Volume 217 — Illinois Appellate Court Reports

<p>1. Roads and bridges, § 185*;—power to compel removal of overhead, obstruction. Section 58 of chapter 111a of the Revised Statutes [Call. 1920 Stat. If 8686(73)], as to the control of crossings by the Public Utilities Commission, applies to overhead crossings to some extent, but such section does not repeal the statute giving highway commissioners control of highways, and such commis- • sioners may apply for a mandatory injunction to remove an obstruction from the highway at an overhead crossing.</p> <p>2. Statutes, § 152*—repeals by implication not favored. Repeals of statutes by implication are not favored, and the intention to repeal will not be presumed unless the inconsistency between two statutes is such that both cannot remain in force.</p> <p>3. Roads and bridges, § 185*—power of highway commissioners to compel removal of overhead obstruction. Highway commissioners may apply for a mandatory injunction to compel the removal of an obstruction from a highway at an overhead crossing, regardless of the question whether the Public Utilities Commission has control of the crossing.</p> <p>4. Roads and bridges; § 193*—modification of decree for removal of overhead obstruction. A decree ordering the removal of three rows of posts supporting an overhead railroad bridge, within 60 days, will be modified so as to compel the removal of the center row of posts in 6 months, when it appears that a highway 38.5 feet in width is thus provided and that such highway is ample for the demands of the public.</p>

<p>1. Automobiles and garages, § 2*—liability of husband for negligence of wife. Where an automobile belonging to a husband was used by the wife for her pleasure, and she took such automobile out without the husband's knowledge and by her negligence in operating the car a person was injured, the husband was not liable, as the liability of the owner rested upon the relation of master and servant, and such liability was not established by the mere fact that the automobile was purchased for the pleasure of the family.</p> <p>2. Automobiles and garages, § 2*—liability of husband where car purchased for use of family. Under section 4 of chapter 68, of the' statute on Husband and Wife (J. & A. jf 6141), a husband is not liable for torts of a married woman except in those cases where he would be jointly responsible if the marriage did not exist; therefore a husband is not liable for negligence of his wife in operating his automobile, although it was purchased for the use of the family.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, .1919.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Howard W. Hates, Judge, presiding. Heard in this court at the October term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Banks and banking, § 155*—what is liability of bank forwarding draft for collection. Where a draft is deposited with a bank for collection, and it transmits it to another bank for collection, the forwarding bank fully discharges its duty by transmitting the draft in due season to a suitable agent with necessary instructions, and such collecting bank becomes the agent of the holder of the draft and not of the forwarding bank with which it is first deposited for collection.</p> <p>2. Banks and banking, § 155*—when forwarding bank not liable for acts of collecting bank. A forwarding bank is not liable for any neglect or default of a collecting bank, to the holder of a draft.</p> <p>3. Banks and banking, § 154*—when forwarding bank cannot hold funds of insolvent collecting bank. Where a holder of a draft deposited it with a bank for collection, and such bank forwarded the draft for collection to another bank which was closed by the auditor for insolvency about a month after the draft had been collected, the collecting bank having falsely stated that it was not collected, the holder of the draft would have to proceed against the collecting bank by filing its claim, and when the forwarding bank sought to hold other money of the collecting bank, claiming a lien upon the same, the receiver of the collecting bank could recover such money, as the creditor could not indirectly obtain an advantage over other creditors.</p> <p>4. Banks and banking, § 152*—-nature of fund created by collection of draft forwarded for collection. Where a draft is forwarded for collection and such collection is made, the proceeds become a trust fund for the benefit of the drawer of the draft, and' where the fund can be identified he will be given a preference. ’</p>

<p>1. Careiebs, § 52*—when liability presents federal question. In an action for damages to a carload of lemons which were allowed to freeze after arrival at their destination, where the evidence presented a question as to liability of the delivering carrier to furnish heat, a federal question was presented, as the question of responsibility under a bill of lading may be none the less a federal one although it must be resolved by application of general principles of the common law.</p> <p>„ 2. Cabbiebs, § 138*—when exclusion of evidence that heater service was furnished under rule of Interstate Commerce Commission erroneous. In an action for damages to a carload of lemons which froze after arrival at their destination, where the plaintiff was allowed to prove the existence of a custom prevailing at other cities whereby heater service was provided by carriers, the refusal to allow the defendant to prove that such service was performed under a rule of the Interstate Commerce Commission permitting a charge of ?2 per car while such cars were on the tracks, was error.</p> <p>3. Cabbiebs, § 138*—when evidence that heater service was customarily performed by shippers and consignees improperly excluded. In an action for damages to a carload of lemons which froze after arrival at their destination, where the plaintiff was allowed to prove the existence of a custom prevailing at other cities whereby heater service was provided by carriers, evidence of the defendant that such heater service was not provided at the destination in question and that the service was customarily performed by consignors and consignees, was erroneously excluded.</p> <p>4. Cabbiebs, § 138*—when evidence that heater service was furnished in other cities improperly admitted. In an action for damages to a carload of lemons which were allowed to freeze after arrival at their destination, evidence of the plaintiff that heater service for cars containing perishable products was provided by carriers at other cities was erroneously admitted, especially where the defendant was not permitted to prove that such service was furnished under a rule of the Interstate Commerce Commission aUowing an extra charge therefor.</p>

<p>1. Landlord and tenant, § 57*—what constitutes waiver of provision of lease as to time of payment of rent.. The provisions of a lease as to time of payment of rent may be waived and will be presumed to be waived where the parties to such lease have by-express or implied agreement chosen to disregard such provisions.</p> <p>2. Landlord and tenant, § 57*—when provisions of lease as to date of payment of rent modified ~by implication. Where a landlord accepts rent for premises on the 10th day of each month instead of on the 1st day as provided in the lease, and the tenant is led to believe, by the course of dealing with the landlord, that payment on the 10th will be accepted as a compliance with the lease, the lease is modified by the conduct of the parties, and the bringing of an unlawful detainer suit on the 9th day of a montii without giving any previous notice of an intention to insist on strict compliance with the lease is without legal right.</p> <p>3. Landlord and tenant, § 470*—when want of strict compliance not ground for forfeitureWhere a lessee has been led to believe that strict compliance with the terms of a lease will not be insisted upon by the lessor, it would he unfair to permit a forfeiture of the lessee’s right because of a failure to strictly comply with the lease, and the courts will take hold of reasonable circumstances showing an intent to waive a forfeiture.</p>

<p>1. Liens, § 2*—when promise to pay out of proceeds of sale of premises does not create. A promise to pay out of the proceeds of the sale of premises creates no lien thereon unless it affirmatively appears and is patent from the language of the instrument containing the promise that it was the intention of the party at the time of executing it to create such a lien upon the property.</p> <p>2. Mobtgages, § 12*—what essential to creation of equitable mortgage. While a written instrument entered into for the purpose of pledging realty as security for a debt, informal or insufficient as a common-law or statutory mortgage, may be held to operate as an equitable mortgage, yet there must he present, before such equitable mortgage can be enforced, the element of an intention of the executant that such instrument shall operate as a lien upon the property described; and an equitable mortgage is not created where an instrument states that a maker of notes is the owner of certain realty, and that such notes will be paid out of the proceeds arising from a sale of the realty, if it is sold.</p> <p>3. Subrogation, § 31*—when right to waived. A stipulation by which a lienholder agreed to subordinate his claims to three mortgage liens operates as a waiver of any rights of the lienholder to be subrogated to a payment made on one of the three mortgages.</p> <p>4. Mortgages, § 138*—when mortgagee entitled to pay off mechanics’ liens. Where a trust deed provided that the mortgagor should not suffer or permit any mechanics’ liens on the premises, the mortgagee had the right to pay lien claims to protect his own security, and when so paid he had the right to be subrogated to the rights of the lien claimant.</p> <p>5. Usuby, § 38*—who entitled to set up as defense. A defense of usury is personal and cannot be invoked by judgment creditors or their lienors, and a junior incumbrancer is not in privity with a mortgagor so as to be able to set up such defense in his behalf.</p> <p>6. Usuby, § 46*—necessity for pleading specially as a defense. Usury as a defense must be especially pleaded. Section 7 of chapter 74, Rev. St. (J. & A. H 6696).</p> <p>7. Appeals and error, § 1399*—when finding of master not disturbed. A finding of a master will not be disturbed unless it is manifestly against the weight of the evidence.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Howard W. Hayes, Judge, presiding. Heard in this court at the March term, 1920.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Irwin R. Hazen, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Landlord and tenant, § 478*—how tenancy from, year to year .terminated. Where a tenant holds possession of premises from year to year, such tenancy will so continue until terminated by a 60-day notice given in pursuance of Rev. St. ch. 80, sec. 5 (J. & A. 1i 7043), and such notice must be served at some time within the first 4 months of the last half of the then existing yearly term.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Banks and banking, § 126*—what is effect of Act on rule that Chech operates as an assignment. Section 188 of the Negotiable Instruments Act (J. & A. 1f 7828) has changed the rule formerly obtaining in this State under which the making and delivery of a check operated as an assignment pro tanto of the funds against which it was drawn.</p> <p>2. Banks and banking, § 149*—what is not an acceptance of a cheeh. The payment of a check by the drawee bank on a forged indorsement is not equivalent to a valid acceptance of the check.</p> <p>3. Banks and banking, § 149*—when indorsement ly one having same name as payee is a forgery. Even though one who indorses a check sent to him through a mistake of the maker hears the same name as the payee, such indorsement is a forgery.</p> <p>4. Banks and banking, § 129*—what xoarranted hy person presenting chech for payment. Under sections-23, 65 and 66 of the Negotiable Instruments Act (J. & A. 1f1i 7662, 7704, 7705), one who presents an indorsed check to the drawee for payment warrants that the check is genuine and in all respects what it purports to be and that he has title to it, and where the indorsement is forged, he becomes liable to the bank on his warranty.</p> <p>5. Banks and banking, § 149*—when negligence of drawer of chech does not relieve banh paying it. The fact that the drawer of a check negligently mailed it to another person having the same name as the payee who thereupon indorsed the check and secured its payment by the defendant bank who in turn received payment thereon from plaintiff, the drawee bank does not relieve defendant from liability on the principle that as between two innocent persons the one whose negligence first made the injury possible must suffer the loss, wher'e plaintiff’s action is| based on defendant’s liability by reason of its warranty of title to the check under the Negotiable Instruments Act.</p> <p>6. Banks and banking^ § 149*—when banh paying Chech on forged indorsement liable in tort for conversion. Irrespective of whether a bank is liable in assumpsit to the payee of a check which had, by the drawer’s negligence, been mailed to a third person bearing the same name and had been negotiated by him with a forged indorsement, the bank is liable to the payee in tort for the conversion of tbk check, and consequently the drawee bank may recover from the bank by which the check, bearing the forged indorsement, was presented for payment.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>1. Workmen’s Compensation Act, § 5*—what plaintiff must prove to maintain action at lañó. In an action against a master to recover for the death of a servant which is predicated on defendant’s election not to avail itself of the provisions of the Workmen’s Compensation Act, to establish a cause of action plaintiff' must prove that defendant gave notice of its election to its employees personally or by posting such notice as the Workmen’s Compensation Act requires.</p> <p>2. Commerce, § 2*—when engagement in interstate not shown in action under Federal Employers’ Liability Act. A cause of action under the Federal Employers’ Liability Act for the death of a car repairer caused by the falling over of the car on which he was working, which car belonged to another company owned and controlled by defendant, is not established by evidence which, while showing that the last commercial service in which the car was engaged before the accident and the first after the accident was in interstate commerce, does not disclose that during the interval between the two hauls or while it was thus undergoing repair it was designed or intended to be next used in interstate commerce or in any special service, but does tend to show that it might have been used in either interstate or intrastate commerce.</p> <p>3. Commerce, § 2*—what must be proved to show relation of car repairing to interstate Commerce. To establish a cause of action under the Federal Employers’ Liability Act for the death of a car repairer, killed while repairing a car which was not, at the time, engaged in either interstate or intrastate cpmmerce but subject to use in either, there must be proof, either express or implied, that the car was being repaired for the specific purpose of being next used in interstate commerce.</p> <p>4. Master and servant, § 41*—when employee not relieved of assumption of risk by statement of foreman as to safety. The statement of a foreman to a car repairer that it is all right to use a jack to support a car on which the repairer is working cannot be construed as an order to work on the car without further precautions, where the danger of using the jack for such purpose instead of a "horse,” which was the usual means, is obvious, and consequently, such statement does not relieve the repairer of the assumption of risk of injury from the falling of the car through failure to use the horse.</p>

<p>1. Appeal and error, § 1000*—when exclusion of document not reviewable. The propriety of the court’s, ruling in excluding a document cannot be determined on appeal where the document is not preserved in the record.</p> <p>2. Banks and banking, § 35*—stockholder's liability under foreign statute. In an action by the receiver of a State bank of -Florida against a stockholder, a resident of Illinois, to recover under the Florida statutes an amount equal to the par- value of such stock, it cannot be assumed that the mere appointment of the receiver rendered defendant liable for the par value of his stock, the statute holding the stockholders “responsible equally and ratably and not one for another,” where it does not appear on what ground the receiver was appointed, - or whether the bank’s liabilities exceeded its assets, or whether the stockholders’ liability was fixed by the comptroller, or whether, if fixed, it was fixed to the full amount of the par value of their stock, or that a different construction has been given the statute by the Florida courts.</p>

