—when instruction in action by miner against owner and mine manager for personal injuries is not erroneous. Where an instruction in an action for damages for personal injuries by a miner against his employer and his employer’s mine manager was, in effect, that even though plaintiff had a certificate of competency from the State Board, such certificate would not relieve defendants from the duties imposed on them by law, held that said instruction laid down a correct principle of law and was applicable to the facts in the case, and the court did not err in giving same.</p> <p>12. Mines and minerals, § 188*—when instruction in action by miner against owner and mine manager for personal injuries is not erroneous as directing a verdict. Where, in an action for damages for personal injuries by a miner against his employer and his employer’s mine manager, an instruction was given, in effect, that “if plaintiff had proven his case as alleged in the declaration that the mere fact of his having a miner’s certificate of competency would not prevent him from recovering in his said suit,” held that such instruction did not direct a verdict and the court did not err in giving same. -</p> <p>13. Judgment, § 203*—when judgment based on good count should be sustained. A verdict and judgment should be sustained if there is one good count supported by the evidence, although other counts in the declaration may not be good or may not be supported by the evidence.</p>

<p>Appeal from the Circuit Court of Edwards county; the Hon. Jtjlius C. Kern, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 397*—who are subcontractors entitled to lien. Where the owner of practically all of the stock and bonds of a railroad corporation, and who was acting as its general agent, entered into a contract with the company for the construction and equipment of its railroad whereby said company agreed to guarantee any contract entered into by him for the building of said road, and on the same day he entered into a contract with a construction company for the construction of a part of said road, and the railroad in an agreement with the latter guaranteed the faithful performance of the contract, which provided that the railroad company “makes itself directly liable” to the construction company and that the latter should “bear the relation and enjoy the rights of a contractor under and by virtue of the lien laws of the State of Illinois,” held that the construction company was a contractor and not a subcontractor, and that those with whom such company contracted for materials were subcontractors and entitled as such to maintain a lien.</p> <p>2. Appeal and error, § 488*—when findings of master may not be objected to on appeal. A finding of fact made by a master in chancery, which is not objected to before the master or excepted to on the hearing before the court, cannot be objected to for the first time in the Appellate Court.</p> <p>3. Railroads, § 397*—when subcontractor entitled to a lien. Under the provisions of section 7 of the Railroad Lien Statute (Hurd’s Rev. St. ch. 82, sec. 13 (J. & A. If 7189), a subcontractor has a right to a lien upon giving the proper notice and taking the necessary steps notwithstanding the original contractor has not completed his contract, or has abandoned the same.</p> <p>4. Assignments, § 31*—when Men of railroad subcontractor is enforceable by his assignee. The lien of a subcontractor under the railroad lien statute is enforceable in equity by the assignee of such contractor suing in the name of the latter, distinguishing the case of Cairo & V. R. Co. v. Fackney, 78 Ill. 116.</p> <p>5. Limitation oe actions, § 64*—what constitutes statement of new cause of action in amended bill claiming railway subcontract- or’s lien. Where an amended bill claiming a subcontractor’s lien under the railroad lien statute was filed more than three months after the lien had accrued, including therein extra materials not included in the original bill filed within said three months, held that the claimant would not be entitled to a lien for such extras for the reason that, as to them, said amended bill set forth a new cause of action.</p> <p>6. Interest, § 76*—when not allowed. Unless interest is asked in a bill claiming a lien under the railroad lien statute, the court would not be authorized to decree interest to such claimant.</p> <p>7. Railroads, § 408*—when .party is not in position to insist upon determination of priority of lien. Where a railroad company, against which and its general contractor, a railroad lien proceeding was instituted for the construction of its road, by a subcontractor, was shown to be in the hands of a receiver, and the general contractor in the bankruptcy court, and a bank, also made a defendant to the proceeding, appeared by its answer to hold certain bonds of said company as collateral security for a loan made by such bank to certain individuals, and appeared to be defendant in another suit in a federal court with reference to the same bonds and had been enjoined from turning them over to anybody, held that aside from the bankruptcy and receivership proceedings the bank was not in a position to insist on a decree giving it a prior lien on the property involved.</p> <p>8. Appeal and error, § 1666*—when right to raise question as to nonjoinder of party defendant is waived. Where, in a subcontractor’s proceeding under the railroad lien statute, an amended bill was filed after the expiration of three months from the accrual of the lien claimed, making a new defendant a party to such proceeding, who neither by plea in abatement, demurrer nor plea of the statute of limitations raised the question in the trial court of the right to maintain such proceedings by reason of such defendant not having been made a party thereto within the three months specified in said statute, held that such defendant waived the right to raise such question and could not for the first time present the same in the Appellate Court.</p> <p>9. Railroads—when objection that defendant should have been made party to intervening petition in subcontractor’s proceeding for lien is without merit. Where, in a subcontractor’s proceeding under the railroad lien statute, another subcontractor intervened, claiming also in part as a judgment creditor, an objection on the part of a defendant in the original proceeding, who claimed a lien as a bondholder, that it should have been made a party to .the intervening petition, held to be without merit, since such petition amounted, in effect, to an answer and not to a cross-bill.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1173*—What questions reviewed in absence of proposition of la%o. Where trial was had by the court without a jury, and no propositions of law were submitted to be held or refused by the trial court on the hearing, and no question was raised on the pleadings, the only matters to be determined on appeal under the assignment of errors are whether the court erred in its rulings on the evidence and whether the finding of the court was against the manifest weight of the evidence.</p> <p>2. Forcible entry and detainer, § 73*—when evidence as to survey of land is inadmissible. Where, in an action of forcible entry and detainer between two tenants of different landlords, both claiming an interest in the land in dispute, the record showed that a witness was acting as the agent of one of said landlords and that any survey made by him of such land was at the instance of his principal without the presence of the other tenant or his landlord or notice to either, held that the court did not err in refusing to allow said witness to testify with reference to any such survey, especially as the witness was allowed to testify that he caused the tract occupied by his landlord’s tenant, which included as a part of the same the premises in controversy, to be fenced and as agent had rented said tract to such tenant.</p> <p>3. Forcible entry and detainer, § 67*—what is only issue in action of. In an action of forcible entry and detainer, the possession or the right of possession of the premises is the only matter in controversy, and the evidence should be confined to this issue.</p> <p>4. Forcible entry and detainer, § 73*—when tax receipts are inadmissible in evidence. In an action of forcible entry and detainer heard by the court without a jury, the court did not err in refusing to consider certain tax receipts offered in evidence by one of the parties tending to show payment by him of taxes on the premises in controversy during certain years preceding the bringing of the suit, as such evidence was not material.</p> <p>5. Trial, § 77*—when evidence offered in rebuttal may be refused. Material evidence offered in rebuttal may properly be refused, as such evidence should be offered in chief.</p> <p>6. Forcible entry and detainer, § 84*—when evidence insufficient to show forcible entry or wrongful detention. Evidence held to show that no forcible entry by defendant on the premises in controversy was shown and that he did not wrongfully detain same after obtaining peaceable possession thereof.</p>

<p>1. Judgment, § 463*—when party is not bound by result of proceedings. In order to be bound by the result of proceedings, a party must have been directly interested in the subject-matter thereof, with the right to make defense, to introduce testimony, to cross-examine the witnesses on the opposite side, to control in some degree the proceedings, and to have the right to appeal from the judgment, and a person not having these rights is a stranger to the cause.</p> <p>2. Intoxicating liquors, § 207*—when evidence of prosecution of intoxicated person killing intestate is inadmissible in action for death under Dramshop Act. In an action under the Dramshop Act for the death of plaintiff’s intestate, who was killed by a third person, alleged to have been intoxicated, where the defendant claimed that such third person was not at the time of the homicide intoxicated but insane, evidence of the criminal prosecution against such third person for the murder of another person at the time of the killing of plaintiff’s intestate wherein the defense of insanity was interposed, such prosecution resulting in a judgment of conviction and a sentence to the penitentiary for life, held inadmissible.</p> <p>3. Intoxicating liquors, § 249*—when instruction in action for damages under Dramshop Act in language of statute is not erroneous. An instruction in an action under the Dramshop Act for damages in the language of section 9 of that Act (J. & A. If 4609), and purporting to be the law governing the right of recovery for violations of the act, while not the best practice, was not error.</p> <p>4. Intoxicating liquors, § 249*—when instruction in action for damages under Dramshop Act against saloon keeper and owner of building is not misleading. An instruction in an action for damages under the Dramshop Act, where one of the defendants was not a dramshop keeper but was owner of the building occupied by a dramshop of another defendant, is erroneous which does not refer only to the defendants who were dramshop keepers in connection with the question of sales, but such error is not of a serious character and it could not have misled the jury.</p> <p>5. Intoxicating liquors—when peremptory instruction is properly denied in action under Dramshop Act for death of intestate by third person. In an action under the Dramshop Act for the killing of plaintiff’s intestate by a third person alleged by plaintiff to have been intoxicated, where the defense was that the homicide was caused by the insanity of such third person and not by the sale of intoxicants to him, a peremptory instruction for the defendants held properly denied.</p> <p>6. Intoxicating liquors, § 202*—when declaration in action under Dramshop Act for death of intestate 6y intoxicated third person is sufficient after verdict. In an action under the Dramshop Act, where the declaration charged that defendants sold intoxicating liquors to a certain person which caused his intoxication, and that while so intoxicated he shot and killed plaintiff’s husband, held that such declaration should state that the killing was in consequence of the intoxication rather than as charged, but the point not having been raised by demurrer, the declaration is sufficient after verdict to support a judgment against the defendants.</p>

<p>1. Waters and water courses, § 10*—when owner of dominant heritage has right to discharge collected waters on land of servient heritage. The owner of the dominant heritage has the right to collect the waters falling on his land and throw them on the land of the servient heritage in increasing quantities and is not liable for damages caused thereby, providing the waters are thrown on the servient heritage at a point where in the course of nature they originally flow.</p> <p>2. Adjoining landowners, § 1*—when doctrine of lateral support is inapplicable. Where plaintiff’s land adjoining defendant’s railroad right of way was in part at a considerable elevation above said right of way and so hilly that at the time of heavy rainfall the water would flow .with such velocity from plaintiff’s land onto said right of way that it caused the soil to wash and flow off into a ditch excavated by defendant along the right of way and ten or twelvé feet from plaintiff’s land, and to cause ditches and gullies in plaintiff’s land, held that "while the doctrine of lateral support obtains, it is not applicable to the facts and it was error, in a suit for damages against the railroad, to refuse a peremptory instruction for the defendant.</p> <p>3. Adjoining landowners, § 2*—when instruction is erroneous as not conforming to pleadings in action for damages resulting from excavation. Where a declaration charged damages to plaintiff’s land by reason of an excavation made by the defendant railroad on its adjoining land causing plaintiff’s land to cave and fall into said excavation, and the evidence showed plaintiff’s land was the dominant and defendant’s the servient land, and that the water flowed from plaintiff’s to defendant’s land after as before such excavation, held that an instruction, to the. effect that if the jury believe from the evidence that the defendant by such excavation negligently diverted the flow of surface water over plaintiff’s land and thereby caused such water to erode the surface of said land and render it unfit for cultivation as charged in the declaration, did not follow the theory of said declaration and was not supported by the evidence, and the giving of same was erroneous.</p> <p>4. Railroads, § 943*—when instruction on right of owner to recover damages for injury to land by fire is erroneous. Where the owner of land sued a railroad company for damages for injuries to said land by fire from defendant’s engine, and the evidence showed said land was rented and that the tenant had sued for and collected damages to the crop of hay growing on said land, held the giving of an instruction on the part of the plaintiff that if the jury believe from the evidence that the defendant negligently set fire to plaintiff’s land as charged in the declaration and damaged the crops growirig thereon, then they should find for plaintiff, was erroneous, and the only damage plaintiff would be entitled to recover would be the damage to the remainder.</p> <p>5. Railboads, § 943*—when defendant is estopped from, insisting upon correct rule of damages in an action hy owner for injury to land 5y fire. The proper measure of damages in an action by the owner of land in possession of his tenant against a railroad company because of injury to said land caused by fire from defendant’s engine is the value of the premises before and after the fire, but the defendant cannot insist on this measure of damages where he offered on the trial testimony as to the cost of resowing the land burned over and as to the loss of the succeeding crop of hay.</p>

