Volume 219 — Illinois Appellate Court Reports

<p>Appeal from the County Court of Peoria county; the Hon. Robert H. Lovett, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Chattel mortgages, § 203*—When mortgagee must take possession. Possession of mortgaged chattels must be taken by the mortgagee within a reasonable time after default in payment or other condition broken by the mortgagor, and failure to take possession is a fraud per se as to third persons which is not subject to explanation.</p> <p>2. Chattel mortgages, § 203*—what is insufficient taking of possession by mortgagee. That a constable to whom chattel mortgages were given with directions to foreclose went to the mortgagor’s farm on which the chattels were located and told the mortgagor he was foreclosing, posting notice of sale, and then went to the farm of the mortgage^, who was the mortgagor’s son-in-law, about a mile and a half away, and designated him as custodian of the chattels does not constitute such a taking and retaining of possession so as to preserve the lien of the mortgages as against a levy by a subsequent judgment creditor, where the mortgagor remained in possession of the chattels, exercised ownership over them in same manner as before, there were several postponements of the sale and nothing further was done by the mortgagee regarding the possession and custody of the chattels until after the levy of the execution by the judgment creditor.</p> <p>3. Chattel mobtgages, § r248*—what is insufficient to establish foreclosure. That the constable to whom chattel mortgages were given for foreclosure testified, in a trial of right of property between the mortgagee and a subsequent judgment creditor, that he “foreclosed the mortgages” and that he indorsed on the mortgages that he had done so, is not sufficient to establish a legal foreclosure.</p>

<p>Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Appeal from the Circuit Court of Iroquois county; the Hon. Frank L,. Hooper, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Pleading, § 379*—how issues are formed. Under section 55 of chapter 110, Rev. St. (J. &' A. If 8592), where plaintiff files an affidavit of claim with his declaration and defendant pleads the general issue and files an affidavit of merits, the respective parties are limited in their evidence to the matters controverted by the affidavits.</p> <p>2. Pleading, § 54*—anticipation of defenses. A plaintiff cannot properly anticipate a defense which may or may not be made.</p> <p>3. Contracts, ’ § 382*—what may not he shown in action on express contract. Where plaintiff, in an action on a contract, has proven an express contract that he was to receive a certain s,um per hour for the hours of labor actually performed in the manufacture of the articles called for by the contract, it is improper to permit him to show that while a certain number of hours of labor was actually employed, the number customarily and usually required to do such work exceeded that number and to claim compensation for the larger number.</p> <p>4. Account stated, § 4*—when rendition of statements operates as account stated. In a suit on a contract for the manufacture of articles on a basis of the cost of the material plus 10 per cent and a certain amount per hour of labor employed thereon, where the evidence shows that from time to time during the performance of the contract plaintiff sent defendant invoices describing the goods shipped, the amount charged for material, the number of hours for which charge was made and the total amount due on the shipment, and defendant retained the, bills without questioning them until pressed for payment, the account is an account stated and defendant has the burden of overcoming it by competent proof.</p> <p>5. Evidence, § 14*—what is matter of common knowledge. It is a matter of common knowledge that two workmen equally skilled in their trade will take different lengths of time to perform the same task, even when equipped with the same tools and machinery.</p> <p>5. Evidence, § 14*—what is matter of common knowledge as to employment. It is a matter of common knowledge that working conditions in factories differed in 1918 from conditions at any other time, by reason of the fact that so many. young men and skilled mechanics were drawn into military service and their places were taken by others not so vigorous or skilled.</p> <p>7. Master and servant, § 84*—What evidence is insufficient to show hours of work. In an action on a contract for the manufacture of an article partly on a charge of a fixed sum per hour of labor, the opinions of witnesses not knowing the conditions in plaintiff’s plant at the time of performance and having no experience in making the article under such conditions as to the time reasonably necessary to produce articles differing from those called for by the contract, in other plants, under other conditions and according to other specifications, can shed no light on the question as to how many hours were employed by plaintiff on the work.</p> <p>8. Appeal and error, § 1618*—when error in admission of evidence cannot he complained of. A plaintiff who has been permitted to introduce inadmissible opinion evidence in rebuttal of similar inadmissible evidence offered by defendant, is in no position to complain that defendant was permitted to introduce such evidence.</p> <p>9. Trial, $ 78*—what is proper rebuttal evidence. Where a defendant has been permitted to introduce inadmissible opinion evidence, plaintiff should be permitted to introduce similar evidence in rebuttal.</p> <p>10. Contracts, § 384*—when evidence is insufficient. In a suit on a contract for the manufacture of a certain article at an agreed price for material and per hour for labor required, evidence held insufficient to sustain a judgment for defendant.</p> <p>11. Contracts, § 381*—what evidence as to cost of manufacture is improper. In a suit to recover on a contract for the manufacture of an article under which plaintiff was to receive a certain sum per hour for labor employed in manufacturing the article, it is error to permit defendant to introduce, over plaintiff’s objection, evidence as to the amount which defendant paid its employees per hour.</p> <p>12. Instructions, $ 115*—when instruction is misleading. It is error to give an instruction which is misleading because of Its introduction of matters not in issue.</p>

<p>1. Trial, § 174*—what is effect of motion in nature of demurrer to- evidence. A motion to instruct the jury to find for defendant is in the nature of a demurrer to the evidence, and the testimony so demurred to, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of plaintiff.</p> <p>2. Trial, § 203*—when refusal of motion to find for defendant is not error. In an action on an insurance policy on a stallion, where there is evidence that the horse was, at noon of the day on which he died, and had been for several months before, in an apparently healthy condition; that the plaintiff found the horse lying dead' in his stall immediately after a storm accompanied by much thunder and lightning; that there were no signs of struggle; that there was a mark on its forehead which veterinarians attributed to lightning; that a board on the barn was freshly split from top to bottom and a tree near the barn was split thróugh the trunk with splinters on the cut; that a post-mortem by veterinarians disclosed organic symptoms such as are found in the organs of animals which have been struck by lightning, it was held that it was not error to refuse to instruct the jury to find for defendant.</p> <p>3. Evidence, § 381*—what expert evidence is improper. It is not proper to allow an expert to testify that in his opinion a thing is “reasonably probable,” nor as to the “reasonably certain probable” cause of a condition.</p> <p>4. i Evidence, § 387*—what expert may testify to as to cause of injury or death. When there is a conflict in the evidence as to whether or not an injury was received in the manner charged, it is not competent for witnesses, though testifying as experts, to give their opinion as to the cause of the disability or death, hut when there is no dispute as to the cause or manner of the injury and no dispute that an injury was sustained, such witness may testify that a later malady or death was or was not caused by the accident or original injury.</p> <p>5. Evidence, § 387*—what evidence as to cause of death is improper. In an action on an insurance policy on a stallion, alleged to have been killed by lightning, where defendant contends that the death resulted from natural causes, it is not proper to permit a witness, though testifying as an expert, to express his opinion as to the cause of the death.</p> <p>6. Instructions, § 81*—when instruction is erroneous as emphasizing fact. An instruction as to the amount recoverable on an insurance policy for the death of a stallion, held erroneous as singling out and calling the jury’s attention to plaintiff’s evidence as to the value of the horse and ignoring defendant’s evidence in regard thereto.</p>

<p>Banks and backing, § 23*—when persons are not stockholders. The mere fact that certain persons, whose names never appeared on the books or records of the bank as stockholders therein and to whom the stock was never issued as executors of the estate, claimed to own the stock as executors of the estate, or retained as executors, or received and retained the dividends thereon as executors, does not make them stockholders of such bank within the meaning of article XI, sec. 6 of the Constitution, nor would the fact that they exchanged stock held by the estate for the stock in such bank without authority under the will be sufficient to render them so liable.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 19¿0.</p>