<p>1. Biles and notes, § 368*—what question not relevant to issues in action on note. Where an agreement for the sale of corporate stock contains a covenant that plaintiff, the seller, will not engage in a similar line of business to that of said company for a period of years, and defendant, in an action against him to recover on the notes given by him for the purchase price of the stock, sets .up a breach of the covenant as a defense, plaintiff’s contentions that it does not appear that the business was one which the company was licensed to do and that the agreement was void as against public policy, are not relevant to the material issues raised in the action on the note.</p> <p>2. Contracts, § 190*—when single transaction shown. A contract for the sale of corporate stock and notes given in payment of the purchase price and delivered in escrow, “subject to the conditions'” of the contract, constitute a single transaction.</p> <p>3. Bills and notes, § 327*—when implied that breach of condition should prevent payment. Where a contract for the sale of corporate stock contains a condition that the seller will abstain from engaging in a business similar to the company’s and the notes are delivered in escrow “subject to the conditions” of the contract, it is implied that if the seller engaged in such a business before the notes matured, they were not to be paid.</p> <p>4. Contracts, § 154*—when agreement not to engage in business may be set up as defense to action on note. In an action by the seller of corporate stock to recover on notes given for the purchase price thereof, where the agreement for the sale of the stock contains a condition that the seller will not engage in a similar line of business to that of the company for a period of years, defendant may set up a breach of such condition, notwithstanding the agreement was one in unnecessary restraint of trade.</p> <p>5. Contracts, § 154*—when contract not to engage in business not invalid. An agreement by one selling corporate stock to another that he will not engage in a similar line of business to that of the company for a period of 3 years is not illegal or immoral.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>1. Cabbiers, § 161*—right to stipulate against liability for loss at common law. At common law a carrier may, by special contract, stipulate against liability for any loss not the result of its own negligence or that of its servants.</p> <p>2. Cabbiers, § 165*—limitation on liability on basis of vcilue stated. Where a shipper has knowledge of a provision in a carrier’s receipts given him by the carrier whereby the carrier limits his liability for loss to a specified amount unless a different value is stated in the receipt and assents thereto, he cannot recover of the carrier an amount in excess of that stipulated on the loss of his shipment.</p> <p>3. Cabbiers, § 178*—lohen evidence shows assent of shipper to limitation on liability. In an action by a shipper against an ex-pressman to recover for the loss of the shipment, evidence examined and held to show that the shipper had knowledge of a provision in the expressman’s receipt placing a limit on the value of shipments in the absence of another value being stated by the shipper, and that the shipper assented to such limitation and made the shipment without specifying the value of the article but concealed its real value.</p> <p>4. Appeal and error, § 1810*—power of Appellate Court to enter judgment where cause tried without a jury. Where a case is tried before the court without a jury, the Appellate Court may enter there such a judgment as the trial court should have entered. ¡</p> <p>5. Costs, § 89*—on reversal and entry of judgment against appellant for a less amount. Where, on appeal, the judgment below is reversed and judgment is entered against the appellant for a less amount, the costs in the Appellate Court will be taxed against the appellee.</p>

<p>1, Alteration of instruments, § 20*—when plaintiff in action on altered note may show ignorance of alteration. Where, in an action to recover against an indorser on a promissory note, plaintiff’s statement of claim sets up that defendant executed the guaranty of payment of the note appearing above his indorsement and defendant avers, among other defenses, in his affidavit of merits that the guaranty was placed above his signature after the execution and delivery of the note and without his knowledge and consent and constituted a material alteration which released him from liability, and plaintiff files an amended statement of claim based upon defendant’s liability as indorser and not as guarantor, on which the case is tried and under which plaintiff makes out a prima facie case, and plaintiff, on the trial, admits that the guaranty was placed on the note after its execution and delivery, as shown by defendant’s evidence, it is error to refuse to permit plaintiff to introduce evidence to show that he was not aware of the averments in the statement of claim, that he did not know that the guaranty had been placed on the note until the case came to trial and that the guaranty was placed thereon without his knowledge or consent.</p> <p>2. Alteration of instruments, § 14*—when recovery not barred by alteration. The insertion of a guaranty above an indorser’s name by an employee of the bank with which the payee had placed the note for collection, such guaranty being added without the payee’s knowledge or consent, is not such an alteration as will relieve the indorser from liability as such, notwithstanding the statement of claim, prepared by his attorney without plaintiff’s having seen it or knowing its contents, set up the guaranty, where the amended statement on which the case is tried bases defendant’s liability on his indorsement and not on the guaranty.</p> <p>3. Principal and agent, § 185*—what essential to show ratification. A knowledge of the principal of all of the material facts and action in the light of such knowledge are essential to bind a principal on the theory that he has ratified, assented to or acquiesced in the act of his agent.</p>

<p>1. Dismissal, nonsuit and discontinuance, § 11*—right to dismiss as to one or more defendants in action ex contractu. In actions ex contractu against several defendants, a plaintiff may dismiss as to one or more at any time during the trial and before final judgment and proceed to judgment as to those remaining.</p> <p>2. Appeal and ebbob, § 438*—when variance waived. Variance between the declaration as originally filed and the evidence, by reason of the dismissal of the suit as against one of the defendants, will he deemed on appeal to have been waived where no point is made in regard thereto during the trial.</p> <p>3. Pleading, § 431*—when dismissal as to all but one defendant without amending declaration charging joint liability constitutes a variance. Where a declaration in an action against several defendants charges a joint liability and breach of contract but, before judgment, plaintiff dismisses as to all defendants save one, without amending the declaration, and the remaining defendant raises the question of variance, and the verdict is against the remaining defendant only, it is error to overrule such defendant’s motion for a new trial.</p> <p>4. Contracts, § 350*—when counts charge joint liability. Even though counts in the declaration in an action for breach of contract allege that plaintiff had bargained with “the defendants, and each of them,” where they further allege that the bargain was “to buy of the defendants and the defendants then and there sold to the plaintiff * * * and the defendants then and there agreed with- the plaintiff to deliver,” and they further allege that “the defendants did not * * * deliver * * * but refused so to do, and the plaintiff, at the request of the defendants, .extended the time for delivery * * * the defendants again failed,” etc., to make delivery, such counts are joint and not joint and several.</p> <p>5. Sales, § 73*—when modification of contract not shown. In ap action to recover for breach of a contract for the sale of gasoline, evidence examined and held insufficient to establish an agreement modifying the terms of the contract as to the time of delivery so as to have it include the succeeding month, but merely to show an offer to that effect by plaintiff, a counter offer by defendant to deliver as fast as it was able to and a rejection of such counter offer by plaintiff as “absurd.”</p> <p>6. Sales, § 377*—measure of damages for nondelivery of full amount bargained for. Where a • contract by which defendant agrees to sell plaintiff gasoline provides for the delivery of twelve cars in July and defendant delivers only one, and for the delivery of thirteen cars in August and defendant delivers four, the most which defendant can be required to pay plaintiff in damages is the difference between the contract price for eleven cars and the market price on July 31 and the difference between the contract price for nine cars'and the market price on August 31, and evidence as to the price of gasoline on subsequent dates is irrelevant.</p> <p>7. Sales, § 376*—what is purchaser’s measure of damages on breach by seller. On a breach of a contract of sale by the seller, the buyer is entitled to recover- the actual damages he has sustained and no more.</p> <p>8. Sales, § 381*—duty to mitigate damages on breach of contract by other party. When the seller under a contract for the sale of gasoline begins to fail to ship as directed under the contract, it was the purchaser’s duty, under the evidence in this case, to do all he reasonably could to mitigate the loss and, to that end, to buy the necessary gasoline elsewhere, even though the time in which the seller could deliver under the contract had not expired.</p> <p>9. Sales, § 382*—measure of damages for nondelivery Where buyer purchased elsewhere. In an action by the purchaser for breach of a contract for the sale of gasoline by the terms of which defendant was to deliver a certain number of cars in a stated month f. o. b. Chicago, but delivered only a part, where it appears that plaintiff purchased gasoline needed to supply the deficit, the proper measure of damages is the difference between the contract price and the market price on the last day of such month, f. o. b. Chicago, except as to such cars as it purchased elsewhere in that month, by reason of defendant’s failure to deliver, and as to those cars, plaintiff can only recover the difference between the contract price and the market price f. o. b. Chicago, on the dates of such purchases or the difference between the contract price and the price at which it actually purchased, if that was less than the market price.</p> <p>10. Sales, § 371*—who has burden of proving damages from nondelivery. In an action by a purchaser to recover damages for a breach of contract for the sale of gasoline,, while it is proper for the seller to show, as affecting the damages recoverable by the purchaser, that the latter purchased gasoline elsewhere, the burden is on' the purchaser to establish its damages properly by showing what the purchases were and the prices paid.</p> <p>11. Sales, § 133*—liability for nondelivery caused by car shortage. The seller of a specific quantity of merchandise f. o. b. cars at a given point who fails to deliver as agreed is liable in damages for his breach, though it may be caused by a shortage of cars making it difficult or even impossible to obtain them, the agreement to deliver being unconditional.</p>

<p>1. Workmen’s Compensation Act, § 18*—when action will not He against third person. If the employer, the employee and the owner of the building occupied by the employer,'whose alleged negligent placing of a water tank on his building caused the employee’s death, were all three bound by the Workmen’s Compensation Act, an action will not lie to recover for the employee’s death.</p> <p>2. Workmen’s Compensation Act, § 3*—mere ownership of building insufficient to bring owner within act. The mere ownership of a building which is rented by an employer who comes under the Workmen’s Compensation Act does not bring the owner within the act where it has no employees on the premises and is not there engaged in any enterprise or business.</p> <p>3. Workmen’s Compensation Act, § IS*—right to cover against third person not engaged in extrahamrdous occupation. An action may be maintained against the owner of a building to recover for the death of an employee of the lessee caused by the fall of a tank on such building though such employee and lessee were both under the Workmen’s Compensation Act, where the owner was not engaged in an extrahazardous business, in the meaning of the act, so far as the building where the accident occurred was concerned.</p> <p>4. Workmen’s Compensation Act, § 18*—sufficiency of declaration against third person not engaged in extrahazardous occupation. Where, in an action against the owner of a building to recover for the death of an employee of the lessee of such building, it clearly appears from the allegations of the declaration that such owner was not engaged in any extrahazardous occupation, enterprise or business; within the meaning of the Workmen’s Compensation Act, it is not necessary that the declaration allege that the act was inapplicable or make any reference to the act.</p> <p>5. Death, § 67*—when damages not excessive. A verdict of $7,000 for the death of a 14-year-old girl is not excessive where it appears that she was in good health, could read and write English, worked in a factory and also helped'with the household work and left parents, brothers and sisters surviving her.</p> <p>6. Negligence, § 120*—sufficiency of declaration charging negligence resulting in fall of tank. Though the declaration, in an action against the owner of a building to recover for the death of an employee of the lessee of such building caused by the fall of a water tank installed thereon, is primarily based on defendant’s violation of a city ordinance, set up in the declaration, regulating the placing of water tanks on buildings, such declaration is sufficient after verdict, at least, to sustain a judgment for plaintiff based on the fact that the tank had been properly installed, where it not only alleges the violation of the ordinance in the construction of the tank, but also avers that the tank fell “by reason of the fact that the foundation and supports of the tank were then and there insecure, weak, and out of repair.”</p> <p>7. Pleadings, § 459*—waiver of demurrer by stipulation admitting evidence proper under any plea, etc. Where, at the time the demurrer to the declaration is overruled, on the stipulation of the parties, there is embodied in the order the provision that “upon the trial of this cause said defendants may introduce any material evidence that can or could be introduced by them under any plea or rejoinder that might be filed herein, or upon any issue that might be raised under any pleadings filed or which might be filed herein, and such evidence so introduced shall be given all the weight it would receive if supported by the proper pleadings,” the question of' the propriety of the court’s ruling in overruling the demurrer is not saved.</p> <p>8. Pleading, § 136*—when order based on stipulation obviates necessity for rejoinder. Where, by stipulation of the parties, the order overruling a demurrer to the declaration provides “that upon the trial of this cause said defendants may introduce any material evidence that can or could be introduced by them under any plea or rejoinder that might be filed herein, or upon any issue that might be raised under any pleadings filed or which might be filed herein, and such evidence so introduced shall be given all the weight it would receive if supported by the proper pleadings,” such order relieves defendant from filing a rejoinder, but permits him to introduce evidence without the filing of it, that otherwise would be improper.</p> <p>9. Appeal and ebbob, § 1454*—reversal not granted to permit of issue being more formally raised. A judgment will not be reversed in order to permit the parties to raise in a more formal way an issue upon which they have already had the benefit of a full trial.</p> <p>■ 10. Negligence, § 187*—when finding that fall of tank ioas caused by bending of supporting beams sustained. In an action against the owner of a building to recover for the death of an employee of the lessee through the falling of a water tank which had been placed by the defendant on the building, where it is undisputed that the tank fell over through the bending of the steel beams supporting it and evidence is introduced tending to show that such beams were insufficient to carry the weight, a finding that the beams were of insufficient strength is. supported by the evidences notwithstanding there is evidence that the beams were of sufficient strength and that there was a high wind and defendant contends that such wind caused the toppling over of the tank.</p> <p>11. Landlobd and tenant, § 240*—lohen provision requiring lessee to keep premises in repair inapplicable in action for injury to employee of lessee. In an action against the owner of a building to recover for the death of an employee of the lessee of the building through the falling of a water tank installed on the building by the owner during the life of the lease, such fall being caused by the bending of the beams supporting the tank, the provision of the 'lease requiring the tenant to keep the premises in repair is inapplicable.</p> <p>12. Evidence, § 10*—ordinances not judicially noticed by circuit court. The circuit court does not take judicial notice of city ordinances.</p> <p>13. Negligence, § 193*—when compliance with ordinance question for jury. In an action against the owner of a building to recover for the death of an employee of the lessee of such building caused by the fall of a water tank installed on the building by defendant, where the evidence tends to show a violation of the ordinance, set up by the declaration, regulating the installation of such tanks, and defendant’s evidence tends to show that it had complied with the ordinance, the question whether defendant complied with the ordinance is for the jury,</p> <p>14. Appeal and error, § 1460*—when failure to prove ordinance harmless. In an action against the owner of a building to recover for the death of an employee of the lessee of the building through the falling of a water tank which the declaration alleges to have been installed in violation of a city ordinance, where the record discloses that proof was offered on both sides as to whether or not the ordinance had been violated, and defendant also offered an instruction as to its nonliability as for a nuisance, where it had complied with the ordinance, the jury were instructed that the burden of proving his case as laid in his declaration was on plaintiff, and in the conduct of the case generally both parties assumed that the ordinance was in force and effect, it is not ground for reversal that no proof was made of the ordinance in question.</p> <p>15. Appeal and error, § 1539*-—refusal of abstract instruction not ground for reversal. The refusal of instructions which are inapplicable to the facts of the case is not ground for reversal.</p>