<p>Abstract of the Decision.</p> <p>1. Sanitary districts, '§ 17*—when evidence sufficient to show obstruction of flow of surface water by levee. In an action against a sanitary district for damages claimed to have been caused by a levee constructed by the district obstructing the flow of surface water from plaintiff’s land after a certain heavy rainfall, whereby plaintiff’s crops were injured, the question was one of fact for the jury whether said levee so obstructed the flow of said water, and where the clear preponderance of the evidence was to the effect that prior to the construction of the levee the waters had flowed in the direction of the levee and had never caused serious damage to plaintiff’s crops or remained on his land at any great length of time, and that the levee did so obstruct the flow of water, a finding to that effect was not against the manifest weight of the evidence.</p> <p>2. Waters and water courses, § 12*—what is rule as to obstruction of drainage by sanitary district as lower proprietor. The courts of this State have adopted the rule of the civil law that the right of drainage is governed by the law of nature, and that the lower proprietor of land cannot do anything which prevents the natural flow of surface water and cast it back upon the land above, and no distinction is made as to water flowing in natural water courses or as to a sanitary district in its use of lands.</p> <p>3. Appeal and error, § 1489*—when error in admission of evidence may not be complained of. Where, in a suit against a sanitary district for damages claimed to have been caused by a levee constructed by the district obstructing the flow of surface water from plaintiff’s land after a certain heavy rainfall, whereby plaintiff’s crops were injured, evidence was offered by plaintiff to the effect that defendant after said rainfall constructed a lateral ditch whereby such surface water was drained off the land, held, that whether or not the court erred in admitting such evidence cannot be raised by defendant, whose witness had testified on defendant’s behalf on direct examination as to the construction by defendant of said ditch.</p> <p>4. Sanitary districts, § 16b*-—what does not constitute variance between pleading and proof in an action for damages for overflow due to construction of levee. Where, in an action for damages for overflowing of plaintiff’s land caused by defendant’s levee it was charged in the declaration that said levee was not properly constructed so as to provide for the escape of surface water from said land by openings in said levee along said land, the court admitted evidence on the part of the defendant that such openings were provided by defendant at other points, held such evidence was admissible under said averment in the declaration.</p> <p>5. Sanitary districts—when tenant has right of action for construction of levee. Where no lands in the possession of a tenant were taken for the construction of a permanent levee on adjoining land, such tenant would have no right of action because of the construction of such levee until damage to him occurred, and when it did occur he would have a right to recover therefor.</p> <p>6. Appeal and error, § 1466*—when erroneous admission of evidence is harmless error. The erroneous admission of evidence which had no material effect on the finding of the jury, where the amount of damage found by the jury was supported by the evidence and was not complained of as excessive, would not require a reversal of the case.</p> <p>7. Instructions, § 126*—when giving of abstract instruction is not error. There is no error in giving an instruction which is abstract in form and states the law correctly and is applicable to the facts in the case.</p> <p>8. Damages, § 244*—when giving of inaccurate instructions on in behalf of plaintiff is harmless error. Where certain instructions given on behalf of plaintiff did not limit the damages to those charged in the declaration and were not as accurate as they should be, there would be no reversible error in giving same where the measure of damages which should govern appeared in the instructions given on behalf of the defendant.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1411*—when verdict based upon conflicting evidence will not be disturbed. Where the evidence upon a question of fact was sharply conflicting and the verdict of the jury was not against the manifest weight of the evidence, such verdict should not be disturbed, unless other errors in the record require it.</p> <p>2. Railroads, § 443*—when instruction on measure of damages in action for damages for construction and operation of road is erroneous. The true measure of damages in an action against a railroad company for damages because of the construction and operation of its road near the plaintiff’s property is the difference in the fair cash market value of the property before and after such construction and operation, and an instruction which directs the jury to fix such damages as they may find them from the evidence, is erroneous and warrants reversal, unless it be supplemented and cured by other instructions.</p> <p>3. Instructions, § 159*-—when considered as a series. The instructions given by the court are to be read and considered together, and if when so considered they state the law applicable to the case with substantial correctness, it is sufficient, notwithstanding some one instruction is in itself erroneous.</p> <p>4. Instructions, § 88*—when instruction as to determination of preponderance of evidence is not reversibly erroneous. An instruction as to determining the preponderance of the evidence should include the number of witnesses as one of the elements to be considered, but the omission of this element is not reversible error except where the element of the number of witnesses is shown to be important.</p> <p>5. Appeal and error, § 1491*—when exclusion of evidence is harmless error. It is not reversible error to refuse to admit in evidence exhibits consisting of certain records made by a witness with a machine invented by him where he is allowed to give the results of his tests to the jury.</p>

<p>Appeal from the Circuit Court of Gallatin county; the Hon. Junius C. Keen, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>' 1. Insurance—how transfer of rislcs may be made in mutual company. Where a bill for injunction was filed by certain members of a mutual accident and sickness insurance company against the majority members of its board of directors, charging conspiracy to reinsure and transfer the risks held by the company in order to enable said majority members to convert the assets of said company to their own use, and a temporary injunction was issued thereon, held that the officers of such company did not possess the powers necessary to make such transfer of risks, as it could only be done under the statute (J. & A. 6564) by a two-thirds vote of the members and submission of the reinsurance contract to the meeting including all of the members, and such bill was without equity, and the court was without jurisdiction to issue the injunction.</p> <p>2. Insurance—provisions of statute relative to transfer of rislcs in mutual company as part of contract of transfer. The provisions of the statute with reference to the transfer of members or risks in a mutual insurance association (J. & A. j[ 6564) enter into and become a part of the contract of transfer just the same as though the provisions of the statute were written into the articles of transfer.</p> <p>3. Equity, § 23*—what court may not determine upon dismissing bill for want of equity. Where in a suit for an injunction by certain members of a mutual accident and insurance company against the majority members of its board of directors, charging conspiracy to reinsure and transfer the risks held by the company, in order to enable such majority members to convert the assets of the company to their own use, the bill for injunction was dismissed for want of equity and a temporary injunction issued thereon dissolved,. held that the court had no jurisdiction then to go on and undertake to determine who was president of the company or to enter an order undertaking to dispose of the company’s personal property where the bill contained no basis for such an order.</p>

<p>1. Appeal and error—when giving unnecessary instruction is harmless error. Giving an instruction which was unnecessary because it covered a question not raised in the case is not reversible error on that account.</p> <p>2. Negligence, § 213*—when instruction not misleading. "Where an instruction in an action for shooting plaintiff’s intestate was to the effect that if the jury believed from the evidence that the deceased was shot by the discharge of a gun in the possession or control of the defendant “at or immediately before the time of its discharge,” etc., held that the word “immediately” is generally understood as meaning “instantly, directly, without delay, forthwith,” etc., and that its use could not have misled the jury.</p> <p>3. Instructions, § 120*—when properly refused. It is not error to refuse to give an instruction not based on the evidence.</p> <p>4. Negligence, § 151*—when burden of proof as to freedom from is on person holding exploding weapon. A person in the sole control, possession and management of a dangerous weapon at the time it explodes and injures another person has the burden of showing that such explosion was not by any negligence or fault on his part.</p> <p>5. Negligence, § 191*—when freedom from contributory negligence is a question for the jury. In an action for shooting plaintiff’s intestate, held that it was a question of fact for the jury whether the defendant was without fault at the time of the injury, and their finding should not be disturbed unless against the manifest weight of the evidence.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1411*—when finding of jury "based on conflicting evidence will not be disturbed. The finding of the jury upon a disputed question of fact when amply supported by the evidence will not be disturbed.</p> <p>2. Corporations, § 355*—when evidence sufficient to show authority of agent to make contract. Where the evidence tended to show that the manager of a beer company’s office had authority to lease and rent out saloons, sell beer and collect money, and was a salesman and general man of said company, and claimed to have authority to buy certain saloon furnishings, and said company’s vice president said the matter should be settled with said manager as local agent, held that the jury were warranted in finding said manager had authority to enter into a contract for the purchase of such furnishings.</p> <p>3. Corporations, § 355*—when evidence is sufficient to show agency of local manager of corporation to transact business. Evidence held to show that the defendant beer company had in making a certain person manager of its local office in East St. Louis clothed him with apparent authority to transact all business of the character said company was transacting in that city, including the purchase of certain saloon furnishings.</p> <p>4. Corporations, § 355*—when bound by acts of agent. A corporation is bound by the acts of its agent when it clothes such agent with apparent authority to transact certain business, even if, as a matter of fact, it has not so authorized him.</p>

<p>Abstract of the Decision.</p> <p>1. Acknowledgment, § 34*—what does not constitute fatal omission in by justice of the peace. The omission of the words “and entered by me” made by a justice of the peace in his certificate of acknowledgment to a bill of sale does not render such hill of sale void as to third parties.</p> <p>2. Acknowledgment, § 44*—when presumed that proper entry of certificate of is entered in record of justice of the peace. It will he presumed, on appeal, in absence of evidence to the contrary, that an entry of a certificate of acknowledgment to a bill of sale was entered by a justice of the peace in his records.</p> <p>3. Fraudulent conveyances, § 89*—when bill of sale by husband to wife is valid. Where a husband is indebted to bis wife, at the time he executes a hill of sale to her of certain personal property, and said bill of sale is made upon a sufficient consideration and is a fair transaction, it is valid and binding notwithstanding he may he at the time indebted to other parties.</p> <p>4. Fraudulent conveyances, § 284*—when good faith in making transfer is question for jury. The question whether a husband’s conveyance to his wife of certain personal property is for a bona fide debt to her and made in good faith and not in fraud of the rights of creditors is one of fact for the jury,' and their finding should not be disturbed unless against the manifest weight of the evidence.</p> <p>5. Appeal and error, § 1562*—when refusal of abstract instruction is harmless error. The refusal of an instruction which is abstract in form though correct in announcing the principle of law is discretionary with the court and is not reversible error, particularly if such instruction is long and involved and would tend to confuse rather than enlighten the jury.</p> <p>6. Appeal and error, § 1525*—when defective instructions are not reversibly erroneous. Instructions are to be taken as a whole, and if when so taken the jury could not have been misled by the failure of some of the instructions to require the jury to find from a preponderance of the evidence, such failure is not reversible error.</p> <p>7. Appeal and ebbob, § 1546*—when giving of instruction assuming facts is harmless error. An instruction which assumes a fact is erroneous, hut where such instruction does not direct a verdict, and the error is not serious when the instruction is considered with other instructions, and the facts assumed arise only incidentally, the giving of such instruction is not reversible error.</p>

<p>1. Mines and minebals, § 182*—when existence of dangerous condition in mine because of fallen electric wires is question for jury. Where electric wires carrying current for motors and machines in a coal mine were fastened to pegs at the top of a narrow space eighteen inches wide and four feet high on the side of a car track but had become detached and had fallen to the ground a few inches from the outside rail for about thirty feet so that plaintiffs’ son, a car driver, when he went to the rear of his car by direction of the mine boss to remove a sprag placed under the inside wheel to keep the car from backing came in contact with said fallen wires and was killed, held that whether a dangerous condition existed was a question of fact for the jury.</p> <p>2. Mines and minebals, §. 194*—when instruction is properly refused in action for death of miner. An instruction in an action for the death of a miner which does not include all the elements to be considered in determining whether he was properly at the place in the mine where he was killed is properly refused.</p> <p>3. Death, § 62*—when presumed that pecuniary loss arises from death of child. The law presumes pecuniary loss to a parent from the fact of his child’s death, but a collateral relative must prove the deceased was in the habit of furnishing such relative pecuniary assistance or he can only recover nominal damages.</p> <p>4. Appeal and ebbob, § 1535*—when omission of word “preponderance” from instruction is harmless error. The omission of the word “preponderance” from an instruction requiring the jury to find “from the evidence” is not reversible error where the instructions taken as a series showed the jury were fully informed on the questions of burden of proof and preponderance of evidence and could not have been misled.</p> <p>5. Death, § 67*—when verdict is not excessive for death of child. Where, in an action for damages for killing of plaintiffs’ son, the deceased was shown to have been earning $2.56 a day and was only eighteen years old, a verdict for $1,000 was not unreasonable.</p>

<p>Appeal from the Circuit Court of Johnson county; the Hon. William W. Clemens, Judge, presiding. Heard in this court at the March term, 1915.</p>

<p>1. Judgment, § 238*—when judgment nune pro tunc may he entered. Before a judgment nunc pro tunc can be entered, it must appear that a judgment in fact has been rendered but not entered of record through some fault, neglect or oversight.</p> <p>2. Judgment, § 170*—when is not rendered or directed to he entered. Where a circuit judge in vacation directed the clerk of court to enter a certain judgment at the opening of the next session of the court, but before which time, however, such judge’s term of office expired, and no judgment was entered at the opening of the next session, but later another judge entered a judgment nunc pro tunc as of the date of the opening of that session, held that no.judgment was rendered or directed to be entered by said former judge, and that said entry nunc pro tunc was erroneous.</p> <p>3. Officers, § 70*—when party entitled to office may recover fees and emoluments. Where one is elected to office and another without his consent deprives him of the office and collects its fees and emoluments, the party entitled to the office may recover such fees and emoluments.</p> <p>4. Officers, § 70*—when coroner may not recover fees and emoluments received by person illegally appointed to fill vacancy in office of sheriff. Where the coroner of a county assumed the duties of sheriff upon removal of the sheriff by the Governor, and later procured the appointment by the hoard of county commissioners, believing it was their province to make such appointment, of another man as sheriff for the unexpired term, which exceeded one year, of the former sheriff, and said appointee of the hoard qualified, acted and collected fees as sheriff until on quo warranto it was determined that his appointment was unlawful, held that an action of assumpsit would not lie by said coroner against said appointee for said fees and salary paid him.</p>