<p>1. Pleading, $ 100*—when demurrer is overruled by general issue. A demurrer to a count of a declaration is overruled by the plea of the general issue.</p> <p>2. Costs, § 64*—what is effect of judgment for costs. A judgment for costs in favor of defendant is not a judgment in bar, and where objection is made on that ground, the record will be returned by the Appellate Court for the entry of a proper judgment.</p> <p>3. Appeal and ebbob, § 422*—when lease is not part of declaration and cannot be considered oh appeal. In assumpsit to recover damages for ousting plaintiff from premises which she claims to hold by virtue of a lease, a copy of the lease attached to the declaration forms no part of the declaration though so treated by counsel on appeal, and where there is no bill of exceptions, the lease as a whole is not before the Appellate Court nor subject to discussion, but that court is confined to consideration of so much of the lease as is contained in the declaration.</p> <p>4. Appeal and ebbob, § 563*—when exception is unnecessary. It. is never necessary to save an exception to a ruling on demurrer.</p> <p>5. Appeal and ebbob, § 426*—what need not be contained in record. While one whose demurrer has been overruled must elect to stand by it, he is not required to have the record show that he so elects.</p> <p>6. Appeal and ebbob, $ 1307*—when party is presumed to stand by overruled pleading. If one whose demurrer is overruled takes no steps from which a waiver of his demurrer is to be presumed, such as asking to plead over, he is presumed to stand by the overruled pleading, and may urge the incorrectness of the ruling in a court of review.</p> <p>7. Pleading, § 117*—failure to deny as admission. All facts alleged in a law pleading and not traversed in the reply thereto are impliedly admitted.</p> <p>8. Fbauds, Statute oe, § 96*—what is effect of part performance. While the doctrine that part performance of a contract will take a case out of the Statute of Frauds in a case in' which such statute is pleaded as a defense to an action on an oral contract is unknown to courts of law, part performance will have such effect, under certain circumstances, in a shit in equity.</p> <p>9. Frauds, Statute of, § 104*—what part performance is insufficient to take case out of statute. In assumpsit to recover damages for ousting plaintiff from possession of land claimed to be held under a valid oral lease, to which defendant pleaded the Statute of Frauds, undenied allegations of the declaration of part performance by taking possession, plowing, fertilizing, etc., held not to take the case out of the Statute of Frauds.</p> <p>10. Landlord and tenant, § 431*—when covenant to renew is invalid as indefinite. The provision in a lease that “the lease is to be extended if both parties agree,” is too vague and indefinite to constitute a valid covenant for renewal, and it is only in case that they afterwards agree to renew that there can be a renewal.</p> <p>11. Landlord and tenant, § 431*—what is effect of covenant to renew “if both parties agree.’’ The provision in a lease that it is “to be extended if both parties agree,” does not continue the lease in force after the expiration of the original term so as to prevent the Statute of Frauds from applying against the lessee, no written agreement for renewal having been entered into.</p> <p>12. Appeal and error, § 1309*—what will be presumed as to sufficiency of evidence. In assumpsit to recover damages for ousting plaintiff who claimed to hold under a valid agreement, in which she files the common counts and the plea of the Statute of Frauds is sustained as a defense, if the plaintiff is entitled to recover for work alleged to have been done on the property in reliance on the oral agreement, she may prove such claim under the common counts or the plea of set-off, and where the record does not contain such proof, the Appellate Court must assume that it was either insufficient or was overcome.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Selm, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Appeal from the Circuit Court of Stark county; the Hon. C. V. Miles, Judge, presiding. Heard in this court at the April term, 1920.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. Db Selm, Judge, presiding. Heard in this court at the April term, 1920.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Witnesses, § 135*—wliat is effect of incompetency of party. A plaintiff in a suit to foreclose a trust deed, given to secure promissory notes, brought against the devisees of the maker, though incompetent as a witness generally, under section 2 of the Evidence Act (J. & A. K 5519) can, nevertheless, make the affidavit of the loss of the notes necessary to lay the foundation for secondary evidence of their contents.</p> <p>2. Evidence, § 134*—what is effect of preliminary proof when notes are lost. In a suit to foreclose a trust deed, given to secure promissory notes, brought by the assignee of such deed and notes against the maker’s devisees, an affidavit by complainant as to the loss of the notes is not proof of their contents.</p> <p>3. Appeal and error, § 1505*—when testimony of incompetent witness is harmless. In a suit to foreclose a trust deed, given to secure promissory notes, brought by the assignee of the deed and notes against the maker’s devisees, that the complainant, though not competent under section 2 of the Evidence Act (J. & A. f 5519), was examined, over defendant’s objection, as to the contents of the notes, is harmless error since the case was tried without a jury.</p> <p>4. Evidence, § 134*—when affidavit is sufficient as foundation for secondary evidence. In a suit to foreclose a trust deed given to secure promissory notes, an affidavit introduced as the foundation for giving secondary evidence of the contents of the notes which states that affiant, the complainant, kept the notes in a trunk at his residence; that since a certain date he has lost the notes or they have been abstracted; that he has carefully searched the trunk and all places in his residence and elsewhere where he kept papers and the notes were likely to be found and was unable to find them; that they were not intentionally or purposely lost for the purpose of introducing secondary evidence; that the last he knew of them they were in the trunk; that it is not in his power to produce them, held sufficient to authorize secondary evidence of their contents.</p> <p>5. Conflict of laws, § 31*—what law governs as to remedy on contract. Remedies on contracts are to be regulated and pursued according to the law of the place where the action is instituted.</p> <p>6. Limitation of actions, § 11*—what statute governs action on contract. Notes given March 21, 1872, are subject to the 16-year Limitation Act then in force under the Act of November 5, 1849, the acts of 1872 and 1874 repealing that act not being applicable to them.</p> <p>7. Limitation of actions, § 96*—what is effect of part payment. A partial payment on the debt, made by the party originally chargeable and received thereon by the party who owns the notes evidencing the debt, implies a new promise by the debtor to pay the debt, whether the payment is before or after the bar of the statute of limitations.</p> <p>8. Limitation of actions, § 87*—what statute applies when new promise is given. A new promise created by a partial payment of the debt by the party chargeable is governed by the statute of limitations in force when the new promise is made.</p> <p>9. Appeal and error, § 1301*—-what will be presumed as to evidence in trial by chancellor. On appeal from a decree in chancery, that incompetent evidence was admitted is not ground for reversal, as it will be assumed that in rendering his decree the chancellor considered only the competent evidence.</p> <p>10. Mortgages, § 426*—when foreclosure is not barred by limitations. Foreclosure of a trust deed or mortgage securing a note or debt is not barred until the debt is barred, and if the debt has been kept alive, the statute of limitations is no defense to the foreclosure.</p> <p>11. Notice, § 30*—what is effect of record of mortgage. One who takes subsequent title to the land with knowledge from the public records that there is an unreleased trust deed or mortgage thereon takes the land with notice that it is subject to the trust deed or mortgage, unless the debt secured thereby is barred.</p> <p>12. Limitation of actions, § 96*—what is effect of part payment. Payment on a promissory note stops the previous running of the statute of limitations, and the statute begins to run after the last payment.</p> <p>13. Evidence, § 99*—when trust deed is competent evidence of 'debt secured. A trust deed securing promissory notes which contains a full description of them is competent evidence of the contents of such notes.</p> <p>14. Mortgages, § 505*—when existence of debt is established. In a suit to foreclose a trust deed securing promissory notes in which complainant had laid the foundation for the introduction of secondary evidence of such notes, the existence and contents of the notes were sufficiently established by introducing the original trust deed, executed and acknowledged on the day the notes were ■ signed, the signature to the deed being also proved by a witness, which deed contained a full description of the notes, and by evidence of a witness who had seen the notes describing them, where there is no evidence contradicting the description of the notes as given in the deed and by such witness.</p> <p>15. Mortgages, § 605*—when evidence shows ownership of mortgage. In a suit to foreclose a mortgage securing promissory notes of the mortgagor brought by one claiming to own tlie deed and .notes, evidence examined and held sufficient to support a decree [that complainant was owner of the notes and mortgage.</p> <p>16. Limitation of actions, § 94*—when indorsement on note shows part payment. An indorsement of partial payment on a note made by the holder without the privity of the maker is not, of itself and uncorroborated, sufficient evidence of payment to repel the defense created by the statute of limitations, unless it is shown to have been made at a time when its operation would be against the interest of the party making it.</p> <p>17. Bills and notes, § 96*—when extension of note is valid% An extension of a note for the lifetime of the maker for a valuable consideration is a valid agreement.</p> <p>18. Limitation of actions, § 90*—when part payment is proved. On a bill to foreclose a mortgage given to secure the payment of promissory notes of the mortgagor in which defendant pleaded the statute of limitations and contended that certain payments indorsed on the note which would defeat the bar of the statute were made by the holder óf the note without authority, evidence reviewed and held to support a finding that payments had been made which barred the running of the statute.</p> <p>19. Mortgages, § 396*—when defense of failure to record extension is waived. On a bill to foreclose a mortgage, the defense that the extension of the mortgage was not recorded as required by section 11% of the Limitations Act, in force July .1, 1915 [Callaghan’s 1916 Stat. 1 7206(1)] is waived unless pleaded.</p> <p>20. Appeal and error, § 1713*—when defense is waived because not argued. A defense which does not appear in the abstract and which appellee declares in his brief was not raised below will be regarded by the Appellate Court as having been waived, notwithstanding appellant’s reply brief claimed that it was raised but without pointing out any place in the record where it can be found.</p> <p>21. Mortgages, § 396*—when statute as to recording extension of mortgage does not apply. Section 11% of the Limitations Act, in force July 1, 1915 [Callaghan’s 1916 Stat. If 7206(1)], requiring an extension agreement to be recorded within 5 years to keep a mortgage alive and allowing the holder of such an incumbrance 5 years from July 1, 1915, in which to obtain an extension agreement, does not apply to a mortgage, to foreclose which suit was begun, a decree rendered, appeal taken and the cause under advisement in the Appellate Court before the expiration of the 5-year period.</p> <p>22. Mortgages, § 632*—when decree is alternative. A decree, on foreclosure of a mortgage, that defendants pay the sum found due with interests and costs within 10 days, and that in default thereof the mortgaged premises be sold, is not a personal but an alternative decree.</p> <p>23. Appeal and error, § 663*—how appeal bond in foreclosure proceedings should be conditioned. An appeal bond conditioned to pay the amount of the decree rendered on foreclosure of a mortgage not against defendants personally and not providing for a deficiency decree is improper where such a bond was not required by the order granting the appeal, but should have been for costs or costs and interest on the decree from the date of its rendition.</p> <p>24. Mortgages, § 660*—when solicitor’s fees are not allowed. Where a mortgage is foreclosed by a suit in equity, solicitor’s fees cannot be allowed, even though the mortgage provides for attorney’s fees on foreclosure under power of sale as therein authorized.</p> <p>25. Mortgages, § 660*—what is necessary that solicitor’s fees be allowed. Solicitor’s fees for a foreclosure in equity are not provided by statute and can only be allowed if the contract so provides.</p>