<p>1. Carriers, § 96*—what law governs rights arising through delay. The rights of the shipper and the carrier of an interstate shipment arising through a delay in transportation are governed by the federal law.</p> <p>2. Carriers, § 98*—when evidence insufficient to show delay. In an action against a carrier to recover damages alleged to have been caused by a delay in transportation, evidence examined and held insufficient to establish a delay in transportation.</p> <p>3. Carriers, § 166*—construction of clause limiting time for presentation of claims. The provision in a bill of lading that claims for “loss or damage” must be made in 10 days after the arrival of the shipment at the ultimate destination is not limited to claims based on injury to the shipment, but covers also loss suffered by reason of delay in shipment.</p> <p>4. Carriers, § 166*—effect of application of limitation on time for presenting claims to claims based on delay. .The application of the requirement in a bill of lading that 10 days’ notice be gjven of "claims for loss or damage” to claims for damage caused by delay does not work a hardship on the shipper, ■ but puts in permanent form the evidence of an intention to claim damages and serves to call the carrier’s attention thereto, giving it an opportunity to investigate which might be lost if it were not notified until just before the statute of limitations had run.</p>

<p>1. Masteb and sebvant—liability of employee for advances in excess of commissions. Where a salesman’s contract with his employer provides that he is to have a weekly expense allowance and a monthly drawing account and is to receive a percentage of the profits on sales made by him and that the expense account and drawing account are to he charged against him and deducted from profits that he makes on the merchandise he sells for the employer, it is not intended that the money advanced the salesman shall he repaid the employer in case the salesman’s commissions did not equal the advances.</p> <p>2. Account stated, § 4*—When not shown. In an action by an employer against a salesman to recover amounts advanced in excess of commissions earned, evidence held insufficient to entitle plaintiff to recover on the .theory of an account stated in that it did not show a demand for payment.</p> <p>3. Account stated, § 4*—second refusal not required where payment previously refused.. Where payment of a statement rendered is once refused, it is not necessary to refuse it again, when it is sent a second time, to prevent an account stated.</p> <p>4. Tbial, § 191*—when verdict properly directed. Where there is no conflict in the testimony and it is not such that conflicting inferences may reasonably be drawn therefrom, the direction of a verdict is proper.</p>

<p>1. Street railroads, § 66*—duty to driver of automobile in dangerous situation. Even though one driving an automobile along a street car track gets himself, through his own negligence, into a dangerous situation, if, after he finds himself in danger, he exercises ordinary care, it is the street-car motorman’s duty to avoid colliding with the automobile, if by the exercise of ordinary care he can do so, and a breach of that duty on the motorman’s part may entail liability upon the street railroad company for injuries caused by the collision.</p> <p>2. Street railroads, § 66*—care required as to automobile in dangerous situation. A motorman seeing an automobile approaching on the car track ahead of him and another street car approaching behind the automobile on the other track is chargeable with the knowledge which ordinary care will give him, and, having that knowledge, is bound to exercise ordinary care appropriate to the particular situation.</p> <p>3. Street railroads, § 131*—sufficiency of evidence in action for death of driver of automobile caught between two cars. In an action against'a street railway company to recover for the death of one killed when the automobile which he was driving was crushed between cars coming from different directions on a street, the snowbanks on the sides of 'which prevented the automobile from getting away from the car lines, evidence examined and held sufficient to sustain a judgment for defendant.</p> <p>• 4. Evidence, § 277*—admissibility of photographs of scene of accident. In an action against a street railway company to recover for the death of one killed when the automobile which he was driving was crushed between two street cars approaching from opposite directions, photographs of the locus in quo taken the morning after the accident and not purporting to show the relations of the cars and the automobile at the time of the accident but offered merely to give the jury a general picture of the surface of the street as it existed about 14 hours after the accident are admissible.</p> <p>5. Trial, § 91*—when objection to admission of photographs insufficient. A statement by plaintiff’s counsel, “I will preserve my objection,” upon the introduction of photographs of the locus in quo of an accident, is not a sufficient objection to their admission in evidence.</p> <p>6. Street railroads, § 148*—when instruction properly modified 6y requiring driver to use care to extricate himself from position of peril. In an action to recover for the death of a person killed when the automobile which he was driving was crushed between two street cars approaching from opposite directions on different tracks, an instruction which does not require that it be shown that deceased, after he was in danger, exercised ordinary care to extricate himself, is properly modified by adding that it was his duty, after having exposed himself to the risk, to make such efforts to avoid injury to himself as an ordinarily reasonable man in the exercise" of due care for his own safety would exercise under such circumstances, since a failure on his part to exercise such care would make his negligence as much the proximate cause of the injury as was the motorman’s negligence.</p> <p>7. Appeal and error, § 1637*-—when instructions not ground for reversal. Instructions in an action to recover for the death of one killed when the automobile which he was driving was crushed between two street cars, while in some measure inapt to the declaration in charging upon the question of wilfulness and wilful injury, since the declaration charged wilful negligence, held not to be ground for reversal since the law applicable to the facts was properly presented in other instructions.</p> <p>8. Appeal and error, § 1411*—consideration of verdict in conflicting evidence. Where, in a personal injury case in which the evidence is conflicting, the jury find for the defendant, the reviewing tribunal will treat the jury’s finding with considerable respect.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>1. Corporations, § 144*—what is a “calamity” within agreement to repurchase stock from purchaser in case of a “calamity." Where an agreement for the sale of corporate stock provides that the seller will repay the purchase. price to the purchaser “in case of a calamity, such as death or severe sickness” in the purchaser’s family, evidence that the purchaser’s daughter had a very severe cold, was overworked and became quite ill for a long time, and that the purchaser herself crushed her hand, while at work and was thereby rendered unable to work or to feed herself and was confined to her bed, is sufficient proof of a calamity within the contemplation of such contract.</p> <p>2. Evidence, § 39*—presumption of receipt of mailed letter. A letter properly mailed is presumed to have reached the person to whom it was addressed and to have been received by him in due course of the mail.</p> <p>3. Evidence, § 39*—how presumption of receipt of mailed letter rebutted. The presumption that a letter properly mailed reached the addressee in due course of mail may be rebutted by evidence that it was not actually received.</p> <p>4. Post office, § 1*—when receipt of letter question for jury. Where the addressee of a letter properly mailed denies that he received it, it is for the jury to say whether, in all the circumstances, such evidence overcomes the presumption that the letter was received in due course of • mail.</p> <p>5. Instructions, § 159*—propriety when part of a series. An instruction which, taken in connection with other instructions on the same matter, correctly states the law, is proper even though, standing alone, it states the law incompletely.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Abthub W. De Selsi, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Error to the Circuit Court of Kane county; the Hon. C. F. Irwin, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Pleading, § 99*—notice under general issue should not con-elude with a verification. A notice of special defenses under the general issue should not conclude with a verification, the statute not authorizing the formation of any written issue upon such a notice.</p> <p>2. Pleading, § 99*—notice under general issue with special plea not permitted. A defendant has no right to give notice of special matter relied on as- a defense and also to file a special plea, and when this is done, should be required to elect under which he will proceed.</p> <p>3. Pleading, § 123*—necessity for special replication. Where a special plea sets up new matter, there should be a special repiication to frame issues of fact thereon.</p> <p>4. Trial, § 3*—when case treated as though oral issue joined. Where the parties go to trial voluntarily without completing written issues, the case will be treated as if an oral issue had been joined.</p> <p>5. Pleading, § 462*—when absence of formal issue immaterial. Where a defendant pleads the general issue and special pleas, to which a demurrer is sustained, and afterwards files notice of special defenses under the general issue and concludes that notice with a verification and also files therewith a special plea setting up new matter and concluding with a verification, and plaintiff does not-ask that he be required to elect whether he will proceed under the notice of special matter relied on as a defense or under the special plea and files no special replication to the special plea, which sets up new matter, the case will be treated as tried by consent upon both the general issue and the notice of special matter thereunder and upon the special plea with an adequate oral replication thereto concluding to the country, and defendant’s pleadings in such case are sufficient to support a verdict if proven.</p> <p>6. Exemptions, § 19*—right to waive. A debtor who is a single man may waive his right to an exemption.</p> <p>7. Exemptions, § 19*—what constitutes waiver. Where a debtor against whose property an attachment writ, not under judgment, is issued, pursuant to notice, files a schedule of exemptions the total valuation of which is $590.95, and none of the goods scheduled being specifically exempt, and, upon a general execution being issued and levied upon the property at the suit of the attaching creditor, fails to schedule and have the property exempted to the extent of $100, though notified, but permits it all to be sold and the proceeds applied to the satisfaction of his debt to the attaching creditor, he loses the right to claim exemptions and is estopped to set up that the sheriff should have summoned appraisers and caused the property to be valued.</p> <p>8. Attachment, § 323*—remedies for wrongful. It is not the purpose of the statute regarding wrongful attachment that the debtor shall have the property and also recover double its value, but he may either replevy such property where it is illegally held or may sue for double the value.</p> <p>9. Exemptions, § 41*—when debtor estopped to recover double value of property from sheriff for wrongful levy. An unmarried debtor who, by failing to schedule his exemptions, elects to let his attached property be sold and applied in satisfaction of his debt, is estopped to recover back from the sheriff double the value of the property.</p> <p>10. Appeal and error, § 1782*—reversal not granted to permit recovery of nominal damages. Pursuant to the principle de minimis non curat lew, a judgment will not be reversed merely to permit the other party to recover nominal damages.</p> <p>11. Appeal and error, § 1782*—when amount involved does not toarrant reversal. The fact that an unmarried debtor who filed, on attachment of his property, a schedule of exemptions, the valuation of the property in which was far in excess of his $100 exemption, may have been entitled to damages for the use of $100 of such property between the time it was attached and the date at which it was levied on under an execution issued under the judgment of the attaching creditor, is not ground for reversing a judgment for defendant in an action by such debtor against the sheriff for double the value of the goods.</p>

<p>Sales, § 156*—effect of retention of part of goods sold after refusal to deliver balance. If the vendee of a specific quantity of goods sold under an entire contract receive a part thereof and retain ‘it" after the vendor has refused to' deliver the residue; this is a severance of the entirety of the contract, and the vendee becomes liable to the vendor for such part, but he may reduce the latter’s cláim by showing that he has sustained damage by the latter’s failure to complete the contract.</p>

<p>1. Damages, § 200*—when instruction erroneous. An instruction, given at the request of the plaintiff, in an action for personal injuries, that if the jury found certain things therein specified, they should find the defendant guilty and assess such damages as they should “believe the plaintiff to be entitled to from the evidence” in the case, is improper.</p> <p>2. Appeal and erbob, § 1650*—when erroneous instruction may be cured. Semble, that error in giving an instruction at plaintiff’s request which leaves the jury entirely free to impose such damages as they see fit may be cured if the jury are instructed in another of plaintiff’s instructions to award plaintiff fair compensation.</p> <p>3. Damages, § 209*—when instruction erroneous. Where, in an action to recover for personal injuries, the declaration charges that plaintiff had been forced to expend a large sum of money in being cured and had been unable to work and follow her usual employment, and there was proof that the coat which she had worn at the time of the accident was badly damaged but no claim was made in the declaration therefor; of the number of times she had been treated by physicians, though none of their charges nor of the reasonable worth of their services; of her having indications of goiter at the time of the trial, but not sufficient medical testimony, in that regard; of the wages she was receiving and the length of time that she was absent after the accident, but none, or at most very slight, as to whether this absence was due to the injury; of optical troubles suffered by her after the injury, but no medical or expert proof in that regard, it is error to instruct the jury that if they find defendant guilty they shall assess such damages as they “shall believe the plaintiff to be entitled, to from the evidence,” and that to t assess the damages, it is not necessary that any witness shall have expressed an opinion as to the amount of the damages, but the jury may themselves make such estimate from the evidence, considered in connection with their observation and experience in the affairs of life.</p> <p>4. New trial, § 85*—waiver of grounds not specified in motion. One who makes a motion for a new trial and files written points in support thereof, which do not include alleged improper remarks of the court as one of such grounds, waives objection on that ground.</p> <p>5. Appeal and erbob, § 1561*—when refusal of instructions harrnless. The refusal of requested instructions is not ground for reversal where they were embodied in other instructions given at the same party’s request.</p>

<p>1. Appeal and error, § 994*—when denial of leave to file plea not before court. On appeal the action of the trial court in denying a motion for leave to file a plea of the Statute of Frauds is not before the court where the application for leave to file such plea, the showing made on the motion and the ruling of the court thereon are not preserved in the bill of exceptions.</p> <p>2. Appeal and error, § 742*—improperly filed plea not part of common-law record. The action of the clerk below in filing a plea which the court refused leave to file does not make such plea a part of the common-law record.</p> <p>3. Landlord and tenant, § 35*—when person not signing lease bound. When one party to a lease has executed it and the other party has accepted it, the latter is hound by its terms and conditions as completely as if he had signed the paper, even though he did not in fact sign it.</p> <p>4. Appeal and error, § 1392*—what questions raised by motion to direct a verdict. The refusal of a motion by defendants, asked at the close of all the evidence, to direct a verdict in their favor raises on appeal the question whether there is any evidence in the record to warrant a verdict for plaintiff.</p> <p>5. Tender, § 7*—when insufflciéht. In an action to recover rent, a plea of tender is insufficient where the amount tendered was the rental of the premises for two months and did not include the costs accrued up to the time of the filing, which was long after the action was commenced and issues had been joined, and there was evidence of defendants’ having left property on the premises for part of another month which would have warranted a finding by the jury that they had thereby occupied the premises for such additional time.</p> <p>6. Appeal and error, § 1303*—what presumed in favor of verdict. Where, on appeal by defendants, the denial of a motion for a new trial is not assigned as error, it must be assumed that where the evidence for plaintiff and for defendants was conflicting the jury were warranted in finding for plaintiff.</p> <p>7. Landlord and tenant, § 40*—when delivery of lease to lessee not essential to validity. Where the lessees of premises have signed the lease and delivered it to the lessor who has delivered the possession of the premises to them and they have accepted such possession and the lessor has signed the lease, it is not essential, to render the lease binding on the lessees, that it shall have been delivered back to them.</p> <p>8. Landlord and tenant, § 41*—what constitutes taking possession uniter lease. The act of one who, after signing as lessee a lease which provides that he shall not sublet without the written assent of the lessor, except to a certain tenant then in possession, notifies such tenant that he can remain if the lessor sees fit and notifies other tenants to move, authorizing one of them to remain until he can find another place, amounts to taking possession of the premises under the lease.</p>