<p>Appeal from the Circuit Court of Pulaski county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Circuit Court of White county; the Hon. Julius C. Keen, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1916.</p> <p>Certiorari denied by Supreme Court (making, opinion final).</p>

<p>Appeal from the Circuit Court of St. Clair county; the Hon. Geobqe A. Crow, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1105*—what are not grounds for dismissal of appeal. An appeal will not be dismissed because it was permitted by a different judge than the one who rendered the decree.</p> <p>2. Mortgages, § 2%%*-r-what constitutes sufficient consideration for release of. Where the purchaser of land under a warranty deed was compelled to pay out money to perfect his title, held that such payments by him were sufficient consideration for a release of a mortgage given by him to secure part of the purchase money for said land.</p> <p>3. Mortgages, § 270*—what is effect of release on right of foreclosure. Where a purchaser of land under a warranty deed gave a mortgage for part of the purchase money and was forced thereafter to pay out money to the extent of such mortgage in perfecting his title to the land, and obtained from the mortgagee a valid release of such mortgage, held such mortgagee, was not warranted in obtaining a foreclosure and sale to satisfy such mortgage.</p> <p>4. Appeal and error, § 913*—what is effect of certificate of reporter that record contains all the evidence. The certificate of a court reporter that the record contains all the evidence in the case is not sufficient to make the testimony of witnesses a part of the record, but when same is followed by a regular certificate and signature of the judge, the fact of such reporter’s certificate does not destroy the validity of the judge’s certificate.</p>

<p>Appeal from the County Court of Williamson county; the Hon. W. F. Slater, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>1. Frauds, Statute oe, § 17*—when undertaking of contractor to pay material man is original. Where a contractor before delivery of materials for a school building promises the material man to pay for them, and upon such promise they are delivered to the subcontractor ordering the same, such undertaking of the contractor is original and not within the Statute of Frauds (J. & A. If 5867).</p> <p>2. Mechanics’ mens, § 79*—who protected under lien statute as to public improvements. The lien statute as to public improvements (J. & A. ji 7161) does not require that the materials should be furnished on the contract of the principal, but applies to any person who may furnish material or labor to any contractor for any public improvement.</p> <p>3. Mechanics’ liens, § 79*—when contractor is liable to material man on contract to pay for materials furnished to subcontractor. Where a contractor promises a material man furnishing materials to a subcontractor for a school building to pay for the same, he is not to be deprived of a lien by the mere fact that the material man recognizes the subcontractor and charges the goods to him.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors—when cross-examination proper in action for damages under Dramshop Act. In an action for damages under the Dramshop Act, sec. 9 (J. & A. f 4609), a question on cross-examination whether the witness would say positively he did not sell intoxicating liquors or lager beer to a minor on a certain night, testimony in chief having been given that the instructions from the proprietor of the saloon were not to sell to minors, held proper if for no other purpose than to ascertain whether such instructions were given and were being carried out in good faith.</p> <p>2. Witnesses, § 253*—when -weight of is for jury. The fact that a witness’ testimony may not be of much weight because of remoteness does not destroy its competency, and its weight is for the jury.</p> <p>3. Intoxicating liquors, § 249*—when instruction in language of statute in action for death of minor is not erroneous. Giving an instruction in the language of the statute, section 9 of the Dramshop Act (J. & A. f 4609), in an action for the death of a minor due to intoxication and not directing a verdict, is not improper.</p> <p>4. Intoxicating liquors, § 250*—when instruction authorising allowance of exemplary damages in action for death of minor is not erroneous. Where in an action for death under the Dramshop Act, see. 9 (J. & A. If 4609), the evidence warranted a finding that plaintiff sustained actual damages and that liquor was sold to the deceased, a minor, in violation of statute, held that the defendant could not complain even if an instruction was broad enough to include exemplary damages.</p> <p>5. Intoxicating liquors, § 233*—what damages are recoverabte in action for death of minor due to intoxication. The right of recovery under the Dramshop Act, sec. 9 (J. & A. If 4609), for the death of a minor is not limited to the value of the deceased’s wages, but if he contributed to the parent’s support, and if plaintiff is injured in his means of support by reason of the unlawful sale of liquor and consequent intoxication, he may recover whatever loss the jury determines he has sustained.</p> <p>6. Intoxicating liquors, § 187*—when right of action exists in favor of persons sustaining loss due to intoxication. If a person by reason of intoxication is rendered reckless and careless of his own safety and unfit to care for himself, and is injured as a result of such intoxication, a right of action exists in the person who sustained loss from such injury.</p> <p>7. Negligence, § 196*—when proximate cause is question for jury. Where there is evidence tending to show any particular thing could be the proximate cause of an injury, the jury are the judges of what constitutes such proximate cause.</p> <p>8. Intoxicating liquors, § 245*—when verdict for damages for death of minor is not excessive. Where the evidence tended to show that the deceased was a good worker, capable of earning $2 a day, contributed much of his wages to the support of the father and the family dependent upon him, was seventeen years and six months old and of industrious habits, held a verdict for $1,500 damages for his death was not excessive.</p> <p>9. Intoxicating liquors, § 247*—when proximate cause of death-of intoxicated minor is question for jury. Where a minor, while in an intoxicated condition, climbed on top of a railroad car and lost his balance while walking on the top thereof and fell between the cars and was killed, held that it was a question for the jury whether such intoxication was the proximate cause of his death.</p>

<p>1. Mortgages, § 269*-—when mortgagee selling notes secured by mortgage may discharge mortgage as to subsequent bona fide purchasers. The holder of notes and mortgage securing the same who sells and assigns the notes but retains the mortgage, in which he is named as mortgagee or trustee, has the lawful right to discharge such mortgage as to subsequent ’ bona fide purchasers, notwithstanding such notes have not been paid.</p> <p>2. Mortgages, § 278*—when presumed that release deed has been delivered. The recording of a release made by persons appointed in a mortgage or trust deed to execute the release carries with it as to subsequent bona fide purchasers the legal inference that the release deed has been delivered.</p> <p>3. Mortgages, § 269*—when release of is binding. As between the parties or as to third persons having notice of the equities of others, a release of a mortgage made without the notes secured by such mortgage having been paid and in fraud of the holders of such notes would not be binding, but subsequent purchasers or incumbrancers without notice who have acquired their interest in good faith would be protected by such release by the trustee.</p> <p>4. Notice, § 3*—when sufficient to charge person with knowledge. To constitute notice sufficient to charge a person with knowledge there must be something more than bare suspicion; it must appear that such facts were suggested as would cause a prudent mind to investigate, and to fail to do so would be gross negligence on his part, and that such negligence would he of a character that would imply a fraudulent intent.</p> <p>5. Mortgages, § 277*—what is effect of release of record. In the absence of any notice or ground of suspicion, it is not the duty of a purchaser to obtain an admission of payment from the holder of a note secured by trust deed regularly released of record.</p> <p>6. Mortgages, § 119*—when purchasers of notes secured hy new mortgage have priority under new mortgage over holders of notes under old mortgage. Where the purchaser of land assumed a mortgage thereon then of record given to secure certain notes, on the maturity of which such mortgage was released of record by the person authorized therein to release same and a new mortgage to secure new notes was given and duly recorded, and said new notes sold to parties who, as well as said purchaser of the land, were ignorant of the fact that the notes secured by the old mortgage had not been paid, and no suspicious or other circumstances existed tending to put the purchasers of such new notes upon notice of such fact, held that such purchasers of such new notes were bona fide purchasers and entitled to priority under such new mortgage over the holders of the notes under the old mortgage.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Appeal from the Circuit Court of Madison county; the Hon. J. P. Giulham, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Error to the Circuit Court of Saline county; the Hon./ Al beet W. Lewis, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>1. Landlobd and tenant, § 317*—when plea in action for rent is insufficient. Where, in an action for rent upon a lease of premises to be used for dramshop purposes, a plea was filed setting up that since the execution of said lease it had become unlawful to sell intoxicating liquors in that territory by reason of a vote of the people of the town making said territory “dry,” held that such plea did not present any defense to such action or any question of eviction, as it did not allege a surrender or offer to surrender the premises.</p> <p>2. Landlobd and tenant, § 317*—when plea in action for rent relying upon constructive eviction of defendant is insufficient. A plea in an action for rent which relies upon a constructive eviction of defendant is bad if it fails to show a surrender of the premises.</p>

<p>Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>1. Counties, § 81*—what is purpose of amendatory act of 1905 providing for levies for payment of judgments. The amendatory statute of 1905, providing for county levies for payment of judgments (J. & A. If 2781), was enacted for the purpose of enabling boards of county commissioners to take care of such claims, and is mandatory upon said boards to include such claims in determining the amount of taxes to be raised.</p> <p>2. Counties, § 81*—necessity of tax levying power malting provision for payment of all classes of claims. A board of county commissioners cannot make provision for payment of one debt or class of claims and refuse to make any provision whatever for payment of others, even those reduced to judgment.</p> <p>3. Counties, § 81*—noiunecessity of demand upon hoard of commissioners to make levy to pay judgment. Demand upon the board of county commissioners to make a levy to pay a judgment is not necessary, as the statute (J. & A. If 2781) requires such levy.</p> <p>4. Counties, § 81*-—what answer in mandamus proceeding against hoard of county commissioners to compel making levy of taxes to pay judgments should contain. The answer and proof in a mandamus proceeding against a board of county commissioners to compel them to make a levy for payment of judgments should show fully and definitely the necessities and items of expenses of the county and the facts as to levy and payment, so the court can see such board was acting in perfect good faith towards creditors.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 257*—what constitutes variance between declaration and proof in action by lessee’s wife against landlord for injuries due to defective stairway. Where, in an action by a lessee’s wife against the lessor for .damages for injuries sustained on the demised premises, the declaration alleging the lessor’s promise to repair said premises was amended after verdict for plaintiff by striking out such allegation, held plaintiff must rely upon such amended declaration to support the judgment, and that evidence in support of such allegation offered by plaintiff was incompetent under such amended declaration.</p> <p>2. Landlord and tenant, § 226*—when tenant may not recover against landlord for injuries due to defective condition of premises. A tenant cannot recover against his lessor for injuries sustained by reason of a defective condition of the premises in the absence of a contract by the lessor to repair.</p> <p>3. Landlord and tenant, § 242*—what are rights of wife of lessee as to recovery against landlord for injuries due to defective condition of the premises. The wife of a lessee has no different right of recovery against the lessor for injuries sustained by her on the demised premises than the lessee for injuries sustained to himself.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Corporations, § 124*—when contract for turning in personal property at face value in payment of capital of proposed corporation is invalid. A contract, pursuant to which the property and good-will of an insurance exchange for the insurance of • automobiles among its members, upon a sufficient number of contracts of insurance being issued so as to produce a specified premium income, is to be turned in on the basis of such premium income at its face value in payment of the capital stock of a proposed corporation, is invalid under Hurd’s Rev. St. ch. 32, see. 4 (J. & A.' 1Í 2421), providing, with reference to capital paid, that if any proportion of the capital has been paid in property the claim should be appraised by the commissioners and the fair cash value thereof reported.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Coubt of Chicago, § 26*—how evidence in prosecution for keeping a common gaming house may de preserved. Under section 23 of the Municipal Court Act (J. & A. If 3335), prescribing how evidence in cases of the fifth class may be preserved, the evidence in a prosecution for keeping a common gaming house may be preserved by a correct statement of the facts.</p> <p>2. Municipal Court of Chicago, § 29*—when presumed that evidence was sufficient to justify finding of court as to keeping of common gaming house. Where an ordinance upon which a prosecution for keeping a common gaming house was not preserved in the record, it must be presumed on appeal that the evidence was sufficient to justify a finding of the trial court that defendant was guilty of keeping a common gaming house.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal Court of Chicago, § 29*—what Appellate Court may not take judicial notice of. The Appellate Court cannotz take judicial notice of a city ordinance upon which a prosecution by the city is based where such ordinance is not preserved in the record.</p> <p>2. Municipal Court of Chicago, § 29*—when presumed that trial court is justified in finding defendant guilty for violation of city ordinance. Where a city ordinance upon which a prosecution for gambling is based is not preserved in the record, it must he presumed on appeal that the trial court was justified in its finding that the defendant was guilty of engaging in gambling in violation of such ordinance.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 866*—What does not constante an ah* stract. A purported abstract held to be a mere index. ^</p> <p>2. Appeal and erbob, § 1752*—when judgment must he affirmed. In the absence of a sufficient abstract of record, a judgment must be affirmed.</p> <p>'3. Appeal and error, § 1303*—when presumed that verdict of jury is justified from evidence. In the absence of a complete bill of exceptions showing all the testimony and evidence submitted to the jury, it must be presumed on appeal that the jury were justified from the evidence in finding that plaintiff had established his claim.</p>