<p>1. Master and servant, § 836*—What is basis of master’s liability for acts of servant. The master’s liability for his servant’s acts is based on the control or superintendence which he is bound to exercise over the servant for the safety of others, and on the maxim qui fac.it per alium facit per se.</p> <p>' 2. Master and servant, § 836*—what is extent of rule of'respondeat superior. The rule respondeat superior arises out of the relation of superior and subordinate, is coextensive with it, and ceases when the relation itself ceases to exist.</p> <p>3. Master and servant, § 844*—what is test of master’s liability for servant’s negligence. The primary test to determine the master’s liability for the negligent act of his servant is whether the act was within the scope of his employment or whether the servant was at the time of the act at liberty from the service of his master and not engaged in doing his master’s business, but was pursuing his own interests exclusively.</p> <p>4. Master and servant, § 844*—when servant’s dinner hour is not within time of employment. The rule that a servant’s dinner hour during the working day is included in the time of employment does not apply when during that time he chooses to go into a dangerous place into which his employment does not necessarily carry him, or to go away from his place of employment on a private mission not connected with the employer’s business.</p> <p>5. Master and servant, § 844*—when servant is not within scope of employment. An employee cannot be acting within the scope of his employment unless he is acting in the course of his employment.</p> <p>6. Master and servant, § 846*—when act is without scope of employment. When a servant to whom the master has intrusted a vehicle with specific orders as to its use disobeys the orders and uses it for other purposes and an accident happens through his negligent act, such act of the servant is not in the course of the employment.</p> <p>7. Master and servant, § 846*—when driving of truck is without scope of employment. Where a servant-takes the master’s truck in violation of the master’s rules solely in order to go for his dinner and, while so driving it, injures the property of a third person through his negligence, such negligent act is outside of the servant’s scope of employment and the master cannot be held liable to the third person for the injury.</p>

<p>1. Trial, § 191*—what is test for talcing case from jury. The determining test upon a motion to instruct the jury to find for the defendant is whether or not the evidence, with all reasonable inferences to be drawn therefrom taken most strongly in favor of the plaintiff, fairly tended to prove the plaintiff’s case and was sufficient to warrant a verdict in plaintiff’s favor,</p> <p>2. Municipal corporations, § 1107*—when negligence is question for jury. In an action against a city to recover for personal injuries alleged to have been received by a fall on the sidewalk occasioned by plaintiff’s foot being caught in a wire, refusal of the trial court to instruct the jury to find defendant not guilty, held, upon the evidence, not error.</p> <p>3. Evidence, § 148*—when exhibition of injured hand is not error. In an action to recover for personal injuries, it is not error to permit plaintiff, who alleged that her hand had been injured, to exhibit it to the jury and demonstrate how far she could open and close it.</p> <p>4. • Evidence, § 423*—when physician may testify as to cause of injury. In an action to recover for personal injuries alleged to have been received by falling on a sidewalk, where an osteopathic physician has just testified that there was some displacement of plaintiff’s spine, it is proper to allow" such physician to answer affirmatively a question as to whether the displacement was such as could have been caused by falling on a sidewalk.</p> <p>5. Evidence, § 423*—when testimony of experts as to cause Of injury is improper. In an action against a city to recover for personal injuries alleged to have been received by falling on defendant’s sidewalk, where defendant denies that plaintiff was injured in the manner claimed, it is improper to allow plaintiff’s experts to testify that her ailments are the result of the accident.</p> <p>6. Damages, § 209*—when instruction as to amount of recovery is not erroneous. In an action against a city to recover for personal injuries alleged to have been caused by falling on its sidewalk, an instruction as to the measure of recovery held not subject to the objection that it authorizes the jury to award damages in such sum as is claimed in the declaration without specially limiting them to the evidence in the case bearing on plaintiff’s injuries.</p> <p>7. Forms, § 185*—what is proper instruction as to damages. Form of instruction as to measure of recovery in action for personal injuries, held improper.</p> <p>8. Instructions, § 151*—when refusal of requested instructions is proper. Where counsel asks the court to give many and voluminous instructions containing repetitions and the court in selecting the instructions therefrom, fails to select one which counsel would have preferred, the court’s action will be sustained, when the jury were fully and fairly instructed and the material elements in the refused instructions were given in other instructions.</p> <p>9. Municipal corporations, § 1048*—what care must be used on street. One who uses a public street and is familiar with its condition must use a degree of care which is reasonable in pro-* portion to the danger, if any, known to him.</p> <p>10. Municipal corporations, § 1048*-—what degree of care is required in using street. The amount of care which is required of one using a public street varies with the circumstances of each particular case, but the degree of care exacted is unvarying and must always amount to reasonable care.</p> <p>11. Municipal corporations, § 1106*—when instruction as to contributory negligence is proper. In an action against a city to recover for personal injuries received from a fall on its sidewalk, an instruction that plaintiff must, at the time of and before the injury, have been in the exercise of ordinary care for her own safety, held proper.</p> <p>12. Municipal corporations, § 1063*—what care is required when sidewalk is dangerous. A greater amount of care is required of one using a sidewalk which he knows to be dangerous than is required of pedestrians ordinarily.</p> <p>13. Municipal corporations, § 1107*—when contributory negli* gence is question for jury. In an action against a city to recover for personal injuries alleged to have been received from a fall caused by a wire on the sidewalk, the question whether plaintifl was, under the circumstances shown, in the exercise of ordinary care, held to be a question for the jury.</p> <p>14. Municipal corporations, § 1107*—when question of city’s negligence is for jury. In an action against a city to recover for personal injuries alleged to have been received by falling over a wire on the sidewalk, where the evidence as to whether or not the wire 'was on the sidewalk was conflicting, the question of defendant’s negligence is for the jury.,.</p> <p>15. Damages, g 109*—when damages are not excessive. In an action against a city to recover for personal injuries received from falling on a sidewalk, damages .held not excessive in view of the nature of plaintiff’s injuries.</p>