<p>Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Judgment, § 658*—power to inquire into jurisdiction of foreign courts. The full faith and credit clause of the federal constitution does not prevent the courts of Illinois from ascertaining, in actions therein on judgments rendered in sister States, whether the courts rendering such judgments had jurisdiction of the subject-matter or the parties.</p> <p>2. Corporations, § 746*—how jurisdiction over foreign acquired. To give a court jurisdiction in personam over a foreign corporation, it must appear that the corporation was carrying on business in the State where process was served on its agent, that the business was transacted or managed by some agent or officer authorized by or representing the corporation in such State and that some local law exists making such corporation amenable to suit there as a condition, express or implied, of doing business in the State.</p> <p>3. Corporations, § 745*—what necessary to render foreign corporation amenable to service'. To render a corporation amenable to service of process in a foreign jurisdiction, it must appear that the corporation is transacting business - in that district to such an extent as to subject it to the jurisdiction and laws thereof.</p> <p>4. Judgment, § 658*—when jurisdiction may be questioned in action on foreign. Where a foreign corporation defendant challenges the court’s jurisdiction on the grounds that the person served as “service agent’’ for it was not and never had been its agent and that it was not and never had been doing business in the State, and no action is taken upon such plea to the jurisdiction but, after it was filed, judgment was taken by default against such defendant, which judgment does not, by its recital, find adversely to defendant on the jurisdictional questions but ignores the service on such agent and does not find that defendant was doing business in the State or that its plea to the jurisdiction was a general appearance conferring jurisdiction, but only that the service of summons upon the Secretary of State was regular and that by such service the court had jurisdiction, the foreign corporation defendant is not estopped to question the jurisdiction of the court rendering the judgment in an action on the judgment in another State. •</p> <p>5. Judgment, § 660*—when demurrer to replication properly sustained in action on foreign. Where, in an action in Illinois against an Illinois corporation on a judgment recovered against it in Oklahoma, defendant’s plea a,lleged that it was not and never had been doing business in Oklahoma and this allegation is not met by anything contained in the replication, a demurrer is properly sustained to the replication.</p>

<p>Error to the Circuit Court of Boone county; the Hon. Chables H. Donnelly, Judge, presiding. Heard in this court at the October term; 1920.</p>

<p>1. Appeal and ebrob, § 1184*—when counts disregarded. Where, in an action to recover for the death of a minor killed by defendant’s train, no evidence is offered by plaintiff as to a failure to ring a bell or blow a whistle, on appeal from a judgment for plaintiff, counts in the declaration setting up such omissions will be disregarded.</p> <p>2. Railroads, § 651*—when recovery for ordinary negligence barred by contributory negligence. In an action to recover for the death of one killed by defendant’s train as he was walking on its track at a street intersection, where there were eyewitnesses to the accident, plaintiff offers no evidence tending to show that deceased was in the exercise of ordinary care for his safety at the time of and just before the accident and the only one of his witnesses who saw the accident or saw deceased within half a block thereof testified that he did not see deceased until just before the accident and that deceased was crossing at his natural gait, whereas the evidence of defendant’s witnesses tends to show that deceased was guilty of contributory negligence, no recovery can be had under the counts of the declaration charging ordinary negligence.</p> <p>3. Appeal and error, § 1392*—when refusal to direct verdict not disturbed. In an action to recover for the death of one killed by defendant’s trains, the Appellate Court will not overrule the action of the trial court in refusing to direct a verdict for the defendant, notwithstanding there is no evidence in the record tending to show that deceased was not guilty of contributory negligence and the evidence tending to show wanton and wilful negligence on defendant’s part is very slight.</p> <p>4. Railroads, § 779*—when instruction erroneous as ignoring element of due care on plaintiff’s part. In an action to recover for the death of one ■ struck by defendant’s train while he was on its track in a public street, it is error to instruct that “under the law of this State the general public have the right to use and travel upon the entire street in any city, including that portion of it on which railroad tracks are laid, and that the public are in no sense to be considered as trespassers for so doing,” and that if the jury believe from the evidence that the place where deceased was killed was a public street in the city upon which railroad tracks had been laid, still deceased “had a right to use and travel upon the entire street including that portion of it on which said tracks were laid, and that he in no sense is to be considered as a trespasser for so doing,” as it ignores the question of due care on the part of deceased and tends to mislead the jury into thinking that he had as much right on such track as defendant's train had at that time.</p> <p>5. Railroads, § 607*—rights and duties on streets compared with street railways. The respective rights and duties of pedestrians and railroad trains at street intersections in cities are not the same as the respective rights and duties of pedestrians and street cars.</p> <p>6. Railroads, § 611*—duty to persons using streets. A railway company having its track in a city street must employ all reasonable means to avoid injuring persons rightfully using that portion of the street occupied by its' tracks, subjegt to the rule that such persons must exercise ordinary care for their own safety and not obstruct the passage of the cars.</p> <p>7. Railroads, § 611*—right of pedestrian to walk upon tracks laid in street. A person may walk upon the tracks of a railway company laid in a street without becoming a trespasser, but in obedience to the well-known custom of the country, it is his duty to leave the tracks when his presence there serves to impede the passage of the cars.</p> <p>8. Instructions, § 118*—basis on evidence. Instructions must be based on the evidence.</p> <p>9. Railroads, § 775*—when instruction on duty to warn erroneous as not supported by evidence. In an action to recover for the death of one killed by being struck by defendant’s train, it is improper to give an instruction as to defendant’s liability in case its employees saw deceased on the track in a position of danger in time to have warned him or to have stopped the train, where there is no evidence in the case in support thereof.</p> <p>10. Words and phrases—recklessness defined. Recklessness is “the state or quality of being reckless; heedlessness; carelessness; negligence.”</p> <p>11. Railroads—when instruction on wilfulness erroneous as making it synonymous with recklessness. In an action to recover for the death of one killed by being struck by defendants’ train, it is error to instruct the jury that “certain of the counts of the plaintiff’s declaration allege that the deceased, Louis Walters, was killed by the wilful and wanton act of the defendants, and the court further instructs you that contributory negligence of a person who Is injured or killed is no defense in any case where the action of the defendant is wilful, wanton and reckless, and injury or death ensues from the result. And the court further instructs you that if you believe from a preponderance of the evidence that the employees of the defendants operating tie train in question, saw Louis Walters in a position of danger a sufficient length of time to have warned him or to have stopped the train and thereby avoided the injury to him, or that said employees failed, through their own recklessness, to discover the . danger of Louis Walters when by the exercise of ordinary care they could have discovered the danger, and averted the injury, and thereby Louis Walters was killed, then the fact that you might find that the said Louis Walters was guilty of contributory negligence would be no defense,” since such instruction makes recklessness the equivalent of wilful and wanton negligence and does not distinguish between negligence and wilful and wanton negligence.</p> <p>12. Negligence, § 91*—what degree of recklessness creates liability irrespective of contributory negligence. Recklessness of a defendant which will render him liable in the absence of ordinary care on the part of the plaintiff is such negligence as shows a disregard for life or property.</p>

<p>1. Appeal and eebob, § 731*—what not part of. record. Notes on the judge’s docket and the printed calendar are no part of the record.</p> <p>2. Appeal and ebbor, § 931*—remedy where minutes on judge’s docket differ from record as written by clerk. If the minutes of the judge’s docket differ from the record as written by the clerk, the proper remedy is to apply to the court below to have the record amended and corrected, as such office cannot be performed in the Appellate Court.</p> <p>3. Nuisance, § 50*—when evidence does not support joint cause of action for. The count in a declaration in a joint action brought by a husband and wife to recover for damages caused by the operation of an ice plant across the street from their property is not supported by evidence tending to show that by reason of such noises plaintiffs and their family suffered from loss of sleep which made them nervous and ill in health, that the husband put cotton in his ears to shut out the noise so that he could sleep but was compelled to desist from doing so because his physician advised him that it was affecting his hearing, and tending to show personal annoyance and discomfort caused by the noises, since such evidence does not show or tend to show a joint cause of action.</p> <p>4. Nuisance, § 5*—when noise not actionable. There can be no recovery for the annoyance and discomfort arising from the noises necessarily caused by the lawful operation of a legitimate business enterprise in a crowded manufacturing city.</p> <p>5. Nuisance, § 4*—right to recover for injury to property due to mist being blown against house. A- husband and wife may recover in a joint action for injury to property owned by them and in their joint possession through mist caused by the operation of defendant’s ice plant being blown by the wind on such property interfering with the use of that side of the house.</p> <p>6. Nuisance, § 4*—when method of operating and not laws of nature proximate cause. Where, owing to the manner in which water used for making ice in defendant’s plant is handled, a mist is created, defendant is liable for the injury to adjoining property by the deposit of such mist thereon, notwithstanding the carrying of such mist to plaintiffs’ property is caused by the operation of the laws of nature, since defendant’s method of handling the water whereby the mist is created is the proximate cause of the injury.</p> <p>7. Appeal and error, § 1423*—when judgment affirm.ed notunthstanding errors. Where the evidence necessitated a judgment for plaintiffs and the judgment was only nominal, it will be affirmed, notwithstanding there may have been errors on the trial.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Error to the County Court of Boone county; the Hon. William C. De Wolf, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Bills and notes, § 307*—when payment operates to release collateral. Where a note of which one is a joint maker is paid by the making of a cash payment and the giving of a new note of her comaker for the balance and the note is marked paid is canceled and returned by the payee, to the comaker who delivers it to plaintiff, the new note, not being signed by plaintiff, creates an individual obligation of the comaker which is a different indebtedness, in character and legal effect, from the original note and which is not the obligation of plaintiff, and the payee of the original note cannot, as against plaintiff and without her consent, retain, as collateral to secure the payment of such new note, collateral which she had deposited with the payee to secure the payment of the original note.</p> <p>2. Bills and notes, § 378*—when presumption of r payment arises. The presumption that the indebtedness for which a note was given was paid is raised by the act of the payee in stamping the note paid, canceling it and returning it to the maker.</p> <p>3. Bills and notes, § 196*—when extension of time of payment releases joint maker. A joint maker of a note is released by the act of the payee in extending the time of payment without her knowledge or consent, and is entitled to the return of collateral deposited by her in the payee’s hands to secure the payment of the note.</p> <p>4. Tboveb and convebsion, § 3*—when refusal to release collateral constitutes conversion. After the release of a comaker, the refusal of the payee bank to return to her, upon her demand, collateral which had been deposited by her with the bank to secure the payment of the note, constitutes a legal conversion of such collateral by the bank.</p> <p>5. Tboveb and conversion, § 39*—when evidence establishes conversion in refusing to release collateral. In trover by a joint maker of a note against the payee bank to recover the value of stock deposited as collateral for a note which had been canceled and returned to her comaker, who had executed a new note for the balance due on the original, it is not error to instruct the jury that if they believed from the evidence that the cancellation of the original note and the taking of a new note signed by the other maker was intended by the bank as a release and discharge of plaintiff from her obligation on the original note, they should find the issues in her favor.</p> <p>6. Interest, § 26*—what interest may be recovered on conversion. In trover to recover the value of stock deposited as collateral, which defendant refused to return upon demand after plaintiff had been released, but sold, plaintiff is entitled to interest from the date of such refusal, which was the time of the conversion, not from the date the stock was sold.</p> <p>7. Appeal and erbob, § 1220*—when party cannot complain of error in instruction. One is in no position to complain on appeal of an error in an instruction which was in his favor.</p>