<p>Abstract of the Decision.</p> <p>Master and servant, § 3*—when contract of employment is unilateral and unenforceable. A contract of employment under which the employer is bound to use the services of the employee for a specified term but the employee has the right to quit work at any time he sees fit is unilateral, lacking in mutuality, and is consequently unenforceable.</p>

<p>1. Attachment, § 2*-—how proceedings for must be complied with. Attachment proceedings are purely statutory, and the statutory provisions must be at least substantially complied with in order that such remedy may be availed of.</p> <p>2. Municipal Court of Chicago, § 13*—when statement of claim must be filed. A statement of claim in an1 attachment action must be filed within three days after the commencement, of the action in order that the court may have jurisdiction to further proceed.</p> <p>3. Municipal Court of Chicago, § 13*—when time for filing statement of claim may not be extended. The time for filing a statement of claim in an attachment action may not be extended after the lapse of a three-day period from the commencement of the action.</p> <p>4. Garnishment, § 13*—what proceedings may be attacked and reviewed. While mere irregularities in garnishment proceedings are not open to attack where the jurisdiction of the court to enter judgment against the defendant and the garnishee is involved, antecedent proceedings may be' attacked and reviewed.</p>

<p>Error to the Superior Court of Cook county; the Hon. William Fenimobe Coopeb, Judge, presiding. Heard in this court at the October term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Safe deposit companies, § 1*—when not presumed to be liable for loss of contents of rented box. Where money is deposited in a rented safe deposit hox under a contract providing that the liability of the depositary is expressly limited to the exercise of ordinary diligence to prevent the opening of the box during the term or any extension or renewal thereof by. any person other than the renter or his duly authorized representative, and such opening shall not be inferable from the loss of its contents, the depositary is not presumptively liable from the mere fact that the money was placed in the box and six months afterwards, when the box was opened by the depositor, was not found to be there.</p> <p>2. Safe deposit companies, § 1*—when instruction on liability of is erroneous. In an action against a depositary for the loss of money placed in a rented safe deposit box where it appeared that plaintiff’s statement of claim was defective, held that it was error for the court to instruct the jury that if they found plaintiff had by preponderance of the evidence made out her case, as alleged in her statement of claim, and if they also found that plaintiff had used ordinary care and diligence in the premises but had failed to meet and overcome such proofs, then their verdict should be for plaintiff.</p>

<p>Abstract of the Decision.</p> <p>1. Garnishment, § 93*—when answer must he taken as true. Where no issue is joined upon an answer in a garnishment action the averment of facts therein stand admitted and must be taken as true.</p> <p>2. Garnishment—when right of exemption is preserved hy garnishee. The assertion of the right of exemption of a debtor in an answer by the garnishee is sufficient to preserve such right to the debtor.</p> <p>3. Garnishment, § 35*—what wages employer is required to answer for. Under section 14 of the Garnishment Act as amended in 1901 (J. & A. If 5949), the employer is not required to answer lor the wages earned by a wage earner after the service of the writ.</p> <p>4. Exemptions, § 5*—when wages of nonresident are exempt from garnishment. A nonresident debtor whose wages are earned in a foreign State is entitled to the exemption of the State of his residence.</p>

<p>Abstract of the Decision.</p> <p>1. Apheai and erboe, § 854*—what does not constitute a certificate of evidence. A document purporting to be a certificate of evidence is insufficient to constitute a certificate of evidence where it is not stated anywhere in it or in the certificate of the trial judge tnereto that it contains all the evidence in the case.</p> <p>2. Municipal Coubt of Chicago, § 26*—how facts in a case of first class may he preserved for review. The Practice Act, sec. 81 (J. & A. If 8618), providing for preserving of facts in a cause for review by a bill of exceptions, stenographic report and certificate of evidence, governs first-class cases in the Municipal Court.</p> <p>3. Municipal Coubt of Chicago § 29*—tphen presumed that judgment is sustained hy evidence. Without a bill of exceptions, certificate of evidence or stenographic report certifying that it contains all of the evidence heard upon the trial of a first-class case in the Municipal Court, unless such record is a prcecipe record, a court of review will presume that the judgment is sustained by the evidence heard upon the trial, and such judgment will not be disturbed upon review for errors of fact.</p>

<p>1. Eminent domain, § 42*—when watchman’s house for use with municipal bridge is not an additional burden upon fee of street. A watchman’s house which is constructed on a street in order that the watchman may, upon the operation of a municipal “jack-knife” bridge over a navigable river, lower the gates across the roadway and warn the public is not an additional burden upon the fee of the street, but is an essential part of the bridge.</p> <p>2. Eminent domain—what does not constitute taking of street for navigation and for private purposes without compensation. There is no taking of a street for- the purpose of navigation and for private purposes without compensation, where, in order that the premises on one side of a navigable river may be used for, railroad purposes and that the river may be open for the necessary width for the purpose of navigation, it is necessary that the abutments on the side used by railroads be constructed in the river and that the bridge be moved a certain distance in the other direction so that not only the river but a certain portion of the street on the side of the river opposite the railroad premises be bridged.</p> <p>3. Eminent domain, § 40*—when remedy of owner of damaged property is at law. The remedy of one whose property is damaged by the method of construction of a lawful public improvement is at law.</p> <p>4. Dedication, § 5*—how question of intention to make is determined. The question of intention to dedicate a street across a navigable river is the controlling element and must be gathered from the plat and all the attendant circumstances.</p> <p>5. Dedication, § 5*-—when evidence sufficient to show dedication of street across navigable river. Evidence, including an examined plat, held to show the intention of the dedication of a street to connect both portions of the street by extending it across a navigable river.</p> <p>6. Railboads—when lessee may authorise construction of viaduct. The lessee, under a 999-year lease of property for railway purposes, held to have the right to authorize the construction of a viaduct from a navigable river over the railroad property to connect a municipal bridge with a city street.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. J. BE. Fobistoff, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Vendor and purchaser, § 81*—what does not constitute waiver of condition in contract.' Where a contract for the sale of land provides that the land shall he subject to a specified incumbrance, an agreement to change the terms of the contract so as to permit an incumbrance materially different from the one originally provided for does not constitute a waiver of the condition.</p> <p>2. Evidence, § 322*—when parol evidence inadmissible to vary terms of contract. Where a contract for the sale of real property provides that the land shall he subject to a specified incumbrance, payable at specified periods, evidence that an agreement to change the terms of the contract so as to permit an incumbrance materially different from the one originally provided for is inadmissible as an attempt to vary the terms of a written document by parol evidence.</p> <p>3. Vendor and purchaser, § 325*—when purchaser is entitled to repayment of earnest money. Where a contract for the sale of real estate provides that the land shall he subject to a specified incumbrance payable at specified periods, and the vendor is unable to furnish a conveyance subject only to such incumbrance within the time stipulated by the contract, the purchaser is not in default- and is entitled to recover earnest money deposited under the contract,</p> <p>4. Appeal and error, § 1810*—when final judgment will be entered in Appellate Court upon reversal. Where, in an action by the purchaser of real estate against a vendor to recover earnest money paid under the contract, there is no dispute in regard to the amount, the Appellate Court upon reversing a judgment for defendant will enter final judgment for the amount claimed.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John Steak, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John A. Mahonet, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Dismissal, nonsuit and discontinuance, § 43*—lohen motion for nonsuit is too late. Where motion for a nonsuit was not made until after the trial judge had stated that he did not see how the plaintiffs could recover or what he could do but allow the defendant’s motion for a finding in his favor, held that such motion for a nonsuit was an admission that the plaintiffs had been informed of the court’s conclusion, and was too late.</p> <p>2. Municipal Court op Chicago, § 29*—how fourth-class case must he decided on review. Under section 23 of the Municipal Court Act (J. & A. If 3335), it is the duty of the Appellate Court in a fourth-class case to decide the case upon its merits as appearing from the statement or stenographic report signed by the trial judge.</p> <p>3. Municipal Coubt op Chicago, § 29*—when finding of trial court will not be disturbed. Where, in a fourth-class case under the Municipal Court Act, the evidence was conflicting and the trial judge at the conclusion of the evidence made a résumé and analysis of the effect thereof and conclusion that the defendant had established his defense, held that the plaintiffs had failed to make out their alleged case by a preponderance of the evidence.</p>

<p>1. Sales, § 388*—what are remedies of buyer for breach of warranty. Where goods are sold with warranty the buyer has, on breach of the warranty, an option of returning the goods or of retaining them and suing on the warranty.</p> <p>2. Sales, § 105*—-when right to rescind sale and return goods is waived by buyer. Where the buyer of goods received and executed a written acceptance of same as entirely satisfactory, he thereby waived the right to rescind the sale and return the goods.</p> <p>3. Sales, § 427*—when seller of goods under conditional sale contract cannot prevent obtaining of perfect title by buyer. Where a party purchased goods upon condition that title should remain in the seller until the goods were paid for, held that the seller could do nothing to prevent the buyer from getting perfect title upon retaining the goods and paying the purchase price.</p> <p>4. Sales, § 388*—when action is based on breach of warranty and not on rescission of contract. Where the statement of claim in an action of the fourth class in the Municipal Court of Chicago set up a sale of a refrigerating plant and warranty of same by the defendant to the plaintiffs, a breach of such warranty, damages by reason thereof, and payment of part of the purchase price, under which evidence of such breach and payment was presented and instructions given that the action was one for breach of warranty, held that such action was one based upon breach of warranty and not one based upon rescission of contract, notwithstanding there was no evidence of damages for such breach and a verdict was rendered for an amount equal to the payment shown on account of the purchase price.</p> <p>5. Sales, § 404*—what is measure of damages for breach of warranty. The measure of damages for breach of a warranty is the difference between the value of the goods as warranted and their actual value in their defective condition.</p> <p>6. Sales, § 404*—what evidence is insufficient as basis for determination of damages for breach of warranty. Evidence of payment of the purchase price of goods sold with warranty does not constitute of itself a sufficient basis for determination by a jury of damages for a breach of the warranty.</p> <p>7. Sales, § 402*—when refusal of court to instruct jury as to measure of damages for breach of warranty is error. In an action for damages for breach of warranty it was error for the court not to instruct the jury, when requested so to do, as to measure of damages in case they found a breach.</p> <p>8. Municipal Court of Chicago, § 31*—when case reversed. The statement of a claim, the evidence, the instructions, and the verdict should be reasonably consistent and all tend to support the judgment, and where the evidence, the instructions and the verdict are irreconcilable, the judgment should be reversed.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1916.</p> <p>Certiorari denied ky Supreme Court (making opinion final).</p>

<p>Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>1. Appeal and error, § 866*—what are requisites of abstract. An abstract is the pleading of the parties and must inform the court of review as to the character of the case and the issue involved.</p> <p>2. Appeal-and error, § 1752*—when judgment will be affirmed. In the absence of an abstract informing the court as to the character of the case and the issue involved, the judgment will be affirmed.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Landlord and tenant, § 264*—what constitutes constructive eviction. Failure of a lessor to furnish heat in an apartment in accordance with the terms of the lease amounts to a constructive eviction, which justifies the lessee in abandoning the premises.</p>