<p>Sams, § 269*—when breach of warranty in selling cattle is shown. A purchaser of a bull, which was more than six months old, at a sale of cattle was given, before bidding, a sale catalogue containing the following; “Tuberculin Guarantee. All animals over six months of age have been, tested by authorized State veterinarians whose tests are approved by the authorities having charge of the live stock interests in the State and are believed to be free from tuberculosis. As further proof in the belief of the test, the following specific warrant and agreement is made between the owner and each purchaser at this sale. First: The owner of animals in this sale where said animals are upwards of six months of age does represent and warrant that said animals have been tuberculin tested within 20 days of sale and found free from tuberculin, certificate of which will be furnished with each animal. * * * All entries made in this sale are according to the printed terms and conditions. Certificates of registry, transfer and tuberculosis tests will be furnished free of charge.” After the sale, the State veterinary notified the seller, who had permitted the purchaser to leave the bull on the premises for 5 or 6 days, that the bull should be held in quarantine for 60 days on the ground that it was infected with, or had been exposed to, tuberculosis. Twice within 60 days the purchaser demanded delivery of the bull from the seller, but delivery was refused by reason of the quarantine order. It was helé that the seller had been guilty of a breach of warranty and the purchaser had the right to rescind the contract within a reasonable time and to recover back the i 'ice or any part thereof which he had paid.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1920.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Livingston county; the Hon. G-. W. Patton, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Selm, Judge, presiding. Hear.d in this court at the April term, 1920.</p>

<p>Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1920.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Dobbance Dibell, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, 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. Executors and administrators, § 326*—when claim is to he paid as of sixth class. Where an intestate contractor had received a cashier’s check from complainant for the sole purpose of paying subcontractors, but never paid them and deposited the money to his account, the proceeds of the check are a claim against the deceased’s general estate and will be paid out only as a claim of the sixth class, under the Administration Act, sec, 70, ch. 3 (J. & A. If 119), providing for a division of demands against an estate into classes and will he paid out posterior to the first five claims provided for in the statute.</p> <p>2. Executors and administrators, § 274*—what relief will he afforded on claim against estate. Whatever procedure a cestui que trust or a creditor adopts to recover a claim against a deceased’s, estate, whether that of a court óf equity or the probate court, the nature and quantity of the relief will be the same.</p> <p>3. Executors and administrators, § 322*—what is effect of statute as to classification of claims. The Administration Act, sec. 70 (J. & A. 1f 119), providing that “all demands against the estate of any testator or intestate shall be divided into classes,” constitutes a change in the substantive law and is therefore as much the law in an equity proceeding as in a proceeding in the probate court.</p> <p>4. Executors and administrators, § 326*—when claim is of sixth class. Money in trust which a deceased has received is obtainable from his estate only after provision has been made for the payment of claims which fall within the first five classes of section 70 of the Administration Act (J. & A. 119).</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthikl, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.</p>

<p>Error to the Superior Court of Cook county; the Hon. M. L. MoKinleiy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Appeal from the Circuit Court of Coolc county; the Hon. Thomas G. Wihdes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>1. CoNTBiBUTiorr, § 1*—when joint tort-feasor is entitled to contribution. In an action for indemnity by one tort-feasor against another where it appeared that plaintiff, a street car company, was by agreement with the city required to make repair between its tracks and having obtained a permit to do so employed defendant contractor to do the work, giving him complete charge, the street car company and the contractor are not in pari delicto as to a person injured by running into "an unprotected excavation made by the contractor in the prosecution of his work, the street car company being only technically liable and the contractor the real party at fault.</p> <p>2. Contkcbtjtion, § 1*—what is effect of tort malum prohibitum as to right of contribution. Where the offense of joint tort-feasors is merely malum prohibitum, and does not involve moral delinquency or turpitude, the law will' inquire into the relative delinquency of the' parties and administer justice between them, although both parties are wrongdoers.</p> <p>3. Contribution, § 1*—when right will be denied. It is a general and long-established rule of law that neither contribution nor indemnity will be given to one of several joint tort-feasors against the others, but this rule is only applied to cases of intentional or conscious wrongdoing.</p> <p>4. Contribution, § 1*—what is effect of violation of ordinance as to right to contribution. In an action over to indemnify one of two joint tort-feasors in a personal injury accident, the defendant who satisfied the judgment is not precluded from maintaining an action for indemnity against his codefendant, where it appears that the plaintiff in the action to indemnify had, in the personal injury action, been charged and found guilty of the violation' of an ordinance.</p> <p>5. Contribution, § 2*—when judgment is not res adjudicata. In an action over to indemnify one of two joint tort-feasors in a personal injury action, the judgment in the personal injury case is not res adjudicata where the record in the said case shows that the primary cause of the plaintiff’s injuries was the negligence of one of the defendants and that the other defendant was only technically guilty.</p>

<p>1. Statutes, § 196*—what is object of construction of statute. The object of construing a statute is to arrive at the purpose of the Legislature.</p> <p>2. Pabent and child, § 4*—when mother is not entitled to pension. On a petition to provide partial support for a mother pursuant to Hurd’s Rev. St. 1917, p. 281 et seq. [Callaghan’s 1916 Stat. If 3416(1) et seq.] held that subd. 6, sec. 11 [Callaghan’s 1920 Stat. f 3416(11)] of said statute does not entitle a widow to a decree awarding her aid thereunder, where her equity does not exceed $1,000, said statute providing in effect that a mother of minor children is to receive support upon the decease of her husband, but that such relief shall not be extended where the widow is owner of real or personal property other than household goods, provided that the relief is not to be denied if the widow is the holder of or entitled to a homestead, under the exemption law of Illinois, or if said widow is entitled to a dower right in real estate, the fair cash market value of which does not exceed $1,000, where it appears that husband and wife had joined in a mortgage releasing right of homestead; that said mortgage incumbered their property, which had a fair market value of $5,500, to the extent of $5,300; that said mortgage had not been foreclosed; and that the widow was entitled to possession under the Homestead Act.</p> <p>3. Homestead, § 11*-—what is extent of- homestead. The estate of homestead is an estate in land, and is the right of a widow to occupy real estate of the deceased husband not to exceed $1,000 in value.</p> <p>4. Infants, § 4*—what is effect of release of homestead as to pension. On a petition to obtain support of a mother, pursuant to Hurd’s Rev. St. 1917, p. 281 et seq. [Callaghan’s 1916 Stat. 1f 3416(1) et seq.], which provides for such support where the husband is dead and where there are children under 14. years of age, held that the release in a mortgage or trust deed of a widow’s right of homestead did not affect her right to occupy the property as a homestead as long as the mortgage was not foreclosed, where it appeared that husband and wife had owned real estate to the value of $5,500; that same had been incumbered to the extent of $5,300; that the wife had released her right of homestead in said instrument; that said mortgage had never been foreclosed; and that the relief in question was asked for on the ground that the widow’s equity was less than $1,000.</p>