<p>1. Appeal and error, § 1595*—when defect in pleading is cured by verdict. Where there is a defect or imperfection in a pleading, whether of form or substance, which would have been a fatal objection on demurrer, yet of such, a character that if issue be joined thereon, it would necessarily require, on the trial, proof of the facts defectively or imperfectly stated or omitted, and without which proof it is not to be presumed that the trial judge would direct the jury, or the jury would have given the verdict, then such defect, imperfection or omission is cured by the verdict.</p> <p>2. Appeal and error, § 1611*—when defect in failing to allege manner of injury is cured by verdict. In an action under the Federal Employers’ Liability Act to recover for personal injuries alleged to have been received through the negligence of another employee of defendant in causing or permitting a bale of cotton, which such employees were unloading from defendant’s car, to faU upon plaintiff, any defect or omission in tailing to state in the declaration the particular fact or circumstance under which the employee caused or permitted the bale of cotton to fall and strike plaintiff is cured by the verdict.</p> <p>3. Master and servant, § 697*—when negligence of coemployee is established. In an action under the Federal Employers’ Liability Act to recover for injuries received from the fall of a bale of cotton alleged to have been caused through the negligence of another employee charged with the duty of watching the cotton, which plaintiff was unloading, and keeping it from falling, evidence held to warrant a finding that such employee was charged by the foreman with such duties and that he was negligent in performing them.</p> <p>4. Master and servant, § 737*— when negligence of coemployee is question of fact. In an action under the Federal Employers’ Liability Act to recover for injuries received from the fall of a bale of cotton, alleged to have been caused by the negligence of another employee who had been charged by defendant’s foreman with the duty of watching the cotton and keeping it from falling, it is for the jury to determine .whether or not such employee had been charged with such duties and was negligent in performing them.</p> <p>5. Master and servant, § 206*—when master is liable for negligence of fellow-servant. While, under the Federal Employers’ Liability Act, the servant assumes all the ordinary and usual risks incident to the employment in which he is engaged, the' master is made liable not only for his own negligence but also for the negligence of a fellow-servant which may result in injury to his employees.</p> <p>6. Master and servant, § 206*—when negligence of fellow-servant is negligence of master. In an action under the Federal Employers’ Liability Act," the neglect of a duty with which a fellow-servant is charged by the master to assure the safety of his coemployees must be regarded as the master’s negligence.</p> <p>"7. Damages, § 128*—when damages for injury to foot are not excessive. In an action under the Federal Employers’ Liability Act, where there is evidence warranting a finding that plaintiff’s foot was permanently injured, and has become atrophied, deformed and practically useless for the rest of his life as a result of the injury and that he also suffered intense pain for a long period of time and from which he may never be entirely free, a verdict for $10,000, while large, cannot be justly regarded as excessive.</p> <p>8. Appeal and error, § 1631*—when prejudicial effect of improper remarles of counsel is obviated by withdrawal. A judgment for plaintiff in an action to recover for personal injuries will not be reversed on account of statements in the closing argument of plaintiff’s counsel as to the amount paid by defendant to procure the services of one of its witnesses as an expert, though such remarks were improper, since there was no evidence that defendant paid such witness, anything, where an objection was sustained to such remarks and plaintiff’s counsel withdrew them and admitted before the jury that he was in the wrong in referring to a matter as to which there was no proof.</p> <p>9. Appeal and eebob, § 1652*-—when error in instruction as to negligence is cured, by other instructions. That an instruction given at plaintiff’s request in an action to recover for personal injuries does not limit to the declaration the negligence for which it states a recovery may be had is not ground for reversal where, by defendant’s instructions, the jury are expressly told that they have no right to find against defendant on any ground of negligence other than that stated in the declaration.</p> <p>10. Instructions, § 159*—how instructions are construed. In passing upon the correctness of instructions, the several paragraphs thereof must be considered together.</p> <p>11. Damages, § 200*—when instruction is not erroneous as incomplete. In an action under the Federal Employers’ Liability Act, it is not error, in an instruction which relates merely to the question of damages, to add, after defining the measure of damages “and if you believe from the evidence that the plaintiff was not guilty of any negligence which contributed to bring about his injury,” without further instructing the jury that they must also find from the evidence that defendant was guilty of the negligence as charged.</p> <p>12. Master and servant, § 430*—what is effect of contributory negligence in action under Federal Employers’ Liability Act. In actions under the Federal Employers’ Liability Act, contributory negligence, while not a defense, is a proper element to be considered by the jury in reduction of the amount of damages and may properly be adverted to in instructions concerning the measure of damages.</p> <p>13. Instructions, § 151*—when refusal of instruction is proper. The refusal of an instruction upon a question sufficiently and correctly covered in other instructions is not error.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Appeal and ebbob, § 1702*—when objection to finding is waived. Where, ih an action to recover on a fire insurance policy, at defendant’s request the court submits to the jury a special interrogatory as to what amount of damage Was caused to the insured property and the jury makes a special finding which defendant does not move to set aside, and to which he does not refer as a ground for new trial, the objection that the damages are excessive cannot be urged on appeal, notwithstanding an objection below that the verdict was excessive, such objection going to the general verdict and not to the special finding.</p> <p>2. Insueance, § 71*—what is sole ownership of property. ■ Unconditional and sole ownership is such ownership as would carry the loss of the property insured if destroyed.</p> <p>3. Insueance, § 71*—when solé ownership of property is not affected by agreement as to sales. Unconditional and sole ownership of property, within the meaning of a fire insurance policy, is not lost by an agreement of the owner whereby a third person is given control of the proceeds of sales of such property.</p> <p>4. Insueance, § 120*—when rule against forfeitures is applied. The rule that the law does' not favor forfeitures applies to the construction of an insurance policy.</p> <p>5. Insueance, § 120*-—how policies are construed. A contract of fire insurance must be most strongly construed against the insurer.</p> <p>6. Insurance, § 455*—when statements of agent operate as waiver of proof of loss. Statements of an insurance company’s representatives to the owner of the insured property to one assisting the insured in selling the insured property and to an attorney representing the creditors of the insured, made within 60 days after the fire, that the matter of the fire was in the hands of the State Fire Marshal for investigation, afford sufficient evidentiary. basis for an instruction as to the waiver by defendant of the provision of the policy requiring proof -of loss in 60 days, and stating that if before the expiration of 60 days after the fire, defendant’s adjuster informed insured that the fire was being investigated by the State Fire Marshal and if insured was thereby led to believe that proofs of loss would not be required by defendant, defendant waived such proofs and cannot avoid liability on the ground that they were not furnished.</p> <p>7. Insurance, § 693*—when instruction as to waiver of proofs of loss is erroneous. In an action to recover on a policy of fire insurance in which plaintiff alleges a waiver by defendant of proofs of loss, defendant’s requested instruction that, as a matter of law, waiver is an intentional relinquishment of a known right, and that unless the jury find from all the evidence that defendant intended to excuse insured from giving proofs of loss and by the conduct of its agents made such intention known to insured, it cannot be held that proofs were waived, is properly refused since waiver of such proofs might not only be express, but could also be inferred from such conduct on the part of defendant as would justify the belief that such proofs would not be required.</p> <p>8. Instructions, § 138*—when instruction■ is properly refused as unnecessary. It is not error to refuse an instruction which is merely an abstract proposition of law and as to which there is no evidence in the case applicable.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Rohhrt K. Welsh, Judge, presiding. Heard in this court at, the October term, 1919.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the October term, 1918.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Appeal and error, § 365*—necessity for presenting question below. Courts of appeal will not consider defects in a record that can be waived' unless such questions are presented to the trial court.</p> <p>2. Contempt, § 74*—what objections not available on appeal. Defendant in an information for failure to support his wife and minor child who did not raise in the court below the want of verification of the information and did not object on such ground on hearing of the contempt proceeding against him for failure to pay the amount for support ordered by the court on the wife’s motion, but submitted to the jurisdiction of the court, cannot raise such objection on an appeal from the order entered in the contempt proceeding.</p> <p>3. Contempt, § 68*—what evidence admissible. On a hearing in a contempt proceeding against a defendant for failure to comply with the order entered on the wife’s motion on an information against him for failure to support his wife and minor child, the order entered in the main proceeding on the wife’s motion is admissible in evidence.</p> <p>4. Appeal and error, § 199*—extent of Appellate Court’s jurisdiction as to constitutional question. While the question whether a statute attempting to authorize the filing of an unverified information by the State’s Attorney is void as in conflict with section 6 of the Bill of Rights cannot be determined by the Appellate Court primarily, where this question has been determined by the Supreme Court, the Appellate Court may apply the law so determined to the facts of any case.</p> <p>5. Criminal law, § 582*—when question waived. Where the objection to the failure to verify the information on which a proceeding is had is not raised until" the case has been remanded to the Appellate Court to be determined on its merits, such objection is waived.</p> <p>6. Appeal and error, § 1488*—when admission of evidence harmless. On appeal from a judgment had on a hearing before the court, it will be presumed that no improper evidence was considered by the court in determining the issues, and in such a case the admission of improper evidence is harmless error.</p> <p>7. Contempt, § 7*—when evidence supports order. On appeal from an order finding defendant guilty of contempt in failing to make payments for the support of his wife and minor child pursuant to an order entered on the wife’s motion in a proceeding on an information against him for nonsupport, evidence held sufficient to support the order in the contempt proceeding.</p>

<p>1. Creditors’ suit, § 15*—when creditor will not be awarded excess on redemption of property. Where a judgment creditor of a mortgagor redeems the mortgaged land from the foreclosure sale under an execution on his judgment in the sheriff’s hands and, upon the sale of the mortgaged property, the purchaser, also a judgment creditor, pays to the sheriff the amount due the redeeming creditor under the redemption proceeding and his execution, and retains and applies the excess of such purchase price to his own judgment, a court of equity will not, on a bill in the nature of a creditor’s bill brought by a third judgment creditor, award such creditor a lien on such excess to the extent of his judgment.</p> <p>2. Creditors’ suit,' § 9*—what debt cannot be reached by bill in chancery. A debt due a debtor cannot be reached either by a bill in chancery or in a garnishment proceeding.</p>

<p>Error to the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. M. Habéis, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Wills, § 129*—duty to probate and establish mil. It is the duty of one named as executor in a purported will to present it for probate and to use all fair and reasonable means to secure the probate thereof, and when a bill is filed to contest the validity thereof, to use like means in the nisi prius court to establish its validity and when the validity is upheld and the contestants appeal, to follow the appeal and do so at the estate’s expense.</p> <p>2. Wills, § 210*—right to appeal when will is set aside. When a purported will has been set aside by the decree of a court having jurisdiction to enter it, the executor named therein may prosecute an appeal to the higher courts to test its validity, at the risk, however, of being himself held liable if the decree invalidating the will stands.</p> <p>3. Wills, § 207*—what is effect of 'decree entered on contest. Until a decree is entered'invalidating the will, the executor named therein is clothed with the authority and burdened with the duty to represent the deceased and carry the will’s provisions into effect, but if the will is declared invalid by the decree of a court of competent jurisdiction, until such decree is reversed the situation is as if no will had been made.</p> <p>4. Wills, § 214*—liability of executor for costs on appeal. An executor who appeals unsuccessfully from the decree of a court of competent jurisdiction invalidating the will must pay the costs and expenses of such appeal and look for any reimbursement to the beneficiaries named in the will who authorized him to appeal.</p> <p>5. Wills, § 210*—what is effect of order authorising appeal from decree disallowing will. An order of the county court authorizing the executor named in a purported will to appeal from a decree of the circuit court declaring the instrument not to be the last will and testament of the deceased is a nullity.</p> <p>6. Costs, § 33*—liability of executors and administrators. The rule that it is only when an executor or administrator acts in bad faith or has been guilty of gross negligence that he can be made liable for costs has no application to a case which does not involve the handling of the estate but involves the legal existence of one as an executor and his right to represent the estate in any 'way.</p> <p>7. Wikls, § 207*—extent of liability for interest when will is disallowed. One who, acting as executor under a purported will, deposits the funds of the estate in a private bank owned and run by him and his son is properly charged 3 per cent interest rather than 6 per cent on such funds from the date of the decree declaring the will invalid until his report was filed, it not appearing that such funds were not at all times ready to be turned over to the lawful owners or that they were intermingled with his private funds.</p> <p>8. Executors and administrators, § 559*—amount of fees allowable to representative. The amount to be allowed an executor or administrator as fees or commissions on the funds passing through his hands is largely within the discretion of the court in which the estate is being administered, within the limit of 6 per cent on personalty, having regard to what he is required to do to discharge his duties.</p> <p>9. Executors and administrators, § 561*-^when allowance of fees to executor is not excessive. An allowance not exceeding $300 for fees to an executor who collected in excess of $6,000 and made approved disbursements of about $4,000, held not excessive.</p>

<p>1. Evidence, § 331*—admissibility of parol evidence to vary receipt. A receipt is not conclusive if, in fact, it did not and was not intended to cover everything, and parol evidence is admissible to explain, vary or contradict it.</p> <p>2. Instructions, § 18*—propriety of refusing misleading instructions. Instructions which are likely to mislead or confuse the jury are properly refused.</p>