<p>Damages, § 83*—when provision in bond is for liquidated damages and not penalty. Where a lessee covenanted in the lease, in addition to his covenant to pay rent, that he would expend a certain sum within a certain time in remodeling and improving the leased premises, and executed a bond stated to be “in the penal sum” of the amount named in the lease to be so expended for the performance of such covenant, held, in an action on the bond, that the words “penal sum” used therein had no determinative effect, and the amount named in the bond was liquidated damages and not a penalty, distinguishing the case of Westfall v. Albert, 212 Ill. 68.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 892*—what is effect of failure to file proper abstract. An abstract is the pleading of the parties, and where it fails to show the nature of the verdict or what the judgment was, affirmance is warranted, but held that from the nature of the case consideration would be given to the merits involved.</p> <p>2. Street railroads, § 69*—when motorman running over child is not guilty of negligence. Where a child five years old who was standing on a street curb at a crossing suddenly ran from the curb on the approach of a street car when the car was a short distance away, and stumbled and fell alongside the car with one hand on a rail in front of the car, and the motorman, as soon as he saw the child leave the curb, struck his gong and applied the brake but was unable to stop the car, and the child’s hand was injured, held that the motorman was not chargeable with negligence.</p> <p>3. Appeal and error, § 1303*-^-to7¡,ero presumed that evidence disclosed by photograph not, incorporated in bill of exceptions was sufficient to satisfy jury. Where a photograph was introduced in evidence and considered by the jury hut was not incorporated in the bill of exceptions, the evidence is assumed to have been sufficient to satisfy the jury as to the matters shown thereby.</p> <p>4. Trial, § 54*—when denial of motion to withdraw juror and continue case because of alleged improper conduct of juror is not error. Where a juror was accused of improper conduct but denied same under oath unequivocally and the court, after considering affidavits by the parties- concerned, denied a motion to withdraw a juror and continue the case, held that there was no error in such denial.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Appeal and error, § 1268*—when presumed that proceedings in suit in equity were regular. No certificate of evidence being filed, held that the regularity of all proceedings, the giving of proper notices, and that the parties were in court when an order was entered requiring a special commissioner to file his report and when a cause was set for hearing, will be presumed in a suit in equity.</p> <p>2. Equity, § 341*—when chancery suit may be dismissed for want of prosecution while still before special commissioner. Where, in a suit in chancery, an order was entered requiring a- special commissioner to file his report by a certain date, held that it devolved upon the parties to close their proof within the time limited by the order, or so much earlier as to enable the commissioner to comply with the order to file his report, and upon the parties’ failure so to close their proof and of the commissioner to file his report, that the cause might properly be dismissed for want of prosecution.</p> <p>3. Equity, § 362*—when court may not vacate order of dismissal of suit. A court has no jurisdiction to entertain a motion to vacate an order of dismissal of a suit after the lapse of the term at which such order was entered.</p> <p>4. Appeal and error, § 274*—what is a final order. An order dismissing a bill for want of prosecution is a. final order.</p> <p>5. Equity, § 341*—when chancery suit properly dismissed for want of prosecution. When proper notices are given and the parties are in court at the time an order is entered upon a special commissioner in a chancery suit to file his report, and the cause is set for hearing, the court, if the parties do not appear at the time the case is called for trial, may dismiss it for want of prosecution.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>1. Fbaud, § 24*—when verdict for defendant improperly directed in action for damages against officer of corporation for malting false statements as to its financial standing for purpose of obtaining credit. In an action for fraud and deceit, where the plaintiff showed that the defendant had, for the purpose of securing a continuing line of credit for a corporation of which he was president, made a statement as to its resources and liabilities, upon which credit was given to the corporation and later to a corporation of another name in which the defendant was a stockholder but not an officer, and plaintiff offered to prove that said statement was materially false and misleading and that the two corporations, though differing in name, were one in corporate entity, held that the evidence properly offered or submitted tended to prove that material false representations were made by defendant upon which plaintiff relied in extending credit to the last-mentioned corporation, and that the court erred in directing a verdict for defendant.</p> <p>2. Fraud, § 127*—when negligence of seller in delivering goods in reliance upon financial statement is question for jury. Where goods were delivered to a buyer corporation two and one-half years after, and in reliance upon, a certain statement made by its president as to its financial condition with request for a continuing line of credit, which statement contained false and fraudulent representations, held that the seller was not negligent as a matter of law in so delivering the goods.</p> <p>3. Fraud, § 24*—what is effect of change of name of corporation on liability of officer for making false financial statements for purpose of obtaining credit. Where the president of a corporation made false and fraudulent representations as to its financial condition for the purpose of securing a continuing line of credit for the corporation, held that the fact that the name of the corporation was thereafter changed while its corporate entity was otherwise retained did not change the liability of such officer because of such representations for credit given such corporation in reliance thereon after such change of name.</p> <p>4. Fraud, §. 92*—when exclusion of evidence in action for making false statement as to financial condition of corporation for purpose of obtaining credit is erroneous. In an action for fraud and deceit in making false and fraudulent representations as to financial condition of a corporation for the purpose of securing continuing credit for the corporation, held that it was error for the court to refuse to admit evidence that such corporation and one of another name to which credit was given on subh representations were one and the same corporation under different names.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Abstract of the Decision.</p> <p>1. Account stated, § 25*—when evidence sufficient to show. Evidence held to support the finding of the court that the plaintiff’s claim arose on an account stated, in an action to recover for balance due after allowance of a disputed item.</p> <p>2. Cobpobations, § 354*—when hound hy action of officers. A corporation is bound by the action of its president and treasurer in accepting an account as an account stated.</p> <p>3. Pleading, § 153*—what defenses must he set up in affidavit of merits in action on account stated against a corporation. The defenses to an action against a corporation on an account stated, that the debt was due to an individual and that the agreement to pay the debt was voidable under the Statute of Frauds and was ultra vires as to the corporation, come too late when first made after the filing of an affidavit of merits; they should be specifically set up in such affidavit.</p> <p>4. Pleading, § 153*—when affidavit of merits is insufficient. In an action on an account' stated, an affidavit of merits held insufficient to show that the indebtedness sued on was that oí an individual and not the defendant corporation or that the defendant had entered into a voidable agreement to pay such indebtedness.</p> <p>5. Trial, §, 295*—when propositions of Taw should he tendered. Propositions of law should be tendered before announcement of final judgment.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1916.</p>

<p>Error to the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the October term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Municipal corporations, § 1233*—what is necessary averment in declaration against city for personal injuries. A cause of action against a city in a personal injury case is not well stated unless the declaration affirmatively shows that the notice required by Hurd’s Rev. St. ch. 70, sec. 7 (J. & A. j[ 6190), was served upon the city, except in a statement of claim in a fourth-class action under the Municipal Court Act.</p> <p>2. Pleading, § 34*—when averment of giving notice in declaration by reference to exhibit is not permissible. Where service of a notice upon the defendant is required in the statement of a cause of action at law against him, an averment of the giving of the notice by reference in the declaration to an exhibit attached thereto is not permissible either under common-law pleadings or by virtue of any statute of the State of Illinois, and is without any force or effect.</p> <p>3. Pleading, § 34*—how service of notice on defendant should be set out. Where service of notice upon the defendant is required in the statement of a cause of action at law against him, such notice should be set out either in its terms or in its tenor and legal effect.</p> <p>4. Limitation of action, § 64*—what constitutes statement of new cause of action. A declaration in an action against a city in a personal injury case which omits an averment of service of the statutory notice within the statutory time states no cause of action, and an amendment after the statutory period of limitation of actions setting up such notice constitutes a statement of a new cause of action.</p> <p>5. Pleading, « § 223*—what is effect of abiding by demurrer. Where the defendant was granted leave to withdraw a plea of general issue and to file a demurrer, which was sustained, and plaintiff was granted leave to amend his declaration, to which amended declaration the defendant filed a plea of the statute of limitations, and, upon the overruling of the plaintiff’s demurrer to such plea, the plaintiff elected to stand by his demurrer, held that plaintiff waived the right to challenge whatever erroneous exercise of judicial discretion there may have been in allowing the defendant to withdraw his plea of the general issue and to file demurrer to the original declaration.</p>

<p>Abstract of the Decision.</p> <p>1. Judgment, § 80*—when denial of motion to open judgment 6y confession on ground of laches is proper. Where a defendant having knowledge that a judgment by confession had been entered against him took no steps to open the judgment until about two months and a half after it was entered, held that the court might well have denied the motion to open the judgment on the ground of laches.</p> <p>2. Judgment, § 86*—when opening of judgment 6y confession does not affect stipulations in power of attorney waiving errors of procedure. The opening of a judgment by confession for the purpose of allowing the defendant to present a defense does not abrogate the effect of the stipulations in the power of attorney under which the confession of judgment was taken waiving errors of procedure.</p> <p>3. Contracts, § 86*—when agreement is nudum pactum. An agreement between the payee of a note and the maker made at the time of the giving of the note and relating to the transaction of business in a corporation the shares of stock in which held by the payee were turned over to the maker, who was also a stockholder, and who gave the payee the note sued on and a check to pay indebtedness to a bank to which the corporation owed money, and in which the payee, who alone signed it, promised to pay to himself the amount of the note upon the performance of certain conditions relating to the transaction of the business of the corporation, held to be nudum pactum.</p>

<p>Abstract of the Decision.</p> <p>1. Municipal cobpobations, § 83*—when construction of ordinance is question for court. In an action against a city to recover money paid under a city ordinance, upon demurrer to a special count declaring upon and setting out in haee verba such ordinance, held that the right to maintain the action rested in the legal interpretation of the liability of the city to refund the sum paid under the terms of the ordinance, and the question was one of law for the court, regardless of the erroneous conclusion of the pleader.</p> <p>2. Limitation of actions, § 103*—necessity of pleading arresting of statute. If the running of the statute of limitations has been arrested in any manner, that is matter of defense and need not be anticipated in the initial pleading.</p> <p>3. Limitation of actions, § 104*—how defect in count setting up running of statute may be availed of. That a count setting up the running of the statute of limitations is bad because not negativing the exceptions, if any exist, which arrest the running of the statute, cannot be reached by demurrer but must be availed of by plea.</p> <p>4. Municipal cobpobations, § 926*—when person procuring vacation of aUey under ordinance is estopped to question right of city to collect compensation therefor. Where a city ordinance provided that the vacation of an alley made therein should be upon the express condition that a certain party paid a certain amount within a certain time, and the party paid the amount within the time, such party is estopped from questioning the power of the city to exact such payment from him.</p> <p>5. Municipal cobpobations, § 926*—when party paying money in consideration of vacation of alley may not recover it. The terms of a city ordinance vacating a certain alley upon the express condition that a certain party pay a certain amount within a certain time are regulative of the rights of the parties, and in the absence of a provision therein for the return of the money paid by such party he cannot maintain an action at law for its recovery.</p> <p>6. Assumpsit, Action of, § 49*-—when money paid may not be recovered. Money voluntarily paid cannot be recovered in an action at law.</p>

<p>Error to the Municipal Court of Chicago; the Hon. John R. Newcombs, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Arthur J. Gray, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>1. Indemnity—when part payment of judgment against insured is made hy casualty company under contract of indemnity. In an action against a casualty company upon its policy of indemnity agreeing to indemnify the insured to the extent of a certain sum on a single liability for damages on account of injury or death, where judgment was recovered against the insured in a certain case for more than the face of the policy in which appeal was taken, and the surety company on the appeal bond required the insured to give collateral security covering the excess over the face of the policy of the recovery in the case and the casualty company to give indemnity to it to the extent of the face of the policy, and upon such judgment becoming final and the surety company paying the same and taking an assignment thereof the casualty company paid the amount of the policy and the insured the excess over that amount to the surety company, held that the insured’s contention that the payment by the insurer of the amount of the policy was not made under its policy of indemnity to the insured but under its independent contract with the surety company was without merit.</p> <p>2. Indemnity, § 26*—how much interest insured may recover from casualty company where judgment is rendered for more than face of policy. Under a policy of indemnity issued by a casualty company agreeing to indemnify the plaintiff, in an action on the policy, to a certain amount on a single liability for damages on account of injury or death, and to defend at its own cost any action for the recovery of such damages, such company is liable for Interest .on a judgment recovered against the plaintiff to that amount from the date of the judgment, and the plaintiff who has paid the same may recover it from the defendant, but not interest paid by plaintiff on an excess of the judgment over the face of the policy.</p> <p>3. Indemnity, § 25*—when casualty company is not liable for money paid to husband of injured patient of insured. Under a policy of indemnity issued by a casualty company agreeing to indemnify a hospital against loss from liability on account of injuries or death suffered by its patients under treatment in consequence of alleged error, mistake or malpractice in such treatment, such company is not liable for money paid to the husband of a patient for damages suffered by him in consequence of injuries or death of such patient.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Error to the Municipal Court of Chicago; the Hon. Edmund K. J abecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.</p>

<p>1. Assiqnments, § 25*—what is assignee's interest in xoages assigned as security for debt. Where a debtor assigns his wages as security for his debt, the assignee’s interest in such wages is limited to the amount of the debt.</p> <p>2. Usuby, § 25*—what is effect of inclusion of in note. The inclusion of usury in a note defeats a claim for lawful interest even when expressly stipulated for.</p>