<p>1. Witnesses, § 168*—when communication to attorney is not privileged. In a prosecution by a wife against her husband on the charge of pandering, where the prosecutrix before she filed the information had retained an attorney in a divorce proceeding to which she was ¿. party, and had stated to him that she would start proceedings charging her husband with the crime of pandering unless he gave back to her her diamond earrings, and also stated that she had not given her husband any money which she had earned practicing prostitution, such statements were not made to him for the purpose of obtaining his advice or opinion in ¿he divorce case or engaging him in the conduct of any professional business, but were mere “gratis dictum” and not privileged.</p> <p>2. Witnesses, § 164*-—what is nature of privilege between attorney and client. Professional communications between attorney and client are privileged communications which the law excludes on the ground of public policy.</p> <p>3. XymrossES, § 167*—who is entitled to benefit of privilege. The privilege as to communication between attorney and client is that of the client and not of the attorney.</p> <p>4. Witnesses, § 167^^—what communications of client to attorney are privileged. A communication to be privileged must be made to the legal adviser to obtain his opinion in matters of law.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frank Johnston, Jb., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>1. Brokebs, § 40*—when hrolcer is not entitled to compensation. In an action to recover a broker’s commission for the sale of real estate, held that in order to be entitled to a commission, the broker was bound to produce one who was ready, willing and financially able to make the purchase on the terms named by the owner of the property, and that he was not entitled to claim his commission by virtue of a contract between the owner and a third person, where it appeared that the broker had introduced such third person to the owner, that such third person had entered into an option contract with the owner, whereby he might buy in the property, or act as agent in securing a purchaser, who could and would consummate the transaction; and that said third person was instrumental in finding such purchaser to whom the property was subsequently sold, but on terms which varied materially from those originally submitted to the broker.</p> <p>2. Brokers, § 34*—what is essential to entitle hrolcer to commission. Commissions for procuring a purchaser of real estate cannot be recovered where plaintiff is not the efficient and procuring cause of the sale as it is finally consummated.</p> <p>3. Brokers, § 34*—when sale is not effected hy hrolcer. In an action to recover a broker’s commission for the sale of real estate, held that a broker cannot recover a commission from the owner of real estate where said property was subsequently sold to a person under a contract with which the broker had no direct or proximate connection, where it appeared that said purchaser was introduced to the owner by a third person, whom the plaintiff broker had introduced to the owner; that such purchaser had been introduced to said third person by a second broker; and that said purchaser and second broker had no knowledge of the plaintiff broker.</p> <p>4. Brokers, § 34*—what is proximate cause of act. The proximate cause of an act is that which produces it without the interposition of an independent agency, which is not the probable result of the first cause. It is the proximate cause of which the law takes notice and not the causa causarum. ■</p> <p>5. Brokers, § 34*—when sale of property is not effected by hrolcer. In an action to recover a broker’s commission for the sale of real estate, held that a broker cannot recover on a contract with the owner of real estate where the property in question is subsequently sold under an agreement, different in many respects from the one under which he testified he was employed to ■ perform, where it appeared that the broker was to receive a commission of 10 per cent if he secured the sale of the property in question at a price of $295,000, and that the person who finally agreed to take title had not been introduced by the broker to the owner and had agreed to pay $280,500.</p> <p>6. Brokers, § 42*—what is effect of sale under different terms as to broker's compensation. Commission for procuring a purchaser for real estate cannot be recovered where the contract finally consummated is different from the one plaintiff was employed to accomplish.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Richard S. Ttjxhiix, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919j</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Error to the Municipal Court of Chicago; the Hon. William N. Gbmmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>1. Contracts, § 213*—when contract is joint and several. A contract, under which a corporation and an attorney were employed to collect accounts, and which provided that the commissions were payable to them jointly whether the collections were made with or without the intervention of the services of the attorney, was a joint contract and an entirety.</p> <p>2. Attorney and client, § 6*—when corporation is engaged in practice of law. Where a corporation and an attorney were jointly employed to collect accounts with or without legal proceedings, such corporation was engaged in the practice ot law under the disguise of its attorney associate.</p> <p>3. Contracts, § 138*—what contracts are against public policy. The practice of law by a corporation is against public policy.</p> <p>4. Contracts, § 338*—when bill on contract is demurrable because contract violates public policy. In a suit for an accounting, where the petition alleged that the plaintiffs, a corporation and an attorney at law, were employed to collect certain accounts, with or without legal proceedings, and where, the contract for services was joint and not severable, the bill stated a case wherein the corporation and the attorney were engaged in the practice of law, and were attempting to eva'de the law, wherefore such bill was subject to demurrer as the contract was violative of public policy.</p>

<p>1. Appeal and ekrob, § 625*—when delay in suing out writ of error does not prevent review. Where a writ of error is sued out more than 2 years, hut less than 3 years, from the entry of an order sought to be reversed, but the statute of limitations (section 117 of the Practice Act as amended by Act June 28, 1919, Callaghan’s 1920 Stat. V 8654), providing that such writs shall not be brought after the expiration of 2 years, is not pleaded, the merits of the case will be considered, even though there may be some doubt as to the right to maintain the writ.</p> <p>2. Judicial sales, § 33*—when rule of caveat emptor applies to judicial sales. The rule of caveat emptor applies to judicial sales unless fraud or mistake has entered into the transaction whereby the purchaser has been deceived and induced to make the purchase.</p> <p>3. ..'Executobs and administbatobs, § 452*—when sale by administrator must be objected to. If a purchaser at an administrator’s sale has any objections to make to the sale or any reason why he should be relieved from his obligation as the highest bidder thereat, he must make an objection to the confirmation of the report of sale; otherwise it is presumed that his bid was made for such title as the administrator had authority to sell.</p> <p>4. Executobs and administbatobs, § 450*—when notice of proceedings for* confirmation of sale is not necessary. The purchaser at an administrator’s sale is bound to take notice of the statute fixing the time of the presentation of the report of sale for confirmation and must interpose any objection without the. formality of any actual notice.</p> <p>5. Executobs and administbatobs, § 450*—what need not be contained in order approving sale. An order requiring a purchaser at an administrator’s sale to pay the balance of the purchase money need not require the administrator to deliver to the purchaser a deed where the estate’s title has been divested by the issuing of a master’s deed in a foreclosure proceeding set forth in the decree of sale and to which the sale was made subject.</p> <p>6. Executors and administrators, § 450*—when interest may he decreed on approval of sale. Interest upon a deferred payment of the purchase price at an administrator’s sale may be decreed without directing an accounting of the rents and profits of the premises sold since the day of the sale, where there is no showing that any rents and profits came to the hands of the administrator.</p> <p>7. Executors and administrators, § 448*—how court may enforce hid at administrator’s sale. The probate court after it has approved a bid has jurisdiction to enter an order directing the bidder at an administrator’s sale to pay the balance of the purchase price bid.</p> <p>8. Executors and administrators, § 448*—how prohate court may enforce its order. While the probate court cannot issue an execution, it may enforce its order by a contempt proceeding if necessary.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 4.920.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding. Heard in this court at the March term, 1920.</p>

<p>1. Insurance, § 668*—what evidence is necessary to show theft in action for burglary insurance. No direct evidence showing a felonious taking is required to recover on a policy of theft insurance where the provisions of the policy require no such proof.</p> <p>2. Insurance, § 668*—when evidence is sufficient to show loss by theft in action on burglary policy. Where plaintiff while traveling on a Pullman sleeping car placed her diamond ring upon a window ledge and left it there upon leaving the car to take exercise at a station, and upon her return the ring was gone and not discovered after thorough search and there were only five persons in the car during the absence of the plaintiff, such evidence was sufficient to warrant a finding of felonious taking by one of those persons.</p>

<p>Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1920.</p>

<p>Attorney and client, § 134*—what evidence is admissible in an action for compensation on an account stated. In a suit by attorneys, on an account stated, to recover tor professional services performed, the client is permitted to prove that the charges are exorbitant and excessive, are not warranted by custom and usage and are otherwise unfair and unreasonable.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1920.</p>

<p>1. Vendos and purchases, § 116*—which party must perform first under contract of sale. Where a land contract imposes concurrent obligations, namely, the payment of purchase money on the purchaser and the delivery of a good and merchantable title on the vendor, neither party is obligated to do the first act or perform his part of the agreement before the other.</p> <p>2. Vendos and pubchaseb, § 331*—what must be shown in action for return of earliest money. A purchaser under a land contract in order to sustain an action for the return of the earnest money need only to show that he is ready, willing and able to perform on his part if the vendor is ready to perform on his.</p> <p>3. Vendos and pubchaseb, § 336*—when ability of purchaser to perform is question for jury. The question of the readiness and ability of a purchaser under a land contract to perform is for the jury, when there is a conflict in the evidence.</p> <p>4. Vendos and pubchaseb, § 331*—what is necessary to show ability of purchaser to perform. Proof of an offer of actual cash or that the money is in the bank is not required to show the readiness and willingness of a purchaser under a land contract, to perform.</p> <p>5. Vendor and purchaser, § 331*—when purchaser is not required to deposit purchase money as proof of ability ,to perform. A purchaser under a land contract is not obliged to deposit the purchase money to await the outcome of the vendor’s attempt to clear the title.</p> <p>6. Vendor and purchaser, § 331*—what is effect of possession of third, persons as to offer of performance by purchaser. A pur- ■ chaser under a land contract is under no obligation to pay or deposit the purchase price pending the uncertain outcome of negotiations looking to the ouster of persons in possession and the removal of any claims or equities they may have.</p> <p>7. Vendor and purchaser, § 329*—when vendor cannot enforce performance by purchaser. The vendor under_ a land contract cannot force a purchaser to pay his money and receive a defective title.-</p> <p>■8. Vendor and purchaser, § 331*—lohen tender of performance by purchaser is unnecessary. The purchaser under a land contract is not required to make an actual tender of any balance due where the evidence fails to show that the vendor could give a good title.</p> <p>9. Appeal and error, § 1530*—when giving of instruction is harmless error. In an action to recover earnest money on a contract for the purchase of real estate, the giving of an instruction, construed as submitting to the jury the question of title of the vendor and the effect of a guaranty policy, was harmless error, there being no dispute as to such points.</p> <p>10. Appeal and error, § 1422*—when error is harmless because of right result. Erroneous instructions and rulings upon evidence are not sufficient to set aside a judgment based upon the only verdict which the jury would have been warranted in returning under the evidence.</p>