<p>Error to the Circuit Court of Adams county; the Hon. Albert Aicers, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Railroads, § 630*—what is duty of flagman at railroad crossing. It is the duty of a flagman, placed at a public railroad crossing to direct the public when to cross and when not to, to know when it is safe to cross and when not.</p> <p>2. Railroads, § 630*—right to rely on signals of flagman. Persons desiring to cross a railroad at a public crossing at which a flagman is stationed have a right to assume that the flagman will know whether it is safe for them to cross and will warn them if it is not.</p> <p>3. Railroads, § 630*—wrong signal of flagman at crossing as gross negligence. Where a railroad company’s flagman at a public railroad crossing signals one waiting at such crossing to cross and such person does so and is struck by a train, the railroad company is guilty of gross negligence.</p> <p>4. Trial, § 65*—effect of uncontradicted evidence. Positive testimony uncontradicted and unimpeached cannot be disregarded by either court or jury.</p> <p>5. Railroads, § 621*—sufficiency of signal by flagman at crossing. It is the duty of a railroad company’s flagman, who is stationed at a public crossing, in warning persons, desiring to cross, of the approach of a train to give such a warning of danger as will be understood by the ordinary person under such circumstances to be a warning of danger.</p> <p>6. Railboads, § 630*—when reliance on signal of flagman relieves from contributory negligence. If a flagman stationed at a railway crossing which one driving an automobile is seeking to cross failed to give correct signals which would be understood by the ordinary person situated as the driver then was, or gave wrong or misleading signals on which the driver, acting as an ordinary prudent person under like circumstances would have acted, relied, and he and passengers in his car were struck by a train in driving over the crossing, neither he nor his passengers can be held to have been guilty of contributory negligence.</p> <p>7. Railboads, § 736*—when evidence establishes negligence of railroad and flagman. In an action to recover for personal injuries received by a passenger who was riding in an automobile which was struck by defendant’s train at a public crossing at which defendant had stationed a flagman, held, that the evidence, which was conflicting as to vwhether such flagman had signaled the automobile to cross or to stop, was sufficient to support a verdict and that a judgment for plaintiff would not be disturbed.</p> <p>8. Negligence, § 225*—sufficiency of instructions as to contributory negligence. Instructions as to contributory negligence are suffir cient if, taken together, it is impossible for the jury to misunderstand from them the true rule governing contributory negligence.</p> <p>9. Railboads, § 779*—sufficiency of instruction as to imputed negligence. In an action against a railroad company to recover for injuries received at a crossing by plaintiff while riding in an automobile driven by another, an instruction that plaintiff was not chargeable for any acts of negligence of such automobile driver provided she herself did not fail to do anything which the law required her to do for her own safety, while awkwardly worded, correctly states the law as to imputed negligence.</p> <p>10. Railboads, § 779*—when instruction as to imputed negligence is properly refused. In an action against a railroad company to recover for injuries received by being struck by defendant’s train at a crossing while she was riding in an automobile driven by another, an instruction, requested by defendant, that plaintiff could not recover if the automobile driver was negligent in failing to look for an approaching train or in observing signals learning him of its approach is properly refused.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Husband and wife, § 131*—what is effect of waiver of husband’s rights in wife’s estate. A waiver by a husband of all of the rights to which he is entitled in his wife's estate is, if fairly made and based on a valuable consideration, binding not only on the husband but also on his executors and devisees.</p> <p>2. Husband and wife, § 131*—presumption of waiver of husband’s rights in wife’s estate. While, in equity, a consideration will be presumed where a husband’s written waiver of his rights in his wife’s estate is under seal, such presumption is not conclusive, and evidence of a want of consideration will be admitted to overcome it.</p> <p>3. Husband and wife, § 131*—what circumstances are consistent with presumption of waiver of husband’s rights. Where it appears that, at the time a husband executed a waiver in his wife’s estate, he and his wife, both of whom were aged, were about to go .to different places to live, that the heirs of neither had any claim on the other, that each, apparently with the knowledge and consent of the other, made a will in which the rights of the other were ignored, that life insurance money derived by the wife on policies on the life of a son by her former marriage was made over by her to a daughter by such former marriage, to whom also she was about to make over the balance of the money received from the son’s estate at the time the waiver was executed, that the husband substituted his niece as the beneficiary in his life insurance policy in place of his wife, that though he survived his wife six months, knew of the administration of her estate and was urged to claim an interest therein, he refused to do so, such circumstances are consistent with the presumption of consideration for the waiver which arises from the fact that it was under seal.</p> <p>4. Contracts, § 183*—what may be considered in construing contract of deceased person. Where the mouths of the parties to a contract are closed by death, resort may be had to their acts and dealings in regard to the subject-matter thereof to determine the contemporaneous construction and understanding by them of its terms.</p>

<p>1. Insurance, § 721*—what is effect of acceptance of insured beyond age limit. The fact that a certificate of membership in an insurance society is issued to one who is beyond the age limit at which persons can be admitted to the society under its constitution and by-laws does not render the contract void where the contract is not prohibited by the insurer’s charter.</p> <p>2. Corporations, § 44*—power to change charter and by-laws. A charter of a corporation is a grant from the sovereign power pf the State and is not subject to change by the holder nor in any way except by the power granting it, while the constitution and by-laws of the corporation may ordinarily be changed by the corporation, so long as such changes are within the powers granted by the State.</p> <p>3. Insurance, § 716*—what changes may be made in charter or by-laws. Under the charter of a fraternal association which authorizes it to issue certificates of membership to persons between such age limits, its by-laws may determine the ages of the persons to whom it will issue such certificates, provided they do not fix age limits outside of those fixed by the charter, and, as a corollary of such power, the association has power to waive the by-law limits and accept any persons within the statutory age limits.</p> <p>4. Insurance, § 760*—when association is estopped to claim, violation of by-laws. A fraternal association which has waived its by-law fixing the age limit of persons accepted as members and has issued a certificate to one beyond such age is estopped to set up the fact that such person was beyond the age limit of the by-law as a bar to recovery on such certificate.</p> <p>5. Insurance, § 760*—when waiver of by-law as to age limit is established. In an action to recover on a certificate of membership in a fraternal association whose by-laws and constitution prohibited the acceptance of members over 50 years of age, evidence held sufficient to support plaintiff’s contention that the insured, who was, at the time the certificate was issued to him, 51, had stated his correct age to defendant’s soliciting agent in making his application and that the agent, without insuréd’s knowledge or consent, had falsely stated his age in the application as 45, and that the insured, who could not read or write English, had signed the application in good faith and without knowledge of such false statement, and to establish a waiver by the association of the age limit fixed in its by-law.</p> <p>6. Insurance, § 760*—when agent’s knowledge operates as waiver of by-law. Where an applicant for insurance or for admission to a benefit society has fully and frankly disclosed the truth to the agent of such insurance company or society and the agent has falsely recorded or reported the same to or has concealed it from his principal, and the policy or certificate of membership has issued and the insured has paid all premiums and assessments as they have matured and the company or society has accepted them, the agent’s knowledge becomes the knowledge of the principal, and the principal will be held to have waived such irregularities and estopped from denying liability on the policy or certificate.</p> <p>7. Witnesses, § 212*—when proper to refuse details of conversation on cross-examination. Where, on cross-examination of a witness, foundation is laid for impeachment by asking her if, at a certain time, she did not make a certain statement to a named person and she denies that she did, whereupon the person is called and testifies that she did make such statement, it is proper, upon such witness being recalled, to refuse to permit her to testify what she did say in the conversation in question, since the issue involved is not what she said but whether she used the language imputed by the question.</p> <p>8. Instructions, 131*—effect of ignoring issues. An instruction which ignores issues in the case is properly refused.</p> <p>9. Corporations, § 43*—what are charter powers. An instruction that “the charter powers of a corporation consist of .the license or a statute law under which said corporation is doing business,” is improper as embodying an incorrect, indefinite and confusing definition.</p> <p>10. Words and phrases—what terms are not synonymous. The terms “license" and “statute law” are not synonymous.</p> <p>11. Appeal and error, § 1241*—when error in instruction cannot be complained of. An appellant cannot be heard to complain that the court gave at its request an improper instruction though it was marked “refused.”</p>

<p>1. Executors and administrators, § 209*—when estate is liable for attorney’s fees. To entitle one seeking to establish a note as a claim against an estate to the allowance of attorney’s fees as part of his claim, he must he entitled thereto by virtue of some agreement of the testator to pay such fees.</p> <p>2. Executor and administrators, § 614*—when attorney’s, fees may be allowed on claim. The provisions in a note and mortgage for the payment of attorney’s fees if judgment he confessed under the power of attorney contained in the note, or if foreclosure proceedings are begun under the mortgage, or if a suit is brought at law to collect the debt, do not authorize the' allowance of attorney’s fees in a proceeding to establish the note as a claim against the estate of the maker.</p>

<p>Appeal from the Circuit Court of Moultrie county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Error to the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Judgment, § 252*—when decrees may he amended or altered. Matters determined by the circuit court in a decree and not appealed from or reversed or altered by the Appellate Court on an appeal involving other phases of the decree pass beyond the circuit court’s power to alter or set aside with the ending of the term of that court at which the decree was entered and become res adjudicata as to the parties to the suit.</p> <p>2. Appeal and error, § 1725*—what is effect of decision on former appeal. Whatever is determined by the Appellate Court on a former appeal in the cause is res adjudicata and the law of the case and is binding on the parties, the circuit court and the Appellate Court for all time.</p> <p>3. Appeal and error, § 1820*—what is duty of lower court when case is remanded. Where a decree of the circuit court is reversed by the Appellate Court and is remanded with specific directions and the parties do not seek to have such order reviewed by the Supreme Court, it is the unequivocal duty of the circuit court to follow the Appellate Court’s mandate and specific directions in the cause, and it cannot readjust any part of its former decree or any part of the pleadings or findings upon which its decree was based except in conformity with the specific directions of the Appellate Court.</p> <p>4. Appeal and error, § 1820*—when filing of amended pleading on remand of case is error. Where, on an appeal from a decree of the circuit court on a suit for an accounting, the Appellate Court found that complainant was entitled to an accounting, under the bill as filed, for a specified period and remanded the cause with directions to cause that account to be stated, it is error for the circuit court to permit defendant to change the issues by filing an amended answer.</p> <p>5. Courts, § 140*—what is effect of transfer to equity side of court. Transferring a case from the common law to the chancery side of the docket is not the commencement of a new suit.</p> <p>6. Interest, § 52*—how computed when suit for accounting is transferred while pending. Where the decree in a suit for an accounting, which had been commenced on the common-law side of the court but was afterwards transferred to the chancery side, provides for interest on the amount found for complainant from the date the suit was commenced, the interest should be reckoned from the date of the commencement of the common-law action, not from the date the suit was transferred.</p>

<p>1. Depositions, § 3*—when certificate of officer taking deposition is necessary. Under Rev. St. ch. 51, sec. 30 (J. & A. t 5547), the want of a certificate of the official character of the person taking a deposition renders it inadmissible in evidence where the deposition was taken by an officer outside of the State of Illinois and the dedimus on which it was taken did not name any particular person as commissioner.</p> <p>2. Depositions, § 38*—when deposition taken outside state may he objected to. The objection that a deposition taken outside of the state lacks the certificate of the official character of the person taking it which is required by Rev. St. ch. 51, sec. 30 (J. & A. H 5547), may be taken advantage of on the trial by objecting to the reading of it in evidence. ■</p>

<p>1. Bills and notes, § 462*—when instruction as to consideration of note is not erroneous. Where, in an action on a judgment note, no question of want of consideration is raised by the pleadings, an instruction which states in substance that the only issue to be determined by the jury is whether the signature of defendant’s name to the note is the genuine signature of defendant and that plaintiff is not required to show what was the consideration for the note or that defendant received any part of it, is not erroneous.</p> <p>2. Appeal and ebbob, § 450*—when objections must be made. Objections to.improper questions must be made at the time and the court must have an opportunity to rule upon them before error can be assigned upon permitting them.</p> <p>3. Evidence, § 52*-—how denial of personal act may be proved. When one is charged with having performed an act of a personal, individual nature, such as the manual act of making a signature, which he denies, he may, in the complete establishment of his denial, show by any competent evidence who did in fact make it.</p> <p>4. Bills and notes, § 421*—how denial of signature may be established. In an action to recover on a judgment note alleged to have been made by defendant, which defendant denies having signed, claiming that her signature was affixed to the note by the other defendant whose signature was also affixed thereto, she may establish such contention of nonexecution by her by proving that the other defendant affixed her name, which may be shown by his evidence to the fact, by the evidence of witnesses to such act on his part or by any other competent- evidence tending to show that her signature was affixed by him.</p> <p>5. Evidence, § 291*—what proof is required to establish handloriting by comparison. In Call. 1916 Stat. jf 5566, authorizing the proof of handwriting by comparison made by the witness or jury with writings properly in the files or records of the case, admitted in evidence, or treated as genuine, or admitted to be genuine by the party against whom the evidence is offered, “or proved to be genuine to the satisfaction of the court,” the words quoted are to be construed as calling for that degree of competent proof, as to the genuineness of the offered standard of comparison, and that degree only, which will require the court to find as a fact that it is genuine.</p> <p>6. Evidence, § 291*—sufficiency of evidence to establish handwriting by comparison. Under Call. 1916 Stat. 1f '5566, evidence of a witness that she had seen the- person, a writing by whom is offered as a standard of comparison, write many times and was entirely familiar with his handwriting and that the writing on the exhibit offered as a standard was the handwriting of such person, is sufficient to warrant the admission of the exhibit in evidence as a standard of comparison, if the exhibit is otherwise admissible.</p> <p>7. Evidence, § 291*—when either party may prove handwriting by comparison. Under Call. 1916 Stat. If 5566, where a defendant charged with having executed a writing made the basis of the proceeding denies the charge, either party may have comparisons made by witnesses or the jury between the writing in question and other genuine writings of the party charged with its execution, and this permits such defendant to establish his contention that the instrument was executed by a third person by introducing genuine writings of such third person as standards of comparison with the contested signature, the application of the provision not being limited to the writings of the one charged by the pleadings with having executed the writing on which the proceeding is based.</p> <p>8. Evidence, § 52*—how facts may be proved. One entitled to prove a fact may prove it by any competent means.</p> <p>9. Evidence, § 291*—how statute permitting proof of handwriting is construed. Call. 1916 Stat. jf 5566, is a remedial law, intended to aid in the ascertainment of the truth in controverted questions as to the genuineness of handwriting, and is to be construed as permitting the spuriousness of a writing to be established by the same means of comparisons authorized to be used to show that it is genuine.</p> <p>10. Evidence, § 291*—what statute as to proof of handwriting by comparison permits. By Call. 1916 Stat. If 5566, the legislature undertook, first, to announce that in all courts in the State, when it becomes necessary to prove who executed a writing, a comparison of that writing with other writings whose authorship is known and established shall be competent,, and, second, how the genuineness of writings offered as standards shall be established.</p> <p>11. Evidence, § 291*—what evidence of authenticity is required when proving handwriting by comparison. Before the standards of comparison authorized by Call. 1916 Stat. If 5566, to prove the genuineness of writings are admissible, there must be something to connect the author of them with the writing, the authenticity of which is in dispute.</p> <p>12. Evidence, § 291*—when evidence ‘as to authenticity of instrument to he used in comparing handwriting is insufficient. In an action to recover on a judgment note, where defendant denies that she signed the note and contends that her signature was affixed by the other signer and seeks to introduce as an exhibit a writing alleged to have been made by the other signer, her purpose being to use it as a standard of comparison as provided by Call. 1916 Stat. T 5666, and testifies that she has seen such person write many times, is familiar with his writing and that the writing on the exhibit is his, but neither she nor any other person testifies that her name on the note is in his handwriting, nor is there any direct statement by her counsel to the court that such is contended to be the case, but merely inferences and suggestions to that effect, there is no error in excluding the exhibit.</p>

<p>Appeal and erboe, § 731*—what record and abstract must show. Where the record and abstract are so imperfect as to render it impossible to acquire from them any correct idea of what transpired in the court on which the decree appealed from was based, the decree will be affirmed pro forma.</p>