<p>Error to the Municipal Court of Chicago^ the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>1. Electricity, § 24*—when declaration in action for injuries by electric light wire is sufficient after verdict. In an action for damages for personal injuries sustained from coming into contact with a live electric wire of an electric light company, where the declaration charged that the defendant carelessly and negligently suffered the wire to be and remain in a bad and unsafe repair and condition and to be and remain lying upon the sidewalk for a long space of time, held that either charge was sufficient to sustain a judgment after verdict for plaintiff.</p> <p>2. Electricity, § 25*—when doctrine of res ipsa loquitur applies. The doctrine of res ipsa loquitur applies to a live electric wire extending over a public street, particularly when such wire is in charge of one having particular or peculiar knowledge of such wires, as an electric light company.</p> <p>3. Negligence, § 120*—necessity of pleading res ipsa loquitur. The doctrine of res ipsa loquitur is not a matter of pleading but of proof, and a declaration alleging negligence in general terms, to which no objection is made, is sufficient where proof is offered of circumstances from which an imputation of negligence necessarily arises.</p> <p>4. Electricity, § 27*—when evidence insufficient to rebut prima facie case of res ipsa loquitur. In an action against an electric light company for damages for personal injuries sustained from a live electric wire, where the doctrine of res ipsa loquitur applied, and the defendant’s evidence was to the effect merely that defendant used the usual and modern methods in regard to the wire, that it was in good condition, was a standard wire in similar use in the locality, that its ordinary life was twenty years and that this wire was in use for only five or six years, held that a finding by the jury that the prima facie case made out for the plaintiff had not been met, was not against the manifest weight of the evidence.</p> <p>5. Electricity, § 26*—when evidence as to manner that live electric wire passes through a tree is admissible in action for injuries therefrom. In an action against an electric light company to recover damages for personal injuries from a live electric wire strung through a tree, evidence as to the manlier it passed through the tree held admissible under a charge that the defendant negligently and carelessly suffered the wire to be and remain in unsafe repair and condition, although the manner in which the wire passed through the tree was not relied upon as a ground of recovery.</p> <p>6. Electricity, § 27*—when evidence is sufficient to show negligence of electric light company in leaving charged wire on sidewalk. In an action against an electric light company to recover damages for injuries received from a charged electric wire which was lying on the sidewalk, evidence held sufficient to sustain a finding that defendant had been negligent in leaving the wire on the sidewalk for a long time.</p> <p>7. Appeal and error, § 1410*—what is province of Appellate Court in determining sitfficiency of evidence to sustain a finding. It is not the province of the Appellate Court to weigh the testimony further than necessary to determine whether a finding is against the manifest weight of the evidence.</p> <p>8. Appeal and error, § 1514*—when improper remarks of counsel are not ground for reversal. Where argument of counsel to the jury was objected to on the trial, objection sustained, and counsel abandoned that line of argument, held that no error was shown by reason of such argument.</p> <p>9. Damages, § 112*—when verdict for injury to hoy is not excessive. In an action to recover damages for personal injuries sustained by a boy eight or nine years old from a live electric wire, held, considering the nature and severity or the shock, pain and suffering, resultant less satisfactory work at school, and lowered tone of nervous system, and jury’s observation of the boy in court, and evidence which, if true, would have justified the jury in believing the boy’s perceptions and capabilities had been materially lessened, that a verdict of $8,000 was not excessive.</p>

<p>Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.</p>

<p>Error to the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>1. Frauds, Statute of, § 74*—what constitutes a sufficient memorandum. Where a written contract for the furnishing of material and labor by one and payment for same by the other party thereto was indorsed by a third party “O. K.,” with his name and the date of such indorsement, held that the indorsement was a sufficient memorandum under the Statute of Frauds.</p> <p>2. Evidence, § 322*-—when parol evidence is admissible to explain terms of guaranty on contract. In an action brought on an alleged guaranty of a written contract for the furnishing of material and labor by one and payment for same by another party thereto, held that parol evidence was admissible to show that defendant, who had written the words “O. K.,” his name and the date of indorsement on the contract, intended thereby to guarantee payment under the contract.</p>

<p>1. Assumpsit, Action of, § 59*—when action for use and occupation lies. An action for use and occupation will generally lie where there is no question of plaintiff’s title to the premises, but not where such title is questioned.</p> <p>2. Assumpsit, Action of, § 59*—when action for use and occw pation lies against party in possession. An. action for use and occupation will lie by the owner of premises against a party in possession not holding under a hostile or adverse title after notice to pay rent; such was the rule' at common law and has not been changed by the Landlord and Tenant Act (J. & A. If 7039).</p> <p>3. Assumpsit, Action of, § 89*-—when evidence is sufficient as to value of use and occupation of premises. In an action for use and occupation, rent paid by a tenant is admissible in evidence as to the value of the use and occupation of the premises, and is sufficient.</p>

<p>Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Depositions, § 34*—when will not be suppressed because of defect in notary’s certificate. The failure of a notary’s certificate to depositions taken before him subsequent to the time set for taking same to show an adjournment is a mere irregularity which is not sufficient to warrant suppression of the depositions in the absence of evidence tending to show injury or surprise of one of the parties thereby.</p> <p>2. Depositions, § 35*-—when motion to suppress is too late. Where depositions were returned promptly and notice of their taking given to the opposite party’s attorney six months prior to trial, held that it was his duty to ascertain whether such depositions had been returned and to present a motion to suppress them before the case was called for trial, and it was then too late.</p>

<p>1. Indemnity, § 1*—what is nature of contract of. A written obligation to indemnify a party in a certain amount on certain specified conditions has the characteristics of a bond.</p> <p>2. Indemnity, § 21*—what are not defenses to action on bond. Failure of consideration or to execute another bond agreed to be executed are not defenses to an indemnity bond.</p> <p>3. Indemnity—when obligor of bond is estopped to deny recitals of bond. Where the defendant had executed a bond reciting that the obligee had executed or agreed to execute a bond in a certain “penal sum” on appeal in a certain case and agreeing to indemnify the obligee as to any payment made by the obligee in consequence of having executed such appeal bond, held, in an action on such indemnifying bond, that the purport of such recitals in such bond was that the obligee therein had executed an instrument adequate to effect the appeal sought and defendant would be es-topped from denying such recitals, whether the obligee executed a technical penal bond or not on such appeal.</p> <p>4. Debt, Action of, § 17*—when judgment is not reversibly erroneous. A judgment for damages alone in an action in debt is irregular in form only and not reversible on that ground.</p> <p>5. Interest, § 28*—when rate of interest on foreign judgment is at rate fixed by domestic statutes. Interest on a foreign judgment should be at the rate fixed by the domestic statute in the absence of competent proof of the foreign interest statute.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Abstract of the Decision.</p> <p>1. Landlord and tenant, § 477*—when notice by lessor’s agent to quit at expiration of term does not affect character of tenure thereafter. Where a lease expired by its terms at a certain date, a notice by the lessor’s agent that possession of the premises would be expected to be surrendered at that date would have, if authorized, no legal effect or bearing upon the character of the lessee’s tenure after expiration of the lease, if the landlord assented to the holding over.</p> <p>2. Landlord and tenant, § 441*—when evidence sufficient to show holding over under terms of lease. Evidence held insufficient to show an oral agreement by lessor’s agent to extend the lease to March 1, 1911, or his authority so to extend it, and sufficient to show a holding over on the terms of the lease without a new agreement, in an action to recover rent for such holding over.</p> <p>3. Landlord and tenant, § 88*—what does not constitute election by landlord to treat tenant as one from year to year. Accepting payment of monthly rent after expiration of a lease according to its terms is an election by the landlord to treat the tenant as one from year to year.</p> <p>4. Landlord and tenant, § 485*—when notice to quit at expiration of term is waived. A notice given a tenant to quit the premises at- the expiration of his lease according to its terms is waived by the landlord demanding and receiving rent after such expiration of the lease.</p> <p>5. Landlord and tenant, § 88*—when city holding over is bound as tenant from year to year. A city, lessee under an authorized lease, holding over after the expiration of the lease according to its terms without a new agreement is bound the same as a private individual to a tenancy, from year to year.</p>

<p>Interlocutory appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court.</p>

<p>Abstract of the Decision.</p> <p>1. Building and construction contracts, § 1*—What constitutes contract for furnishing building material. Where an offer was made and accepted to furnish certain building material described in certain estimates and a schedule attached to the offer, but which made no reference to the plans and specifications for- the building, although such plans and specifications were before the person making the offer when he prepared such estimates and schedule, held that the estimates and schedule were complete in themselves and constituted the contract of the parties.</p> <p>2. Evidence, § 322*—when parol evidence is inadmissible to add to or vary terms of contract. In an action by a person making an offer to furnish building material described in certain estimates and a schedule attached to the offer, but which made no reference to the plans and specifications for the building, to recover the price agreed to be paid under the contract, held that as the estimate and schedules constituted the contract, parol evidence to show that the plans and specifications were a part of the contract, that plaintiff had agreed to furnish all material called for by them, and that the contract was partly written and partly oral, was inadmissible.</p> <p>3. Accord and satisfaction—when contract for furnishing building material is an accord and satisfaction as to damages arising under prior contract. Where a controversy arose under a contract to furnish certain building material called for by estimates and schedule furnished as to certain of such material delivered not conforming to the plans and specifications for the building, which had not been made part of the contract, and a second contract was entered into by the parties as a settlement of such controversy and provided that material, delivered and to be delivered, should be made by the party furnishing such material to conform to the plans and specifications or upon his failure so to do after notice that the other party was authorized to so conform such material, held that the two contracts should be construed together and that the second contract was a complete accord and satisfaction for all damages accruing prior thereto.</p> <p>4. Sales, § 364*—when contract does not deprive buyer of right to recover damages for breach of contract. Under a contract to furnish certain building material according to the plans and specifications for the building and providing that on the party agreeing to furnish such material failing so to furnish same the other party was authorized to purchase the material and charge same to the first party, held that such remedy of the other party was optional with him and did not deprive him of his common-law right to recover damages for a breach of the contract nor limit the first party’s liability for such breach.</p> <p>5. Customs and usages, § 27*—when evidence of custom is insufficient. In an action to recover the value of material furnished, claimed to have been in part of scant dimensions, evidence held insufficient to show a custom permitting a lumber company to furnish material of scant dimensions so generally applicable or recognized as to be admissible, or that defendant had knowledgi of such a custom or presumably contracted with reference to it.</p> <p>6. Sales, § 331*—when instruction as to measure of damages in action to recover for value of millwork and material is erroneous. In an action to recover for the value of certain millwork and material, an instruction that plaintiff was entitled to recover the fair market value of extras at the time and place they were furnished, held to be erroneous, as such instruction should have differentiated as to extras of the same general character as those specified in the contract, and should have stated that, as to those, recovery should be according to the contract price.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>1. Telegraphs and telephones, § 31*—when evidence as to damages is inadmissible as being too speculative. In an action to recover damages for failure to deliver a telegram offering to pay the plaintiff a certain salary, held that the plaintiff’s testimony that had the telegram been delivered he would have accepted such offer was too speculative and conjectural to form the basis of a judgment for damages, and was inadmissible.’</p> <p>2. Telegraphs and telephones, § 37*—when evidence is insufficient to show that sender would have accepted offer of employment if telegram had been promptly delivered. In an action to recover damages because of failure so to deliver the telegram, evidence held insufficient to support plaintiff’s contention that he would have accepted a certain telegraphic offer of employment had the telegram been delivered in due time.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of the Decision.</p> <p>1. Instructions, § 87*—when instruction on preponderance of evidence is not erroneous. In an action to recover damages for personal injuries, an instruction that the burden is upon the plaintiff to prove his ease by a preponderance of .the evidence and that if the jury find the evidence bearing on “plaintiff’s case” preponderates in his favor even slightly it would be sufficient to find the issues in his favor, held not objectionable as leaving the jury to determine what constitutes “plaintiff’s case,” regardless of whether that case was alleged in the declaration or not.</p> <p>2. Damages, § 207*—when instruction as to manner of arriving at verdict is erroneous. In an action to recover damages for personal injuries, an instruction as to measure of damages which instructed- the jury to consider “all of the facts and circumstances as shown by the evidence,” held objectionable, and the giving of same reversible error where the damages found were very high and apparently excessive.</p> <p>3. Damages, § 24*—what is measure of for loss of time because of injuries. In an action to recover damages for personal injuries, the extent of recovery for loss of time on account of the injuries would be the value of the person’s services in the conduct of the business then engaged in.</p> <p>4. Damages, § 207*—when instruction as to non-necessity of any witness expressing an opinion as to the amount of, is erroneous. In an action to recover damages for personal injuries, in the absence of specific evidence as to the value of services during the time lost due to disability, it is misleading and prejudicial to instruct the jury that it is not necessary “that any witness should express an opinion as to the amount of such damages.”</p> <p>5. Instructions—when instruction directing a verdict is erroneous. An instruction which directs a verdict as to one defendant but prefaces same with conditions as to a codefendant having no connection with the directed verdict is objectionable.</p>