<p>1. Landlord and tenant, § 5*—what constitutes lease. Where, during the occupancy of a building by two cotenants holding a contract for the purchase of the premises, one agreed to sell his interest to the other and the purchaser gave his note due in 30 months, which note and the deed were placed in escrow, and the seller agreed to pay rent, pending the maturity of the note, for the flat occupied by him and to remodel such flat, and also remained liable on the original contract, the character of the occupancy, although doubtful, was treated as a leasing, but it was held that it would be unjust to deprive the tenant of his interest in the premises with the right of possession of his moiety, because of the temporary agreement for a lease.</p> <p>2. Landlord and tenant, § 6*—what relation is not inconsistent with lease. The relation of landlord and tenant is not inconsistent with' the respective rights of the parties as tenants in common, and the termination of this relation cannot affect such respective rights.</p> <p>3. Escrows, § 1*—what is nature of an escrow. An escrow is nothing more than a mere scroll until the condition is performed which makes its delivery obligatory.</p>

<p>1. Bills and notes, § 433*—how intention not to he guarantor must he shown. Under the Negotiable Instruments Act of 1907 (Hurd’s Rev St. ch. 94, sec. 81, J. & A. f 7702), one signing his name to a note otherwise than as a maker, drawer or acceptor must indicate his intention not to be bound as a guarantor on the note itself, and such intention cannot be determined by parol evidence.</p> <p>2. Bills and notes, § 165*—what is liability of payee as indorser. A payee of a note who indorses it to a third party ior his accommodation must be held only to the liability of an indorser.</p> <p>3. Frauds, Statute of, § 19*—when agreement of guaranty violates statute. Where the maker of a note, after payment of a judgment against him on the note, sought contribution for half of the amount of the judgment, under the claim that he signed the note as an accommodation to a third party on a verbal agreement that the latter would secure defendant as an additional guarantor, and that the note was made out to defendant merely as a matter of form, he knowing that his signature thereon was as a joint guarantor with plaintiff, such agreement, not having been in writing, was in contravention of the Statute of Frauds.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. A. D. Morgan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>Appeal from .the Circuit Court ,of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

<p>1. Appeal and error, § 1395*—when findings of chancellor are conclusive. It is the rule that the finding and decree of a chancellor in a separate maintenance suit, where he had the opportunity of seeing the witnesses and hearing them testify, should not he disturbed on appeal, except where the evidence clearly preponderates against such finding and decree.</p> <p>2. Appeal and error, § 1395?—when findings of chancellor will he reversed. Evidence reviewed in a separate maintenance proceeding and decree dismissing the bill for want of equity reversed.</p> <p>3. Husband and wife, § 216*—when wife is entitled to separate maintenance. A complainant may be entitled to separate maintenance notwithstanding she may not have been wholly blameless or as patient under provocation as some women would have been, and where her conduct was not such as would have entitled her husband to a divorce, and she did.not voluntarily consent to the separation nor desert her husband.</p> <p>4. Husband and wife, § 218*—when wife is not required to return. After a separation between husband and wife, the latter is not bound to return, where,' although the husband stated that he was willing to have her return, he made no promise of future kindness or better treatment.</p>

<p>1. Costs, § 3*—When allowance of costs is erroneous. Hurd’s Rev. St. ch. 33, secs. 7, 17 and 18 (J. & A. Iflf 2721, 2731, 2732), in relation to costs, and chapter 34, secs. 33, 34 (J. & A. jfjf 2780, 2781), in relation to counties making it the duty of county boards to take measures for prosecuting and defending suits for oí against counties, and chapter 36, sec. 35 [Callaghan’s 1916 Stat. If 2920(19).], being that portion of the County Treasurer’s Act applicable to Cook county, in force July 1, 1915, considered in an equity case against the Cook county treasurer to enjoin the collection of taxes in excess of a stated amount, in which judgment for costs against the treasurer in his official capacity was denied; and held that the court abused the discretion vested in it by virtue of said section 18 of the Costs Act in not awarding costs to complainant, where the facts. disclosed that complainant was compelled to pay master’s fees and other costs in order to be relieved from an arbitrary, excessive and fraudulent assessment made by the State Board of Equalization.</p> <p>2. Counties, § 66*—when county is liable for expenses of treasurer. The word “expenses” in Hurd’s Rev. St. ch. 36, sec. 35 [Callaghan’s 1916 Stat. rj[ 2920(19)], being that portion of the County Treasurer’s Act applicable to Cook county, in force July 1, 1915, wherein it is provided that all reasonable expenses incurred by the county treasurer in prosecuting or defending suits brought by him in any official capacity shall be paid out of the county treasury, when read in connection with the second clause of chapter 34, sec. 33 (J. & A. 1i 2780), was broad enough to include costs involved in a chancery case against the Cook county treasurer in his official capacity, for relief against an arbitrary, excessive and fraudulent assessment made by the State Board of Equalization.</p> <p>3. Costs, § 4*—what is nature of discretion in allowing costs. The discretion of the chancellor in taxing or apportioning costs is a legal discretion, to be exercised according to equitable principles, otherwise it is a subject for review.</p>

<p>Appeal from the Circuit Court of Cook county;- the Hon. David M. Brothers, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.</p>

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

<p>1. Injunction, § 250*—when order is not violated. A department store corporation, which advertised by placards that it was selling one Louis J. Rothschild’s entire stock of millinery at 50 cents on the dollar, was not guilty of contempt of an injunctional order granted without notice under a bill filed by a competing department store widely known as “Rothschilds/ ” restraining the use by the defendant of advertisements in such a manner as to hold out or induce the belief that defendant was selling complainant’s millinery stock, where the placards, which defendant continued to display for some hours after the.service of the order, contained information, legible at a reasonable distance, showing that the stock was that formerly owned by one Louis J. Rothschild of St. Paul, Minnesota, although the word “Rothschild’s” was in somewhat larger type than the other words.</p> <p>2. Injunction, § 249*—-when complainant m^ist show injury because of violation of injunction. In a proceeding to punish a party for the breach of an injunction, the complaining party must not only show a breach, but must also show that he has in some way been injured thereby.</p> <p>3. Appeal and error, § 1813*—what need not be recited in reversing order. A proceeding to punish for violating an injunction being in the naturk of a chancery proceeding, it was not necessary for the Appellate Court, in reversing, to recite in its final order or judgment the facts as found, although, as Indicated in the opinion, different in part from the finding of the trial court.</p>

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

<p>Error to the Circuit Court of Cook county; the Hon. Ebedebiok A. Smith, Judge, presiding. Heard in this' court at the October term, 1919.</p>

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

<p>1. Insurance, § 95*—what constitutes contract of insurance. Under a life insurance policy expressly providing that the policy and application should constitute the entire contract and that no representations made by the insured in his application could be interposed as a defense unless they were contained in the written application, the insurer could not be heard to say that other questions were asked the assured and other answers made than those appearing in the written application.</p> <p>2. Insurance, § 204*—what is effect of good faith of applicant when policy is claimed to have been obtained by misrepresentation. Where it is sought to avoid a life insurance policy on the ground that the insured made false answers in his application, the question of the good faith of the applicant in making his answers, in the absence of an express provision that they are warranties, is always a material one, and the question in each case is whether the answers made by the applicant were knowingly false.</p> <p>3. Insurance, § 347*—what is effect of incontestible clause in policy. Although a policy provided for its incontestibility after one year from its issuance, and the insured died within about a month of such issuance and shortly thereafter notice of rescission was given, the company had the right to file pleas more than one year from the date of issuance. ></p>