<p>Error to the County Court of Sangamon county; the Hon. John B. Weaver, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Corporations, § 178*—extent of statutory right of stockholder to examine hooks. The right of a stockholder to examine the books and records of the corporation which is granted by Rev. St. ch. 32, sec. 13 (J. & A. If 2430) is absolute and does not depend upon any circumstance or condition except the ownership of stock.</p> <p>2. Corporations, § 178*—what corporations are affected hy statute as to examining hooks hy stockholders. The right given stockholders by Rev. St. ch. 32, sec. 13 (J. & A. If 2430) to examine the books and records of the corporations is not limited to stockholders in corporations which are organized under the General Corporation Act, but is enacted under the police power of the State and applies to every corporation for pecuniary profit organized under the laws of the state, including banking corporations, though the latter’s charters are authorized by different constitutional and statutory provisions which authorize corporations generally.</p> <p>3. Cobpobations, § 178*—what is extent of stockholder's common-law right to examine boohs. Under the common law a stockholder is entitled to examine the corporate books and records only when he shows that the request therefor is made in good faith and for reasons connected with his rights as a stockholder.</p> <p>4. Cobpobations, § 178*—what is effect of stockholder’s purpose in examining books. Under Rev. St. ch. 32, sec. 13, the purpose or motive of a stockholder in seeking an inspection of the corporate books is immaterial and he cannot be required to state his reasons and they are not subject to inquiry, the only qualification of his right being that it shall be exercised at reasonable times.</p> <p>5. Cobpobations, § 179*—when corporation is proper party to suit to compel inspection of books. A bank may be properly made a party defendant in its corporate capacity to a petition for mandamus brought by a stockholder of the bank to compel the bank and its officers to permit him to examine the corporate books and records.</p> <p>6. Mandamus, § 107*—who may be compelled to obey writ. A corporation may be compelled to obey a peremptory writ of mandamus.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Appeal and error, § 1306*—when count will be presumed additional. Where it appears from the record that plaintiff obtained leave to file an additional count and that such additional count was filed, and that a demurrer was filed and sustained to the “amended” count and plaintiff abided by her “amended” count, and no other accounts appear in the record than the above mentioned, it will be presumed on appeal that the count purporting to be an additional count was in fact such, and not an amended count.</p> <p>2. Appeal and error, § 1306*—when counts in pleading xoill be presumed abandoned. Where there is nothing in the record to show that after a demurrer was sustained to special counts plaintiff abided by such counts, they must be treated as having been abandoned.</p> <p>3. Trial, § 100*—when finding operates as ruling on objection to evidence. Where plaintiff offers the instrument sued on in evidence under the common counts and upon defendant’s objecting to its admission thereunder, it is admitted subject to objection and plaintiff offers no further evidence and the court finds the issues Joined in favor of defendant, such finding in effect sustains the objection, to the admission of the instrument in evidence.</p> <p>4. Contracts, § 185*—when contemporaneous agreements may be considered in construing contract. Contemporaneous agreements in regard to the same subject-matter must be construed together as one contract.</p> <p>5. Assumpsit, § 72*—when special count is demurrable. Where an agreement' in which a promissory note is incorporated and oí which it forms a part contains the terms, conditions and contingencies upon which such note shall become due and payable, a demurrer is properly sustained to a special count in an action upon such contract where such count ignores all of the agreement except, that part which constitutes the promissory note.</p> <p>6. Contracts, § 351*—when contract must be declared upon specially. When the payment of an obligation is to be made in a particular manner or is to be controlled by the happening of future events, then the contract creating the obligation must be declared upon specially, and facts showing that the obligation is due and payable must be .averred.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal'from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Macon county; the Hon. John H. McCoy, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Frauds, statute oe, § 72*—what memorandum is sufficient to satisfy statute of frauds. In an action to recover damages for the breach of an alleged contract for the sale of land, where plaintiff gave his check to defendant and defendant signed a memorandum thereon which recited: “Received the within check as part payment on my 80 acre farm in Sciota Township for the sum of thirteen thousand which I have sold to S. P. Adams [plaintiff],” such check and memorandum constitute a sufficient written memorandum to satisfy the requirements of the statute of frauds.</p> <p>2. Vendos and purchaser, § 4*—what constitutes valid, sale of real estate. An indorsement on a check signed by the payee of the check which recites that the check is received as part payment on a certain farm of payee which the payee has sold to the signer of the check for $13,000, contains every element necessary to constitute a valid contract for the sale of real estate.</p> <p>3. Vendor and purchaser, § 70*—when contract of sale is to be performed. Where a contract for the sale of real estate specifies no time for its completion, the law will imply that it is to be performed in a reasonable time.</p> <p>4. Contracts, § 300*—what constitutes reasonable time for performance of contract. What will be a reasonable time for the performance of a contract in which no time is specified is a matter of proof in all the conditions and circumstances that may surround the case.</p> <p>5. Vendor and purchaser, § 351*—when evidence does not show unwillingness of purchaser to perform. In an action at law to recover damages for defendant’s breach of his contract to convey his farm to plaintiff, that plaintiff insisted that defendant give him a deed signed by defendant and his wife, though the contract contained no stipulation that defendant’s wife should join in the deed, is not sufficient to show that plaintiff was unwilling to perform according to the terms of the contract.</p> <p>6. Vendor and purchaser, § 74*—when defense of purchaser’s failure to perform, is waived. In an action at law to recover damages for defendant’s breach of a contract to convey his farm to plaintiff, the defense that plaintiff did not offer to perform within a reasonable time is waived where, each time that plaintiff offered to perform, defendant made a different excuse for not performing and, at no time after the execution of the contract, tendered any deed or did any act towards performance, never at any time demanded payment of the purchase price an'd never claimed a right to refuse the conveyance on the ground of plaintiff’s failure to offer to perform within a reasonable time.</p> <p>7. Vendor and purchaser, § 343*—what is measure of damages in case of breach of contract. In an action at law to recover damages for breach of a contract to convey land, the measure of damages is the increased value of the land, if any, at the time of the breach of the contract, above the contract price.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Appeal and error, § 1169*—when eases are properly consolidated. Since an appeal to the circuit court in the matter of the guardianship of a minor child of divorced parents and a motion in such court to modify the decree entered in the divorce suit and to vacate the order for a further hearing in the guardianship matter-appealed from the county court both involve the same question and that question only, namely, the custody of the minor, the circuit court properly consolidates such appeal and motion.</p> <p>2. Parent and child, § 3*—extent of parent’s right to custody. A parent has a right to the custody of his child as against all the world unless he has forfeited that right or the welfare of the child demands that he he deprived of it,</p> <p>3. Parent and child, § 3*—what parent is entitled to custody of child. As between the father and mother of a minor the father has the superior right to its custody, all things being equal.</p> <p>4. Divorce, § 159*—what is effect of decree as to custody of child. A decree directing the custody of a minor child is exceptional in its character and is always regarded as temporary, and. the court retains jurisdiction to Yeview the question at any future time.</p> <p>5. Divorce, § 159*—vjhen decree as to custody of child may he modified. One whose wife secured a divorce by default may, after her death, be properly awarded custody of the person of their minor child, which the decree had awarded the wife, though he is a nonresident, the evidence upon such proceeding showing that he is a fit and proper person to have custody of their child.</p>

<p>1. Divorce, § 64*-—conclusiveness of decree. A court retains jurisdiction of a divorce proceeding at all times to enforce, adjust or modify an original decree in regard to the payment of alimony and custody of children as circuihstances may subsequently demand.</p> <p>2. Divorce, § 35®—what is extent of jurisdiction on supplemental hill. The circuit court has no jurisdiction on a supplemental petition in a divorce suit to enforce the specific performance of a contract between the divorced wife and the divorced husband which seeks to make a testamentary disposition of the funds of the husband in the hands of a conservator of the estate of the husband, the latter having been adjudged a spendthrift, and requires that such conservator pay the trust funds in his hands to a third person, not for the benefit of the divorced wife or the children during minority, but for the benefit of the children on the husband’s death.</p> <p>3. Contbacbs, § 108*—when contract of spendthrift is void. Under Rev. St. ch. 86, sec.' 14 (J. & A. If 7298), a contract between one who has been adjudged a drunkard and spendthrift and his divorced wife for the payment to a third person for the benefit of his wife and children of funds in the hands of his conservator, is void ah initio.</p> <p>4. Continuance, § 10*—■when continuance is proper. On a petition for a decree to compel a conservator to pay over trust funds, where the conservator has givep. large bonds, the amount involved is large, the matter at issue is important and no harm will result from a temporary postponement, such postponement may properly be allowed on motion of the conservator, supported by proper affidavits, on the ground that he is prevented from attending the hearing by reason of the serious illness of one of his children.</p> <p>5. Contbacts, § 8*—what is effect of uncertain contract. A contract between one who has been adjudged a drunkard and spendthrift and his wife for the payment of funds in the hands of his conservator to a third person for the benefit of the wife and children, held so uncertain, ambiguous and inconsistent as to be of doubtful enforceability. ■</p>

<p>Appeal from the Circuit Court of Morgan county; the Hon. Nob-man L. Jones, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Marriage, § 2*—what law governs. The law of the State where a marriage takes place controls as to its validity, and if the marriage is valid where celebrated, it is valid in Illinois.</p> <p>2. Marriage, § 2*—what marriages are invalid. The general rulo that a marriage, valid where celebrated, is valid everywhere else does not apply to marriages which are contrary to the laws of nature, as generally recognized by Christian countries, nor to those which are declared invalid by the positive law of the State in which it is sought to establish them.</p> <p>3. Marriage, § 21*—when marriage is presumed invalid. A marriage between two citizens of Illinois celebrated in Missouri in less than a year after one of them obtained a divorce in Illinois is contrary to the declared public policy of Illinois and will not be presumed to have been a lawful marriage under the laws of Missouri, the statutes of the latter State not having been introduced in evidence.</p> <p>4. Divorce, § 1*—common law. There is no common law governing divorce.</p> <p>5. Conflict of laws, § 9*—lohat presumption obtains as to foreign laws. In the absence of proof of the statute laws of another State, they will be presumed to be the same as the lex fori, where there is no common-law rule or legal presumption to the contrary.</p> <p>6. Marriage, § 21*—what is effect of presumption of valid marriage. Even though the presumption can be indulged that the marriage between two citizens of Illinois celebrated in Missouri was lawful under the laws of Missouri, it would not render such marriage valid in Illinois, if the parties went to Missouri to be married solely to evade the laws of Illinois.</p> <p>7. Marriage, § 26*—what evidence is insufficient to validate foreign marriage. Where an Illinois citizen went to Missouri' and married another Illinois citizen the day after the latter had secured a divorce in Illinois, both stating to the licensing officer and to the officiating minister that they were residents of Illinois, and the husband had no employment in the 3 months they lived in Missouri, there being no evidence that he seriously sought any nor of any other fact tending to show an intention actually to establish a residence and become a citizen of Missouri beyond the bare statement of the wife in a proceeding by her to establish the marriage that such was the fact, such evidence is insufficient to validate the marriage in Illinois, in view of the prohibition in Rev. St. ch. 40, sec. 1-A (J. & A. H 4216) against the marriage of a divorced person within one year after the granting of the decree.</p> <p>8. Adpeal and error, § 340*—who may object to denial of motion to intervene. One who seeks to intervene is the only one who can complain that the lower court erred in denying its motion for leave to file an intervening petition.</p>

<p>1. Mabriage, § 8*—when consent of parents is necessary. The. general rule is that unless the statute expressly declares a marriage contracted without the necessary consent of the parents, or other requirements of the statute to be a nullity, the statute will be construed as directory in this respect and the marriage held valid, notwithstanding the statute entails penalties on licensing or officiating authorities who disobey its provisions.</p> <p>2. Husband and wise, § 272*—what marriage will support indictment for abandonment. A marriage contracted by a minor under a license issued without the consent of his parent or guardian and by the county clerk of a county other than that in which the minor resided must be treated as valid until declared void in a direct proceeding instituted for that purpose, and, until set aside by a competent tribunal, will support an indictment for wife abandonment.</p>

<p>1. Trusts, § 95*—what is title of successor to trustee appointed l>y court under will. While, as a general rule, the title to the trust estate passes to the heirs of the deceased trustee, where the will creating the trust provides for the appointment of a new trustee, if from any cause the person named shall not act or shall cease to act as trustee, and, upon the death of such trustee, the court appoints a successor, the latter takes under the will and is vested, ipso facto, with the title to the trust premises and is clothed with, the same power as if he had been named in the will, and a conveyance to him hy the former trustee’s heirs or representatives is unnecessary.</p> <p>2. Trusts, § 111*—when trust is active. Where a trust created by a will directs the trustee to operate the trust property and divide the profits among the testator’s wife and children and their issue until the end of twenty-one years after the death of the widow, when the trust property should descend to the heirs of the testator’s body then living according to the laws of descent, such trust is active.</p> <p>3. Trusts, § 109*—what is effect of Statute of Uses. The Statute of Uses does not execute an active trust or one under which the beneficiaries are indefinite and contingent until twenty-one years after the death of the testator’s widow.</p> <p>4. Estates, § 11*—when merger of legal and equitable estates does not exist. Where a will creating a trust provides that the trustee shall operate the trust' property and divide the profits therefrom among the testator’s wife and children in stated shares, the issue of any child to take the share which would have belonged to the parent, and that at the end of twenty-one years after the widow’s death, the property shall descend to the heirs of the testator’s body then living according to the laws of descent, and further provides for the appointment of a new trustee if, from any cause, the trustee named shall not act or shall cease to act, and the trustee named sells the trust property under a decree authorizing the sale and directing him to hold the proceeds subject to the execution of the trust, but without authority distributes the proceeds of the sale in equal parts to the widow, the two' surviving children of the testator, of whom the trustee was one, and the guardian of the minor child of a deceased child of the testator, it was held that there was no merger of the legal and equitable estates.</p> <p>5. Trusts, § 86*—when distributive interests under will are contingent. Where a will creating a trust provides that at the end of twenty-one years after the death of his widow, one of the beneficiaries, the trust shall determine and the trust property shall descend to the heirs of his body then living to be divided among them according to the laws of descent then in force, the distributive interests in the fund are contingent.</p> <p>6. Trusts, § 289*—what trust cannot be determined by consent. Where there are contingent interests in a trust which cannot be determined until the happening of certain events, the trust cannot be determined and the funds distributed by consent of the persons interested, and acts and conduct of persons to whom the trust funds are paid under such an agreement cannot work an estoppel which will defeat the trust.</p> <p>7. Trusts, § 132*—admission as estoppel preventing trustee’s performance. A trustee cannot make any admission which will estop him from performing his duty as trustee.</p> <p>8. Trusts, § 80*—7iow construed. A trust created by a will must be controlled by the law applicable to trusts, and in dealing with it the rule that family settlements are the favorites of the law cannot be invoked to change the rules of law applicable to trusts.</p> <p>9. Trusts, § 294*—what distribution will not be protected by courts. The courts will not be astute to protect the estate of a trustee in the enjoyment of profit derived by him from an illegal distribution of the trust fund.</p>