<p>1. Municipal corporations, § 799*—when want of power of city to employ person to do work on extension of waterworks system, must he pleaded. Where the commissioner of public works of a city having statutory authority to construct and maintain a waterworks system employed a party to perform certain work in the extension of a part of such system but without first complying with an ordinance of the city requiring prepayment by property owners or persons desiring the extension of the cost thereof, held in an action to recover for such work done and accepted by the city, to which the general issue only was pleaded, that such employment was within the general scope of the city’s authority and not ultra vires, and that the obligation could only be avoided, on account of the city’s want of power, by plea and proof.</p> <p>2. Municipal corporations, § 799*—what capacity city acts in constructing and operating waterworks. When a municipal corporation undertakes to construct and operate waterworks it does so in the exercise of its private and not its governmental functions.</p> <p>3. Estoppel, § 55*—when city is estopped to deny validity of contract of employment on waterworks system. Where a city constructing and operating its own waterworks accepts the benefit of work done at its request in.laying water pipes and extending its waterworks system, it is estopped from denying the validity of its contract of employment for such work.</p> <p>4. Municipal corporations, § 1219*—when party doing work for city may recover on quantum meruit for his services. A party performing work for a city, at its request, upon the waterworks system constructed and operated by it may recover therefor on the basis of a quantum meruit for the fair value of the work accepted by the city, in the absence of a contract between the parties.</p> <p>5. Limitation of actions, § 121*—when defense of statute may not he raised. A defense of the statute of limitations cannot be raised for the first time on appeal.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of De Kalb county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1915.</p>

<p>1. Master and servant, § 856*—when relation of independent contractor exists. The right under a construction contract of the party for whom the construction is to be done to forfeit or abrogate the contract does not create the relation of master and servant between the parties, nor the right under such contract of such party to exercise supervisory control over the character, quality and quantity of the work change an independent contractor into such party’s servant.</p> <p>2. Master and servant, § 857*—when relation of independent contractor is not affected by control of work. Where a construction contract taken as a whole showed there was no intention that the party for whom the work was to be done should have any control over the contractor’s individual employees or the details of the work, held that a provision in the contract that the contractor should carry on the work in such manner and at such time and place as such party should direct would not take from the contractor the right to select, direct and discharge his own men, and would not militate against his independence as a contractor.</p> <p>• 3. Master and servant, § 856*—when subcontractor is an independent contractor. Where a contract for the construction of a railroad provided that the contractor should carry on the work in such manner and at such time and place as the railroad company should direct, and that all subcontracts should be upon the same form, terms and conditions as the original contract, held, in an action against the company, the original contractor and a subcontractor for blasting work to recover damages for the death of a party by reason of alleged negligence in such blasting, that the subcontractor was an independent contractor, and neither the company nor the original contractor would be liable for negligence by the subcontractor’s employees.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard 'in this court at the October term, 1915.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1916.</p>

<p>1. Landlord .and tenant, § 249*—when landlord not liable for negligence of tenant. A landlord cannot be held liable for the negligence of his tenant in the use and occupation of the leased premises.</p> <p>2. Landlord and tenant, § 249*—when landlord voluntarily repairing awning not liable for negligence of tenant in lowering it. Where a tenant who was in the sole possession and control of an awning which was appurtenant to the leased premises allowed same to be lowered so that it was below the height required by a city ordinance, and the plaintiff was thereby injured, held that the landlord, who was under no agreement to make repairs or improvements to such awning, would not be liable in an action to recover damages for such injuries, notwithstanding he had voluntarily contributed to the expense of putting canvas on the awning.</p>

<p>1. Master and servant, § 147*—what is duty of employer to keep oars equipped with safety appliances. An employer’s duty under the Federal Safety Appliance Act to use even great diligence in keeping cars equipped as therein required and his liability for defects in required appliances of which he- has no notice and in the exercise of reasonable care could not have notice is absolute and imperative.</p> <p>2. Master and servant, § 98*—what law governs as to employer’s duty and liability under Federal Safety Appliance Act. The question of an employer’s duty and liability under the Federal Safety Appliance Act is a federal question in which the decisions of the federal courts govern.</p> <p>3. Master and servant, § 147*—what is liability of employer for injuries to servant resulting from unknown defects in appliances. A temporary defect and failure to work of an equipment required by the Federal Safety Appliance Act creates a liability in the employer for injuries to the servant and subjects him to the penalties and burdens of the act, even though it arises from some unknown defect which he could not, in the exercise of reasonable care, have ascertained and remedied.</p> <p>4. Master and servant, § 98*—when defenses of contributory negligence and assumed risk are unavailable. Under sections 3 and 4 of the Federal Employers’ Liability Act, the defenses of contributory negligence and assumed risk are not available to an-employer against whom an action is brought to recover damages because of injuries sustained from defective appliances required by the Federal Safety Appliance Act, and an averment in the declaration of due care of plaintiff is surplusage.</p> <p>5. Master and servant, § 147*—when evidence is sufficient to show that coupling appliance does not comply with Federal Safety Appliance Act. Evidence held sufficient to show that the coupling appliance causing plaintiff’s injury was, at the time and place of the injury, defective and not in compliance with the Federal Safety Appliance Act, 'and the verdict of the jury so finding was not against the manifest weight of the evidence, in an action by a railroad switchman to recover damages for such injury.</p> <p>6. Master and servant, § 147*—what is extent of liability of employer for use of defective coupling appliance. Where a coupling appliance, required by the Federal Safety Appliance Act, was defective at the time and place of an injury to a switchman caused thereby, held that it would be immaterial how long before that it had been defective, or how soon after that the defect was removed, or that no want of care or intent to evade the law could be imputed to the employer, in an action to recover damages for sucn injury.</p>

<p>Abstract of the Decision.</p> <p>1. Intoxicating liquors, § 140*—when record need not be introduced to show description of premises where liquor is sold. On trial under an indictment for selling intoxicating liquor in anti-saloon territory, held that the legal description of the property on which the building wherein the intoxicating liquor was sold was located could be given by any one who knew it, and it would not be necessary to introduce the record.</p> <p>2. Intoxicating liquors, § 131*—what evidence is admissible to show character of place in prosecution for sale in anti-saloon territory. Evidence that a witness had seen intoxicated persons come out of a place wherein it was charged that intoxicating liquors had been sold, held admissible in a prosecution for selling intoxicating liquor in anti-saloon territory.</p> <p>3. Intoxicating liquors, § 140*—when certified copy of record of internal revenue collector’s office showing issuance of special stamp is admissible in prosecution for selling intoxicating liquor in onti-so-loon territory. A certified .copy of a record of the internal revenue collector’s office for the district within which intoxicating liquors were charged to have been sold, showing the issuance of a special stamp or license to carry on the business of a retail liquor dealer at a certain place for a certain period, held to be competent evidence without proof that it was posted in said place, in a prosecution for selling intoxicating liquor in anti-saloon territory.</p> <p>4. Criminal law, § 494*—when accused cannot complain of alleged erroneous admission of evidence. Under an indictment against one Louis Peck charged with selling intoxicating liquor in anti-saloon territory, where defendant contended that error was committed by the trial court in permitting the State to prove that his full name was Louis E. Peck and that he was commonly known as L. E. Peck, held that there was no merit in such contention where it appeared such defendant’s counsel had called him L. E. Peck in examining his own witnesses and in an instruction given at his request.</p> <p>5. Intoxicating liquors, § 132*—when statements of accused indicating guilt are admissible in prosecution for selling intoxicating liquor in anthsaloon territory. In a prosecution for selling intoxicating liquor in anti-saloon territory, evidence that the accused had told a witness he had sold whisky to parties named and that they did not dare expose him, and that he had tried to prevent a witness from testifying before the grand jury to the truth of the matter and to so shape his testimony that it would not include intoxicating liquor,' held properly admitted.</p> <p>6. Criminal law, § 212*:—when action of court in reciting portions of evidence in ruling upon objections is not erroneous. Where a judge, in ruling upon objections to evidence before the jury, in a criminal case recited or repeated portions of the testimony, held no error if he correctly stated the evidence, especially where no objection was made.</p> <p>7. Intoxicating liquors, § 131*—when evidence as to place being quiet and orderly is properly excluded in prosecution for selling in anti-saloon territory. As the sale of intoxicating liquor in anti-saloon territory is a nuisance under the Anti-Saloon Territory Act (J. & A. If 46501, notwithstanding the place where it is sold may be a quiet and orderly place, held that there was no error committed by the court in refusing to permit a witness in a prosecution for violation of the act to testify that the place in question was quiet and orderly, particularly where the accused had testified-that he so kept it and no one had testified directly to the contrary.</p> <p>8. Intoxicating liquors, § 158*—when instruction in prosecution for sale of in anti-saloon territory is not erroneous. Where the anti-saloon law was adopted in certain territory on April 7, 1914, held that such law became effective in that territory May 7, 1914, and that an instruction covering the period “after May 6, 1914,” would not be open to the objection that it covered one day before the law went into effect.</p> <p>9. Criminal law, § 417*—when question of variance between proof and indictment may not first be raised on appeal. Where a nuisance count in an indictment for selling intoxicating liquor in anti-saloon territory déscribed the place where such liquor was charged to have been sold as “No. 123 South California street” and an internal revenue stamp in evidence described it as 123 California street, and there was no proof of any other 123 California street than 123 South California street, held no ground for reversal of a judgment of conviction where the variance was first suggested on appeal.</p> <p>io. Intoxicating liquors, § 162*—when instruction in prosecution for sale of in anti-saloon territory is not reversibly erroneous. Even if an instruction in a prosecution for selling intoxicating liquor in anti-saloon territory was improper because covering a day before the law went into effect in such territory, the giving of such instruction is not ground for reversal where no sales of intoxicating liquor in the place charged were proved to have been made on the particular day.</p>

<p>Abstract of the Decision.</p> <p>1. Evidence, § 107*—when telephone conversation is admissible. A telephone conversation is admissible in evidence if the witness identified the voice, and its force would depend on whether the jury believed the witness.</p> <p>2. Contracts, § 385*—when evidence sufficient to show promise to pay for removal of building. Evidence held sufficient to sustain the finding of the court that defendant promised to pay plaintiffs the expense of moving a certain building from his land, in an action to recover for such expense.</p> <p>3. Contracts, § 85*—when promise to pay for removal of building is based upon sufficient consideration. Where defendant had consented that a certain building should be placed on his land, held sufficient consideration appeared for his promise to pay for its subsequent removal.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. John M. Nibhaxjs, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>1. Partition, § 72*—what compensation should he allowed to those making improvements on land in partition suit. In a partition suit, where sale was had, those who had lawfully made improvements on the land would be allowed by way of compensation the actual increase of the price received at the sale in consequence of the improvements.</p> <p>2. ’Tenancy in common, § 5*—right of one tenant to make improvements. A tenant in common may make proper improvements on the land without his cotenant’s consent.</p> <p>3. Partition, § 72*—what compensation should he allowed in' partition suit to tenant in common making improvements on land. Where a tenant in common had so improved the land as to add to its value a certain sum, but at a sale of the land, in a suit for partition thereof, a sum less than- the aggregate of the original value and the added value was realized, held that the depreciation should be charged proportionately to both the original and the added value, and such tenant credited with the fraction of the sum found to be the enhanced value of the land which such tenant’s interest bore to the entire interest in the land.</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 697*—when evidence sufficient to show injury to servant by inexperienced coemployee. Evidence in an action by an employee for personal injuries, held to tend to show plaintiff’s injury was caused by improper or careless handling of a hammer by defendant’s employee and that he was inexperienced in that line of work.</p> <p>2. Damages, § 186*—when evidence as to possible results of injury is inadmissible. Evidence as to possible results of plaintiff’s injury to his right eye and its possible effect on his other eye, held incompetent and properly excluded in an action to recover damages for such injury.</p> <p>3. Damages, § 244*—when admission of improper evidence is harmless error. In an action for damages for personal injuries, held that the improper admission of evidence as to the possible results of the injury was harmless error where there was nothing to show that the jury considered or were influenced by such evidence in finding for the plaintiff.</p>

<p>1. Workmen’s Compensation Act, § 4*—what minors are included within. The second paragraph of section 5 of the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, j[ 5475(5)], including within that act “minors who are legally permitted to work under the laws of the State,” includes only minors who can legally perform the work under the laws of the State, and does not include a minor who cannot legally perform work under the Child Labor Act.</p> <p>2. Statutes, § 152*—when statute deemed not to repeal conflicting statute by implication. The repeal of a statute by implication is not favored, and where two acts of the Legislature come in question unless they are clearly inconsistent with and repugnant to each other, or unless in the later statute some express notice is taken of the former plainly indicating an intention to repeal it, the later statute will not be considered as operating to repeal the former by implication.</p> <p>3. Workmen’s Compensation Act, § 1*—as not repealing any part of Child Labor Act. No legislative intent is anywhere apparent in the provisions of the Workmen’s Compensation Act to repeal or abrogate any part of the Child Labor Act, nor any conflict in the legitimate operation of both acts, and the object and purpose for which each act was passed can be fully effectuated by allowing both acts to remain in full force.</p> <p>,4. Master and servant, § 22*—how Child Labor Act should be construed. The Child Labor Act was passed to prevent absolutely the employment of children in the prohibited occupations named therein, and such construction should be given it by the courts as will effectuate such purpose if it can consistently be done.</p> <p>5. Master and servant, § 22*—what is duty of employers as to employment of children within Child Labor Act. Those who are liable under the provisions of the Child Labor Act are bound at their peril to see that children are not employed contrary to its provisions.</p> <p>6. Workmen’s Compensation Act—what are rights of minors illegally employed within Child Labor Act to compensation under. Compensation for injuries received by a minor while engaged in work contrary to the provisions of the Child Labor Act is not recoverable under the Workmen’s Compensation Act.</p>