<p>Error to the Superior Court of "Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the October term, 1919.</p>

<p>1. Judgment, § 1*—what is effect of statutes as to judgments and orders. As a general proposition all. orders, judgments and decrees are made in view of the statutory law, if there be any, governing or regulating the proceeding in which they are entered.</p> <p>2. Appeal and errob, § 271*—when decree is final. A decree was not provisional or conditional but final and subject to review, notwithstanding that certain defendants domiciled in Germany and Austria, as to whom it was claimed that by reason of a state of war still technically existing with those countries, the chancery court did not obtain jurisdiction in virtue of the 3-year limitation in section 19 of the Chancery Act (J. & A. f 899), and, that such court could not obtain jurisdiction until the war ceased.</p> <p>3. War, § 6*—what is effect of domicile of alien enemies as to civil remedies. No alien enemy can, during the existence of a state of war, obstruct, by his absence in enemy country, the operation of our laws as to the rights of citizens domiciled within the State, but such citizens may invoke such laws and enforce judgments and decrees relating to them, subject to the right of legal challenge when peace has been restored.</p> <p>4. Judgment, § 6*—what is effect of decree as to protection of trustee thereunder. A trustee would be protected in making distribution in faith of the verity of a decree while it remained in force and unreversed, notwithstanding there were defendants who were served by publication who had preserved to them their right to he heard to contest the bill within the 3 years given them for that purpose by section 19 of the Chancery Act (J. & A. If 899), and might do so successfully.</p> <p>5. Judgment, § 6*—when decree protects person paying money thereunder. A decree is a protection to a person paying out money in pursuance of its directions.</p>

<p>1. Divorce, § 110*—when alimony may he increased. Alimony was properly increased where the increase was not more than proportionate to the increased cost of living and the increased returns from farming enterprises, where defendant’s income was chiefly from a farm.</p> <p>2. Divorce, § 110*—when alimony may he increased because of additional medical expenses. A decree for alimony was properly modified so as to require the defendant to pay for unexpected expense in relation to medical attention to the children.</p> <p>3. Appeal and error, § 499*-—when record must show value of solicitor’s fees. Allowance of solicitor’s fees on the hearing of a motion for increase of alimony and on appeal was set aside in the absence of proof of the value of such services in the record, or a finding in the decree that such evidence was introduced and that, upon a consideration thereof, the court found that such fees were reasonable, usual and customary.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Nobman L. Jones, Judge, presiding. Heard in this court at the April term, 1919.</p>

<p>1. Carriers, § 3*—who are common carriers. Distinction between a common carrier and private carrier defined.</p> <p>2. Carriers, § 7*—liverymen as common carriers. Liverymen are not. common .carriers.</p> <p>3. Livery stable keepers, § 1*—right of livery stable keeper to lien. Livery stable keepers have not, like innkeepers, a lien upon live stock left with them for compensation for keep.</p> <p>4. Carriers, § 7*—proprietors of taxicabs, hacks, etc., as common carriers. Proprietors of taxicabs, stagecoaches, hacks and omnibuses are common carriers.</p> <p>5. Carriers, § 3*—when question of person being common carrier is for jury. Whether or not partners carrying on a taxicab business were common carriers was a question of fact for the jury.</p> <p>6. Appeal and error, § 1392*—what will be considered on appeal from directed verdict. In passing on the question whether the trial court, in an action on an accident insurance policy, erred in denying appellant’s motion to direct a verdict for single indemnity, the Appellate Court did not weigh the evidence but determined whether or not there was any evidence fairly tending to support plaintiff’s case.</p> <p>7. Trial, § 60*—when sufficiency of evidence is question of law. The question whether there is any evidence fairly tending to support plaintiff’s cause of action is one of law.</p> <p>8. Carriers, § 7*—when evidence establishes business as that of common carrier. Evidence, in an action against an accident insurance company for double indemnity, for the death of plaintiff’s intestate in a collision between a street car and the automobile in which he was riding and which he had hired from a partnership carrying on a taxicab business, fairly tended to prove that such partnership held itself out as an undertaking for hire to carry indiscriminately all persons applying and offering to pay their charges, and placed it in the same class as coachmen, hackmen and omnibus drivers, and it therefore was a common carrier.</p> <p>9. Carriers, § 3*—how carriers are defined. In defining the status of common carriers, the word “public” does not mean everybody all the time.</p> <p>10. Appeal and error, § 1402*—what court will determine as to evidence on appeal. Whether the evidence is clearly and manifestly against the weight of the evidence is a question of fact which, if properly presented, it is the duty of the Appellate Court to determine.</p>

<p>Error to the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the October term, 1919.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Appeal and error, § 426*—when ruling of court in sustaining demurrer is preserved. Where a demurrer to a special plea was sustained, and the defendant did not plead over, the ruling of the court was preserved for review although no express election to abide by the plea was made, and the record failed to show such election.</p> <p>2. Indemnity, § 16*—when actual payment of loss sustained is not required. Under an insurance policy insuring “against loss or expense arising or resulting from lawful claims upon the assured for damages” by reason of the operation of the described automobile, it was not necessary that the • insured, in an action against the insurance company to recover the amount of a judgment rendered against him as the result of injuries • sustained by a third party in a collision with plaintiff’s automobile, should • have actually paid or satisfied the judgment against him before bringing suit against the insurance company.</p>

<p>1. Insurance, § _ 147*—when time of payment of premium expires. Where the 31 days of grace granted in a life insurance policy for the payment of a premium expired on Sunday and the. insured died on the Monday following, without making payment, the policy was void.</p> <p>2. Insurance, § 147*—what statutory provisions do not affect time of payment of premiums. Paragraphs 17 and 211 of chapter 98, Hurd’s Rev. St. 1917, and clause 11, sec. 1, ch. 131 (J. & A. Iflf 7638, 7833, 11102), relating to the extension of time to Monday .where the time expires on Sunday, apply only to negotiable instruments and the construction of statutes and had no application to extending to the following Monday the days of grace for the payment of a life insurance policy premium, which expired on Sunday.</p> <p>3. Time, § 2*—when Sunday is excluded in computing time. It is doubtful if the general rule excluding Sunday where the last day of a period fixed by a decree, order of court or a statute falls on that day, is now supported by the weight of authority.</p> <p>4. Insurance, § 147*—when Sunday is excluded in computing days of grace. Even it*the rule that when the maturity date falls on Sunday the next day would be allowed for payment, applied to life insurance premiums, that would not extend the days of grace so as to allow payment to be made on a Monday where the last day of grace was Sunday.</p>

<p>Appeal from the Circuit Court of Cumberland county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Guaranty, § 39*—when verdict is responsive. In an action to recover the amount of a judgment against plaintiff’s intestate, where it was claimed that defendant had failed to take up a note for $525 which he had guaranteed the decedent should not be required to pay, and the common counts were filed together with a special count describing the note, a general verdict finding the issues for plaintiff with damages at $575 was responsive and would apply to each of the common counts as well as the special count, although the note showed no payment indorsed, and the amount of the note, with interest, would have been $718.56 at the time of the verdict.</p> <p>2. Evidence, § 323*—when parol admissible to show matters considered on trial. In an action to recover the amount of a judgment against plaintiff’s intestate, where it was claimed that defendant had failed to take up a note for $625, which he had guaranteed the decedent should not be required to pay, and where the common counts were filed together with a special count describing the note, and there was a general verdict for $575, plaintiff could have shown by parol, if such was the fact, that nothing was considered on the trial other than the note, or that no evidence was offered in support of any count other than the special one. In the absence of such evidence the Appellate Court could not say that the verdict was based solely on the note, as must have been to sustain the judgment.</p> <p>3. Action, § 15*—when demand is condition precedent to note. A demand was necessary as a condition precedent to an action on an obligation to pay the note of another before a certain day, the rule being otherwise where a party agrees to pay his own debt on request; such being regarded as an undertaking to pay generally and no special request need be alleged.</p>