<p>1. Corporations, § 337*—what corporations may purchase stock. A corporation for pecuniary profit has power to contract for the repurchase of its shares and such an agreement on its part is not ultra vires.</p> <p>2. Interest, § 4*—what allowed on agreement to repurchase stock. One who buys stock in a corporation from the corporation under an agreement that it will repurchase such stock from him at a specified price at the end of three years from the date of the sale, shall he so desire, is not entitled, in an action to recover upon such agreement, to receive five per cent interest from such date upon the purchase price, in addition to the dividends on the stock which he has received during the three-year period he has held it.</p> <p>3. Corporations, § 88*—when corporation cannot repudiate agreement to repurchase. Where a certificate of stock purchased by one from the agent of a corporation has indorsed upon it a stipulation that the corporation will repurchase the stock from him at a specified price at the end of three years from the date of sale, shall he so desire, the transaction does not embody two separate elements, namely, a sale of the stock and an agreement to repurchase, so that the corporation can ratify one and repudiate the other as unauthorized, but is but one transaction, the elements of which taken together constitute a conditional sale.</p> <p>4. Corporations, § 88*—what is effect of repudiation of agent’s agreement. Where a certificate of stock in a corporation is sold by its agent with the indorsement thereon that the corporation will repurchase it at the buyer’s option, in an action on such agreement to repurchase, if the corporation repudiates the indorsement as the unauthorized act of the agent, it must refund the purchase price to the stockholder, less the dividends he has received, if it does not repudiate the agent’s act, it is bound by the agreement to repurchase.</p> <p>5. Executors and administrators, § 498*—what is proper form of judgment against estate. In an action brought by one as administrator of the estate of a named person, deceased, a judgment that defendant have and recover costs against such person, “admr., etc.,” and that execution issue therefor, is improper because he is not personally liable, and if it be intended to be against the estate, it should be adjudged to be paid in due course of administration and no execution should issue.</p>

<p>1. Contracts, § 190*—how instruments constituting contract construed. Where two instruments are executed as evidence of one transaction they should be construed as one instrument.</p> <p>2. Salk,s, § 15*—when contract not invalid for want of mutuality. In a contract for the purchase of corn at a certain price “to be received- at * * * in good condition, on or before (at our option) Dec. 31, 1917,” the words “at our option” modify “on or before” and not the phrase “to be received” and consequently the contract is mutual, the purchaser not being given an option to receive the corn but an option as to the time of its delivery.</p>

<p>Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Sales, § 401*—when evidence shows breach of warranty. In an action to recover damages alleged to have been sustained by breach of an express warranty of the soundness of hogs bought by plaintiff from defendant, evidence examined and held, though conflicting, to support a verdict for plaintiff.</p> <p>2. Sales, § 404*—what is measure of damages for breach of warranty. In an action to recover damages for breach of an express warranty of the soundness of hogs bought by plaintiff from defendant, if there is a fair cash market value for the hogs diseased as they were shown to have been when delivered to plaintiff, the correct measure of damages is the difference between such value and the fair cash market value of sound hogs.</p> <p>3. Sales, § 404*—when commodity has marhet value. For a commodity to have a market value, there must be a market for it, that is, a demand therefor and an ability from such demand to sell the commodity when a sale thereof is desired.</p> <p>4. Sales, § 404*—how damages may be proved. In an action to recover damages for breach of an express warranty of hogs, if the hogs are shown to have been diseased and, in such condition, had no market value, plaintiff’s damages can be established by showing the actual value and deducting it from the fair cash market value of the hogs if they were sound.</p> <p>5. Sales, § 404*—what is amount of damages where goods are of no value. In an action to recover damages for breach of an express warranty of soundness of hogs sold to plaintiff by defendant, where plaintiff's evidence that the hogs were of no value is uncontroverted, he is entitled to recover the amount paid for them.</p> <p>6. Appeal and errob, § 1575*—when amount of recovery cannot he objected to. Appellant cannot complain that the appellee was awarded a less sum than that to which he was entitled under the evidence.</p> <p>7. Appeal and erbor, § 493*—when judgment cannot be objected to on appeal. In an action to recover damages for breach of an express warranty of the soundness of hogs, while plaintiff should not be permitted to recover the full amount paid for the hogs and at the same time to retain such of the hogs as lived, where the case is meritorious and the evidence shows that plaintiff was entitled to recover and the excessiveness of the verdict was not urged below as a reason for setting aside the verdict and granting a new trial nor assigned as error on appeal, the judgment permitting him to do so will be affirmed.</p>

<p>Auctions and auctioneers, § 6*—when sale is complete. Where, under the terms of a public sale as stated in the bills advertising it and by the auctioneer before commencing the sale, on all amounts in excess of $10 a credit of three, six or nine months will be given the purchaser giving a bankable note drawing six per cent interest from the date of the’ sale before removing the property, and two heifers are struck off to a purchaser at $50 each, such sale became complete on the fall of the hammer, and the seller could not thereafter resell notwithstanding he retained possession of them until the purchaser could tender security for the purchase price as required by the terms of sale and notwithstanding such purchaser failed to furnish the price on the day at which he stated he would.</p>

<p>1. Pleading, § 131*—what is effect of filing replication. By filing a replication to a plea, plaintiff admits that the plea is good in law and raises an issue on the facts alleged therein.</p> <p>2. Judgment, § 502*—what matters are concluded by divorce decree. Though the defendant wife in a divorce proceeding brought in a Minnesota court denies all the charges made in the bill and alleges that the husband is indebted to her in large sums for money loaned him by her and for money of hers converted by him, to which the husband replies denying indebtedness to her and setting up the statute of limitations, the fact that a decree is entered granting the husband a divorce and finding that the allegations in the husband’s reply were true and that the wife’s allegations as to the husband’s indebtedness were untrue and that the wife is not entitled to any relief “in this action,” such decree is not an adjudication by the court upon promissory notes given by the husband to the wife while the marital relation still existed, so as to bar an action by the wife on such notes in Illinois, especially where one of such notes did not become due until long after the decree was" entered, and the transcript of the record of the Minnesota decree was properly excluded.</p> <p>3. Divorcie, § 58*—-what may he included in decree. The court has not jurisdiction in a divorce proceeding by a husband to pass upon the wife’s contention that the husband is indebted to her for money loaned and for money of hers converted by him nor upon the reply thereto denying indebtedness and setting up the statute of limitations.</p> <p>4. Conflict of laws, § 14*—what may he presumed as to foreign decree of divorce. In the absence of proof it will be presumed that the limits on a court’s jurisdiction in divorce proceedings are the same in Minnesota as in Illinois.</p>

<p>1. Courts, § 31*—when record does not comply with rules of Appellate Court. Record considered and held not to comply with the rules of the Appellate Court as to the arrangement of the record according to the chronological order of the parts nor as to the manner of preparing the record with regard to numbering of the pages, references, etc.</p> <p>2. Appeal and error, § 893*—when judgment not shown by abstract. Where the abstract fails to show any judgment was entered by the trial court except by two references, one of which states “Page of Record, 10, Judgment,” on which page of the record no judgment appears, and the other of which merely contains the words “Judgment or Verdict,” there is no judgment whereon to base a review.</p> <p>3. Appeal and error, § 1096*—what matters are improperly included in brief. It is improper, under rule 23 of the Appellate Court, for an appellant to incorporate in his brief errors assigned upon the record which are not argued.</p> <p>4. Appeal and error, § 1712*—whey, error assigned is waived. Errors assigned which are not argued in the brief filed are waived.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Insurance, § 30*—how statute as to liability of member is construed. Hurd’s 1915 Rev. St. ch. 73, par. 309 et seq. [Callaghan’s 1916 Stat. If 6607(1) et seq.] cannot be construed as making the members of an insurance company organized thereunder not liable for losses existing at the time policies were issued to them.</p> <p>2. Statutes, § 207*—what construction of statute will not be adopted. A construction which will make it practically impossible to administer an act will not be adopted unless such construction was the plain meaning and intent of the legislature.</p> <p>3. Insurance, § 30*—what is extent of liability of member of mutual company. Under Hurd’s 1915 Rev. St. ch. 73, par. 317 I Callaghan’s 1916 Stat. f 6607(9)], which makes premiums paid and dues constitute the capital of insurance companies organized thereunder, the promise of one who becomes a member of such a company to pay premiums for one year constitutes his contribution to its capital and he is liable to the full amount thereof where it is necessary to pay creditors and cannot avoid payment of the remainder of the premiums by securing the cancellation of hij policy.</p>

<p>1. States, § 12*—what is compensation of treasurer. The treasurer of the State of Illinois is not entitled to any compensation other than his salary.</p> <p>2. Bonds, § 41*—when statute as to separate judgment does not apply. Hurd’s Rev. St. ch. 110, sec. 35 (J. & A. 8572), relative to actions on penal bonds, and separate judgments therein, does not apply to procedure in a probate court.</p> <p>3. Principal and surety, § 91*—what is basis of right to contribution. The obligation of a surety to contribute to a cosurety who has paid to the obligee a judgment recovered by the latter for the penalty of the bond does not arise out of such judgment, but from the relation of cosurety and the payment by one of them of an amount in excess of his proportionate share of a joint obligation.</p> <p>4. Principal and surety, § 96*—how extent of surety’s liability is determined. In ascertaining the amount to be contributed by the other sureties on the bond of a State treasurer to their co-surety who had paid to the State a judgment recovered by it against him for the amount which the treasurer was in default, such sureties are not entitled to charge against the surety interest which the State failed to collect in order to reduce their proportionate shares.</p> <p>5. Principal and surety, § 98*—where right of contribution is enforceable. A suit for contribution by cosureties is maintainable under the original jurisdiction of a court of chancery.</p> <p>6. Executors and administrators, § 382*—what is effect of statute as to subjection of realty to payment of debts. The statutory remedies given by the Statute of Frauds were intended to enlarge and not to take away or limit existing remedies.</p> <p>7. Executors and administrators, § 231*—when contingent claim must be filed. Section 70 of the Administration Act (J. & A. If 119), requiring claims to be filed against estates within two years, does not bar a claim which was contingent during the time the estate was being administered.</p> <p>8. Descent and distribution, § 72*—what is liability of heir for debt of estate. The rule at law that an heir is only liable for a debt of the estate to the extent of the value of the realty descending to him and that the distribution of personalty will not make him liable is not the rule in equity.</p> <p>9. Appeal and error, § 1327*—what may be presumed as to equity of decree. Where, on appeal from a decree awarding complainant contribution from his cosureties, the details of the computation by which the extent of the liability of widows of deceased sureties are not given, it will be presumed that the lower court made a just and equitable apportionment of the burden.</p> <p>10. Abatement and revival, § 65*—how death of defendant should be pleaded. Want of necessary parties to a suit in that the personal representative of a defendant estate died pending the suit and no other administrator has been substituted should be pleaded in abatement and a better writ given.</p> <p>11. Descent and distribution, § 72*—extent of liability of heir for debt of ancestor. The liability .of the heirs of a deceased surety against whose estate contribution is awarded is joint and several, and where each heir received more from the estate than he was held liable for under the decree, there is no error in holding each personally liable.</p> <p>12. Descent and distribution, § 72*—when distribution of personalty to heir is established. On a bill by a surety against his cosureties for contribution, the allegations of the bill as to the receipt of personalty or realty by the heirs of a deceased cosurety, held sufficient and such matter held to be covered by ample proof as well as by admissions and stipulations.</p> <p>13. Judgment, § 503*—when argument on appeal does not operate as estoppel to subsequent suit. On a bill by a surety on the bond of a State treasurer against whom the State had recovered judgment on such bond to enforce contribution from his cosureties, the fact that in his brief filed in the Supreme Court in the suit brought by the State he argued that the State’s failure to file claims against the estates of two of his deceased cosureties released him for their proportionate share, which contention was not sustained by the court, does not create an estoppel against his seeking to enforce contribution from such estates.</p> <p>14. Pbincipai, and subety, § 98*—when costs may be recovered. A surety may recover from his cosurety for the cost and expenses of defending a suit against him by the obligee if such defense is to be regarded as prudent.</p> <p>15. Limitation op actions, § 24*—how limitation of surety’s right to contribution is computed, A surety’s right to contribution arises, so as to set in operation the statute of limitations, when such surety paid more than his proportionate share of the total liability.</p>

<p>[On February .17, 1917, an opinion was filed in this case which was abstracted in 202 Ill. App. 289. This opinion was afterwards modified, but too late for publication. Inasmuch as it is claimed that the last paragraph of the statement of facts of the ease as abstracted in 202 Ill. App., which was based on the original opinion, does an injustice to the memory of Erastus A. Barnes, the modified opinion of the court is herewith published in full.—Reporter.]</p>