<p>Abstract of the Decision,</p> <p>1. Fraud, § 18*—when fraudulent representations are actionable. Fraudulent and deceitful representations relied on must be concerning an existing fact or facts to furnish a ground of action.</p> <p>2. Sai.es, § 411*—what does not constitute actionable false representation. Where an agent for the sale of the capital stock of a company made a sale thereof upon his promise to resell within a certain time for the first purchaser’s benefit, which he did not do, held that even if he did not intend when he made .such .promise to keep it, it was not such a false representation as would furnish ground for an action of fraud and deceit by such purchaser to .recover money paid on the purchase.</p> <p>3. Con tracts, § 63*—when promise is unsupported by consideration. The fact that there was a motive for a promise does not supply the necessary element of consideration to make it enforceable.</p> <p>4. Contracts, § 69*—when moral obligation is insufficient consideration. Where an agent for the sale of the capital stock of a company made a sale of the stock upon his promise to the purchaser to resell within a certain time for the purchaser’s benefit,' which he did not do, held that there would be no legal obligation upon the company to refund the money paid by such purchaser and no sufficient moral obligation to furnish a consideration for the company’s promise to refund it.</p>

<p>Abstract of the Decision.</p> <p>1. Corporations, § 172*—when agreement between stockholders is not void as against public policy. Where three holders of stock in a corporation entered into a written agreement to vote for each other and for no others as directors and that they should be elected to certain offices in the corporation, and one of said holders of stock, owning five shares thereof, further agreed in such agreement that in his absence or on his death a certain other of said holders should vote the shares and on his death should pay the dividends thereon and one-third of the par value thereof to his daughter, and another one-third of the par value thereof to his son, and the agreement provided further that it should not be changed or terminated except by the unanimous consent of the signers thereof and should be binding on their heirs, executors, administrators and assigns, held that such agreement was not void as against public policy.</p> <p>2. Corporations, § 172*—when contract for pooling of stock is valid. A valid, irrevocable contract by the owner of corporate stock passing title upon the death of the original owner, based upon a sufficient consideration, and not a testamentary disposition of such property, is created where the three owners of the stock in such corporation enter into a written agreement to vote their respective shares for each other for directors, and no other purposes, and such agreement provides that they shall be elected to specified offices and one of such stockholders agreed that in his absence or on his death a certain other of the parties to the agreement should have the voting of the stock standing in his name and that on his death the dividends on the shares should be paid to the other party, as well as one-third of the par value of the stock and another one-third of the par value thereof to his son, and the agreement further provides that it should not be changed or terminated except by the unanimous consent of the signers thereof, and should be binding on their heirs, executors, administrators and assigns.</p> <p>3. Property, § 2*—what is. Property is strictly speaking that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or objects.</p>

<p>1. Insurance, § 518*—what is extent of recovery where compensation received from wrongdoer causing loss. A contract of insurance is for indemnity, and if the insured receives satisfaction or part satisfaction for his loss from a wrongdoer who caused it, the amount so received should be applied in full or partial discharge of the policy.</p> <p>2. Insurance, § 520*—when insurer is entitled to subrogation. If an insured fire loss is not satisfied by the wrongdoer causing it and the insurer pays the loss, he is entitled to equitable subrogation to the claim of the insured against such wrongdoer to the extent the insurer has paid.</p> <p>3. Insurance, g 522*—what is right of insurer as to action against wrongdoer causing loss. An insurer paying a loss cannot bring an action in his own name against the wrongdoer causing the loss, but has an enforceable right to participate in an action brought by the insured.</p> <p>4. Insurance—what are rights of insured upon compromising of judgment against wrongdoer causing loss. Where an insured recovers a judgment against a wrongdoer who caused the loss Which was insured, he cannot compromise such judgment without consent of the insurer without incurring liability to the insurer to the amount paid by the latter, but where the insured compromises such judgment with the insurer’s consent on condition that he pay the insurer a certain portion of the insurer’s claim, the insured is bound by such terms.</p> <p>5. Appeal and error, § 864*—when court will not examine record for matters not abstracted. Reviewing courts will not examine the record for matters not abstracted to find some reason for reversing a judgment.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehatjs, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Banks and banking, § 144*—when bank is not Hable to holder of check for refusal to make payment. Where a declaration in assumpsit by special count set up as ground for recovery against a bank its refusal "to pay, accept or certify a certain check drawn in favor of the plaintiff against a certain account of the drawer in said bank and. that there were when the check was presented sufficient funds in said account to pay the check, held that section 188 of the Negotiable Instruments Act (J. & A. 7828), providing that a bank is not liable to the holder of a check drawn upon it unless and until it accepts or certifies .the check, controlled, and demurrer to the declaration was properly sustained.</p>

<p>1. Electricity, § 8*—when city not obligated to inspect electric appliances inside house of customer receiving current. A city operating an electric lighting plant is not required to make inspection of appliances connected with the system inside the house of a customer which are put there by such customer without notice to the city and over which the city has no control and in which it has no interest, and the city is liable in an action for damages for injuries occasioned by such appliances.</p> <p>2. Electricity—when city does not adopt wiring inside house of customer as part of its system of lighting. Where a city operating an electric lighting plant required customers to bring their house wires a certain distance outside the house where it attached its wires to such house wires, held that the city did not, by so attaching its wires to the house wires, adopt the wiring inside the house as part of its system of lighting.</p> <p>3. Electricity, § 27*—when evidence insufficient to show existence of excessive volume of electricity in wires in house of customer. Evidence held insufficient to show that an excessive volume of electricity was in the electric lighting wire in the house of the deceased, in an action to recover damages for his death.</p> <p>4. Evidence, § 232*—when coroner’s verdict is competent evidence. A coroner’s verdict is competent evidence, although not filed with the clerk of the Circuit Court.</p> <p>5. Evidence, § 442*—when opinion of physician as to cause of death is inadmissible. The testimony of a physician giving his opinion as to the cause of a party’s death, based in part upon what he was told by another party, but not stating what such other party had told him, held improperly admitted in an action to recover damages for such death.</p> <p>6. Negligence, § 228*—when instruction limiting question of contributory negligence to the time of death is improper. An instruction limiting the question of contributory negligence of deceased to the time of his death from contact with an electric appliance placed by him in his house without the knowledge of or notice to the city furnishing electricity for his house, held improper, in an action to recover damages for his death.</p> <p>7. Witnesses, § 187*—when leading questions are improper. Leading questions on examination in chief are, as a general rule, improper.</p>

<p>Appeal from the Circuit Court of Warren county; the Hon. Robert J. Crier, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Error to the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1916.</p>

<p>1. Workmen’s Compensation Act, § 13*—when appeal lies from decision of Circuit Court in arbitration case. An appeal lies from the decision of the Circuit Court under the Workmen’s Compensation Act of 1911, in an arbitration case appealed to the Circuit Court.</p> <p>2. Workmen’s Compensation Act, § 12*—when instruction on right to recover for hospital bill is erroneous. In proceedings in the Circuit Court to recover compensation under the Workmen’s Compensation Act of 1911, upon appeal from the decision of a board of arbitrators, an instruction under section 5, clause (a) of the Act (J. & A. If 5453), held erroneous where there was no proof that there was a hospital bill for which the employee was liable and of the amount thereof.</p> <p>3. Workmen’s Compensation Act, § 7*—when recovery may be had, for permanent disfiguration and permanent incapacity. Recovery may be had under both section 5, clause (c) of the Workmen’s Compensation Act of 1911 (J. & A. 1f 5453), and clause (d).</p> <p>4. Workmen’s Compensation Act, § 12*—when instruction on amount of recovery for partial permanent disfigurement is erroneous. In proceedings in the Circuit Court for compensation under the Workmen’s Compensation Act of 1911, upon appeal from the decision of the board of arbitrators, an instruction under section 5, clause (c) (J. & A. If 5453), that the damages allowed should not be less than $375, held to be erroneous.</p> <p>5. Workmen’s Compensation Act, § 2*—what is liability of employer under Act of 1911. The liability of an employer under the Workmen’s Compensation Act of 1911 is a contract liability.</p> <p>6. Workmen’s Compensation Act, § 12*—what should be form of verdict in Circuit Court on appeal from decision of board of arbitrators. The form of a verdict for the plaintiff in proceedings for compensation under the Workmen’s Compensation Act of 1911, upon appeal to the Circuit Court from a board of arbitrators, should be to find the issues for the plaintiff, etc.</p> <p>7. Workmen’s Compensation Act, § 13*—when verdict in Circuit Court upon appeal from decision of board of arbitrators is not reversibly erroneous. A verdict of guilty in the Circuit Court m proceedings for compensation under the Workmen’s Compensation Act of 1911, upon appeal from the decision of a board of arbitrators, is a mere irregularity, and does not constitute reversible error.</p> <p>8. Workmen’s Compensation Act, § 12*—when court may distribute amounts allowed as lump sum in verdict. Where a verdict in the Circuit Court upon appeal from the decision by a board of arbitrators under the Workmen’s Compensation Act of 1911 is in a lump sum, the court may properly distribute it where there is no dispute as to the amounts that should be allowed if plaintiff recovered.</p> <p>9. Workmen’s Compensation Act, § 12*—what is preferable form of verdict. Where, by a judgment for the employee to be entered in the Circuit Court in proceedings for compensation under the Workmen’s Compensation Act of 1911, upon appeal from the decision of a board of arbitrators, one or more amounts are to be paid at once and other sums in instalments over several years, the preferable practice is for the jury to find each item separately as well as to return a verdict for a total amount.</p>

<p>1. Commerce, § 4*—what constitutes interstate. Where certain railroad ties were shipped from outside the State to a railroad at a point within the State, in care of its agent there for tie distribution, and on his direction were shipped from there to another point in the State on the same bill of lading indorsed for shipment to that place in care of the railroad’s section foreman there, held that the jury were warranted in finding that the ties were in interstate commerce when unloaded at the latter point.</p> <p>2. Commerce, § 4*—what are matters mthin Federal Employers’ Liability Act. The repair of the main track of an interstate railroad and bringing materials to the place of repair for that purpose, held to be matters coming within the Federal Employers’ Liability Act.</p> <p>3. Master and servant, § 830*—when presumed jury made proper reduction in damages on account of contributory negligence in action under Federal Employers’ Liability Act. Under the Federal Employers’ Liability Act, a plaintiff’s contributory negligence does not bar recovery, but should be considered by the jury in mitigation of damages, and it will be presumed they made a proper deduction in the amount of damages where a case was tried on that theory and they were instructed on the subject and found the plaintiff guilty of such negligence.</p>

Appeal frofn the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge,.presiding. Heard in this court at the April term, 1916. Certiorari denied by Supreme Court (maMng opinion final).

<p>1. Sales, § 422*—what constitutes conditional sale contract. A contract for the sale of goods by the terms of which the title and ownership remain in the seller until they are paid for in cash is a conditional sale contract.</p> <p>2. Sales, § 425*—when conditional sale is fraudulent as to bona fide purchasers and execution creditors of judgment debtor. The owner of personal property will not be permitted to sell it conditionally and deliver it to another and successfully maintain the reservation of title to himself as real owner by contract as against a bona fide purchaser for value or an execution creditor of the judgment debtor to whom such property was delivered under a contract of conditional sale, and such sale is considered constructively fraudulent as to such purchasers and creditors.</p> <p>3. Sales, § 425*—what is effect of conditional sale contract between parties. As between the parties, a conditional sale contract with reservation of title to personal property until payment is made therefor is valid and enforceable.</p> <p>4. Sales—what constitutes delivery of possession to seller of automobile sold under conditional sale contract. Where, prior to the issuance and levy of an execution upon a quantity of automobiles stored in a judgment debtor’s warehouse and which had been purchased by him under a conditional sale contract, he agreed to return the automobiles to the seller and for the purpose of their removal from the • warehouse unlocked the warehouse and gave access thereto to the seller’s employees for such removal, and they entered and had removed a part of the automobiles when such execution was issued and levied, held that there was a delivery of the property to the seller, and the ownership and possession thereof were in him at the time of the issuance and levy of the execution, and he had the right of possession at the time of suing out a writ of replevin thereafter.</p>

<p>Error to the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1916.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the City Court of Spring Valley; the Hon. Harry W. McEwen, Judge, presiding. Heard in this court at the April term, 1916.</p>