<p>1. Limitation of actions, § 53*—when suit is commenced. The bringing of a suit is the issuing of the summons, or other process, to bring the defendant into court, and the declaration when filed relates back to the commencement of the suit and thereby prevents the running of the statute of limitations.</p> <p>2. Death, $ 30*—when statute of limitations is arrested by bringing of suit. Where an action to recover for death was brought within one year, the declaration which was filed after the year related back to the commencement of the suit and thereby prevented the running of the statute of limitations.</p> <p>3. Municipal cobpobations, § 107*—when ordinances are sufficiently proved. Ordinances of a city published in book or pamphlet form, together with the title page reciting as follows: “The Litchfield City Code, comprising the general and special ordinances of the city council. Published by authority of the city council,” etc., offered in evidence, showed the ordinances to be those of the City of Litchfield, Illinois, although it would have been more accurate to use the word “ordinance” instead of “code,” and to have substituted the words “City of Litchfield” instead of the words “city council.” j</p> <p>4. Pleading, § 56*—when allegations of count are immaterial. Where a case was tried on two counts, the allegations of another count were immaterial.</p> <p>5. Municipal corporations, § 107*—what is evidence of adoption of ordinances. ' A book or pamphlet containing ordinances and purporting to be published by authority of the city council is evidence of the passage and legal publication of the ordinances contained in it, as of the dates mentioned therein.</p> <p>6. Municipal corporations, § 79*—when ordinances must be published. Paragraph 64, ch. 24, Hurd’s Rev. St. 1917 (J. & A. If 1336), relating to the publication of city ordinances, is directory only and the public is protected by the provision that ordinances shall not take effect until 10 days after publication.</p> <p>7. Railroads, § 859*—when ordinance is admissible in evidence. An ordinance requiring a railroad company to obey it up to the point where its trains emerge from the limits of the city is a different thing from giving it extraterritorial effect; and such an ordinance was admissible where, if the collision was outside the city limits, it was not more than 20 or 30 ,feet outside.</p> <p>8. Appeal and error, § 1468*—when admission of evidence is harmless. Where one count in an action against a railway for causing death, declared on the statute imposing a duty to ring a bell or sound a whistle, and it was conceded that no bell was rung or whistle sounded, and the verdict was on that count and on another based on a' city ordinance imposing a like duty, any error in reference to the admission of such ordinance was harmless.</p> <p>/ 9. Appeal and error, § 1523*—when error in giving instruction is harmless. Recognizing the rule that after defects in an instruction have been pointed out by the Supreme Court it should not be again given, although it may not have been sufficient ground for reversal in the particular case, the giving of an instruction like one so condemned was not ground of reversible error under the facts of an action against a railroad for causing death.</p> <p>10. Railroads, § 889*—what is effect of instruction defining due care. Describing due care “while attempting to pass over the railway crossing” in question referred to the whole transaction and covered the time at and immediately before the injury, particularly in view of an instruction given for defendant especially covering its contention that the instruction complained of limited due care to the exact moment of the injury.</p> <p>11. Railroads, § 884*—when contributory negligence is question for jury. Failure to look and listen before crossing railroad tracks are proper questions for the jury to consider in passing on the question of due care, but such failure is not per se negligence.</p> <p>12. Instructions, § 151*—when refusal of requested instruction is proper. The refusal of a good instruction was not error where fully covered by another instruction given for the complaining party.</p> <p>13. Railroads, § 884*—when contributory negligence of person relying on care of railroad is for jury. Where the view of a decedent was obstructed so that the train which struck him could not have been seen until after it passed a southbound freight train, the caboose of which was standing about 150 to 300 feet south of the crossing, the decedent would necessarily be presumed to have been relying on the railway company to give the warnings by bell or whistle required by law; and the question of due care in looking and listening was one of fact for the jury.</p>

<p>1. Damages, § 32*—when instruction is erroneous. An instruction evidently based on the mistaken theory that plaintiff could recover what her husband had expended in and about curing her was erroneous.</p> <p>2. Railroads, § 780*—when instruction as to contributory negligence is erroneous. An instruction requiring the exercise of due care “at'the time and place named in the declaration,” which would be while appellee was “riding in said automobile across said railroad at the said crossing on the public street,” did not require the exercise of ordin'ary care at and immediately before the accident, where there was no evidence tending to show a collision while the automobile was crossing the track.</p> <p>3. Instructions, § 89*—when instruction as to preponderance of evidence is erroneous. In a collision case in which more witnesses testified for defendant than for plaintiff on disputed points, and the number of witnesses therefore became an important factor, an instruction given for plaintiff on the question of the preponderance of the evidence was improper, which eliminated the question of the number of the witnesses hy words used in the first part and then omitted it from an enumeration of the things the jury were told they should take into consideration.</p> <p>4. Appeal and error, § 438*—when objection must be made because of variance. The question of variance between the allegations of the declaration and the evidence offered in support of it cannot be raised for the first time in the Appellate Court.</p>

<p>Appeal from the Circuit Court of Adams county; the Hon. Habky Higbeb, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Master and servant, § 133*—what is duty of master as to place of worh. A master must use reasonable care to furnish his servants with a reasonably safe place for the performance of his work and he is liable for the negligent performance of such duty whether he undertakes its performance personally or through another person; and the question of his exercise of such reasonable care is for the jury.</p> <p>2. Master and servant, § 133*—when act of servant is in line of duty. In removing a box of explosives from along the tracks, a railroad patrolman was performing a duty the defendant railroad owed the freight conductor of a train who was on the caboose of his train in the yards and sustained injury by the explosion of the contents of a box while the same was on the platform where it had been placed by the patrolman; and such patrolman was within the line of his duty in placing the box where he did.</p> <p>3. Master and servant, § 110*—when negligence is proximate cause of injury. In an action by a conductor against a railroad company for injuries sustained through the explosion of the contents of a box which defendant’s patrolman had found along the tracks and placed on the platform of the caboose of a train standing in the yards and near where plaintiff was seated, it was not necessary that defendant or. its patrolman should have foreseen the exact consequences, and the jury properly found that defendant was guilty of negligence and that such negligence was the proximate cause of plaintiff’s injury.</p> <p>4. Master and servant, § 152*—when railroad is liable for negligence. A railroad company was liable for injuries sustained by a freight conductor who, while seated on the steps of the caboose of his train which was standing in the yards, was injured through the explosion of the contents of a box which defendant’s patrolman had found along the tracks and placed on the platform of the caboose.</p> <p>5. Master and servant, § 133*—what duties of master are nondelegable. The duty of a master to use due care to furnish a reasonably safe place for his employee to work in is a nondelegable duty of which the master cannot absolve himself by delegating it to another.</p> <p>6. Commerce, § 4*—what constitutes interstate commerce. A conductor was engaged in interstate commerce, where he had taken a train containing interstate shipments from Springfield to Decatur and was on continuous service until his return to Springfield, and where at the time of the injury in question he was at work about the caboose of a train standing in the yards and had received a call to take a train containing interstate cars to Springfield and was making necessary preparations to do so.</p> <p>7. Limitation of actions, § 62*—what change of parties does not affect action. Where the pleadings and the sheriffs heturn were amended, in a personal injury case, by changing the name of Wabash Railroad Company to Wabash Railway Company, and where the sheriffs return by virtue of such amendment showed that defendant was served within 2 years after the injury occurred, the error in name was merely a misnomer of which defendant could have availed itself by plea in abatement, and its failure to do so waived any claim of the statute of limitations.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M Jett, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Appeal from the Circuit Court of Sangamon county; the Hon. Elbebt S. Smith, Judge, presiding. Heard in this court, at the April term, 1920.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Error to the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1920.</p>

<p>1. Railroads, § 690*—when contributory negligence prevents recovery for injuries. The fact that the statute makes the running of a railroad train through a municipality at an unlawful rate of speed prima facie negligence, and that therefore the running of the train in question, in an action for the death of plaintiff’s intestate who was killed while riding in an automobile which was crossing defendant’s railroad at unlawful speed, was presumed to be negligence, did not give plaintiff the right to recover where the decedent was guilty of contributory negligence.</p> <p>2. Railroads, § 659*—what constitutes contributory negligence. Where plaintiff’s intestate, an adult, while intoxicated, had crowded with three other intoxicated men into a small inclosed automobile, at night, and knew that the car could not he operated efficiently by its inexperienced drunken driver, he was guilty of contributory negligence which precluded' recovery, where a whistle was blown and the train and crossing bells were rung while the train in question, with its headlight visible for miles, was approaching the village crossing at a rate of speed in violation of the statute.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court, at the April term, 1920.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the April term,' 1920.</p>

<p>Appeal from the Circuit Court of Coles county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1920.</p>